Over The Moon The Directory Agreement

This Over The Moon The Directory Agreement (“Agreement”) is a binding agreement by and between Over The Moon Blog, LLC, a South Carolina limited liability company (“OTM”) and the customer or other entity that receives the Services (“Customer”). This Agreement incorporates by reference the Privacy Policy available at https://help.ovorthemoon.shop/privacy-policy/.

This Agreement governs Customer’s access to, use and receipt of the Services. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR CUSTOMER’S USE OF THE SERVICES, WHETHER IN CONNECTION WITH A SUBSCRIPTION OR BETA SERVICES, AND REQUIRE MOST DISPUTES BETWEEN CUSTOMER AND OTM TO BE RESOLVED BY INDIVIDUAL ARBITRATION. BY CLICKING THE BOX INDICATING CUSTOMER’S ACCEPTANCE OF THESE TERMS, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER IS AGREEING TO THIS AGREEMENT ON BEHALF OF A CUSTOMER, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH CUSTOMER TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT ACCESS, USE OR RECEIVE, OR ATTEMPT TO ACCESS, USE OR RECEIVE, THE SERVICES.

THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE TERMS OF THIS AGREEMENT WITHOUT MODIFICATION BY CUSTOMER. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER OR ON CUSTOMER’S BEHALF IN ANY MANNER ARE HEREBY DEEMED TO BE MATERIAL ALTERNATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN BY OTM.

Please be aware that if Customer subscribes to services for the Initial Subscription Term (as defined below), then the terms of the Subscription will be automatically renewed for additional Renewal Subscription Term(s) at then-current fee for such Services, unless Customer cancels its subscription in accordance with Section 8 below.

OTM reserves the right, in our sole discretion, to change, modify, add, or remove portions of the Agreement at any time. OTM will provide Customer with notice of any material changes to this Agreement and such modifications shall be binding upon Customer upon such notice to Customer.

Access to the Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, OTM shall provide Customer Services related to The Directory pursuant to the following terms (collectively, the “Services”). OTM reserves the right to modify or discontinue the Services (in whole or in part) at any time. The Directory is a modern day digital rolodex designed with couples entering the wedding planning journey and industry experts in mind. When purchasing a subscription to Services, Customer may be presented with different plans or add-on options (each a “Service Tier”), and these Service Tiers may be subject to differences in pricing, usage rules, eligibility, restrictions, and features. We reserve the right to change the terms of Customer’s subscription, including the price pursuant to Section 7(b).
Limited License. During the Term, Customer hereby irrevocably grants to OTM and its affiliates, successors, licensees, agents, and assigns (“Authorized Persons”) a non-exclusive, royalty-free, irrevocable, transferable, worldwide and unrestricted license to the data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, links and other content or materials provided by Customer to OTM from time to time (the “Customer Content”) and the right and permission to take, use, re-use, copy, reproduce, exploit, publish and republish such Customer Content, in whole or in part, or composite or distorted in character or form, including the right to publish Customer’s name, image and likeness without restriction as to changes and alterations, in conjunction with Customer’s own or a fictitious name, or reproductions thereof in color or otherwise made through any digital medium solely for the purposes of appearing in The Directory and on OTM’s website, social media channels and other advertising channels of OTM, without further consent from or any royalty, payment, or other compensation to Customer. If the Customer Content includes any artwork or photographs or other content owned by third parties, Customer represents and warrants to the Company that it has all rights and consents necessary to post the Customer Content.
Restrictions.
1. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit its Authorized Users or any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services in connection with the development or training of large language models, machine learning models or related technology; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any OTM product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures OTM may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services. Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
2. OTM retains all rights, title, and interest in and to the Services, including but not limited to all intellectual property rights, trademarks, copyrights, patents, trade secrets, and any other proprietary rights associated therewith. Except as explicitly provided for in Section 1, nothing in this Agreement shall be construed as granting, whether by implication, estoppel, or otherwise, any license or other rights to the Customer to use, copy, modify, distribute, or otherwise exploit OTM’s intellectual property.
Cooperation. Customer acknowledges that the Services may require the reasonable cooperation of Customer personnel, including Authorized Users, as may be requested by OTM from time to time. Without limiting the foregoing, where agreement, approval, acceptance, consent or similar action by Customer is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, and Customer acknowledges that any delay or failure on the part of Customer to provide the same will relieve OTM of its obligations for the pendency of such delay or failure.
Ownership; Feedback. As between the parties, OTM retains all right, title, and interest in and to the Services, and all software, products, works, data and other intellectual property and moral rights related thereto or created, used, or provided by OTM for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any data and software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to OTM with respect to the Services (“Feedback”). Customer shall, and hereby does, grant to OTM a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
Confidentiality. Customer understands that OTM has disclosed or may disclose business, technical or financial information relating to OTM’s business, including but not limited to the terms of this Agreement and any communications between OTM and Customer in relation to this Agreement or OTM’s products, business or operations (hereinafter referred to as “Proprietary Information”). Customer agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The foregoing shall not apply with respect to any information that Customer can document (a) is or becomes generally available to the public, or (b) was in its possession or known by Customer prior to receipt from OTM, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information or (e) is required by law to be disclosed (but only to the extent of such requirement). Upon termination, Customer will promptly return or destroy all items and copies containing or embodying Proprietary Information.
Fees; Payment.
1. Customer shall be charged recurring fees (“Subscription Fees”) based on the Service Tier that Customer chooses for the Services (“Subscription”). The Subscription Fees are (i) payable and due in full immediately upon the date that Customer signs up for a Subscription; (ii) non-refundable; and (iii) exclusive of any taxes, levies, duties, fees or other amounts assessed or imposed by any government authority (“Taxes”), for which Customer is solely responsible. Customer authorizes OTM and/or its authorized agents, as applicable, to bill and automatically charge Customer the Subscription Fees, including for any Renewal Subscription Term (as defined below). If Customer does not cancel its Subscription prior to the next billing cycle pursuant to Section 8, then Customer will be automatically charged for the subsequent term. Customer acknowledges that billing for add-ons may not occur on the same date as billing for the underlying Service Tier subscription.
2. At the start of each Renewal Subscription Term (as defined below), OTM shall have the option, in its sole discretion, to increase the Subscription Fees or any other costs arising out of the Services with such increase effective as of the commencement of each applicable Renewal Subscription Term. OTM shall provide written notice at least 30 days prior to any such increases and if Customer does not agree to this increase, Customer can choose to terminate the renewal by giving written notice to OTM.
3. Where OTM does not receive payment towards the Subscription Fees within the due date for a Subscription, Customer shall be notified of such non-payment. OTM must receive payments within a maximum of fifteen (15) days from the date of OTM’s notice to Customer, failing which, in addition to OTM’s right to other remedies available under law, OTM may (i) charge an interest for late payment at 1.5% per month on the outstanding balance; (ii) suspend Customer’s access to and use of the Services until OTM receives Customer’s payment towards the outstanding Subscription Fees; and/or (iii) terminate the Subscription in accordance with this Agreement. In the event Customer in good faith dispute any charges invoiced by OTM, Customer shall promptly pay all undisputed charges within the due date, and shall notify OTM in writing of any such disputed amounts within fifteen (15) days of the due date, identifying in reasonable detail Customer’s reasons for the dispute and the nature and amount of the dispute. All amounts not timely and appropriately disputed by the due date shall be deemed final and not subject to further dispute.
4. Notwithstanding any amounts owed to OTM hereunder, OTM DOES NOT DIRECTLY PROCESS PAYMENT FOR ANY SERVICES. To facilitate payment for the Services via bank account, credit card, or debit card, we use Chargebee, Inc. (“Chargebee”), a third-party payment processor. These payment processing services are provided by Chargebee and are subject to the Chargebee’s terms and conditions and other policies available at https://www.chargebee.com/company/terms and https://www.chargebee.com/privacy (collectively, the “Chargebee Agreements”). By agreeing to this Agreement, Customers that use the payment functions of the Services also agree to be bound by the Chargebee Agreements, as the same may be modified by Chargebee from time to time. Customer hereby authorizes Chargebee to store and continue billing Customer’s specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Services. Please contact Chargebee for more information. OTM assumes no liability or responsibility for any payments you make through the Services.
Termination and Suspension.
1. Unless otherwise agreed upon, a Subscription is valid for a period of twelve (12) months from the date that the Customer’s Subscription is activated (“Initial Subscription Term”) and shall renew automatically for successive twelve (12) month periods (“Renewal Subscription Term”) unless terminated by either party in accordance with this Agreement. For the purposes of this Agreement, “Term” shall mean the Initial Subscription Term and any Renewal Subscription Term(s). Any add-ons that Customer may elect may have different terms than the Subscription Term.
2. To discontinue renewal of or otherwise modify a Subscription, either party must notify the other party in writing at least thirty (30) days prior to the expiration of the subsisting Term. For avoidance of doubt, such discontinuation or modification will not have any effect on the subsisting Term and the associated payment obligations. Customer may contact savannah@ovorthemoon.shop to terminate a Subscription.
3. Either party may terminate the relevant Subscription(s) or these Terms for the other party’s material breach of this Agreement where such material breach has not been cured within thirty (30) days of notice by the aggrieved party to the defaulting party (except non-payment breach which must be remedied within 15 days as detailed in Section 7(c) above). Where the aggrieved party reasonably believes a material breach cannot be cured, this Agreement may be terminated with immediate effect.
4. Notwithstanding anything contained herein, either party may terminate these Terms without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.
5. In the event of Customer’s actual or threatened breach of this Agreement, including any suspected unauthorized activity on Customer’s account or non-payment of Subscription Fees, OTM has the right to suspend all or part of the Subscription(s). Customer agrees to cooperate with OTM in any investigation into any unauthorized activity and where Customer’s breach remains uncured for fifteen (15) days following written notice, OTM reserves the right to terminate the Subscription and/or this Agreement with immediate effect.
6. Unless waived by OTM in writing or where the total Subscription Fees has already been prepaid, if a Subscription is terminated by OTM in accordance with Section 8(c), 8(d) or 8(e) of this Agreement, in addition to other amounts Customer may owe OTM, Customer must immediately pay all outstanding Subscription Fees.
7. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and related OTM intellectual property and Customer shall delete, destroy, or return all copies of the software and related OTM intellectual property. No expiration or termination will affect Customer’s obligation to pay all Subscription Fees that may have become due before such expiration or termination or entitle Customer to any refund.
8. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and termination and effect of termination provisions.
Representations and Warranties; Disclaimer.
1. Each party represents and warrants that: (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
2. Customer represents and warrants to OTM that (i) Customer owns all rights, title and interest in and to the Customer Content, or that Customer has otherwise secured all necessary rights in the Customer Content for OTM to perform the Services; and (ii) Customer and all users granted access to the Services under this Agreement will not use the Services in violation of any laws or regulations or obligations of confidentiality to any third party.
3. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. OTM DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, OTM MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, OR SUFFICIENCY OF THE SERVICES, AND NOTHING CONTAINED IN THE SERVICES SHALL BE DEEMED A REPRESENTATION OR WARRANTY AS TO THE INFORMATION THEREIN, OMITTED THEREFROM OR OTHERWISE.
Indemnification.
1. Customer shall indemnify, hold harmless, and defend OTM, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from and against any all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”) resulting from any third party claim that the Customer Content infringes or misappropriates such third party’s intellectual property rights and any third party claim based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by OTM or authorized by OTM in writing; or (iv) modifications to the Services not made by OTM.
2. OTM shall indemnify, hold harmless, and defend Customer, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from and against all Losses resulting from any third party claim that the Services infringe or misappropriate such third party’s intellectual property rights. The indemnifying party may not settle any third party claim against the indemnified party unless the indemnified party consents to such settlement, and further provided that the indemnified party will have the right, at its option, to defend itself against any such third party claim or to participate in the defense thereof by counsel of its own choice.
3. If the Services become or, in OTM’s sole discretion, are likely to become the subject of any injunction preventing its use as contemplated herein, OTM may, at its option (i) obtain for Customer the right to continue using the Services or (ii) replace or modify the infringing portions of the Services so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to OTM, then it may (iii) terminate this Agreement upon written notice to Customer and refund to Customer any Fees for the Services that were pre-paid for the then-current term, pro-rated for the remainder thereof.
4. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND OTM’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL OTM’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO OTM BY CUSTOMER HEREUNDER.
Limitation of Liability. IN NO EVENT WILL OTM BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER OTM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OTM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE SUBSCRIPTION FEES PAID TO OTM BY CUSTOMER HEREUNDER.
Trial Services.
1. From time to time, (a) OTM may make the Services available to Customer for evaluation purposes until the end of the trial period as stated in the corresponding order (the “Trial Period”); and (b) OTM may (x) invite Customer to try products or features related to the Services that are not generally available to all of OTM’s Customers (y) release products or features related to the Services that are identified as beta, preview, pilot, limited release, or by a similar designation (collectively, the “Beta Services”). Use of such Beta Services may include additional rules or restrictions on their use. OTM may discontinue the Beta Services at any time in its sole discretion, and OTM may decide not to make the Beta Services generally available.
2. Trial Periods and Beta Services may be provided for evaluation or testing purposes only, and, therefore, may contain bugs or errors, and may not be as reliable as other features of the Services. Trial Periods and Beta Services are provided “as-is,” AND OTM MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, AND OTM HEREBY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING.
3. Notwithstanding Section 9, during the Trial Period and for any Beta Services, Sections 10(b) and 10(c) shall not apply.
Third Party Applications, Services and Links. OTM utilizes certain third-party applications and services to power certain portions of the Services or to permit Customer to access the Services. OTM does not sponsor or endorse those third-party applications and services and has no obligation to support or maintain such third-party applications and services, and further OTM expressly disclaims any representations and warranties, with respect to such third-party applications and services. OTM does not monitor such third-party applications and services, nor does it have any control or input. Customer acknowledges and agrees that OTM provides access to such third-party applications and services on an “as is” and “as available” basis without any warranties, representations, or conditions of any kind and without endorsement. OTM shall have no liability whatsoever arising from or relating to Customer’s use of third-party applications and services. Customer’s use of the Services is conditioned upon Customer’s acceptance and compliance with the terms and conditions applicable to such third-party applications and services. Customer’s use of such third-party applications and services is at Customer’s own discretion and Customer shall ensure that Customer is familiar with and approve the terms on which such applications and services are provided.
Arbitration. PLEASE READ THIS CAREFULLY. IT AFFECTS CUSTOMER’S RIGHTS. Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between Customer and OTM arising under or related in any way to this Agreement, including Customer’s use of the Services, must be resolved through binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. CUSTOMER AGREES THAT BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND OTM ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. CUSTOMER AND OTM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. The arbitration will be governed by the then applicable Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this Section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, Customer and OTM must abide by the following rules: (i) the arbitration shall be conducted solely based on written submissions; and (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Charleston, South Carolina. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Charleston, South Carolina. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Charleston, South Carolina. Customer agrees to submit to the personal and exclusive jurisdiction of such courts.
Miscellaneous. This Agreement represents the entire agreement between Customer and OTM with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and OTM with respect thereto. This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, excluding its conflicts of law rules. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery services. Notices must be sent to the contacts for each party as provided by such party. Either party may update its address set forth above by giving notice in accordance with this section. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; pandemic; vandalism; accidents; sabotage; power failure; denial of services attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) OTM may utilize subcontractors in the performance of its obligations hereunder. The parties shall be independent contractors under this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. This Agreement is entered into solely between, and may be enforced only by, Customer and OTM. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.