Thank you for signing up for service with Evernym, Inc. (“Evernym”). By submitting an Order Form, clicking to accept these Terms of Service (“Agreement”), or using or accessing any Evernym Service, you agree to the terms and conditions of this Agreement. If you are an individual signing up for service on your own behalf, then you are the “Customer” who will be bound by the Agreement. Alternatively, if you are accepting this Agreement on behalf of a company or other entity, then “Customer” refers to that entity, you are binding Customer to this Agreement, and you and Customer represent and warrant that you have all the necessary authority to do so.
1.1 “Addendum” means an (i) addendum setting forth additional terms and conditions applicable to a specific Evernym Service selected by Customer or (ii) any other applicable additional terms and conditions, including the Support Services Addendum, the Sovrin Network Transaction Addendum, and, if Customer has been authorized to provide Resale, the Resale Addendum, in each case as referenced in these Terms and Conditions.
1.2 “Affiliate” means any entity which is controlled by, in control of, or under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
1.3 “Authorized Users” means the employees, contractors, customers and end users authorized by Customer or a Permitted Affiliate to access and use the Evernym Services on its behalf.
1.4 “Customer Information” means all information constituting the personal information of Customer or its Authorized Users, customers, or employees, created or transmitted through or by the Evernym Services, including without limitation information contained in Digital Credentials and related messaging and data.
1.5 “Customer Systems” means the equipment, communications devices, software, databases, services, and other resources owned or operated by or on behalf of Customer, whether located at a Customer or a third party provider site, used by Customer to access or use the Evernym Services.
1.6 “Documentation” means the written Evernym Services descriptions, technical information, user manuals, interface specifications, and Customer requirements documentation provided to Customer by Evernym, as may be amended by Evernym from time to time, excluding marketing materials, proposals, and other promotional information.
1.7 “Evernym Services” means the specific software, software-as-a-service offering(s) and/or product(s) of Evernym specified in a Customer Order Form, as further described in the applicable service-specific and general Addendums, and the Documentation relating thereto.
1.8 “Order Form” means any Evernym ordering documentation or online sign-up or service flow that references this Agreement that is executed by Customer (or in the case of online forms, otherwise accepted by Customer in accordance with its terms).
1.9 “Service Term” means the initial term for an Evernym Service, commencing on the Start Date, and each subsequent renewal term (if any), as specified herein or in an Order Form.
1.10 “Third Party Products” means any products or software used by Customer in connection or combination with the Evernym Services that are owned or licensed by a third party.
Other terms are defined in other Sections of this Agreement or in the relevant Addendum.
2.1 Provision of the Evernym Services. Customer may order Evernym Services through one or more Order Forms, which will be binding once accepted by Evernym. The Order Form(s) shall state the start of service date (“Start Date”), initial Service Term, and Fees for each Evernym Service. If no Start Date is specified in the applicable Order Form, it will be the date Customer is given access to the Evernym Service. Evernym shall provide the Evernym Services ordered by Customer during their respective Service Terms, subject to the terms and conditions of the Agreement. Each Evernym Service is also subject to the additional or varying terms and conditions set forth in the applicable service-specific or general Addendum(s). If the Order Form or an applicable Addendum limits the quantity of an Evernym Service to which Customer is entitled based on the Fees paid by Customer or otherwise restricts the services to which Customer is entitled (a “Service Limit”), Evernym may withhold provision of service in excess of the Service Limit. Unless the parties agree otherwise in writing, except for the Verity SDK and Verity API components of Verity (see the Verity Addendum), and the Mobile SDK (see the Mobile SDK Addendum), Evernym will provide the Evernym Services to Customer on a software as a service basis.
2.2 Service Terms; Renewal. After the initial Service Term, each Service Term will automatically renew for a period equal to your initial Service Term unless: (i) otherwise stated on the applicable Order Form or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Service Term. Pricing for any Service Term renewal, new Order Form, or Order Form changes will be at Evernym’s then-current rates. By executing an Order Form for purchase of a Evernym Service, Customer is agreeing to pay the applicable Fees for the entire Service Term. Customer cannot cancel or terminate a Service Term except by terminating the Agreement for cause pursuant to Section 6.4.
2.3 Support Services. Evernym shall provide the support and, where applicable, the service level agreements for the Evernym Services set forth in the Support Services Addendum (“Support Services”). As detailed in that Addendum, Evernym offers two levels of Support Services: Standard, which is included at no additional cost, and Premium, which is Fee-based. If Customer does not affirmatively elect Premium Support Services on an Order Form, Standard Support Services will be provided by default.
2.4 Digital Credential Anchor Networks; Additional Terms Applicable to Use of Evernym Services with Sovrin Network. The Evernym Services enable the creation, issuance, exchange, and verification of “Digital Credentials,” which are cryptographically-secured digital records containing information about a person, entity, or thing based on a pre-defined credential definition and digitally signed by their issuer. The Evernym Services require the use of a third-party distributed ledger technology-based digital identity network (a “Digital Credential Anchor Network”) to immutably record certain Digital Credential-related information. The only Digital Credential Anchor Network currently supported for use with the Evernym Services is the Sovrin Network overseen by the nonprofit Sovrin Foundation. Important additional terms governing Customer’s use of the Evernym Services in conjunction with the Sovrin Network are set forth in the Sovrin Network Transaction Addendum. Evernym may support other Digital Credential Anchor Networks in the future. Customer understands and agrees that the functionality provided by the Sovrin Network or other Digital Credential Anchor Networks supported in the future (i) is necessary to enable Customer to use the Evernym Services and (ii) is not part of the Evernym Services or provided by Evernym. Evernym has no responsibility or liability for the functionality provided by any Digital Credential Access Network, except for the obligations expressly set forth in the Sovrin Network Transaction Addendum.
2.5 Suspension of Evernym Services. Evernym may suspend the provision of some or all of the Evernym Services, if (i) Evernym determines, in its reasonable discretion, that Customer has engaged in fraudulent or illegal activities or that suspension is necessary to protect Evernym, the Evernym Services or any third party from harm or damages; (ii) Evernym has provided Customer with notice of termination pursuant to Section 6.3; or (iii) Customer has an outstanding Fee balance that is past due by more than thirty (30) days. Unless this Agreement has been terminated, Evernym will cooperate with Customer to promptly restore access to the suspended Evernym Service(s) once it verifies that Customer has resolved the condition requiring suspension.
3.1 License to Customer; Retention of Ownership and Rights by Evernym. Evernym hereby grants Customer a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable (except to Authorized Users) right during the Term to access and use the Evernym Services as detailed in the applicable Addendums hereto. Customer acknowledges and agrees that, as between Customer and Evernym, Evernym retains all right, title, and interest in and to the Evernym Services, including any feedback provided by Customer (e.g., bug fixes and features requests).
3.2 Use of Evernym Services by Customer’s Affiliates. If Customer wishes to authorize any of its Affiliates to use a particular Evernym Service pursuant to this Agreement, Customer may list those Affiliates on the applicable Order Form. Subject to Evernym’s acceptance of the Order Form, the listed Affiliates (each a “Permitted Affiliate”) may use the Evernym Services subject to complying with all of the terms and conditions of the Agreement. Customer shall be responsible and liable for the use of the Evernym Services by its Permitted Affiliates. Permitted Affiliates may not enforce the terms of this Agreement against Evernym. If a Permitted Affiliate ceases to be as an Affiliate of Customer, Customer shall promptly notify Evernym and such entity shall no longer be entitled to use the Evernym Services pursuant to this Agreement. If Customer wishes to add or remove an Affiliate from the list of Permitted Affiliates, it may do so by submitting an updated Order Form, subject to Evernym’s acceptance of the Order Form.
3.3 Authorized Users. Customer is responsible for compliance with the terms of this Agreement by its and its Permitted Affiliates’ Authorized Users and is liable for their acts or omissions. Customer shall not permit, and shall take the commercially reasonable steps necessary to prevent, use of or access to the Evernym Services by non-Authorized Users. Customer shall ensure that any user IDs, passwords, private keys and other access credentials for the Evernym Service are kept strictly confidential and not shared with any unauthorized person. Customer is fully liable for any unauthorized use of or access to the Evernym Services. Customer shall immediately notify Evernym of any unauthorized access to or use of the Evernym Services.
3.4 Prohibited Uses. Customer shall not, and shall ensure that its Permitted Affiliates and their respective Authorized Users do not: (i) access or use the Evernym Services for any purposes other than for their intended use as described in the applicable Addendums and/or Documentation, unless authorized by Evernym in writing; (ii) modify, create a derivative work of, reverse engineer, disassemble or decompile the Evernym Services, or any part thereof; (iii) transmit through or utilizing the Evernym Services, or otherwise introduce into the Evernym Services software viruses, time bombs, worms, Trojan horses, spyware, disabling devices, malicious code, or other harmful computer code, files or programs; (iv) interfere with, disrupt, or violate the terms of use of the Evernym Services or any third party services, systems or networks connected to or relied upon by the Evernym Services, including any Digital Credential Anchor Network; (v) remove or change the copyright, trade secret or other proprietary protection legends or notices that appear in connection with access to and use of the Evernym Services; (vi) copy, republish, download, frame or transmit in any form or by any means the Evernym Services, or any part thereof, except as expressly authorized herein; (vii) access or use the Evernym Services or any other Evernym systems or proprietary materials disclosed to Customer for the purpose of creating, in whole or in part, a product, service, or system that is competitive with the Evernym Services; (viii) publicly disseminate information regarding the performance of the Evernym Services (which is deemed Evernym’s Confidential Information); or (ix) break or circumvent any security measures, Service Limits, or usage tracking or monitoring of the Evernym Services.
3.5 Resale of the Evernym Services. Customer shall not engage in Resale of the Evernym Services unless expressly agreed to by Evernym in an Order Form or separate written agreement. Unless the parties agree otherwise, the terms of the Resale Addendum shall apply to any Resale of the Evernym Services. “Resale” means (i) offering or selling the Evernym Services to a third party, or (ii) including Evernym Services or any component thereof in a Customer product or service offered or sold to a third party who is not the ultimate end user.
4.1 Customer Systems, Access to Evernym Services. Customer is responsible for implementing and maintaining Customer’s access to, and integration with, the Evernym Services, in accordance with the Documentation, including without limitation with respect to all Customer Systems and Third Party Products. As between Customer and Evernym, Customer is solely responsible for the physical and technical security of and safeguards for Customer Systems and Third Party Products.
4.2 Customer Information. The Evernym Services permit Authorized Users to send and receive Customer Information to and from other Authorized Users and third parties. Evernym does not regulate, view or track the viewing, transmittal or receipt of Customer Information. As between Customer and Evernym, Customer is solely responsible for Customer Information, except to the extent that Evernym processes Customer Information in or through the Evernym Services (such Customer Information, the “Evernym-Processed Customer Information”), in which case Evernym shall be responsible for the Evernym-Processed Customer Information solely as set forth in Section 4.3. The foregoing notwithstanding, Evernym shall have no liability for (i) the viewing or use of Customer Information by a third party who has accessed or received such data (a) from Customer or any Authorized User, or (b) using any access credentials assigned to Customer or an Authorized User, or (ii) any transmission of Customer Information outside of the Evernym Services by Customer, an Authorized User or any third party using any access credentials assigned to Customer or any Authorized User.
4.3 Information Security and Data Protection. Solely with respect to Evernym-Processed Customer Information, Evernym shall maintain effective information security policies and procedures and systems in accordance with applicable law that include administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of Evernym-Processed Customer Information; and (ii) protect against anticipated threats or hazards to the security or integrity of Evernym Systems or the Evernym Services that could result in unauthorized access to or use of Customer Information. Evernym shall promptly notify Customer of any unauthorized access or use of Evernym-Processed Customer Information or any breach of the Evernym System or Evernym Services that has or reasonably could provide unauthorized access to or use of Customer Information. In addition to the foregoing, Evernym-Processed Customer Information subject to the GDPR shall be subject to the Data Processing Addendum (GDPR).
Customer shall pay Evernym the fees set forth in the Order Form(s) executed by Customer (“Fees”). Fees do not include any taxes, customs, duties, fees, or other amounts assessed or imposed by any governmental authority and imposed on the Evernym Services or Customer. Customer will pay all such amounts (excluding taxes imposed on Evernym’s net income) upon demand or provide proof of exemption. All amounts are payable in U.S. dollars. Unless otherwise specified in an Order Form, Evernym will invoice Customer for Fees on a monthly basis and payment shall be due thirty (30) days after receipt. Evernym will be entitled to recover from Customer all reasonable costs incurred by Evernym to obtain full payment, including reasonable attorneys’ fees. Some customers may have the option to pay by credit card. If Customer is paying by credit card, Customer authorizes Evernym to charge Fees automatically to Customer’s credit card without invoice.
6.1 Term. This Agreement is effective as of the date it was accepted by Customer. It will remain in effect until all Service Terms for the Evernym Service(s) have expired or are terminated pursuant to the Agreement.
6.2 Termination for Cause. Either party may terminate this Agreement (including all Order Forms) by giving written notice to the other party, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; or (ii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3 Effect of Termination or Expiration. Upon the expiration or termination of this Agreement, all permissions granted to Customer to use the Evernym Services will immediately cease, and Evernym may disable all access by Customer and Authorized Users to the Evernym Services. Upon request, each party shall return to the requesting party or destroy the requesting party’s Confidential Information (except such information required to be maintained under applicable law). Customer shall promptly pay Evernym for all Fees due to Evernym up to the effective date of termination or expiration, unless Evernym terminated the Agreement for cause pursuant to Section 6.2, in which case Customer shall promptly pay all Fees due to Evernym through the end of the then-current Service Term(s).
6.4 Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 5 (Fees and Payment), 6 (Agreement Term and Termination), 7 (Confidential Information), 9 (Indemnification), 10 (Limitations of Liability), 11 (Publicity), and 12 (Miscellaneous).
7.1 Confidentiality Obligation. Each party must: (i) hold in confidence and not disclose the other party’s Confidential Information to any third party except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement. “Confidential Information” means any and all non-public data and information, regardless of the form or media, belonging or relating to the disclosing party, including without limitation the terms and conditions of this Agreement. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents and contractors having a legitimate need to know, provided that the party remains responsible for the recipient’s compliance with the terms of this Section 7.
7.2 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) has become generally known to the public through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
7.3 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so in the event of an actual or threatened breach of this Section 7, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
8.1 Evernym Warranties. Evernym warrants that during the Term, the Evernym Services will be performed in a workmanlike manner and in material conformance with this Agreement and the Documentation.
8.2 Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE EVERNYM SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND EVERNYM DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, SATISFACTORY QUALITY, TITLE, SECURITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE WITH RESPECT TO THE EVERNYM SERVICES. Without limiting the foregoing, Evernym disclaims any responsibility for the accuracy of any data or other information transmitted by or through the Evernym Services. Except to the extent (and only to the extent) set forth in Support Services Addendum, Evernym does not ensure uninterrupted or error-free services. In addition, Evernym shall not be liable for any disruptions to, failures of, or unauthorized access to the Evernym Services caused by the failure, impairment, or actions or inactions of any third party entity or network, including without limitation any Digital Credential Anchor Network, telecommunications and data networks, equipment malfunctions, or power losses.
9.1 By Customer. Customer shall indemnify, hold harmless, and at Evernym’s option, defend Evernym, its Affiliates, and their respective officers, directors, employees, and agents from and against any liabilities, damages, losses, fines, judgments, costs, and expenses (including, reasonable attorney’s fees and court costs) (collectively, “Losses”) resulting from any third party claims, suits, proceedings, actions or demands arising from Customer’s material breach of this Agreement.
9.2 By Evernym. Evernym shall indemnify, hold harmless, and at Customer’s option, defend Customer, its Permitted Affiliates, and their respective officers, directors, employees, and agents from and against Losses resulting from any third party claims, suits, proceedings, actions or demands arising from Evernym’s material breach of this Agreement.
9.3 Procedure. In the event of an indemnification claim, the indemnified party shall: (i) provide the other party prompt notice of the claim or threatened claim (provided that the indemnifying party’s obligations shall not be affected by any delay or failure in providing such notice unless it demonstrates it was prejudiced thereby); (ii) give the indemnifying party the right to assume control of the defense of the claim, including appeals, negotiations and any settlement or compromise thereof, provided that the indemnifying party shall notify the indemnified party of its election in that regard within fifteen (15) days of receipt of the indemnified party’s notice; and (iii) assist with the defense and settlement of the claim as reasonably requested by the indemnifying party, at the indemnifying party’s expense. The indemnifying party will not enter into any settlement that imposes any liability or obligation on the indemnified party, or contains any admission or acknowledgement of wrongdoing, without the indemnified party’s prior written consent. The indemnified party may join in the defense, with its own counsel, at its own expense.
10.1 Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF THE USE OF THE EVERNYM SERVICES OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF LAW OR EQUITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE), EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Aggregate Liability Limit. EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS, FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR EVERNYM’S PERFORMANCE OR NON-PERFORMANCE OF EVERNYM SERVICES UNDER ANY THEORY OF LAW OR EQUITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE), SHALL BE LIMITED TO A MAXIMUM OF THE FEES PAID OR PAYABLE TO EVERNYM BY CUSTOMER FOR THE PRECEDING TWELVE (12) MONTHS.
10.3 Exceptions. None of the limitations in this Section 10 apply to limit either party’s liability for fraud or intentional misconduct, or for death or personal injury.
Neither party may (a) issue a press release or make any public statements (including without limitation blog or social media postings) concerning this Agreement or the Evernym Services, or (b) use the trademarks or trade names of the other party, without the advance written approval of the other party, which shall not be unreasonably withheld. The foregoing notwithstanding, Evernym may describe Customer as an Evernym customer and may use Customer’s name and marks for that limited purpose, provided that it does so in accordance with any written trademark guidelines provided by Customer. Customer may at any time decline to allow such use of its name and marks by providing written notice to Evernym.
12.1 Force Majeure. Evernym shall not shall be considered to be in breach of the Agreement for any failure or delay in fulfilling its obligations hereunder, if caused by an act of nature or public enemy, war, government acts or regulations, fire, flood, embargo, quarantine, epidemic or pandemic, labor stoppages, unusually severe weather, malicious acts of third parties, interruption of telecommunications service, or other cause beyond the party’s reasonable control (collectively, a “Force Majeure Event”). If the Force Majeure Event continues for a period of more than thirty (30) days, Customer may, upon notice to Evernym, as its sole and exclusive remedy, terminate this Agreement.
12.2 Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the state of New York, excluding its conflicts of laws principles. Jurisdiction and venue for any claim or cause of action arising under this Agreement shall be solely and exclusively in the United States District Court for the Southern District of New York, and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, that court. If subject matter jurisdiction does not exist in the United States District Court for the Southern District of New York, then the sole and exclusive forum and venue for any such action shall be the courts of the State of New York located in New York County and the parties submit to personal jurisdiction of, and waive any personal jurisdiction or inconvenient forum objection to, such court. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE.
12.3 Notices. Any notice required or permitted under this Agreement must be given in writing and sent to Customer at the email address specified on the Order Form and to Evernym by certified mail or overnight courier service to Evernym, Inc., Attn: Office of the Chief Executive, 770 East Main Street #135, Lehi, UT 84043 and by email to legal@evernym.com, provided that the parties may change their designated notice addresses by providing notice pursuant to this Section 12.3.
12.4 Relationship of the Parties. The parties are independent entities and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
12.5 No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto, and no third parties shall have any rights or be entitled to any benefits under this Agreement.
12.6 Incorporation of Order Forms and Addendums; Order of Precedence. Order Forms accepted by Evernym and the Addendums are hereby made part of the Agreement. In the event of a conflict between these Terms of Service and any Addendum, the Addendum shall prevail. No change to these Terms of Service or an Addendum may be made by an Order Form, unless the Order Form (i) is executed by duly authorized representatives of both parties and (ii) specifically expresses the parties’ intent to amend the Agreement and identifies the specific provision(s) to be superseded, in which case the terms of the Order Form will prevail.
12.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous oral, implied, or written agreements with respect to the subject matter hereof.
12.8 Amendments. During a Service Term, any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party. The foregoing notwithstanding, if Evernym modifies the Agreement, including any applicable Addendums, during Customer’s Service Term, the modified version will take effect and be binding on Customer upon Customer’s next Service Term renewal.
12.9 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Evernym may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities.
12.10 Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
12.11 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
12.12 Counterparts; Electronic Delivery. This Agreement may be signed in one or more counterparts. An electronic copy of an original signature page shall be binding to the same extent as the original.