Beam Impact Inc., Master Services Agreement

SERVICES AGREEMENT

This Services Agreement was last updated on July 29, 2020. 

By signing the Order Form, having access to, receiving, and/or using any of the services provided by Beam Impact, Inc. (“Beam”), you agree, on behalf of you and your organization (collectively, “Client”), without limitation or qualification, to be bound by and to comply with this Services Agreement (the “Agreement”).  Each Order Form will be deemed to incorporate this Agreement as it is published by Beam on the effective date of such Order Form

1.  Definitions.
1.1.  Aggregated Data means aggregated and anonymized End User Data.

1.2. “
Beam App” means Beam’s mobile application accessed by users to enable such users to donate a portion of their purchases at participating retailers (each, a “Donation”) to charitable organizations (“Nonprofits”).

1.3. “
Beam End User” means an individual who accesses the Beam App related to a purchase made from Client and has agreed to Beam’s online Term of Service (the “TOS”).  A Beam End User’s use of the Beam Services is governed by the TOS.

1.4. “
Beam End User Data” means data submitted by or collected from Beam End Users via the Beam App related to Beam End Users’ purchases from Client and any associated Donations. 

1.5. “
Beam Services” means the services provided to Client under this Agreement, as further described in Section 2 below.

1.6. “
Client App” means Client’s mobile application made part of the Integration and accessed by Client End Users.

1.7.  “
Client Data” means the information, data, and other content, in any form or medium, that is submitted by or collected from Client through the Integration or any other means, including Client End Users’ data (“Client End User Data”), but excluding Beam End User Data and Usage Data.

1.8.  “
Client End User” means a customer of Client who accesses the Beam Services through the Client App and who has not signed the TOS.

1.9. “
Client Service Provider” means Client’s third-party service provider who configures, enables, and manages the Integration on behalf of Client.

1.10.  “
End User” means Client End User and Beam End User.

1.11.  “
Integration” means the integration of the Beam App with the Client App via the Technology, which enables Client End Users to access the Beam Services through the Client App.  All terms in this Agreement related to the Integration will apply only to the extent Client has purchased such Beam Services under an Order Form.

1.12.  “
IP Rights” means all patent, copyright, trademark, trade secret, rights in know-how, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.

1.13.  “
Marks” means a party’s name, logo, and trademarks.  Any use and display of a party’s Marks by the other party will be in accordance with such party’s trademark guidelines, if provided to the other party.

1.14. “
Order Form” means the initial order for the Beam Services and other services provided by Beam, and any subsequent orders, entered into between the parties in writing (including via a web interface), specifying, among other things, the services, fees, and other relevant terms as agreed to between the parties, each of which are incorporated herein by reference and governed by the terms of this Agreement.

1.15. “
Supported Nonprofit” means a Nonprofit that Client has allowed End Users to allocate Donations to and specified in an Order Form.

1.16. “
Technology” means Beam’s proprietary software used to operate or perform the Integration, including Beam’s API or SDK and any other technology and documentation related to the Integration provided to Client (or Client Service Provider, as applicable) by Beam.

1.17.  “
Term” is as defined in Section 9.1.1.18.   “Trial Period” means the trial period as set forth in Order Form, if applicable.  Use of the Beam Services by Client during the Trial Period is subject to the terms of this Agreement, as modified by the Order Form.

1.19. “
Usage Data” means any anonymized and aggregated data that is derived from the processing of Client Data or the access or use of the Beam Services by or on behalf of Client, that in no way identifies or refers to Client or End Users, and any statistical or other analysis, information, or data based on or derived from the foregoing. 

2.  The Beam Services.  
2.1.  Description.  As further set forth in an Order Form, the Beam Services may include: (i) featuring Client in the Beam App along with Beam’s other clients; (ii) providing the Integration in order to enable Client End Users to provide a one percent (1%) Donation to a Supported Nonprofit; and (iii) providing Client with monthly reports, including the Aggregated Data, accompanying each invoice. 

2.2. 
Limited License.  During the Term and subject to Client’s compliance with this Agreement, Beam hereby provides Client with: (i) a limited, nonexclusive, nontransferable, sublicensable (solely to Client Service Provider) license to use the Technology solely to enable the Integration in order to make available to Client End Users certain aspects of the Beam Services; and (ii) a limited, nonexclusive, nontransferable, nonsublicensable license during the Term to use the Aggregated Data solely for its internal business purposes. 

2.3. 
Limited Warranty.  Beam will perform the Beam Services in a professional and workmanlike manner consistent with generally accepted industry standards.  Client’s sole remedy and Beam’s sole obligation for any such failure will be for Beam to use its commercially reasonable efforts to correct such non-compliance.

2.4. 
Unauthorized Access.  Client will take all reasonable steps to prevent unauthorized access to the Integration.  Client will notify Beam immediately of any known or suspected unauthorized use of the Integration or breach of its security and will use best efforts to stop said breach.

2.5. 
Privacy Policy.  If a party collects data from End Users, such party will post a consumer-facing privacy policy that complies with all applicable laws, rules, and regulations, and completely and accurately describes its information collection, use, and disclosure practices.

3.  Client’s Responsibilities. 
3.1.  Donations.  Client is responsible for making all Donations designated by End Users within seven (7) days of receipt of Beam’s quarterly report detailing such Donations, and Client will indemnify, defend, and hold Beam, its officers, directors, consultants, employees, successors, and assigns harmless from all claims and liability arising from the foregoing.  Client may request the addition of Supported Nonprofits in writing to Beam (email shall suffice) and up on receipt of such request Beam will attempt to obtain any necessary authorization, if not yet obtained, from such Nonprofit for inclusion in the Beam App.

3.2. 
Data.  Client is solely responsible for the accuracy, content, and legality of all Client Data.  Client hereby grants to Beam a nonexclusive, worldwide, fully paid, royalty-free, right and license to download, receive, collect, access, modify, copy, store, retain, and otherwise use the Client Data in order to provide and support the Beam Services in accordance with this Agreement, to develop, improve, and provide products and services that are ancillary to the Beam Services, and to provide Client End Users with marketing and promotional emails relating to the Beam Services and Beam App in connection with their use of the Client App.  Client Data will not include any data originating from outside the United States and Client may not send Beam any such data. 

3.3. 
Integration.  Upon execution of this Agreement, the parties will promptly begin implementation of the Integration.  Client is responsible for providing all necessary resources and in complying with all of its obligations under this Agreement, including properly maintaining the Integration.  Client is fully responsible and liable for the acts and omissions of Client Service Provider and its compliance with this Agreement.

3.4. 
Restrictions.  Client may use the Integration solely to enable Client End Users to use the Beam Services and will not: (i) copy, modify, or create derivative works or improvements of the Technology or the Integration; (ii) reverse engineer, disassemble, decompile, modify, or alter the Technology or the Integration; (iii) remove, circumvent, disable, damage, or otherwise interfere with or disrupt the integrity or performance of the Integration or any security-related features therein; (iv) input, upload, transmit, or otherwise provide to or through the Integration, any information or materials that are unlawful or injurious, or contain, transmit, send, or store material containing harmful computer code, files, scripts, agents, or programs; (v) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit or make available the Integration to any third party or use the Integration for service bureau or time-sharing purposes; or (vi) develop or have developed any products, services, or other materials that compete with the Integration or otherwise compete with Beam or its business.  To the extent Client has access to the Beam Services, the foregoing restrictions also apply to such access.  If applicable, Client will ensure Client End Users comply with the foregoing restrictions related to Client End Users’ access to and use of the Beam Services.

3.5. 
Use of Marks.  Client hereby authorizes Beam to use Client’s Marks: (i) on Beam’s App for the purposes of providing the Beam Services under this Agreement; and (ii) in routine marketing and other promotional materials of Beam in connection with the Beam App or the Beam Services, including on Beam’s website and the Beam App.  Client will display Beam’s Marks as part of the Integration and to indicate that the Beam Services are provided by Beam.  All other use by a party of the other party’s name, logo, or trademarks will be upon such party’s prior written consent.   

4.   Fees and Payment.
4.1.  Fees.  Client will pay the pay the amounts set forth in, and in accordance with, an Order Form (“Fees”).  All Fees are quoted in United States Dollars, are non-refundable, and are exclusive of all federal, state, local, and other taxes, duties, tariffs, levies, and similar assessments.  Beam’s records will be determinative for purposes of Fee calculation.

4.2. 
Invoicing.  Unless otherwise set forth in an Order Form, within sixty (60) days following the end of a given month, Beam will invoice Client for Fees in arrears and all Fees are due within seven (7) days of invoice receipt.  Any payment not received from Client by the due date may accrue, at Beam’s discretion, late charges at the rate of one percent (1.0%) of the outstanding balance per month, or at the maximum rate permitted by law, from the date such payment was due until the date paid. 

5.  Proprietary Rights.
5.1.  Client IP.  As between Client and Beam, Client owns all right, title, and interest in and to: (i) the Client Data; (ii) the Client App; (iii) Client’s Confidential Information; (iv) the Client Marks and all product names associated with the Client App; and (v) all IP Rights in the foregoing (collectively, the “Client IP”).  Except as expressly set forth in this Agreement, no license or other rights to any of the Client IP are granted to Beam, and all such rights are hereby expressly reserved.

5.2. 
Beam IP.  Beam owns all rights, title, and interest in and to: (i) the Beam Marks and all product names associated with the Beam App and the Beam Services; (ii) the Technology, the Beam App, the Beam Services, and all derivative works thereof; (iii) the Usage Data and the Beam End User Data; (iv) any other documents, user interfaces, technology, know-how, trade secrets, designs, inventions, and other tangible or intangible technical material or information used to provide the Beam Services, and/or conceived, inferred, or developed as part of the Beam Services; and (v) all IP Rights in the foregoing (collectively, the “Beam IP”).  Other than as expressly set forth in this Agreement, no license or other rights in the Beam IP are granted to Client, and all such rights are hereby expressly reserved.

5.3.
Feedback. By submitting any Feedback, Client hereby assigns to Beam all right, title, and interest in and to the Feedback. For purposes of this Agreement, “Feedback” means any comments, feedback, potential errors and improvements, reports, or ideas about Beam App or the Beam Services that Client may provide to Beam. All results and findings relating to the performance of the Beam Services will be deemed Confidential Information of Beam, and upon Beam’s request, Client will provide the findings resulting from any evaluation or use of the Beam Services to Beam.

6.  Confidential Information.
6.1.  Confidential Information.  As used herein, “Confidential Information” means all non-public information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as “Confidential,” “Proprietary,” or the like and/or information that the Receiving Party should reasonably understand as being confidential or proprietary to the Disclosing Party given the nature of the information and the circumstances of the disclosure, including without limitation, this Agreement (which will be deemed Confidential Information of both parties), business and marketing plans, financial information, technology and technical information, designs, and business processes.  Confidential Information will not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was in the rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without third party's breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party.

6.2. 
Protection.  Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidential information, for any purpose other than to perform its obligations or exercise its rights under this Agreement, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 6 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 6. 

6.3. 
Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party's cost) if the Disclosing Party wishes to contest the disclosure. 

6.4. 
Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7.   Representations and Warranties.
7.1.  Mutual Warranties.  Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) it has full right, power, and authority to enter into and perform its obligations under this Agreement; and (iii) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. 

7.2. 
By Client.  Client represents and warrants that: (i) it has all necessary rights, consents, and permissions to collect, disclose, transfer, use, and otherwise exploit Client End User Data as contemplated in this Agreement; (ii) its use of the Beam Services will not violate any applicable law, rule, or regulation, infringe any third party’s intellectual property, privacy, or publicity right, or cause a breach of any agreement with any third party, including any Supported Nonprofits; and (iii) it will pay to Supported Nonprofits all Donations designated by End Users and reported by Beam within a commercially reasonable time not to exceed thirty (30) days.  In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Beam will have the right to immediately suspend Client’s access to and use of the Beam Services, including but not limited to removing Client from the Beam App, to prevent harm to Beam or its business until such time Beam reasonably determines no further harm exists.

7.3. 
Disclaimer of Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE BEAM SERVICES ARE PROVIDED “AS IS.”  BEAM MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  BEAM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.    

8.  Indemnification.
8.1.  Indemnification by Beam.  Subject to the other provisions of this Section 8, Beam will defend, indemnify, and hold Client and its officers, directors, consultants, employees, successors, and assigns (“Client Indemnitees”) harmless against any and all losses, damages, liabilities, and costs, including reasonable attorneys’ fees (“Damages”) incurred by Client Indemnitees that arise out of or relate to any third-party claim, suit, action, or proceeding (“Claims”) alleging that Client’s use of the Technology in compliance with this Agreement infringes a U.S. IP Right.  The foregoing obligation does not apply to any Claim arising out of or related to: (i) modifications to the Technology not authorized or made by Beam; (ii) materials supplied by Client, including without limitation the Client Data; (iii) combination of the Technology with products or services not provided by Beam; (iv) designs or instructions provided by Client to Beam; (v) Client’s continued use of the allegedly infringing material after being notified thereof or after being informed of modifications that would have avoided such alleged infringement; or (vi) Client’s use of the Technology not strictly in accordance with this Agreement.

8.2.  Infringement Remedies.  If Beam or a court or other body of competent jurisdiction determines that the Technology is or may be infringing, Beam may, at its option and expense: (i) replace or modify the Technology to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Client a license to continue using the Technology; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund or credit for any prepaid, unused Fees, if applicable.  THE REMEDIES SET FORTH IN THIS SECTION 8 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF BEAM TO CLIENT INDEMNITEES IN RELATION TO INFRINGEMENT OF IP RIGHTS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF IP RIGHTS.

8.3.  Indemnification by Client.  Subject to the other provisions of this Section 8, Client will defend, indemnify, and hold Beam and its officers, directors, consultants, employees, successors, and assigns (“Beam Indemnitees”) harmless against any and all Damages incurred by Beam Indemnitees in connection with a Claim that arises out of our relates to: (i) Client’s breach of any of its representations, warranties, or obligations set forth in Sections 3, 6, or 7 of this Agreement; (ii) the Client Data; (iii) misuse or unauthorized access to and use of the Beam Services by Client End Users; (iv) the acts or omissions of Client Service Provider; and/or (v) in the event Client provides any material to facilitate the Integration, infringement of an IP Right by such material as used by Beam in accordance with this Agreement.

8.4.  Procedure.  Each indemnifying party’s obligations as set forth in this Section 8 are contingent on: (i) the indemnitee providing the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise to a Claim), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) the indemnifying party having the right to defend the Claim at its own expense and with counsel of its choosing; (iii) the indemnifying party having the  right, in its sole discretion, to settle the Claim so long as such settlement does not impose any monetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the other party’s IP that is the subject of the Claim), and provided that the indemnitee will be included in any release language as part of any such settlement; and (iv) the indemnitee providing (at the indemnifying party’s expense) such assistance and information as the indemnifying party may reasonably require to investigate, defend, or settle the Claim.

9.   Limitations of Liability.
9.1.  Consequential Damages ExclusionEXCEPT FOR: (i) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6; (ii) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS IN SECTIONS 3 AND 8; OR (iii) INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE ((i) THROUGH (iii), COLLECTIVELY, THE “EXCLUSIONS”), NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT.  

9.2.  Limitation of Liability.  EXCEPT FOR THE EXCLUSIONS, NEITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CLIENT (AND CLIENT SERVICE PROVIDER) TO BEAM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. 

10.     Term & Termination.
10.1.   Term.  The term of this Agreement will commence at the end of the Trial Period, if applicable, and will continue until terminated by either party upon thirty (30) days’ prior written notice (the “Agreement Term,” and the Trial Period and the Agreement Term, collectively, the “Term”). 

10.2.   Termination for Cause.  Either party may terminate this Agreement with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under this Agreement (which will include Client’s failure to pay any Fees or Supported Nonprofits in accordance with this Agreement), which breach is not cured within ten (10) days following receipt of written notice, or which is incapable of cure; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (vi) has wound up or liquidated its business, voluntarily or otherwise.   

10.3.  Termination by Beam.  Beam may terminate this Agreement, or otherwise revoke or suspend Client’s access to the Beam Services, immediately and without notice or recourse and in addition to such other remedies as Beam may have, if in Beam’s sole reasonable discretion Client’s access to or use of the Beam Services: (i) violates Sections 3.3 or 3.4 of this Agreement or any applicable laws, rules, or regulations; or (ii) is contrary to the best interests of Beam or End Users.

10.4.   Effects of Termination.  Upon expiration or termination of this Agreement: (i) Client will cease all use of the Beam Services and the Technology, and delete, destroy, or return all copies of the documentation in its possession or control; (ii) Client will be responsible for payment of any Fees due to Beam incurred prior to the effective date of such termination; and (iii) each party will return or destroy (and provide certification of such deletion upon request) any of the other party’s Confidential Information then in its possession, provided that Beam may retain one copy of the Client Data and Client’s Confidential Information solely for the purpose of compliance with any legal requirement in relation to the retention of records or in the event of litigation.

10.5.   Survival.  Sections 1, 3.1, 3.4, 4, 5, 6, 7.3, 8, 9, 10.4, 10.5, and 11 (together with all other provisions, including without limitation all attachments hereto, that may be reasonably interpreted as surviving termination or expiration of this Agreement) will survive the termination or expiration of this Agreement.

11.  Miscellaneous.
11.1.   No WaiverThis Agreement may not be altered, amended, or modified in any way except by a writing signed by both parties.  The failure of a party to enforce any provision of this Agreement will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.

11.2.   Severability.  In the event that any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the rest of the Agreement will remain in full force and effect.

11.3.   Governing Law.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of New York, without reference to its choice of law rules.  Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in the borough of Manhattan, New York in connection with any action arising out of or in connection with this Agreement.  

11.4.   Entire Agreement.  This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.  In the event of a conflict between the terms of this Agreement and the terms of any Order Form the terms of the Order Form shall control. 

11.5.   Relationship.  Beam and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Beam and Client.  Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.  This Agreement does not confer any benefits on any third party unless expressly stated therein.

11.6.   Force Majeure.  Except for Client’s payment obligations, neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, power outage, telephone outage, internet access provider failure, or any other similar cause beyond its control.

11.7.   Assignment.  Neither party may assign or delegate its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement, provided that in the event Client assigns this Agreement to a competitor of Beam (as reasonably determined by Beam), Beam may immediately terminate this Agreement.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

11.8.   Notices.  Any notice required or permitted by this Agreement will be in writing and will be sent by facsimile, email, courier, or personal delivery, addressed to the other party at the above address or at such other address for which such party gives notice hereunder.  Notice is effective upon receipt.

11.9.   Counterparts.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.