THIS SOFTWARE AS A SERVICE (SAAS) SUBSCRIPTION AGREEMENT IS A BINDING AGREEMENT MADE BETWEEN [●] (“SERVICE PROVIDER” OR “MINUTUS”) AND YOU, THE LICENSEE (“YOU”, “YOUR”, “LICENSEE” OR “CUSTOMER”), AND GOVERNS YOUR USE, UNDER LICENSE, OF THE SERVICES/APPLICATION (AS DEFINED BELOW) AND ACCESS TO THE SERVICES ACCORDING TO THE TERMS AND CONDITIONS SET FORTH BELOW. ALL TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT ARE INTEGRAL TO THE AGREEMENT AND LICENSEE CONSENTS TO ALL OF THESE TERMS AND CONDITIONS. ALL COMPONENTS OF THIS AGREEMENT COLLECTIVELY ARE REFERRED TO HEREIN AS THE “AGREEMENT”.
BY ACCESSING OR USING THE SERVICES / BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED HERE IN FULL, AND THAT YOU AGREE THAT THE TERMS AND CONDITIONS SHALL BE FULLY AND LEGALLY BINDING UPON THE PARTIES.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. HOWEVER, IF YOU DO NOT HAVE SUCH AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN SUCH EVENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES. YOUR ACCESS AND/OR USE OF THE APPLICATION/SERVICES SHALL CONSTITUTE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
This Agreement is effective immediately upon You CLICKING THE "I ACCEPT" BUTTON” (“Effective Date”).
1. DEFINITIONS
1.1. “Auto Renew” or “Auto Renewal” is the process by which the Services Period of the Services under an Order is automatically extended for an additional Services Period unless the Services are otherwise terminated in accordance with the terms of the Order or this Agreement;
1.2. “Order” means your subscription form specifying the details of Services availed, Subscription Fee, duration of said Services and such other information;
1.3. “Services” means Cloud Storage Service along with Services Platform;
1.4. “Service Period” refers to the period of time for which Your subscription is valid and as specified in Your Order;
1.5. “Services Platform” refers to the combination of hardware and software components licensed or managed by Minutus to which Minutus grants You access as part of the Services which You have subscribed to. As applicable and subject to the terms of this Agreement and Your subscription, Your Content may be hosted on the Services Platform;
1.6. “Subscription Fee” refers to the fees for using the Services during the Service Period;
1.7. “Your Content” all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that reside in, or run on or through, the Services Platform.
2. TERM OF AGREEMENT
This Agreement is valid for the period as may be mentioned in the Order attached to this Agreement. This Agreement may also be referenced for any renewal or Auto Renewal of the Services Period of the original order and/or for any additional users.
3. GRANT OF LICENSE
3.1. For the duration of the Services Period and subject to Your payment of Subscription Fee, and except as otherwise set forth in this Agreement or the Order, You have the non-exclusive, non-assignable, royalty free, limited right to access and use the Services specified in the Order, solely for Your internal business operations and subject to the terms of this Agreement and the Order.
3.2. You do not acquire under this Agreement any right or license to use the Services, in excess of the scope and/or duration of the Services stated in Your Order. Upon the end of the Services ordered, Your right to access and use the Services will automatically terminate.
3.3. You acknowledge that the Service Provider shall have sole right to change any of the original cloud service provider with a prior notice to You.
3.4. You are required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services. Except foremergency or security related maintenance activities, the Service Provider will coordinate with You the scheduling of application of Patches, where possible, based on the Service Provider’s next available standard maintenance window.
4. OWNERSHIP AND RESTRICTIONS
4.1. You shall retain all ownership and intellectual property rights in and to Your Content. Service Provider or its licensor(s)shall retain all ownership and intellectual property rights to the Services and Services Platform, and to anything developed or delivered by or on behalf of Service Provider under this Agreement.
4.2. You shall notor cause/permit others to:
4.2.1. modify, make derivative works of, disassemble, decompile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Service Provider and/or its licensor(s);
4.2.2. perform or disclose any benchmark or performance tests of the Services, without prior written consent of the Service Provider;
4.2.3. perform or disclose any of the following security testing of the Services Platform or associated infrastructure without Service Provider’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing etc.;
4.2.4. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, ancillary programs, Services Platform or materials available, to any third party, other than as expressly permitted under the terms of your Order; and
4.2.5. provide unauthorized access to the Services to third parties;
4.2.6. use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Content, and third party content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to the Service Provider under this Agreement, Service Provider reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Service Provider shall have no liability to You in the event that Service Provider takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Content. You agree to defend and indemnify Service Provider against any claim arising out of a violation of Your obligations under this section.
5. SUBCRIPTION FEES AND TAXES
5.1. The Subscription Fees payable to the Service Provider are due within 30 days from the invoice date unless otherwise indicated in Your Order. Once placed, Your Order is non-cancellable and the sums paid non-refundable, except as provided in this Agreement or Your Order.Subscription Fees are exclusive of taxes and expenses.
5.2. You agree and acknowledge that You have not relied on the future availability of any Services in entering into the payment obligations in Your Order.However, the preceding does not relieve the Service Provider of its obligation during the Services Period to deliver Services that You have Ordered per the terms of this Agreement.
6. SERVICES PERIOD; SUSPENSION/END OF SERVICES
6.1. Services provided under this Agreement shall be provided for the Services Period defined in Your Order, unless earlier suspended or terminated in accordance with this Agreement or the Order. If stated in the Order, the Services that are Ordered will Auto Renew for additional Services Period unless (i) You provide the Service Provider with written notice no later than thirty (30) days prior to the end of the applicable Services Period of your intention not to renew the Services, or (ii) Service Provider provides You with written notice no later than ninety (90) days prior to the end of the applicable Services Period of its intention not to renew the Services.
6.2. Upon the end of the Services, You no longer have rights to access or use the Services, including the Service Platform.However, at Your request, and for a period of up to 30 days after the end of the applicable Services, Service Providermay make available to You Your Content as existing in the Services Platform on the date of termination. At the end of such 30 day period, and except as may be required by law, Service Provider will delete or otherwise render inaccessible any of Your Content that remain in the Services Platform.
6.3. Service Provider may temporarily suspend Your password, account, and access to or use of the Services if You or Your Users violate any provision within the ‘Rights Granted’, ‘Ownership and Restrictions’, ‘Subscription Fees and Taxes’, ‘Use of the Services’, or ‘Export’ sections of this Agreement, or if in Service Provider’s reasonable judgment, the Servicesor any component thereof are about to suffer a significant threat to security or functionality. Service Provider will provide advance notice to You of any such suspension in Service Provider’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Service Provider will use reasonable efforts to re-establish the affected Services promptly after Service Provider determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Service Provider will make available to You Your Content as existing in the Services Platform on the date of suspension. Service Provider may terminate the Services under an order if any of the foregoing causes of suspension is not cured within 30 days after Service Provider’s initial notice thereof. Any suspension or termination by Service Provider under this paragraph shall not excuse You from Your obligation to make payment(s) under this Agreement.
6.4. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If Service Provider terminates the Order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. Except for non-payment of Subscription Fees, the non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use those Services.
6.5. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment and others which by their nature are intended to survive.
7. CONFIDENTIALITY
7.1. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). We each agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Your Content residing in the Services Platform, and all information clearly identified as confidential at the time of disclosure. The receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. ConfidentialInformation does not include any information after 3 years following disclosure thereof or any information that the receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing Party, or (e) is required to be disclosed by law.
7.2. Notwithstanding contained herein, the Service Provider will hold Your Confidential Information that resides within the Services Platform in confidence for as long as such information resides in the Services Platform. We each may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement.
8. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
8.1. The Service Provider warrants that it will perform the Services in all material respects as described in the Order. If the Services provided to You were not performed as warranted, You must promptly provide written notice to Service Provider that describes the deficiency in the Services (including the service request number, if any).
8.2. THE SERVICE PROVIDER DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SERVICE PROVIDER WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY SERVICE PROVIDER, AND (C) THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT SERVICE PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD PARTY CONTENT USED BY YOU. SERVICE PROVIDER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.
8.3. FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF SERVICE PROVIDER CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES AND SERVICE PROVIDER WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO SERVICE PROVIDER FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
8.4. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY AND LIMITATION ON DAMAGES
9.1. IN NO EVENT SHALL SERVICE PROVIDER AND ITS SUPPLIERS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF DATA OR USE, OR ANY BUSINESS INTERRUPTION OR DISRUPTION, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, WARRANTY, FIDUCIARY DUTY, STATUTORY CLAIM UNDER ANY FEDERAL, STATE, LOCAL LAW OR ANY OTHER JURISDICTION, OR ANY OTHER TYPE OF LEGAL CLAIM, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER SERVICE PROVIDER NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR’S USE OF OR ACCESS TO THE SERVICES, (II) SERVICE PROVIDER’S DISCONTINUATION OF ANY OR ALL ACCESS TO THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF YOUR CONTENT OR OTHER DATA.
THE AGGREGATE AND CUMULATIVE TOTAL LIABILITY OF SERVICE PROVIDER AND/OR ITS SUPPLIERS FOR DAMAGES, INCLUDING FOR DIRECT DAMAGES, UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY YOUR UNDER THIS AGREEMENT THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM, AND IF SUCH DAMAGES RELATE TO PARTICULAR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO SUBCRIPTION FEES PAID FOR THE SERVICES GIVING RISE OR RELATED TO THE ALLEGED LIABILITY AND DAMAGES UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM.
9.2. YOU ACKNOWLEDGE THAT THE SUBCRIPTION FEES APPLICABLE FOR THE SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SERVICE PROVIDER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT (INCLUDING THOSE SET FORTH ABOVE IN THIS SECTION 8 AND IN SECTION 10 BELOW).
10. FORCE MAJEURE
10.1. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic,epidemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay Subscription Fees for the Services.
11. EXPORT REGULATIONS
11.1. You agree that the applicable export laws and regulations may govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations. You agree that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.
12. Personal Data
12.1. Once you register with the Service Provider and sign in to the Service, you are not anonymous to Service Provider.
12.2. When signing in, you may provide Your Personal Data, which may include company name, industry, number of employees, phone number, your title, city, state, country, zip code, a user name, and a confirmed email address. Service Provider may also record your IP address when you submit information.
12.3. All information collected by Service Provider is used for internal purposes of providing the Service.
12.4. Service Provider may also use your company name, logo, and feedback for marketing purposes. For example, Service Provider may use information you provide to contact you to further discuss your interest in our products or services and to send you information regarding Service Provider and its partners, such as information about promotions or events.
12.5. To protect your account information, please keep your password secure.
12.6. Service Provider does not intentionally gather Personal Data about visitors who are under the age of 13.
12.7. Service Provider will not sell or market the email addresses or other collected personal information of registered Users to third parties.
12.8. Service Provider will not view the files that you backup unless required for the purposes of providing Services and/or technical support.
12.9. You acknowledge and agree that Service Provider may occasionally send you administrative communications regarding your account or the Service via email.
12.10. Service Provider uses cookie, IP address, and URL information to improve and further develop the Service, and to provide enhanced or geographically differentiated features and service levels to its users, where available. Service Provider uses cookies to save User screen names, session validations, and on Users’ browsers and hard drives, and may use them to provide tailored products and services to those Users, as they become available.
12.11. IP Addresses also help Service Provider diagnose network congestion, problems with our servers and otherwise assist in the administration and delivery of the Service to You.
12.12. Service Providerwebsite may contain links to other sites that are not under our control. These websites have their own policies regarding privacy. You should review those policies before visiting the websites. Service Providerhave no responsibility for linked websites, and we provide these links solely for the convenience and information of our visitors.
12.13. Service Provider does not disclose Personal Data, including the data you back up with the Service, unless disclosure is necessary to comply with an enforceable government request such as a warrant.
13. NOTICES
13.1. All notice and other communications required or permitted to be given under this Agreement must be in writing. All notices shall be addressed to the following:
If to Service Provider:
Name: Minutus Computing Pvt Ltd
Address: Plot no 468, Sector 28, NigdiPradhikaran PuneMaharashtra India 411044
Phone: +917620029697
Email: sales@minutuscomputing.com
14. GOVERNING LAW AND JURISDICTION
14.1. This Agreement shall be governed and construed in accordance with the laws of India and exclusive jurisdiction of courts at Pune.The United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code, the Uniform Computer Information Transactions Act, and any law effectuating these conventions do not apply to this Agreement.
15. DISPUTE RESOLUTION
15.1. If any dispute arises between the Parties hereto during the subsistence of this Agreement or thereafter, the parties hereto shall endeavour to settle such dispute amicably.
15.2. In case of such failure, either Party may refer the dispute to a sole arbitrator jointly appointed by the Parties. If the Parties fail to jointly appoint an arbitrator within 30 (thirty) days, the arbitrator shall be appointed in accordance with the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996.
15.3. The place of the arbitration shall be Mumbai, India and the proceedings of arbitration shall be in the English language.
15.4. The arbitrator’s award shall be substantiated in writing and the court of arbitration shall also decide on the costs of the arbitration proceedings. The award shall be final and binding on the Parties.
MISCELLANEOUS
16. Entire Agreement
16.1. This Agreement constitutes the entire agreement of the Parties relating to the subject matter hereof. It supersedes any and all other agreements, either oral or in writing, between the Parties hereto with respect to the subject matter herein.
17. Amendments
17.1. No amendment to this Agreement shall be valid or binding unless set forth in writing and duly executed by all the Parties to this Agreement.
18. Assignment
18.1. This Agreement and the rights and obligations hereunder shall bind and inure to the benefit of the respective successors of the Parties hereto. None of the Parties shall have a right to assign or transfer any of their rights hereunder to any other person without the prior written consent of the other Parties.
19. Relationship
19.1. Each Party hereto is an independent contractor and nothing contained in this Agreementshall be construed to be inconsistent with this relationship or status. Neither Party owesa fiduciary duty to the other. Nothing in this Agreement shall be in any way construedto constitute either Party as the agent, employee or representative of the other.
19.2. Nothing herein contained shall constitute or be construed to create a joint venture,partnership or formal business organization of any kind. NeitherParty shall have the authority to bind the other hereunder.
20. Reservation of Rights
20.1. No forbearance, indulgence or relaxation or inaction by any Party at any time to require performance of any of the provisions of this Agreement shall in any way affect, diminish or prejudice the right of such Party to require performance of that provision. Any waiver or acquiescence by any Party of any breach of any of the provisions of this Agreement shall not be construed as a waiver or acquiescence of any right under or arising out of this Agreement or of the subsequent breach, or acquiescence to or recognition of rights other than as expressly stipulated in this Agreement.
21. Severability
21.1. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent for any reason including by reason of any applicable law or government policy, the remainder of this Agreement and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the unenforceable provision.
