General Terms and Conditions
Reference to “Company” means Negotiatus Corp. d/b/a Order.co, a Delaware corporation (“Order.co”, “we”, “our”, or “us”), located at 156 5th Ave 7th Floor, New York, NY 10010, U.S.A. Reference to “Customer” means the business or legal entity that is applying for or has opened an Order Profile to use the Services. Reference to “You” or “you” means the individual accepting or agreeing to these terms on behalf of the customer and warrants to order.co that he or she (i) is at least 18 years of age, (ii) has all requisite power and authority to enter into these terms on behalf of the customer, and (iii) to bind the customer to these terms hereof and, in such event, “you” and “your” will refer and apply to the Customer in addition to you.
These Order.co General Terms and Conditions (these “Terms”), along with all Order Forms (as defined below), exhibits, schedules, addenda and attachments hereto or thereto, govern your right to access and use the Services (as defined below) made available to you by the Company.
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS OUR SERVICES IN ANY MANNER.
THESE TERMS FORM A LEGALLY BINDING AGREEMENT BETWEEN THE COMPANY ON WHOSE BEHALF YOU ARE OBTAINING THE SERVICES AND ACCEPTING THESE TERMS. BY CLICKING ON “I AGREE,” “I ACCEPT” OR AN EQUIVALENT MESSAGE, YOU ACCEPT THESE TERMS, INCLUDING ALL AMENDMENTS AND ATTACHMENTS HERETO, WITHOUT MODIFICATION AND AGREE TO BE BOUND BY THEM. WE RESERVE THE RIGHT, AT OUR SOLE DISCRETION, TO MODIFY THESE TERMS, AT ANY TIME AND WITHOUT PRIOR NOTICE. IF WE MODIFY THESE TERMS, WE WILL POST THE MODIFICATION ON OUR WEBSITE OR OTHERWISE PROVIDE YOU WITH NOTICE OF THE MODIFICATION. WE WILL ALSO UPDATE THE EFFECTIVE DATE (“LAST UPDATED”) AT THE TOP OF THESE TERMS. BY CONTINUING TO ACCESS OR USE OUR SERVICES ON OR AFTER WE HAVE POSTED A MODIFICATION, YOU ARE INDICATING THAT YOU AGREE TO BE BOUND BY THE MODIFIED TERMS. IF THE MODIFIED TERMS ARE NOT ACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO IMMEDIATELY CEASE USING OUR SERVICES.
1. Definitions. As used in the Agreement, the following terms shall have the meanings set forth below:
1.2 “Authorized User” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement and (ii) for whom access to or use of the Services has been purchased hereunder.
1.3 “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in New York, New York, are authorized or required by law to remain closed.
1.4 “Customer Data” means content, data, information and materials of or relating to Customer (including, without limitation, Purchases history and/or price information) owned by Customer or maintained by third parties with respect to prior services performed by such third parties for, or Purchases provided by third parties to, Customer.
1.5 “Order Form” means any written or electronic document, online sign-up, subscription link, subscription flow or statement of work mutually agreed to by Order.co and Customer for the provision of Services by Order.co to Customer. Order Forms shall be deemed incorporated herein by reference.
1.6 “Platform” means Order.co’s proprietary procurement and order fulfillment software platform and technology.
1.7 “Purchases” mean purchases of services or physical goods made or facilitated by or on behalf of Customer on the Platform.
1.8 “Services” means any services provided or licensed by Order.co to Customer, including access to and use of Order.co’s website, Platform, web and/or mobile-based applications, products and tools and/or any other services provided by Order.co that are described in one or more Order Forms.
2. Services; Order.co Responsibilities.
2.1 Services. During the Term (as defined below), subject to the terms and conditions of the Agreement, Order.co shall provide Services to Customer for Customer’s internal use. Order.co is constantly changing and improving the Services. Order.co reserves the right, in its sole discretion, to add, change, modify or remove functionalities or features, and to suspend or stop providing any application, product, tool or service altogether, at any time, without any notice or liability to Customer.
2.2 Order.co Responsibilities. During the Term, Order.co will: (a) comply with all applicable laws and regulations in providing the Services, including, without limitation, obtaining any required licenses, permissions, authorizations, consents or permits; and (b) maintain complete and accurate records relating to the provision of the Services.
2.3 Customer Platform Data. During the Term and for a period of three (3) years thereafter, upon Customer’s prior written request, Order.co will make available to Customer or Customer Representative (as defined below) records of Customer’s prior history of Purchases. Order.co shall have at least five (5) Business Days from receipt of Customer’s written request to provide access to such records.
3. Customer Obligations.
3.1 Customer Representatives. During the Term, Customer shall: (a) designate one or more employees to serve as a Customer representative (a “Customer Representative”); provided, that in the absence of designating a Customer Representative, Customer hereby agrees that each of Customer’s “Administrative” and “Super Users” (as identified on Customer’s user settings on the Platform) shall be deemed a Customer Representative; and (b) require that its Customer Representatives respond promptly to any reasonable requests from Order.co for instructions, information or approvals required by Order.co to provide the Services. A Customer Representative shall serve as Customer’s primary contact with respect to the Agreement and shall act as its authorized representative with respect to day-to-day communications, consultation, decision-making, consents and approvals and other matters pertaining to the Agreement, with such designation to remain in force unless and until a successor Customer Representative is appointed by Customer upon notice to Order.co.
3.3 General Customer Responsibilities. Customer is responsible and liable for all acts and omissions of its Authorized Users, including, without limitation, their access and use of the Services and for any Purchases made by or on behalf of Customer in connection therewith, directly or indirectly, and whether or not such access or use is permitted by or in violation of the Agreement. Any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions of these Terms applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
3.4 Platform Use. In order to use the Platform, Customer shall be responsible for creating an ‘Organization’ on the Platform, under which it may add ‘Locations’ and ‘Users’ to leverage the Platform and our Services. By agreeing to these Terms, Customer certifies that the obligations and liabilities of Customer and any of Customer’s affiliates listed as ‘Locations’ or ‘Users’ of your ‘Organization’ on the Platform, or are otherwise provided access to or use the Services, agree to be jointly and severally liable for Customer’s obligations and liabilities hereunder.
4. Term and Termination.
4.1 Term. Unless otherwise specified on an Order Form, the initial term of the Agreement begins on the date Customer opens an account on the Platform and, unless terminated earlier pursuant to Section 4.2 of these Terms, will continue in effect until the first anniversary of such date (the “Initial Term”). Thereafter, the Agreement will automatically renew for successive periods of time of the same duration as the Initial Term (i.e., if the Initial Term is for a period of twelve (12) months, then each Renewal Term will be for a period of twelve (12) months), unless either party provides the other party written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(a) Order.co, in its sole discretion, may terminate the Agreement at any time without cause, and without liability, by providing at least thirty (30) days’ prior written notice to Customer. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us or our prospects.
(b) Either party may immediately terminate the Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (i) materially breaches the Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) Business Days after receipt of written notice of such breach; (ii) becomes insolvent or admits its inability to pay its debts generally as they become due; (iii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) Business Days or is not dismissed or vacated within sixty (60) days after filing; (iv) is dissolved or liquidated or takes any corporate action for such purpose; or (v) makes a general assignment for the benefit of creditors or has 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.
(c) Upon the expiration or termination of the Agreement, for any reason, (i) Order.co shall: (A) deliver to Customer any documents, work product and other materials, whether or not complete, prepared by or on behalf of Order.co in the course of performing the Services for which Customer has paid; (B) return to Customer all Customer-owned property, equipment or materials in its possession or control; and (C) on a pro rata basis, repay all fees and expenses, if any, paid in advance for any Services which have not been provided; and (ii) Customer shall pay any outstanding Subscription Fees and invoiced amounts due to Order.co for Purchases and Services made or provided during the Term, regardless of whether the invoice is received by Customer prior to or after the expiration or termination of this Agreement. The rights and obligations of the parties set forth in this Section 4 and Sections 5, 6, 7, 9, 10 and 11 of these Terms, as well as any right or obligation of the parties in the Agreement which, by its nature, should survive the termination or expiration of the Agreement, shall survive any such termination or expiration of the Agreement.
5. Marketplace Fees and Expenses.
5.1 Subscription Fee. In exchange for the Services, Customer shall pay to Order.co the subscription fee(s) (the “Subscription Fee”) set forth on the applicable Order Forms.
5.2 Purchases & Payment Terms. In addition to the Subscription Fee, Customer shall pay all invoiced amounts due to Order.co for Purchases made or facilitated through the Platform by or on behalf of Customer prior to the due date set forth on the invoice. Customer shall make all payments in United States dollars unless invoiced or otherwise specified by Order.co in a different currency by check, automated clearing house (ACH) transfer, wire transfer of immediately available funds to such bank account designated in writing by Order.co, unless the applicable Order Form or invoice expressly provides for an alternative payment method.
5.3 Expense Reimbursement. Customer shall reimburse Order.co for all reasonable expenses incurred in accordance with the performance of the Services, if such expenses have been pre-approved, in writing by the Customer Representative, within ten (10) days of receipt by Customer of an invoice from Order.co accompanied by receipts and supporting documentation reasonably acceptable to Customer and conforming to the requirements of Customer’s expense reimbursement policy in effect from time to time (if any); provided, that Order.co may, if desired or required by a third party vendor, provide a reconciled invoice and/or statement for such vendor to Customer, in which case Customer shall remit payment for such invoice and/or statement directly to the vendor.
5.4 Rewards Program & Marketplace Credits.
(a) Customer may be eligible to participate in Order.co’s rewards program for savings that can be applied to future Purchases (the “Rewards Program”). Eligible Rewards Program participants will have the opportunity to earn marketplace rewards credits issued by Order.co in the form of a marketplace credit memo (“Credits”). To be eligible to receive Credits under the Rewards Program, Customer must (a) opt into the Rewards Program; (b) make timely payment of all Subscription Fees and other amounts payable to Order.co in accordance with the Agreement; and (c) be in compliance with all terms of the Agreement. If Customer fails to pay any Subscription Fees or other amounts when due under the Agreement, any unused Credits accrued by Customer are automatically and irrevocably forfeited back to Order.co.
(b) Order.co reserves the right to change, modify, suspend and/or eliminate the Rewards Program, in its sole discretion, at any time without notice to Customer. Changes may include, without limitation, modifying the qualifications for Rewards Program eligibility and eliminating the value or declaring the expiration of all or any portion of Credits earned by Customer.
(c) Customer acknowledges and agrees that (i) upon the termination or expiration of the Agreement, all unused Credits shall automatically expire; and (ii) any Credits not used within one (1) year of the date they are issued shall automatically expire, without notice, and Customer shall not be entitled to a refund or renumeration of any kind for unused and expired Credits. Order.co further reserves the right to unenroll Customer from and revoke Customer’s eligibility to participate in the Rewards Program if Customer has any Credits that were not used within one (1) year of the date such Credits were issued.
5.5 Order.co Cost-Saving Sourcing Rights. Order.co shall have the right, but not the obligation, to source and obtain cost saving opportunities to reduce the cost of certain Purchases made available to or ordered or bought by or on behalf of Customer through the platform. For example, Order.co may seek, identify and procure substitutes or alternatives for Purchases, or obtain the same Purchases at a reduced cost from alternative vendors.
5.6 Late Payments; Suspension of Services. Customer may not withhold or set off any amounts due under the Agreement. In the event payments are not received by Order.co within ten (10) days of becoming due, Order.co may (a) charge interest on such unpaid amounts at a rate that is the lesser of (i) one and one-half percent (1.5%) compounded on a monthly basis and (ii) the highest rate permissible under applicable law, from the date such payment was due until the date paid; and (b) suspend performance for all services until payment has been made in full. If Order.co suspends performance for any service in accordance herewith, Customer hereby irrevocably authorizes Order.co to charge Customer’s payment methods provided by Customer to Order.co. Furthermore, Customer acknowledges and agrees that Order.co shall, in addition to all other rights and remedies, have the right, in its sole discretion, to apply any unused and unexpired Credits to Customer’s past due accounts. Customer shall also reimburse Order.co for all costs and expenses incurred in collecting any late payments, including, without limitation, attorneys’ fees.
5.7 Returns. Returns of any Purchases are strictly subject to the applicable terms and conditions of the vendors from whom Customer makes and sources its Purchases. If a Purchase is eligible for return under the providing vendor’s return policy, Customer may request a return be processed through the Platform. Once a return request is submitted, Customer has thirty (30) days from confirmation of receipt by Order.co to complete and share all necessary documentation. Customer shall provide reasonable cooperation and timely provide the information requested by Order.co to process a requested return. Incomplete return requests will be closed if Customer fails to cooperate with Order.co and to provide all the information and take all actions required to be taken by the Customer in connection with a requested return. Order.co expressly disclaims and shall have no liability or obligation for any closed or failed return requests.
6. Financial Products and Third Party Offerings.
Third Party Offerings. Order.co may integrate, leverage, or make available to Customer services and products provided by third parties (“Third Party Services”), including, without limitation, virtual card payment services, financial assessment, and software integrations, for Customer’s use with the Services. You acknowledge and agree that Third Party Services are subject to their own terms and conditions and by using Third Party Services, you agree to comply with such third parties’ applicable terms and conditions. Links to such terms and conditions will be made available upon Customer’s request. You authorize and direct Order.co to share information that Order.co has on file about you with the providers of any Third Party Services you request or obtain, to enable the provider of such Third Party Services to provide, improve, and service the Third Party Service, and evaluate your eligibility for such Third Party Service. Order.co shall not be responsible for providing or supporting Third Party Services, does not warrant or make any guarantees with respect to Third Party Services and to the fullest extent permitted by law disclaims all responsibility and liability to Customer or any other person for any damages, penalties, expenses, fines or losses arising out of or resulting from the use of Third Party Services. Customer agrees that it will reasonably and diligently cooperate, provide reasonably requested documentation and fulfill reasonable requests from or on behalf of any such third parties, including, without limitation, the completion of Third Party applications, as required to access and use the Third Party Services. Order.co reserves the right to enter into additional Third-Party Agreements as it sees fit to provide additional capacity and/or services on the platform, and you agree to be bound by those Third Party Terms where required for your ongoing use of the Services and Platform. Order.co may compensate Oat Financial, Inc. and other providers of Third Party Services in connection with such arrangements.
6.1 Financial Standing Assessment; Financial Credit Limits, Adjustments and Terminations. In order to assess Customer’s eligibility to access certain financial product offerings made available by or through Order.co in connection with the Services, which may include, without limitation, virtual cards, recurring payments, consolidated billing/net terms, and preferred capital advances, Order.co and its third party providers may require Customer provide financial and other data as part of the credit approval process to determine Customer’s eligibility for certain financial products and the approved terms applicable to an eligible Customer in connection therewith. Notwithstanding anything in the Agreement to the contrary, Order.co reserves, in its sole discretion, the right to assign and disclose, on a confidential basis, Customer’s financial credit and related information to Order.co’s third party providers in connection with the foregoing. Order.co further reserves the right, in its sole discretion, to determine if and on what terms Order.co will extend financial offerings to Customer. If Customer wishes to procure financial products as part of the Services, Customer represents, warrants and covenants that it shall furnish to Order.co and/or its designated third party provider true, complete and accurate financial and other documentation and information requested for purposes of assessing Customer’s financial standing, creditworthiness and eligibility for such financial products. If any Services or Third Party Services provided to Customer include financial products or services offered by or made available through Order.co, during the period of time such financial products are being provided to Customer, Customer shall promptly (a) notify Order.co and the applicable third party provider in writing of any material change to Customer’s financial condition, business or creditworthiness or any facts, circumstances and events Customer is aware of that are reasonably likely to result in a material change to Customer’s financial condition, business or creditworthiness; and (b) provide all documentation and information reasonably requested by Order.co or reasonably necessary to allow Order.co and the applicable third party provider(s) to reassess Customer’s financial condition and creditworthiness. Order.co and applicable third party providers reserve the right to reassess Customer’s financial condition and creditworthiness from time to time, at their sole discretion, at any time while Customer is receiving financial products or services provided hereunder, and Order.co retains the right to set, adjust, modify and terminate financial credit limits and other terms as Order.co sees fit in its sole discretion.
6.2 Security Interest on Goods. To the extent Order.co assumes title to “goods” on behalf of Customer in performance of the Services (“Goods”), Customer hereby grants to Order.co, as collateral security for the payment of the purchase price for such Goods, a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of the State of New York.
6.3 Collections. Order.co and/or its third party insurance and funding partners will from time to time engage in collections activity with respect to: (i) receivables that are due and owing to Order.co and our funding/insurance partner(s); and (ii) receivables that are due and owing to third parties. Customer shall reimburse and pay to Order.co all fees and expenses incurred by Order.co or its third party insurance and funding partners in connection with any collections activity initiated thereby. Order.co will comply with applicable federal and state laws concerning the collection of commercial receivables.
7. Intellectual Property; Aggregated Anonymous Data; Confidentiality.
7.1 Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions and technology (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under the Agreement or prepared by or on behalf of Order.co in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials, shall be owned by Order.co. Order.co hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services for Customer’s internal business purposes.
7.2 Aggregated Anonymous Data. Customer acknowledges and agrees that Order.co shall exclusively own all right, title and interest in and to, including, for the avoidance of doubt, any and all Intellectual Property Rights associated with, Aggregated Anonymous Data (as defined below) and shall have the right to (i) compile, collect, copy, modify, publish and use any information and data, including, without limitation, Customer Data, collected by Order.co regarding Customer’s use of the Services to create Aggregated Anonymous Data for purposes of, without limitation, analyzing, improving, supporting and operating the Services and otherwise for any analytical or business purpose and (ii) use and make available Aggregated Anonymous Data to any third party or third parties, during and after the Term of this Agreement in each case; provided, that Order.co agrees that it will not identify Customer as the source of Aggregated Anonymous Data. "Aggregated Anonymous Data" means Customer Data, data generated from or based on Customer Data, findings, learnings, logs and other data and information about Customer’s use of the Services that is in an aggregated, anonymized form and which is not personally identifiable with respect to Customer.
7.3 Confidentiality. All non-public, confidential or proprietary information of Customer, including, without limitation, Customer Data (“Confidential Information”), disclosed by Customer to Order.co, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for Order.co’s use in performing the Agreement and may not be disclosed or copied unless authorized by Customer in writing. Confidential Information does not include any information that (i) is or becomes generally available to the public other than as a result of Order.co’s breach of the Agreement, (ii) is obtained by Order.co on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information or (iii) Order establishes by documentary evidence, was in Order.co’s possession prior to Customer’s disclosure hereunder. Upon Customer’s request, Order.co shall promptly return or destroy all Confidential Information received from Customer. Customer shall be entitled to injunctive relief for any violation of this Section.
8. Public Announcements.
Order.co shall not use Customer’s trademarks, service marks, trade names, logos, symbols or brand names for any purpose other than in connection with the marketing, advertising and promotion of Order.co’s business (including in Order.co’s promotional and marketing materials) without the prior written consent of Customer.
Customer hereby agrees to indemnify, defend, and hold harmless Order.co, its affiliated companies, and their predecessors, successors, and assigns, and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys' fees), resulting from or arising out of Customer’s actual or alleged breach of these Terms, any content the Customer provides through the Services, or the Customer’s use or misuse of the Services. However, the Customer will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from our violation of applicable law.
10. Limitation of Liability.
IN NO EVENT SHALL ORDER.CO BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ORDER.CO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED TO OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ORDER.CO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS OF THE SUBSCRIPTION FEES PAID OR PAYABLE TO ORDER.CO PURSUANT TO THE AGREEMENT.
11.2 Severability. If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such a determination, the parties shall negotiate in good faith to modify the Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.3 Amendments and Waivers. Except as expressly set forth in the Agreement, no amendment to, or modification of or rescission, termination or discharge of the Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the 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.
11.4 Assignment. Customer may not at any time assign or transfer any or all of its rights or obligations under the Agreement to any affiliate or to any entity acquiring all or substantially all of Customer’s assets or business without Order.co’s prior written consent.
11.5 Successors and Assigns; No Third Party Beneficiaries. The Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns. Except as provided in Sections 6 and 9 of these Terms, the Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in the Agreement, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
11.6 Governing Law; Jurisdiction; Waiver of Jury Trial. The Agreement and all Statements of Work, including all exhibits, schedules, addenda, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to the foregoing, are governed by and are to be construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. 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 the Agreement, and all contemplated transactions thereunder, in any forum other than the state and federal courts of the State of New York. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the state and federal courts of the State of New York. Each party agrees that a final judgment 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. Each party acknowledges that any controversy that may arise under the Agreement, including exhibits, schedules, addenda, attachments and appendices attached to the Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement, including any exhibits, schedules, addenda, attachments or appendices attached to the Agreement, or the transactions contemplated hereby.
11.7 Use of Electronic Records and Signatures. Order.co may provide Customer with notifications, disclosures, electronic records, and other communications by posting on the Order.co website or mobile application, by email, by short message service (“SMS”), or by regular mail. Order.co will use the information that it has on file to contact Customer. Communications to Customer will be considered effective when sent by Order.co to the most recent address or phone number that Customer has provided Order.co or when acknowledged by Customer Representative on the Platform. Electronic records and signatures may be used in connection with the execution of ACH authorization forms, this Agreement, and other amendments or agreements between the Parties.
12. Force Majeure.
Any delay or failure of either party to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, pandemics or acts of terrorism) (each, a “Force Majeure Event”). Order.co’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or supplier actions or contract disputes will not excuse performance by Order.co under this Section 11. Order.co shall give Customer prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Order.co shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under the Agreement.