Pastel has updated its Terms of Service (the “Agreement”), the terms of which are stated herein. This Agreement will be effective as of May 15, 2023 (the “Effective Date”).
2. USE AND ACCESS TO THE SERVICES
2.1 Accessing the Services. Access to the Services may be procured via an Order Form entered into by and between Customer and Pastel, or Customer may procure the Services (including purchasing additional End User subscriptions) through Pastel’s websites and Customer Settings. Customer must purchase a subscription for each End User who accesses or uses the Services. 2.2 Customer’s Responsibilities Regarding End Users. Customer is responsible for the conduct of its End Users and for ensuring that End Users abide by the terms of this Agreement at all times in connection with their use of the Services. It is Customer’s responsibility to (i) inform End Users of any relevant Pastel policies, practices and settings that Customer elects to enforce related to its End Users’ use of the Services; (ii) obtain any rights, permissions or consents from its End Users that are necessary for Customer’s lawful use of the Services and the collection and processing of Customer Data by Pastel in connection with Customer’s use of the Services; and (iii) respond to and resolve any dispute between Customer and an End User related to or based on Customer Data and/or Customer’s use of that Customer Data in connection with Customer’s use of the Services. 2.3 Login Credentials. Customer and End User are responsible for all login credentials, including usernames and passwords, and Pastel shall not be liable for any damages or losses that may occur as a result of Customer’s failure, or the failure of End Users, to maintain the confidentiality of their login credentials. End Users are not permitted to share or use the same login credentials to the Services. Pastel reserves the right to refuse registration of or cancel passwords it deems inappropriate, in which case it will notify Customer of such refusal. Customer is responsible for notifying Pastel at firstname.lastname@example.org if it becomes aware of any unauthorized use of or access to its Customer Account or any End User Account. 2.4 Acceptable Use. In addition to complying with the other terms set forth in this Agreement, Customer and End User agree to (i) use the Services in compliance with all applicable laws and regulations; and (ii) comply with the terms of Pastel’s End User Conduct and Content Policy. 2.5 Export Compliance. Customer and End User may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and Documentation are “commercial products” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software Documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer shall not permit any End User to access or use the Services in a U.S. embargoed country or region or in violation of any U.S. export law or regulation. 2.6. Equipment. Customer shall be responsible for obtaining, maintaining and securing any Equipment used to access the Services.
3.1 Protection of Confidential Information. The Receiving Party agrees (i) to protect Confidential Information using at least the same degree of care and discretion as it uses with its own Confidential Information, but in no event less than a reasonable degree of care; and (ii) not to sell, lease, rent, use or divulge (except in performance of the Services or as otherwise permitted herein) to any third person any such Confidential Information without the express prior written consent of the Disclosing Party. The Receiving Party may disclose Confidential Information to its Representatives on a strict need to know basis and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth herein.3.2 Compelled Disclosure. The Receiving Party may access and disclose Confidential Information of the Disclosing Party to the extent legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the Receiving Party will, if lawfully permitted, provide the Disclosing Party with notice in a reasonable time prior to such access or disclosure so as to allow the Disclosing Party an opportunity to seek appropriate protective measures. The Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. If Pastel is compelled by law to access or disclose Customer’s Confidential Information as part of a civil proceeding to which Customer is a party, Customer will reimburse Pastel for the reasonable costs of compiling and providing secure access to such Confidential Information.3.3 Equitable Relief. The Receiving Party acknowledges that the remedy at law for breach of this Section 3 may be inadequate and that, in addition to any other remedy the Disclosing Party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages) to prevent breaches or threatened breaches of these confidentiality provisions by the Receiving Party or any of its Representatives and to enforce the terms and provisions of this Section 3 in addition to any other remedy to which the Disclosing Party is entitled at law or in equity.3.4 Usage Information and Feedback. Notwithstanding anything to the contrary, Pastel shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, (including, without limitation, information concerning Customer Data and data derived therefrom), and Pastel will be free during and after the Subscription Term to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Pastel offerings; and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. By submitting any feedback or suggestions regarding the Services, or sharing such feedback with any Representative of Pastel, Customer grants to Pastel an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to Customer, End User, or any other Customer Representative. No rights or licenses are granted except as expressly set forth herein.
4.1 Calculation of Subscription Charges. Customer may purchase the Services either through Pastel’s website or by executing an Order Form. If the Parties execute an Order Form, Customer will make payment to Pastel in accordance with the terms of such Order Form. Subscription Charges are billed in advance and are nonrefundable unless otherwise stated herein. If Customer’s use of the Services exceeds the number of purchased End User Accounts set forth on an Order Form or otherwise requires the payment of additional Subscription Charges under this Agreement, Customer shall be charged for such usage and Customer agrees to pay the additional Subscription Charges from the date of first usage by End Users who were not paid for. Unless otherwise agreed upon in writing, the Subscription Charges for a renewal of the Subscription Term or for any additional subscriptions purchased by Customer shall be calculated according to the price(s) then specified on Pastel’s website.4.2 Payment and Billing. Unless otherwise expressly set forth in this Agreement or an Order Form, all Subscription Charges are due in full upon commencement of the Subscription Term. Unless a substitute payment mechanism has been agreed to by Pastel, a valid credit card is required to subscribe to the Services and Customer authorizes Pastel to automatically charge Customer’s selected payment method for Subscription Charges on or after the starting date of each subsequent Subscription Term unless Customer’s subscription to the Services terminates as set forth in Section 5.2 below. Pastel may choose to bill through an invoice, in which case, full payment for invoices must be received by Pastel within thirty (30) days after the mailing date of the invoice. If Customer fails to pay its Fees within five (5) days of Pastel’s notice to Customer that payment is delinquent, or if Customer does not update payment information upon Pastel’s request, in addition to Pastel’s other remedies, Pastel may suspend access to and use of the Services by Customer and End Users. Unpaid amounts that are not disputed in good faith are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer agrees to promptly update its Customer Account information, including payment information, with any changes that may occur (for example, a change in billing address or credit card expiration date).4.3 Taxes. Unless otherwise stated in an Order Form, Pastel’s charges do not include any Taxes. Customer is responsible for paying Taxes assessed in connection with Customer’s subscription to the Services except those assessable against Pastel as measured by its net income. Pastel will invoice Customer for such Taxes if Pastel believes that Pastel has a legal obligation to do so, and Customer agrees to pay such Taxes if so invoiced. Pastel agrees to exempt Customer from any Taxes for which Customer provides to Pastel a tax exemption certificate; provided, however, that no such exemption shall be extended to Customer following written notice to Pastel from a taxing authority of appropriate jurisdiction that Customer does not qualify for the claimed exemption.4.4 Billing Disputes. If Customer believes that Pastel has billed Customer incorrectly, Customer must contact Pastel no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Pastel’s customer support department at email@example.com Upgrades. If Customer chooses to upgrade its Service Plan or increase the number of End Users authorized to access and use a Service during a Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the Subscription Charges that exist between Customer and Pastel during the applicable Subscription Term. The subscription term for additional End Users shall be coterminous with the then-current Subscription Term for the existing End Users. In any subsequent Subscription Term, Customer’s Subscription Charges will reflect any such upgrades. Any discount provided to Customer is applicable only to the initial Subscription Term detailed in an Order Form and will not be applied to any subsequent Subscription Terms.4.6 Downgrades. Customer may not downgrade its Subscription Plan or reduce the number of End User subscriptions during any Subscription Term. If Customer desires to downgrade its Subscription Plan or reduce the number of End User subscriptions under any Subscription Plan for a subsequent Subscription Term, Customer must provide Pastel with thirty (30) days written notice prior to the end of Customer’s then-current Subscription Term. Downgrading a Service Plan may cause loss of content, features, or capacity of the Services as available to Customer under its Customer Account, and Pastel is not responsible for such loss. No credits or refunds will be issued for usage that is less than the purchased number of subscriptions or for unused time on subscriptions.4.7 Payment Portals. If Customer mandates Pastel to use a vendor payment portal or compliance portal that charges Pastel a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Customer shall be invoiced by Pastel for, and Customer is obligated to pay, the cost of this fee.
5. TERM AND TERMINATION
5.1 Term. Subject to termination provisions below, Pastel shall provide the Services to Customer for the initial Subscription Term, which shall then be automatically renewed and extended for the same duration as the previous Subscription Term. Either Party may request termination at least thirty (30) days prior to the end of the then-current Subscription Term, and Customer may submit such request for termination by notifying Pastel at firstname.lastname@example.org Termination. Either Pastel or Customer may terminate this Agreement upon thirty (30) days’ notice if the other Party materially breaches any of the terms of this Agreement. Customer may terminate its subscription if it ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within sixty (60) days. Upon any termination, Pastel may immediately deactivate the Customer Account and any associated End User Account; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay Fees accrued or payable to Pastel or of any liability pertaining to Customer’s use of the Services prior to such termination. In no event will Pastel’s termination for cause relieve Customer of its obligation to pay any Fees payable to Pastel for the period prior to termination. Except for Customer’s termination for Pastel’s uncured material breach of this Agreement, Customer must pay any unpaid Subscription Charges and Fees incurred for the remainder of the then-current Subscription Term.5.3 Data Export. Pastel will make all Customer Data available to Customer for electronic retrieval for sixty (60) days after termination. After such sixty (60) days, Pastel shall delete Customer Data in accordance with its data deletion policy.5.4 Suspension and Other Remedial Action. In addition to any other remedies that may be available, Pastel reserves the right to take that remedial action it deems necessary without liability to Pastel, including the immediate suspension or termination of a Customer Account or an End User Account, upon notice to Customer should Customer or an End User (i) fail to abide by the terms of this Agreement; or (ii) if in Pastel’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. Pastel reserves the right to notify Customer and/or the administrator associated with the Customer Account with respect to an End User’s violation of the terms of this Agreement.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Of Pastel. As between Customer and Pastel, Pastel owns all intellectual property rights in and to (i) the Services (excluding only the Customer Data) and all trademarks, logos and service marks utilized by Pastel in connection with the delivery of the Services; (ii) all improvements, enhancements or modifications of the Services; and (iii) any Software, applications, inventions or other technology developed in connection with supporting the Services. Pastel grants Customer a non-sublicensable, non-transferrable, non-exclusive, limited license to use the object code version of the Services solely as necessary to use the Services in accordance with this Agreement.6.2 Of Customer. As between Customer and Pastel, Customer shall own all intellectual property rights in and to the Customer Data. Customer grants to Pastel on behalf of itself and its End Users a worldwide, non-sublicensable, non-transferrable (except in connection with the sale or transfer of its business), non-exclusive, limited license to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export and display the Customer Data as reasonably necessary (i) to provide, maintain and update the Services; (ii) to prevent or address service, security, support and technical issues; (iii) as required by law or as permitted by Pastel’s Law Enforcement and Data Request Guidelines; and (iv) as expressly permitted by Customer in writing.
7. WARRANTY AND DISCLAIMER
8.1 Pastel’s Indemnification Obligations. Pastel will indemnify Customer Parties from and against any third party claim alleging that the Services violate the intellectual property rights of such third party and will indemnify the Customer Parties for damages awarded against the Customer Parties in connection with or as a result of such claim or any amounts paid by Customer Parties under a settlement approved by Pastel, including reasonable attorneys’ fees incurred in connection with the defense or settlement of such claim. Notwithstanding the foregoing, Pastel shall not be required to indemnify Customer Parties to the extent the claim against Customer Parties arises from (i) Customer or any End User’s use of the Services in a manner that violates this Agreement; (ii) use of the Services in a modified form or in combination with any third party product, service or content not furnished to Customer by Pastel; (iii) portions or components of the Services made wholly or partially in accordance with Customer specifications; or (iv) instances where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement. This Section 8.1 states Pastel’s sole liability with respect to, and Customer’s exclusive remedy against Pastel Parties for, any such claim.8.2 Customer’s Indemnification Obligations. Customer will indemnify Pastel Parties from and against any third party claim, action, suit, proceeding or demand arising from or related to (i) Customer’s or an End User’s violation of this Agreement; and (ii) any third party claim alleging that Customer Data violates the intellectual property rights of such third party, and will indemnify Pastel Parties for damages awarded against the Pastel Parties in connection with or as a result of such claim or any amounts paid by Pastel Parties under a settlement approved by Customer, including reasonable attorneys’ fees incurred in connection with the defense or settlement of such claim. This Section 8.2 states Customer’s sole liability with respect to, and the Pastel Parties’ exclusive remedy against Customer for, any such claim.8.3 Potential Infringement. If due to a claim of infringement the Services are held by a court of competent jurisdiction or believed by Pastel to be infringing, Pastel may at its option and expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license at Pastel’s expense to continue using the Services; or (iii) if neither of the foregoing are commercially practicable, terminate this Agreement and Customer’s rights hereunder, in which case Pastel’s sole liability (in addition to its indemnification obligations above) shall be to provide Customer with a pro-rated refund of prepaid but unused Subscription Charges applicable to the remaining portion of Customer’s current Subscription Term. Sections 8.1 and 8.3 state Pastel’s sole liability with respect to, and Customer Parties’ exclusive remedy against Pastel for, any infringement claim.8.4 Indemnification Process. The Party seeking indemnification shall (i) provide prompt notice to the indemnifying Party concerning the existence of an indemnifiable claim; (ii) promptly provide the indemnifying Party with all information and assistance reasonably requested; and (iii) cooperate fully with the indemnifying Party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a Party’s right to indemnification and shall affect the indemnifying Party’s obligations under this Agreement only to the extent that the indemnifying Party’s rights are materially prejudiced by such failure or delay. The indemnifying Party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the Party seeking indemnification to admit liability or make any financial payment shall require such Party’s prior written consent, not to be unreasonably withheld or delayed.
9. LIMITATION OF LIABILITY
9.1 Exclusion Of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF PASTEL), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.9.2 Limitation Of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PASTEL’S AGGREGATE LIABILITY TO CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PASTEL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PASTEL HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED FOR IN THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION 9.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES ARISING FROM (1) THE BODILY INJURY OF A PERSON, (2) THE INDEMNIFICATION OBLIGATIONS HEREIN, OR (3) CUSTOMER’S NON-PAYMENT OF UNDISPUTED FEES DUE AND PAYABLE.9.3 Limitation of Liability in the Aggregate. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CUSTOMER AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.9.4 Jurisdiction-specific Exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, PASTEL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.9.5 Enforceable Against Pastel. Any claims or damages that Customer may have against Pastel shall only be enforceable against Pastel Ventures, Inc. and not any other entity, nor any officers, directors or Representatives of Pastel or any other entity.9.6 The provisions of this Section 9 allocate the risk between the Parties under this Agreement and the Parties have relied on these limitations in determining whether to enter into this Agreement.
10. USE OF THIRD PARTY SERVICES
11.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and Pastel, Customer and End User consent to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.11.2 Arbitration. Any dispute arising out of or in any way relating to this Agreement shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California unless otherwise agreed upon by the Parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the Parties shall be deemed to have not agreed to arbitrate disputes. Customer may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to Pastel within thirty (30) days of the Effective Date of this Agreement between Customer and Pastel. Written notice should be sent to the address shown below. If Customer opts out of arbitration, Pastel will also not be bound to arbitrate. Notwithstanding the foregoing, either Party shall be entitled to seek injunctive relief as set forth in the Confidentiality section above to stop unauthorized use of any Confidential Information or the Services or infringement of a Party’s intellectual property rights. Disputes, claims, or controversies concerning either Party’s intellectual property rights or claims of piracy or unauthorized use of the Services shall not be subject to arbitration. The Parties further agree that the prevailing Party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.11.3 Legal Notices. Pastel may provide general notices related to the Services that are applicable to Customer via email or notification within the Services and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Legal notices (including all legal notices from Customer) must be sent via email, first class mail, airmail, or overnight courier to the address of the Customer provided via an Order Form. Legal notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Legal notices to Pastel shall be sent to:Pastel Ventures, Inc.
2 Harrison St, Suite 700
San Francisco, CA 94105If email: email@example.comGeneral support-related inquiries to Pastel can be sent to firstname.lastname@example.org Publicity; Use of Customer’s Marks. Pastel shall have the right to use Customer’s name and logo in a factual manner for marketing or promotional purposes on Pastel’s website and in other communication with existing or potential Pastel customers. The Parties shall work together in good faith to issue at least one mutually agreed upon press release upon Customer’s launch of the Services, and Customer otherwise agrees to reasonably cooperate with Pastel to serve as a reference upon request.11.5 Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.11.6 Assignment. Neither this Agreement nor any of the rights or licenses granted hereunder may be transferred or assigned by either Party without the other Party’s express prior written consent (not to be unreasonably withheld or delayed); provided, however, that either Party may assign this Agreement and all Order Forms related to Customer’s use of the Services upon written notice (if by Customer via email to email@example.com) without the other Party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that should Customer assign this Agreement to any competitor of Pastel, then Pastel shall have the right to terminate this Agreement and Customer’s use of the Services upon notice, in which case Pastel shall provide Customer’s assignee with a pro-rata refund of any prepaid but unused Fees. To effectuate an assignment of a Customer Account after receiving Pastel’s consent, Customer (“Assignor”) must submit an email to firstname.lastname@example.org and execute a form provided by Pastel with the subsequent Customer (“Assignee”) which conveys all interests, rights, and obligations in this Agreement and active Order Forms from the Assignor to Assignee. Upon review by Pastel’s Legal Department and execution by all Parties, the Agreement previously entered into by and between Assignor and Pastel, pursuant to which Assignor purchased a subscription to the Services, will be assigned as requested to the Assignee as of the assignment effective date. Any other attempt to transfer or assign this Agreement or a Customer Account will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.11.7 Force Majeure. Neither Party shall be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a Force Majeure Event. The Party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the Party experiencing such Force Majeure Event shall promptly notify the other Party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event. For the avoidance of doubt, a Force Majeure Event shall not include Customer’s financial inability to perform its payment obligations hereunder.11.8 Relationship of the Parties. The Parties are and shall be independent contractors with respect to all Services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and Customer does not have any authority of any kind to bind Pastel in any respect whatsoever. There are no third party beneficiaries to this Agreement. Without limiting this section, Customer’s End Users are not third party beneficiaries to Customer’s rights under this Agreement.11.9 Extension of Rights to Affiliates. Customer may extend its rights, benefits and protections provided herein to its Affiliates provided that Customer remains responsible and liable for such Affiliate’s compliance with this Agreement.11.10 Trial Subscriptions. Pastel may, at its option, offer new customers a limited free trial of the Services, subject to this Agreement. Notwithstanding anything to the contrary herein, Pastel shall have the right to terminate a Customer free trial at any time and for any reason.11.11 Beta Access. Select Customers may be invited to participate in the review and testing of pre-release versions of new tools and enhancements within the Services which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or a similar term. Customer acknowledges and understands that its participation in such pre-release testing is (i) not required and is at Customer’s own risk; (ii) made available on an “as is” basis; and (iii) may be subject to additional terms related to its use.11.12 English Version Controls. Non-English translations of this Agreement may be provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.11.13 Entire Agreement. This Agreement, including all attachments, policies, exhibits, addendums, and any Order Form(s) related hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the Order Form shall prevail. No terms or conditions stated in any Customer purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.11.14 Updating this Agreement. Pastel reserves the right to update or modify this Agreement from time to time as its business evolves by posting an updated version of this Agreement on its website. If, in Pastel’s sole discretion, it believes that the modifications being made are material, Pastel will notify Customer and End User prior to the change taking effect. By continuing to utilize the Services after the effective date of any update to this Agreement, Customer and End User will be deemed to have accepted such update.