Irving Levin Associates LLC
Last Updated 3/9/22
This Master Services and Licensing Agreement (this “Agreement”) is a binding agreement between Irving Levin Associates (“ILA”) and the person or entity identified on the Checkout Page (defined below) or an invoice (the “Invoice”) issued by ILA for supply of the Services (“Subscriber” or “You”).
ILA PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT SUBSCRIBER ACCEPTS AND COMPLIES WITH THE TERMS HEREOF. BY CLICKING “SUBMIT” OR “ORDER” ON THE CHECKOUT PAGE OR SIGN-UP PAGE FOR SERVICES OR BY SENDING PAYMENT FOR SERVICES PURSUANT TO AN INVOICE OR OTHERWISE ACCESSING OR USING ILA SITE OR ANY SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF SUBSCRIBER IS A CORPORATION, LIMITED LIABILITY COMPANY, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY (COLLECTIVELY AN “ENTITY”), YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH AN ENTITY AND BIND THE ENTITY TO THE TERMS OF THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, ILA WILL NOT AND DOES NOT LICENSE ANY SERVICES OR CONTENT TO SUBSCRIBER AND YOU MUST NOT DOWNLOAD, INSTALL, OR OTHERWISE USE OR ACCESS ILA SITE, ANY SERVICES OR CONTENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SERVICES OR CONTENT THAT SUBSCRIBER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE SERVICES OR CONTENT.
1) Definitions. For the purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means solely those individuals authorized to use the Services pursuant to the license granted under this Agreement, as set forth on the Checkout Page or invoice. If the Subscriber is an Entity, the Authorized User shall be certain employees of the Entity. If the Subscriber is an individual, the Authorized User is the individual subscriber listed on the Checkout Page or the Invoice.
“Access Credentials” means any username, password, or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Checkout Page” means the checkout page located at www.levinassociates.com incorporating this Agreement by reference and filled out and submitted by or on behalf of Subscriber for Subscriber’s purchase of the license(s) granted and Services provided under this Agreement. “Content” means all Reports, content, text, photographs, video, graphics, metadata, quotes, data, databases, information, webinars, and all protectable intellectual property available through the Services.
“Fees” means the license fees, including all taxes thereon, paid or required to be paid by Subscriber for the license granted under this Agreement, as set forth on the Checkout Page or an invoice.
“ILA Site” means the website www.levinassociates.com, its subsites, and associated mobile applications.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Intranet” means a computer network for information sharing, collaboration, operational systems, and other computing services within Subscriber, which is not accessible to any third party.
“Multi-user License” means a license that allows Subscriber to have more than one (1) Authorized Users to use the Services.
“Report(s)” means the research reports created and developed by ILA through the Services and delivered to Subscriber under this Agreement.
“Services” means the products and services offered by ILA through the ILA Site, for which Subscriber is subscribing, as expressly set forth on the Checkout Page or Invoice and including the Content and Reports.
“Term” is defined in Section 11.a. hereof.
“Third Party” means any person or entity other than Subscriber or ILA.
2) Services. The Services consist of one or more of the products and services described below. The scope of Subscriber’s right to access and use such products and services is determined by the nature of the license purchased, which is denoted on the Checkout Page or Invoice. Pricing for the services described below is set forth at www.levinassociates.com or as provided directly by ILA to the Subscriber.
a) LevinPro LTC: Comprehensive suite of long-term care news, data, and analytics, featuring our industry-leading mergers and acquisitions database.
b) LevinPro LTC News: Real-time news, analysis, and reports covering the events and players shaping the long-term care industry.
c) The SeniorCare Investor: Monthly digest of notable M&A transactions, capital markets developments, and other industry news.
d) The Senior Care Acquisition Report: Annual publication providing key performance indicators on the industry and our editors’ latest insights and analyses.
e) LevinPro HC: Comprehensive suite of health care news, data, and analytics, featuring our industry-leading M&A database.
f) LevinPro HC News: Real-time news, analysis, and reports covering the events and players shaping the health care industry.
g) The Health Care Services Acquisition Report: Annual publication providing key performance indicators on the industry and our editors’ latest insights and analyses.
h) Webinars: ILA hosts some of the industry’s top experts who share behind-the-scenes looks at senior care and health care investing in a webinar format.
3) License.
a) License Grant: Subject to and conditioned on Subscriber’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, ILA hereby grants to Subscriber a non-exclusive, non-transferable, non- sublicensable, limited license to access and use the Services, solely during the Term, solely for the benefit of Subscriber and solely in or for Subscriber’s internal business operations, by and through Subscriber’s Authorized Users, and in accordance with the conditions and limitations set forth in this Agreement (“Permitted Use”). If Subscriber subscribes to a “Single License,” as set forth on the Checkout Page or Invoice, Subscriber access is strictly limited to the Subscriber, and is not transferable. If Subscriber subscribes to a “Multi-User License,” as set forth on the Checkout Page or Invoice, Subscriber access is limited employees of the subscribing entity.
b) Additional Subscriber Licenses: If applicable, and as set forth on the Checkout Page or Invoice, ILA grants Subscriber the following non-exclusive, non-transferable, non-sublicensable, limited licenses, in addition to Subscriber’s Permitted Use, and exercisable solely by and through Subscriber’s Authorized Users:
i) Attribution License: If Subscriber agrees to an Attribution License, as set forth on the Checkout Page or Invoice, Subscriber may quote an insubstantial portion of the Report(s) in materials created by Subscriber for external distribution to third parties, provided that Subscriber properly attributes such Content to ILA in accordance with this Section 3.c.i. Subscriber shall properly attribute such Content to ILA in a footnote or other reference, in the same size and color font as the surrounding text (but in no event in less than 8 point font). The attribution will include the ILA publication and its associated web address (see examples below):
(1) LevinPro LTC, Levin Associates, Year Accessed or Published, Month Accessed or Published, levinassociates.com
(2) The SeniorCare Investor, Levin Associates, Year Published, Month Published, levinassociates.com
(3) The Senior Care Acquisition Report, Levin Associates, Year Published, Month Published, levinassociates.com
(4) LevinPro HC, Levin Associates, Year Accessed or Published, Month Accessed or Published, levinassociates.com
(5) The Health Care Services Acquisition Report, Levin Associates, Year Published, Month Published, levinassociates.com
ii) Intranet License. If Subscriber agrees to an Intranet License, as set forth on the Checkout Page or Invoice, Subscriber may upload Reports or Content or any portion thereof in electronic form solely to the Subscriber’s Intranet, which such Reports or Content shall be accessible only to Authorized Users and be used in accordance with the Agreement. In no event does an Intranet License allow Subscriber to upload Reports or Content on any third-party website, or to otherwise permit access to the Services, Reports, or Content through its Intranet to any third party.
4) Free Trial. If you register on ILA Site for a free trial or otherwise request a free trial (“Free Trial”), ILA may make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period approved by ILA, or (b) the start date of your purchase of any Services. Notwithstanding the foregoing, ILA reserves the sole and exclusive right to revoke the Free Trial. Notwithstanding anything to contrary in this Agreement, any Content or Report obtained through a Free Trial shall be used only for your personal use, and not for any commercial purposes.
5) Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Content, or Third Party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Content, and the Third Party materials are and will remain with ILA and the respective rights holders in the Third Party materials.
6) Use Restrictions. Except as expressly set forth on the Checkout Page or Invoice or otherwise without the prior written consent of ILA, Subscriber shall not, and shall require its Authorized Users not to, directly or indirectly:
a) Use (including make any copies of) the Services or Content beyond the scope of the license granted under this Agreement;
b) Reverse engineer, decompile, disassemble or otherwise attempt to discern the source code or architecture of any feature or component of the Services;
c) Except as expressly set forth in Section 3, provide any third party, including any subcontractor, independent contractor, affiliate, or service provider of Subscriber, with access to or use of the Services or any Content;
d) Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Services or Content, including any copies thereof;
e) Except as expressly set forth in Section 3, copy the Services or Content, in whole or in part;
f) Except as expressly set forth in Section 3, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Content, or any features or functionality of the Services, to any third party for any reason;
g) Use the Services or Content in violation of any law, regulation, or rule;
h) Use the Services or Content for purposes of competitive analysis of the Services or Content, the development of a competing product or service, or any other purpose that is to ILA’s commercial disadvantage.
i) Use any software, program, application or any other device to access or log on to ILA’s computer systems or ILA Site, or to automate the process of obtaining, downloading, transferring or transmitting any Content;
j) Frame ILA Site, Services or Content, display ILA Site, Services or Content in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between ILA and any third party or potentially deprive us of revenue (including, without limitation, revenue from subscriptions, licensing, advertising, branding, or promotional activities)
k) Defeat any access controls, access any portion of ILA Site, Services or Content that ILA has not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user’s account or information, or allow anyone else to use your account or access credentials;
l) Interfere with others using ILA Site or Services or disrupt ILA Site and Services;
m) Transmit, collect, or access personally identifiable information about other users without the consent of those users and ILA;
n) Link to ILA Site or Services from a site that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, or that promotes violence, racial hatred, or terrorism, or that ILA deems, in its sole discretion, to be otherwise objectionable; or
o) Transmit any material that is commercial, promotional, inappropriate, solicitous, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, or that promotes violence, racial hatred, or terrorism, or that ILA deems, in its sole discretion, to be otherwise objectionable.
7) Responsibility for Use of Services. Subscriber is responsible and liable for all uses of the Services and Content through access thereto provided by Subscriber, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Subscriber is responsible and liable for all actions and failures to take required actions with respect to the Services and Content by its Authorized Users or by any other individual to whom Subscriber or an Authorized User may provide access to or use of the Services or Content, whether such access or use is permitted by or in violation of this Agreement.
8) Collection and Use of Information.
a) Subscriber acknowledges that ILA may, directly or indirectly through the services of Third Parties, collect and store information (including personal information) regarding use of the Services.
b) Our privacy policy (“Privacy Policy”), located at www.levinassociates.com/privacy-policy, describes what personal information we collect, how we collect, and how we use such information. By accessing to or using ILA Site or Service, you agree that ILA may use such information in compliance with the Privacy Policy, including but not limited to:
i) Improving the performances of the Services; and
ii) Verifying Subscriber’s compliance with the terms of this Agreement and enforcing ILA’s rights, including all Intellectual Property Rights in and to the Services.
9) Intellectual Property Rights. Subscriber acknowledges and agrees that the Services and Content are provided under license, and not sold, to Subscriber. Subscriber does not acquire any ownership interest in the Services or Content under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. ILA and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Services or Content and all Intellectual Property Rights arising out of or relating to the Services and Content, except as expressly granted to the Subscriber in this Agreement. Subscriber shall safeguard the Services or Content (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Subscriber shall promptly notify ILA if Subscriber becomes aware of any infringement of ILA’s Intellectual Property Rights in the Services or Content.
10) Fees; Payment.
a) Fees. All Fees are payable in the manner set forth on the Checkout Page or the Invoice and are non-refundable. Any renewal of the license or Services shall not be effective until the fees for such renewal have been paid in full.
b) Payment. Subscriber shall pay all Fees on or prior to the annual renewal date of Subscriber’s subscription to the Services. Subscriber shall make all payments hereunder in US dollars and as specified on the Checkout Page or the Invoice. Subscriber shall make payments to the address or account specified on the Checkout Page or Invoice or such other address or account as ILA may specify in writing from time to time.
c) Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on ILA’s income.
11) Term and Termination.
a) Term. The initial term of this Agreement (the “Initial Term”) shall be defined on the Checkout Page or the Invoice. The Initial Term shall be twelve (12) months from the Effective Date unless otherwise explicitly set forth on the Checkout Page or the Invoice).
b) Renewal. Unless otherwise agreed in writing or as provided on the Checkout Page or Invoice, this Agreement will automatically renew for additional successive twelve (12) month terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
c) Termination. In addition to any other express termination right set forth elsewhere in this Agreement, ILA may suspend or terminate the license or any Services, effective immediately and with or without notice to Subscriber, if Subscriber or any of its Authorized Users breaches this Agreement.
d) Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
i) All rights, licenses, consents and authorizations granted by ILA to Subscriber will immediately terminate; and
ii) ILA may disable all Subscribers and Authorized Users’ access to the Services; and
iii) Subscriber will certify to ILA in writing that it has destroyed or deleted all Content in its possession, if any, relating to the LevinPro LTC and LevinPro HC deal databases.
12) Surviving Terms. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
13) Indemnification. Subscriber shall indemnify, defend and hold harmless ILA and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an “Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), incurred by such Indemnitee in connection with any action, claim, suit, or proceeding by a third party (other than an affiliate of an Indemnitee) to the extent that such Losses arise out of or relate to:
a) Any materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Subscriber or any Authorized User, including ILA’s compliance with any specifications or directions provided by or on behalf of Subscriber or any Authorized User to the extent prepared without any contribution by ILA;
b) Subscriber or its Authorized Users’ access or use of ILA Site, the Services or Content in combination with any other materials, products, or services not provided or authorized in writing by ILA;
c) Any modification of the Services or Content other than: (i) by or on behalf of ILA; or (ii) with ILA’s written approval in accordance with ILA’s written specification;
d) Allegation of facts that, if true, would constitute Subscriber’s breach of this Agreement, including without limitation, violation of any license granted herein, or breach of any of Subscriber’s representations, warranties, covenants or obligations under this Agreement; or
e) Negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any Authorized User, or any third party on behalf of Subscriber or any Authorized User, in connection with this Agreement.
14) Representations and Warranties. Each party represents and warrants to the other party that:
a) It has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
b) The execution of this Agreement by its representative as set forth on the Checkout Page or Invoice has been duly authorized by all necessary corporate or organizational action of such party; and
c) When executed, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
15) DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, ALL SERVICES AND CONTENT ARE PROVIDED “AS IS” AND ILA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ILA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CONTENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
16) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
a) IN NO EVENT WILL ILA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ILA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL ILA’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO ILA PURSUANT TO THIS AGREEMENT FOR UP TO TWELVE (12) MONTHS OF THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
b) THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE SUBSCRIBER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
17) Miscellaneous.
a) Choice of Law; Waiver of Jury Trial; Arbitration.
i) This Agreement, including all documents and exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of Maryland, United States of America without giving effect to any conflict of laws provisions thereof.
ii) Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than an arbitration panel or, if applicable, the courts located in the State of Maryland, Montgomery County. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). Each Party agrees that a final decision in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
iii) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTER CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
b) Force Majeure. ILA will not be responsible or liable to Subscriber, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Subscriber equipment, loss and destruction of property, or any other circumstances or causes beyond ILA’s reasonable control.
c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Checkout Page or the Invoice.
d) Entire Agreement. This Agreement, together with the Checkout Page or the Invoice, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Subscriber and ILA with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
e) Assignment. Subscriber shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without ILA’s prior written consent, which consent ILA may give or withhold in its sole discretion. No delegation or other transfer will relieve Subscriber of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 17(e) is void. ILA may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Subscriber’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
f) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
g) Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
h) Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
i) Services Agreement. Should Subscriber and ILA enter into a separate written agreement with respect to Subscriber’s subscription of any Services or Content (“Services Agreement”), the terms of the Services Agreement shall prevail over the terms of this Agreement to the extent they are conflicting with each other, unless the Services Agreement provides otherwise.
