Urban Airship Terms of Subscription Service for Online Sign-up ("Agreement")

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A CONTRACT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

You may not access or use the Service if You are Urban Airship’s direct competitor. In addition, You may not access or use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement supersedes all prior agreements between the parties regarding the subject matter contained therein.

This Agreement was last updated on November 23, 2015, and is effective as of the date of Your acceptance of this Agreement, either by clicking a box indicating You acceptance or by executing a contract that references this Agreement.

1. DEFINITIONS

“Acceptable Use Policy” means the Urban Airship policy for appropriate use of the Service. The most recent copy of such Acceptable Use Policy is available here: http://urbanairship.com/legal/acceptable-use-policy.

“Account User” means an individual who is authorized by You to use the Service, and to whom You (or Urban Airship at Customer’s request) have supplied a login ID and password. Account Users may include Your employees, consultants, contractors and agents.

“Customer” means You as well as any companies, affiliates, or entities You are representing for the purpose of this Agreement.

“Customer Data” means electronic data and information uploaded by or for Customer via the Service or Processed by or for Customer using the Service.

“Documentation” means Urban Airship’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via docs.urbanairship.com.

"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

"Processing", "Process" and "Processed" means any operation or set of operations performed upon Customer Data, whether or not by automated means, such as upload, collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, erasure or destruction.

“Registration Form” means the applicable webpage or order document where a link to this Agreement is included and where You signed up to receive an account on the Service.

“Service” means one or more of Urban Airship’s software as a service platform and related APIs referenced in the applicable Registration Form. "Service" includes the Urban Airship Library, but excludes Third Party Applications.

"Third Party Applications" means Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that are provided by Customer or a third party and interoperate with the Service.

“Urban Airship” means Urban Airship, Inc.

"Urban Airship Library" means the latest version of Urban Airship's proprietary binary library made available by Urban Airship for purposes of enabling the Service.

2. USE OF SERVICE; FEES

2.1 Use of Service. In order to use the Service and create Your account, You must complete the registration process by providing Urban Airship with current, complete and accurate information specified in the Registration Form. Conditioned on Your compliance with this Agreement, while You have a current subscription to the Service, Urban Airship grants You a non-exclusive, non-transferable, non-sublicenseable license to access and use the Service for which You have a current subscription, (a) only in connection with the ordinary operation of Your business, solely in jurisdictions where Your use of the Service is permitted by applicable law, and (b) only up to the limits specified for the Service package You signed up for on the Registration Form. If Your usage of the Service exceeds such usage limitation, You must immediately (i) purchase an upgraded Service package to allow for such increased usage by contacting Urban Airship, or (ii) decrease Your usage of the Service so that the usage level is within the applicable limitations, or Urban Airship may suspend or terminate Your access to and use of the Service as specified in Section 3 below.

2.2. Fees. If You have purchased a paid package of the Service, You will pay all fees specified online on the webpage linked to the Registration Form. As part of the registration process You shall provide Urban Airship with valid and updated credit card information, and authorize Urban Airship to charge such credit card for payment of applicable fees. You are responsible for providing complete and accurate billing and contact information to Urban Airship, and notifying Urban Airship of any changes to such information. Unless otherwise stated, all amounts payable shall be in the currency of the United States. Fees for the Service do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your subscription to the Service. If Urban Airship has the legal obligation to pay or collect Taxes for which You are responsible under this Section, Urban Airship will invoice You and You will pay that amount unless You provide Urban Airship with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Urban Airship is solely responsible for taxes assessable against Urban Airship based on our income, property and employees. Your failure to pay all amounts due on a timely basis will be deemed material breach of this Agreement, and we may suspend or terminate Your access and use of the Service as specified in Section 3 below.

2.3 Your Responsibilities. You will (a) be responsible for all activities conducted under Your and any Account Users' logins, and Your and all Account Users' compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which You acquired Customer Data and use Customer Data, (c) use the Service only in accordance with the Documentation, Acceptable Use Policy and applicable laws and government regulations, and (d) comply with terms of service of Third Party Applications with which You use or access the Service or transfer Customer Data from or to the Service, or add or merge additional data from such Third Party Applications with Customer Data.

3. TERM AND TERMINATION

3.1 Term. Urban Airship will provide access to the Service for the term specified on the applicable Registration Form (the "Term") after which the Term will automatically renew, unless either party has provided the other party with notice of its decision not to renew the Term. Upon termination, Customer will no longer have access to the Service or Customer Data, unless Customer has purchased a subscription to the Service.

3.2 Termination. A party may terminate this Agreement for cause (a) upon three (3) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, (b) immediately, if Your usage of the Service exceeded the applicable limitations and You have not purchased an upgrade to allow for additional usage or decreased Your usage of the Service so that the usage level is within the applicable limitations, or (c) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing and any other provision of this Agreement, Urban Airship has the right to immediately suspend or terminate Your access to and use of the Service for (i) non-payment of fees when due, (ii) any actual or suspected violation of any obligations of Section 4 or 5.4, or (iii) if Your use of the Service, or any activity originating from, occurring in connection with or authorized via Your account on the Service interrupts or slows down the Service.

3.3 Effect of Termination. Upon termination or expiration of the Agreement You will cease all access to and use of the Service. In the event this Agreement is terminated (or Your right to access and use the Service is suspended or terminated) (i) You will not be entitled to any refunds of any fees, (ii) any outstanding balance for Service rendered through the date of termination, and any other unpaid payment obligations for the remainder of Your subscription term will be immediately due and payable in full (unless termination is due to a problem with the functioning of Service or a breach of contract by Urban Airship), and (iii) You will, within a reasonable period of time (but no more than thirty (30) days) remove all Urban Airship Library from any of Your mobile applications or other products or services owned or controlled by You. The following sections will survive any expiration or termination: 3.3, 5, 6, 8, 9 10, 11 and 13 – 20.

4. USAGE RESTRICTIONS; third party applications
4.1 Usage Restrictions. You will not (a) make the Service available to, or use the Service for the benefit of, anyone other than You, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service in a manner that violates applicable law, or any third party privacy rights or intellectual property rights , (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service, or for other competitive purposes or (j) reverse engineer the Service. Notwithstanding any language to the contrary included in this Agreement, Your access to and use of the Urban Airship Engage Service is conditioned on including the Urban Airship Library in each of Your mobile applications that connect to or use the Engage Service. Connecting to or using the Urban Airship Engage Service via any method other than through the Urban Airship Library shall be deemed material breach of this Agreement. In addition to any other remedies that We may have under this Agreement or at law, We will not provide any technical support if You are in violation of the above requirement regarding the use of the Urban Airship Library. If the Service includes Urban Airship Wallet, We reserve the right to remove Your account on such Service and/or any digital wallet items on Your account, if You are in breach of Section 2.3 or 4 of this Agreement or Your use of Urban Airship Wallet Service (including any digital wallet passes on Your account) triggers Apple's or Google's (or another similar third party application) right to revoke their certificates issued to You for Apple Passbook or Google Digital Wallet, as applicable.

4.2 Third-Party Applications. If You install or enable a Third Party Application for use with the Service or Customer Data, You grant Urban Airship permission to allow the provider of that Third Party Application to access Customer Data as required for the interoperation of that Third Party Application with the Service. Urban Airshp is not responsible for any usage, transmission, disclosure, modification or deletion of Customer Data resulting from access by a Third Party Application.

The Service may contain features designed to interoperate with Third Party Applications. To use such features, You may be required to obtain access to Third Party Applications from their providers, and may be required to grant Urban Airship access to Your account(s) on the Third Party Applications. If the provider of a Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, Urban Airship may cease providing those Service features without entitling You to any refund, credit, or other compensation.

5. PROPRIETARY RIGHTS AND LICENSES; CUSTOMER DATA

5.1 Ownership of the Service . Urban Airship (and Urban Airship's licensors, where applicable) shall own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service. No rights are granted to Customer hereunder other than as expressly set forth herein, and Urban Airship (and Urban Airship's licensors, where applicable) reserve all rights not expressly granted herein.

5.2 License to Use the Urban Airship Library . Urban Airship grants to Customer a worldwide, limited-term license to use the Urban Airship Library solely in connection with the Service and in accordance with this Agreement and related Documentation during the Term. Upon any expiration or termination of the Term, Customer must cease using the Urban Airship Library and remove any Urban Airship Library from all of Customer's mobile applications, products and/or services as soon as practicable, but no more than 30 days from any expiration or termination of the Term. The foregoing provision shall not apply if Customer purchased an upgraded account on the Service that goes into effect upon the expiration of the Term.

5.3 Ownership of Customer Data . As between Customer and Urban Airship, Customer shall own any and all Customer Data. Customer shall have sole responsibility for the accuracy and quality of any and all Customer Data and for establishing all terms and conditions applicable to Customer’s audience. Customer hereby grants to Urban Airship a non-exclusive, royalty-free, non-transferable (except pursuant to a permitted assignment as provided in Section 16), worldwide license during the Term to (a) access and use Customer Data solely for the purpose of providing the Service in accordance with this Agreement, and (b) make applicable Customer Data available to Third Party Application based on configuration of the Service by Customer or an Account User. Additionally, Customer understands that the technical processing and transmission of the Service, including any Customer Data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.

5.4 Use of Customer Data . Customer is responsible for complying with all applicable laws relating to Customer’s or any Account User’s use of the Service, including, without limitation, privacy laws governing Processing of Customer Data via the Service. Without limiting the generality of the foregoing, Customer is solely responsible for: (a) ensuring that Customer and Urban Airship, acting on Customer’s behalf, have the right to Process, use and share Customer Data via the Service; and (b) providing adequate notice to, and obtaining any necessary consents from, Customer’s audience, end-users and any other applicable third parties, as required under applicable laws, with respect to the Customer Data Processed via the Service. Notwithstanding any other provision included in this Agreement, Customer acknowledges that the Service is not designed with security and access management for Processing any sensitive personally identifiable information, including, without limitation, government issued ID numbers, individual medical or health information (including protected health information under HIPAA), individual financial information, security codes, passwords, credit or debit card numbers, or "sensitive personal data" under the Directive 95/46/EC (each of the foregoing, "Prohibited Data"). Customer shall not, and shall not permit any Account User to, provide any Prohibited Data or Process any Prohibited Data via the Service, and shall ensure that no Customer Data constitutes or contains Prohibited Data. Urban Airship and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Data that violates any of the terms of this Agreement or any applicable law.

5.5 Usage Data . Customer grant to Urban Airship and Urban Airship’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from Customer’s, and Account Users’ use of the Service (“Usage Data”) as aggregated with usage data from Urban Airship’s other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of Urban Airship’s services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular customer or end-user of Customer and is not to be deemed Customer Data.

5.6 Federal Government End Use Provisions . This Section 5.6 applies only if Customer is the United States federal government or one of its agencies. Urban Airship provide the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it shall negotiate with Urban Airship to determine if there are acceptable terms for granting those rights, and the government agency shall include a mutually acceptable written addendum specifically granting those rights in any applicable agreement.

6. DISCLAIMER OF WARRANTIES

URBAN AIRSHIP MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND URBAN AIRSHIP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. URBAN AIRSHIP DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATION FOR ANY HARM OR DAMAGE CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR APPLICATIONS.

7. MODIFICATIONS

Urban Airship may change or modify any of the terms and conditions contained in this Agreement, the Service or any policy governing the Service at any time by posting the new agreement to Urban Airship’s site located at: http://urbanairship.com/legal/online-account-terms. Urban Airship will use reasonable efforts to notify You of the change, which may include posting an announcement on the Urban Airship site, informing You through Your account, in-product notices or via email. Your continued use of the Service following Urban Airship's posting or notice of the change(s) will constitute Your acceptance of such change(s). If You do not agree to any of the changes, Urban Airship is not obligated to continue providing the Service, and You must immediately cancel and stop using the Service.

8. LIMITATION OF LIABILITY

URBAN AIRSHIP'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE IS LIMITED TO $10,000. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

IN NO EVENT WILL URBAN AIRSHIP HAVE ANY LIABILITY TO CUSTOMER, ANY ACCOUNT USER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THAT THIS IS FOR A NO-CHARGE OR LIMITED CHARGE USE OF THE SERVICE, AND IF URBAN AIRSHIP WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, URBAN AIRSHIP WOULD HAVE CHARGED A SUBSTANTIALLY INCREASED FEES FOR USE OF THE SERVICE. URBAN AIRSHIP HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THIS AGREEMENT.

9. INDEMNIFICATIONS

Customer shall defend, indemnify, and hold Urban Airship harmless from and against any claims, suits, losses, damages, liabilities, costs, and expenses including attorneys’ fees brought by third parties resulting from or relating to: (i ) breach of Section 4 (Usage Restrictions); (ii) any claim that the Customer Data, as provided by Customer, infringes or misappropriates the intellectual property rights or any other proprietary or privacy rights of any third party; or (iii) Customer or any Account User's access to or use of any Service under this Agreement.

10. FEEDBACK

Customer grants to Urban Airship and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service and/or any other services owned by Urban Airship, enhancement request, recommendation, correction or other feedback provided by Customer or its users relating to the operation of the Service and/or any other services owned by Urban Airship.

11. CONFIDENTIALITY

11.1 Definition of Confidential Information . “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; Urban Airship’s Confidential Information includes the Service; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

11.2 Protection of Confidential Information . The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party may not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. The Receiving Party may disclose Disclosing Party's Confidential Information to its Affiliate's or its investors, and their respective officers, directors, principals, employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement. To the extent that the Receiving Party desires to make a disclosure to any persons other than its officers, directors, principals, employees, attorneys and accountants, as condition precedent to disclosure, such recipient must execute a confidentiality agreement substantially similar to this Section before disclosure is made.

11.3 Compelled Disclosure . The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

12. MARKETING

Customer authorizes Urban Airship to use Customer’s name and logo to identify Customer as Urban Airship’s customer on its website, and as a part of general list of Urban Airship’s customers for use and reference in Urban Airship’s corporate, promotional and marketing literature.

13. GOVERNING LAW

Each party agrees to the laws of the State of Oregon without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts located in Portland, Oregon.

14. EXPORT COMPLIANCE

The Service, the Urban Airship Library and other technology Urban Airship make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service or Urban Airship Library in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation. Customer shall not access or use the Service if Customer is located in any jurisdiction in which the provision of the Service, Urban Airship Library or Customer Data are prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Service, the Urban Airship Library or Customer Data to any government, entity or individual located in any Prohibited Jurisdiction. Customer represent, warrant and covenant that (a) Customer is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (b) Customer is not a national of, or a company registered in, any Prohibited Jurisdiction, (c) Customer shall not and Customer shall not permit any Account User to access or use the Service, the Urban Airship Library or Customer Data in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (d) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer or any Account Users are located.

15. FORCE MAJEURE

Each party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third Party Applications, failure of any third party operating systems, platforms, applications or networks not under reasonable control of Urban Airship, or other similar occurrence.

16. ASSIGNMENT

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

17. RELATIONSHIP OF THE PARTIES

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.

18. THIRD-PARTY BENEFICIARIES

There are no third-party beneficiaries under this Agreement.

19. WAIVER

No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

20. ELECTRONIC SIGNATURE

Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile, e-mail electronic signatures, and any electronic record.