Terms and Conditions
These licence terms ("Agreement") set out the terms and conditions on which Brand Cloudlines will provide certain services to the Customer, and the Customer will be permitted to use certain of Brand Cloudlines’ web-based services.
The Parties agree as follows:
Definitions. The following definitions apply in this Agreement:
read-only rights granted by Customer to Public Users.
any of the Customer's employees and consultants who are authorised by the Customer to access and use the Services on the Customer's behalf, pursuant to this Agreement.
all information disclosed by a Party to the other Party, whether orally or in writing, and whether before or after the Effective Date, which is either designated as confidential by the Disclosing Party at the time of disclosure, or which otherwise would be understood to be confidential given the nature of the information.
all data and information, including any content, documentation, images, videos or other materials, belonging to the Customer, or relating to the Customer's business which is submitted to Brand Cloudlines as a result of the Customer's use of the Services.
the Party disclosing Confidential Information to the Receiving Party pursuant to this Agreement.
any user documentation, in all forms, provided to the Customer by Brand Cloudlines relating to the Services, including without limitation, user manuals or online help files.
the date of this Agreement.
the end user license agreement between Brand Cloudlines and any Authorised Users which are permitted to access and use the Services.
the Subscription Fee, and any other fees payable by the Customer to Brand Cloudlines, as set out in an Order.
Intellectual Property Rights
patents, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
the term specified in an Order during which the Customer is permitted to use the Services.
any malware, including without limitation any automatic restraint, virus, Trojan horse, worm, time bomb, or other malicious code, files, scripts, agents, or programs which interfere with the Services.
an order form submitted by the Customer to Brand Cloudlines for use of the Services.
Brand Cloudlines and the Customer, each referred to respectively as a Party.
any information relating to an identified or identifiable natural person, who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
any end user permitted by the Customer to view Data without having access to the Services.
the Party to whom Confidential Information is disclosed by the Disclosing Party.
the web-based services provided by Brand Cloudlines from time to time, specifically the brand management platform available at https://www.brandcloudlines.com/, and any technical support services provided by Brand Cloudlines to the Customer.
the hosting and maintenance fees due to be paid by the Customer for access to and use of the Services, in accordance with this Agreement, as specified in an Order
all technology belonging to or used by Brand Cloudlines, including software, hardware, products, processes, algorithms, user interfaces, and all other works of authorship, designs, inventions, improvements, developments, discoveries, trade secrets and know how.
Third Party Applications
any online applications or offline software products or services that interoperate with the Services which are not provided by Brand Cloudlines.
the acceptable use policy which the Customer and any Authorised Users must comply with when using the Services, as set out here, as amended by Brand Cloudlines from time to time.
Use of the Services. Subject to the terms and conditions of this Agreement and the relevant Order, Brand Cloudlines grants to the Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicensable licence to use and permit Authorised Users, to use the Services for the Licence Term, solely in connection with its internal business operations. The Customer’s right to use the Services in accordance with this Agreement is subject to and contingent upon the Customer’s and Authorised Users' compliance with the Usage Policy, and Brand Cloudlines reserves all rights not expressly granted herein.
Ordering Services. The Customer shall request access to the Services by completing and submitting an Order to Brand Cloudlines. Orders shall be legally binding once accepted by Brand Cloudlines.
Use of the Documentation. Subject to the terms and conditions of this Agreement, Brand Cloudlines grants to the Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable licence, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
Technical Support Services. Brand Cloudlines will use reasonable efforts to make the Services available 24 hours a day, 7 days a week, subject to scheduled or unplanned maintenance, and will provide the Customer with technical support services relating to the Services in accordance with the service levels set out in Schedule 3.
Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, the Customer will not, and will not permit or authorise Authorised Users or any third parties to: copy, modify, transmit, distribute, frame, mirror, or attempt to reverse engineer, disassemble, reverse compile or otherwise reduce to human-readable form all or any part of the Technology, in any form or by any means; rent, lease, sell, transfer, distribute, exploit, or otherwise permit third parties to use the Services or Documentation;
- use the Services to provide services to third parties;
- use the Services to store or transmit any infringing, obscene, defamatory or otherwise unlawful or tortious material, or any material that violates a third party's privacy rights;
- use the Services to transmit any spam or otherwise unsolicited or duplicative message in violation of applicable laws, or to store or transmit any Malicious Code or in any other way that is unlawful or fraudulent;
- interfere with, damage, disrupt the integrity or performance of the Services, including by circumventing or disabling any security or other technological features or measures of the Services; or
- use or access the Services for the purposes of monitoring availability, performance, functionality, or for any other benchmarking or competitive purposes.
The Customer acknowledges that any breach of this clause 2.5 by the Customer or any Authorised User shall be treated as a material breach by the Customer, entitling Brand Cloudlines to terminate any relevant Order.
Compliance with Laws. The Customer will use the Services and Documentation in compliance with all applicable laws and regulations. The Customer shall ensure that all Authorised Users comply with this clause 2.6. Where an Authorised User uses the Services in any way that results in the contravention of any laws or regulations (including laws and regulations governing confidentiality and the processing of Personal Data) or fails to conform with the Customer's data security requirements, Brand Cloudlines shall not be responsible for such contravention or failure.
Protection against Unauthorised Use. The Customer will use its best endeavours to prevent any unauthorised use of the Services and Documentation and promptly notify Brand Cloudlines in writing of any unauthorised use that comes to the Customer’s attention. If there is unauthorised use by anyone who obtained access to the Services directly or indirectly through the Customer, the Customer will take all steps reasonably necessary to terminate the unauthorised use. The Customer will cooperate and assist with any actions taken by Brand Cloudlines to prevent or terminate unauthorised use of the Services or Documentation.
Third Party Applications. The Customer acknowledges and agrees that, where it uses Third Party Applications with the Services, such Third Party Applications may need to access the Data in order to interoperate with the Services. The Customer acknowledges and agrees that Brand Cloudlines shall not be liable for any Third Party Applications or any disclosure, modification, or deletion of the Data resulting from any such access by Third Party Applications.
Feedback. If the Customer provides any feedback to Brand Cloudlines concerning the functionality and performance of the Services (including identifying potential errors, modifications and improvements), the Customer agrees: a) the feedback is not confidential or proprietary information belonging to the Customer or any third party and Customer has all necessary rights to disclose the feedback; and, b) Brand Cloudlines may freely use the feedback without restriction.
Public Users. The Customer acknowledges and agrees that it shall be solely responsible for any use of its Data by Public Users, including for any breach of the terms and conditions of this Agreement arising from any Access Rights granted by it.
Fees and payments
Fees and Payment Terms.
- Brand Cloudlines will issue an invoice for the Subscription Fee, payable annually in advance starting on the Effective Date.
- The Customer will pay Brand Cloudlines the Fees and any other amounts owing under this Agreement, and any applicable taxes, within 30 days of the date of the applicable invoice, unless otherwise stated in an Order. If the Customer fails to make a payment due to Brand Cloudlines under this Agreement by the due date, then, without limiting Brand Cloudlines’ other rights and remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 3.1 will accrue each day at 4% a year above the Bank of England's base rate from time to time.
- All amounts due under this Agreement from the Customer to Brand Cloudlines shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). All amounts payable under this Agreement shall be paid in the currency detailed in the Order.
- All payment obligations hereunder are non-cancellable and Fees paid are non-refundable. The Customer acknowledges that the Fees are due whether the Customer utilises the Services or not.
Taxes. The Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. the Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Brand Cloudlines after all such taxes are paid are equal to the amounts that Brand Cloudlines would have been entitled to in accordance with this Agreement as if the taxes did not exist.
Disputing an invoice. Where the Customer has any questions over any amount specified in an invoice, it shall notify Brand Cloudlines no later than 10 working days before the due date of the relevant invoice, failing which the Customer shall be deemed to accept such invoice as conclusive evidence that the correct amount has been charged in respect of the Services.
Customer obligations and acknowledgements
The Customer Obligations. In using the Services, the Customer agrees that:
- it is responsible for ensuring Authorised Users are trained to use the Services and the Documentation, and that the Services are only used for the purposes permitted by this Agreement and any Order, and in accordance with the Documentation;
- except as otherwise provided for in this Agreement, the Customer is solely responsible for the results obtained from its use of the Services, and for any conclusions made from such use. Brand Cloudlines shall not be liable for any damage caused by errors or omissions in any information, instructions, scripts, or other the Data provided to Brand Cloudlines by the Customer in connection with the Services, or any action taken by Brand Cloudlines at the Customer's direction;
- it is solely responsible for the input and maintenance of the Data and for maintaining effective back-up procedures as may be necessary to replace any Data in the event of loss or damage, regardless of cause. Brand Cloudlines shall comply at all times during the Licence Term with its security policy, as may be amended from time to time. In the event of any loss or damage to Data caused by Brand Cloudlines, the Customer's sole remedy and Brand Cloudlines' sole obligation shall be to restore the lost or damaged Data from the latest back-up of such the Data maintained either by Brand Cloudlines or the Customer (in which case the Customer will cooperate and provide all necessary access to its systems).
Term and termination
- Term. This Agreement will commence on the Effective Date and continue for the Licence Term specified in an Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will renew for additional successive one-year terms unless at least 60 days before the end of the then-current term either Party provides written notice to the other Party that it does not want to renew.
- Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this clause 5.2 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If the Customer fails to timely pay any fees, Brand Cloudlines may, without limitation to any of its other rights or remedies, suspend Customer's access to of the Services until it receives all amounts due.
- Termination for insolvency. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party makes an assignment, composition or arrangement for the benefit of creditors, if a receiver or receiver-manager or administrator or administrative receiver or trustee is appointed over the whole or any part of its assets or undertaking, or if an order is made or an effective resolution passed for the winding up of the other Party.
- Post-Termination Obligations. If this Agreement is terminated for any reason, the Customer will pay to Brand Cloudlines all Fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and the Customer will provide Brand Cloudlines with a written certification signed by an authorised Customer representative certifying that all use of the Services and Documentation by the Customer has been discontinued. All licences granted to the Customer will terminate immediately upon termination of this Agreement for any reason.
- Rights in the Technology and the Services. Brand Cloudlines (and its licensors, where applicable) shall own all right, title and interest in and to the Technology, the Services, and any other services provided under this Agreement (including all Intellectual Property Rights contained therein) including to any and all enhancements, modifications, extensions and derivative works thereof.
- Data. The Data will be used and disclosed solely as required in the provision of the Services and in accordance with this Agreement. As between the Parties, the Customer, will own the Data as well as any derivatives or improvements of the Data.
- Inventions. All Intellectual Property Rights in works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Brand Cloudlines, solely or in collaboration with others, in the course of performing the Services, or that form all or part of a deliverable provided as part of the Services, whether developed as part of the Services or separately, will be the sole property of Brand Cloudlines.
- Third Party Products. Any third party products that are provided by Brand Cloudlines in connection with the Services are provided pursuant to the terms of the applicable third party agreement, and Brand Cloudlines assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.
- Marketing rights. The Customer hereby grants Brand Cloudlines a non-exclusive, worldwide, irrevocable and royalty-free licence to use the Customer’s name and trade mark on its website and in its marketing materials to the extent reasonably necessary to refer to the Customer’s use of the Services. Brand Cloudlines shall comply with the Customer’s reasonable instructions as to the permitted form and manner in which the Customer’s name and trade marks may be used.
Warranties and disclaimer
Mutual Warranties. Each Party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding Agreement enforceable against such Party in accordance with its terms; and no authorisation or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
- Customer warranties. The Customer warrants that:
- the Data does not infringe the Intellectual Property Rights or privacy rights of any third party;
- it has secured all necessary rights, licences, permissions and consents necessary for Brand Cloudlines to use the Data in providing the Services in accordance with this Agreement;
- it has not falsely identified itself nor provided any false information to gain access to the Services;
- any billing information it provides to Brand Cloudlines is correct.
Brand Cloudlines warranties. Brand Cloudlines warrants to the Customer that:
- the Services will under normal use and circumstances conform substantially in accordance with the Documentation;
- it will use all reasonable technical means to ensure that the Services do not contain any Malicious Code or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or Data;
- the receipt and use of the Services by the Customer shall not infringe the rights, including any Intellectual Property Rights, of any third party. Brand Cloudlines shall not be in breach of this clause 7.3(c) to the extent the infringement arises from: (i) the inclusion of the Data in the Services; (ii) any modification of the Services, other than by or on behalf of Brand Cloudlines; or (iii) compliance with the Customer’s specifications or instructions.
In the event of any breach of warranties a) to c) (inclusive), Brand Cloudlines' sole obligation and the Customer's sole remedy, subject to clause 8, will be for Brand Cloudlines to make reasonable commercial efforts to correct the non-conformity through the provision of support.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN CLAUSE 7.1 AND 7.3, BRAND CLOUDLINES MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OR GUARANTEE OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BRAND CLOUDLINES EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OR ACCURACY. BRAND CLOUDLINES DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. BRAND CLOUDLINES DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. BRAND CLOUDLINES DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. BRAND CLOUDLINES EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF THE CUSTOMER’S USE OF THE SERVICES.
Intellectual property infringement
- Indemnification of Infringement Claims. Brand Cloudlines will indemnify the Customer from and pay all damages, costs, losses and expenses (including reasonable legal fees) finally awarded against the Customer in any claim, proceeding or suit (“Claim“) brought by a third party against the Customer alleging that the Customer's use of the Services infringes any Intellectual Property Rights. Liability under this indemnity is conditional on the Customer discharging the following obligations. If any third party makes a Claim, or notifies an intention to make a Claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity, the Customer shall: (a) as soon as reasonably practicable, give written notice to Brand Cloudlines, specifying the nature of the Claim in reasonable detail; (b) not make any admission of liability, Agreement or compromise without the prior written consent of Brand Cloudlines (such consent not to be unreasonably conditioned, withheld or delayed); and (c) give Brand Cloudlines and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Brand Cloudlines and its professional advisers to examine them and to take copies for the purpose of assessing the Claim.
- Exclusions from Obligations. Brand Cloudlines will have no obligation under this clause 8 for any infringement or misappropriation to the extent that a) it arises out of or is based upon use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; b) the Services are provided to comply with designs, requirements, or specifications required by or provided by the Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; c) use of the Services by the Customer for purposes not intended or outside the scope of the licence granted to the Customer; d) the Customer's failure to use the Services in accordance with instructions provided by Brand Cloudlines, if the infringement or misappropriation would not have occurred but for such failure; e) or any modification of the Services not made or authorised in writing by Brand Cloudlines where such infringement or misappropriation would not have occurred absent such modification.
- Limited Remedy. This clause 8 states Brand Cloudlines’ sole and exclusive liability, and the Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
- Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. Subject to clause 10.3, the Receiving Party shall hold the Disclosing Party's Confidential Information in confidence, and shall not use the Disclosing Party's Confidential Information for any purpose other than the implementation of this Agreement. Unless required by law, the Receiving Party shall not disclose the Disclosing Party's Confidential Information to any third party.
- The Receiving Party shall take all reasonable steps to ensure that the Disclosing Party's Confidential Information to which it has access is not disclosed or distributed by its employees, agents, or contractors, in violation of the terms of this Agreement.
- The Receiving Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.3, it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.
- The Customer acknowledges that the Services constitute Brand Cloudlines' Confidential Information, and Brand Cloudlines acknowledges that the Data is the Confidential Information of the Customer. Brand Cloudlines shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- Confidential Information shall not include information that: a) is or becomes publicly known other than through any act or omission of the Receiving Party; or b) was in the Receiving Party's lawful possession before disclosure by the Disclosing Party; or c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or d) is independently developed by the Receiving Party, which independent development can be shown in written evidence.
- The provisions of this clause 10 shall survive termination of this Agreement, however arising.
Limitations of liability
- Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NO PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF AGREEMENTS OR CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOSS OF OR DAMAGE TO GOODWILL, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL BRAND CLOUDLINES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, BREACH OF STATUTORY DUTY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO BRAND CLOUDLINES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
- Relationship. Each Party will be and shall act as an independent contractor (and not as the agent or representative of the other Party) in the performance of this Agreement.
- Assignability. The Customer shall not assign its right, duties, and obligations under this Agreement without Brand Cloudlines' prior written consent, which consent will not be unreasonably withheld or delayed.
- Subcontractors. Brand Cloudlines may utilise a subcontractor or other third party to perform its duties under this Agreement so long as Brand Cloudlines remains responsible for all of its obligations under this Agreement.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email to the appropriate Party at the address provided to it by the other Party for this purpose. Either party may change its address for receipt of notice by notice to the other Party in accordance with this clause 12.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
- Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
- Governing Law and Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
- Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
- Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same Agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
- Entire Agreement. This Agreement, including all Orders and any schedules constitutes the entire agreement between the Parties regarding the Customer’s use of the Services. No employee, agent, or other representative of Brand Cloudlines has any authority to bind Brand Cloudlines with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. This Agreement may be changed only by a written agreement signed by an authorised agent of the Party against whom enforcement is sought.
- Interpretation. The headings appearing at the beginning of the clauses contained in this Agreement have been inserted for reference purposes only and must not be used to construe or interpret this Agreement. Any reference to any agreement, document, or instrument will mean such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular clause, or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive