Brand Terms & Conditions
Brand Terms & Conditions
Last Updated: December 8, 2025
These Brand Terms and Conditions (“Terms”) are made part of the Way Services Agreement entered into between Kouto Inc., doing business as Way, a Delaware Corporation (“Way”) and the Customer listed in the Order which references these Terms (“Customer”). These Terms will govern the use and provision of any Services purchased by Customer as described in any Order. The “Agreement” shall mean these Terms and the applicable Order entered into between Customer and Way.
WAY RESERVES THE RIGHT TO MODIFY THESE TERMS AT ANY TIME IN ITS SOLE DISCRETION IN ACCORDANCE WITH THIS PROVISION. IF WAY MAKES CHANGES TO THE TERMS, WAY WILL POST THE REVISED TERMS ON WAY’S WEBSITE OR IN THE WAY SERVICES AND UPDATE THE “LAST UPDATED” DATE AT THE TOP OF THE TERMS. IF WAY MAKES ANY MATERIAL CHANGES TO THE TERMS, WAY WILL PROVIDE NOTICE OF SUCH MATERIAL CHANGES ON THE WEBSITE OR WAY SERVICES AND WILL ATTEMPT TO NOTIFY CUSTOMER BY SENDING AN E-MAIL TO THE E-MAIL ADDRESS PROVIDED IN CUSTOMER’S ACCOUNT. ANY CHANGES TO THE TERMS WILL BE EFFECTIVE IMMEDIATELY FOR NEW CUSTOMERS AND WILL BE EFFECTIVE FOR EXISTING CUSTOMERS UPON THE EARLIER OF (A) THIRTY (30) DAYS AFTER THE “LAST UPDATED DATE” AT THE TOP OF THESE TERMS, OR (B) CUSTOMER’S CONSENT TO AND ACCEPTANCE OF THE UPDATED AGREEMENT IF WAY PROVIDES A MECHANISM FOR CUSTOMER’S IMMEDIATE ACCEPTANCE IN A SPECIFIED MANNER (SUCH AS A CLICK-THROUGH ACCEPTANCE), WHICH WAY MAY REQUIRE BEFORE FURTHER USE OF THE SERVICES IS PERMITTED. IF CUSTOMER DISAGREES WITH THE MATERIAL REVISED TERMS, CUSTOMER MUST OPT-OUT OF THE NEW TERMS BY EMAILING WAY AT LEGAL@WAY.CO STATING THEY DO NOT AGREE TO THE NEW TERMS WITHIN THIRTY (30) DAYS OF WAY’S NOTICE OF SUCH CHANGE. SUCH CUSTOMER’S CONTINUED USE OF THE SERVICES WILL BE SUBJECT TO THE PRIOR VERSION OF THE TERMS THAT CUSTOMER ACCEPTED. OTHERWISE, CUSTOMER’S CONTINUED ACCESS TO OR USE OF THE SERVICES WILL CONSTITUTE ACCEPTANCE OF THE REVISED TERMS. CUSTOMER SHOULD REGULARLY CHECK THE WEBSITE AND WAY SERVICES TO VIEW THE THEN-CURRENT TERMS. CUSTOMER AGREES THAT WAY’S CONTINUED PROVISION OF THE SERVICES IS ADEQUATE CONSIDERATION FOR THE CHANGES IN THE UPDATED TERMS.
1. Definitions
1.1 “Customer Content” means the data and content uploaded or submitted into the Way Services by or on behalf of Customer, and includes Provider Content.
1.2 “Confidential Information” means all written or oral information, disclosed by one party (the “Disclosing Party”) to the other (the “Recipient”), related to the business, products, services or operations of the Disclosing Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques and (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents.
1.3 “Core Partners” are Way’s customers that have subscribed for full access to the Way Services, including Customer.
1.4 “Gross Revenue” means all amounts received by Way from Experience participants minus any chargebacks, refunds, and cancellations.
1.5 “Provider” means Customer, Core Partner or Base Partner that provides experiences to be offered via the Services.
1.6 “Provider Content” means data and content uploaded or submitted into the Way Services by or on behalf of Providers.
1.7 “Base Partners” are licensors of Way services that have been granted a license solely to provide branded experiences to guests and end customers of “Core Partners”.
1.8 “Order” means the document signed by an authorized representative of each party that references these Terms and identifies the specific Service(s) to be made available and the fees to be paid.
1.9 “Professional Services” means any professional services provided by Way to Customer as described in an Order (as may be further elaborated in any statement of work agreed to by the parties), including implementation, support and maintenance, and training services.
1.10 “Services” means the Way Services, the Professional Services and any other services set forth in an Order.
1.11 “Way Services” means peer to peer software platform for branded experiential connections, including those features indicated in the Order.
2. Access, Rights, Restrictions and Security
2.1 Services. During the Term (as defined below), and subject to Customer’s compliance with this Agreement, Way will provide a nonexclusive, revocable license to use the Way Services. During the Term, Way may, but is not required to, provide updates, new features, and revisions to the Services as it may in its sole discretion decide.
2.2 Customer Restrictions. During the Term and thereafter, Customer shall not, and shall not permit any of its employees, contractors or Providers to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than Customer’s customers; (b) use or demonstrate the Services in any other way that is in competition with Way; (c) reverse engineer, disassemble or decompile the Way Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Way Services (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (f) use the Services in a manner that interferes or attempts to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (h) use the Services in a manner which interferes with or disrupts its integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (j) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations.
2.3 Customer’s Obligations. During the Term, Customer agrees to ensure all end users of the Way Services accept and acknowledge the Terms of Services Agreement (https://www.way.co/legal-agreements) and Privacy Policy (https://www.letsway.com/privacy), as may be amended by Way from time to time, and any other reasonable policies which are currently or may be put in place and which from time to time may be amended and supplemented; (c) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Way promptly of any such unauthorized use known to Customer. Additionally, with regards to any experiences offered through the Way Services (“Experiences”), Customer acknowledges and agrees:
(a) Customer and Providers are solely responsible for setting a price for such Experiences.
(b) any terms and conditions included in Customer’s Experience must not conflict with this Agreement.
(c) when Customer accepts a booking by an end user, Customer is entering into a legally binding agreement with such end user and are required to provide the Experience to such end user as described.
(d) Way recommends that Customer obtain appropriate insurance for their Experiences.
(e) As between the parties, Customer is responsible for the Experiences that Providers provide. Way merely provides the Way Services and is not itself an operator or provider of tours, activities, travel services, Experiences, events or other services. Way does not own, sell, resell, furnish, provide, manage and/or control any such Experiences, events or other services. Way’s responsibilities are limited to making the Experiences available through the Way Services to end users.
(f) As between the parties, Customer is responsible for acquiring all equipment, including supplies, vehicles, venues and other materials necessary to host its Experiences. Customer is solely responsible for ensuring that the items used in its Experiences are in good working order and conforms to all laws pertaining to safety, equipment, inspection, and operational capability. Except as otherwise required by law, Customer assume all risk of damage or loss to these items.
(g) Customer is solely responsible for determining its obligations to report, collect, remit or include in Customer’s fees any applicable VAT or other indirect sales taxes, occupancy tax, tourist or other visitor taxes or income taxes ("Taxes").
(h) Customer is solely responsible for any modifications, cancellations and refunds. All end user inquiries, including questions, disputes or requests to modify, cancel or refund an Experience shall be directed to Customer. Way has no responsibility regarding establishing policies associated with the Experiences.
2.4 Services. Subject to the terms and conditions of the Agreement, the Services may make available to Customer certain functionality or tools that use or leverage artificial intelligence related technology of Way or its licensors, including large language models, algorithms, and machine learning technology (collectively, “AI Tools”). The AI Tools may be used by Customer or its authorized users via the Services to generate suggested text, information, results, content, and other material (collectively, “Output”) in response to Customer’s prompts or inputs (collectively, “Input”). Due to the nature of artificial intelligence related technology, Customer understands that Customer’s and its authorized users’ Input and Output may not be unique, and the AI Tools may generate the same or similar output for other users of the AI Tools. Artificial intelligence is rapidly evolving and given its probabilistic nature, use of the AI Tools may result in inaccurate or incomplete Output. Customer is solely responsible for evaluating the accuracy, completeness, and suitability of its and its authorized users’ Input and Output for their use cases, and subjecting them to appropriate quality control procedures, including human review and verification. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WAY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS WITH RESPECT TO ANY INPUT OR OUTPUT.
3. Proprietary Rights and Confidential Information
3.1 Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each Recipient agrees as follows: (A) it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees and independent contractors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”) and (B) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein. Each Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
3.2 Exceptions. The provisions of Section 3.1 will not apply to Confidential Information that: (A) becomes generally available to the public through no fault of the Recipient; (B) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (C) Recipient can prove, by clear and convincing evidence, was already known to the Recipient without restriction at the time of disclosure; or (D) Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of Recipient without use of the Confidential Information. Notwithstanding Section 3.1, each party may disclose Confidential Information to the limited extent required by a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order.
3.3 Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Way to use the Customer Content to provide the Services.
3.4 License in Customer Content. Customer grants to Way, a non-exclusive license to use the Customer Content as necessary for purposes of providing the Services and to provide necessary access to third-party service providers acting on Company’s behalf to provide the Services. Except for the limited licenses granted to Way in any Customer Content, as between Customer and Way, Customer reserves all right, title and interest in the Customer Content. Notwithstanding anything to the contrary herein, Customer agrees that Way has the right to collect, use and analyze any deidentified information derived from the Customer Content (collectively, the “Deidentified Data”) for Way’s lawful business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Way offerings. Way may disclose Deidentified Data solely in aggregate form in connection with its business. Customer hereby grants to Way a non-exclusive license to use Customer’s name and logo in connection with the promotion of Way’s business, products and/or services.
3.5 Way Services. Except for the limited access grant provided to Customer in this Agreement, Way reserves all right, title and interest in its intellectual property and business, including the Services and the Way trademarks. Unless otherwise expressly set forth in an Order, and except for any Customer Content, all work product or services provided or developed pursuant to this Agreement or any Order, and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Way.
3.6 Feedback. Way in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to Way in connection with its access to and use of the Services (all comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants Way a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Way products and services
4. Term; Termination
4.1 Term. The term of this Agreement shall commence on the effective date set forth in the Order (“Order Effective Date”) and remain in effect for the duration of the term set forth in an Order (the “Term”).
4.2 Termination. Either party may terminate this Agreement or any Order, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days. In the case of Customer’s nonpayment of Fees, Way may terminate this Agreement or any Order, at its discretion, effective immediately upon written notice to Customer if Customer fails to pay Fees within ten (10) days of when they are due.
4.3 Effects of Termination. In the event this Agreement or any Order is terminated early due to non-payment by Customer or other breach of the Agreement by Customer, any amounts owed to Way in connection with remaining Fees due through the end of the contract Term will accelerate and be immediately due and payable. Upon termination or expiration of this Agreement for any reason, all licensed and access rights granted will immediately cease to exist. Sections 1, 2.2, 3, 4.3, 5.1, 7, 8, 9 and 10 will survive any expiration or termination of this Agreement.
5. Fees; Payment
5.1 Customer shall pay the fees and charges set forth on the Order (the “Fees”). If not otherwise indicated in an Order, Fees will be charged to Customer’s account via automatic ACH withdrawal (currently via Maxio Payments, but subject to change at any time). By providing Way, or its third-party payment service provider, with your payment information, you agree that the Way and/or such third-party payment service provider is authorized to immediately charge your payment method for all Fees due and payable to Way under the Agreement without additional notice or consent. Customer shall immediately notify Way of any change in their payment information to maintain its completeness and accuracy. Way reserves the right at any time to change its billing methods in its sole discretion. Customer agrees to have sufficient funds or credit available upon placement of any order to ensure that the Fees are collectible by Way. Customer’s failure to provide accurate payment information to Way or its third-party payment service provider or Way’s inability to collect payment shall be deemed a material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Service are non-cancellable and non-refundable.
To the extent fees are invoiced, full payment for invoices issued must be received within thirty (30) days from Customer’s receipt of the invoice. If an Order permits Customer to pay via an alternative payment method, if not otherwise indicated in an Order, the sum of the subscription Fees due over the Initial Term shall be due upon the Order Effective Date and the sum of the Fees due over any Renewal Term shall be due upon the first day of the Renewal Term.
If any amount is past due more than fifteen (15) days, Way may charge, at its sole and exclusive option, and Customer shall pay, interest on the overdue balance at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less, plus all expenses of collection (including reasonable attorneys’ fees and costs). In addition to any other remedy stated herein or provided by law, Way shall be entitled to withhold performance and discontinue Services, in whole or part, until all amounts due are paid in full.
5.2 For Experiences hosted directly by Customer, Way will remit funds to Customer equal to the Gross Revenue booked via the Way Services after credit card processing fees of 3.1% plus a flat fee of $0.30 per transaction for paid Experiences only (“Transaction Fee”). In the event Customer initiates a refund to an Experience participant through the Way Services, Customer shall provide Way the total amount of the refund to be returned to Experience participant and shall be solely responsible for any and all credit card processing fees assessed in connection with such refund, including without limitation the Transaction Fee and all actual charges related to the processing of the refund. Way shall invoice Customer for any such credit card processing fees and such invoices shall be paid by Customer within fifteen (15) days of receipt of such invoice.
5.3 Way reserves the right to modify Fees for any Renewal Term. At least sixty (60) days prior to the expiration of the Initial Order Term or any Renewal Term, Way shall notify Customer via email of any change in the monthly/annual subscription fee to be charged for the subsequent Renewal Term.
5.4 Each party is responsible for its own income and other taxes, and shall file tax returns and pay taxes in accordance with applicable federal and state laws for any revenues owned through the Way Services. Way will not voluntarily withhold any taxes from amounts due to Customer hereunder.
6. Partner Exchange Platform
6.1 If ordered pursuant to an Order, Way will make available the Partner Exchange Platform (the “Partner Exchange Platform”) to Customer as part of the Way Services, allowing Customer to collaborate with other Base Partners and Core Partners of the Way services in order to offer branded experiences to Customer’s guests and end customers. The Promoter Platform will allow the Customer, as a Core Partner, to act as a promoter of experiences offered by other Core Partners or Base Partners. Fees due with respect to the use of the Promoter Platform shall be set forth in an Order.
6.2 Where Customer is the provider of an Experience promoted by a third-party Core Partner or Base Partner, Way will remit funds to Customer equal to the portion of the Gross Revenue due to Customer as established via the Platform after deduction of the Transaction Fees.
7. Warranties; Disclaimers; Limitations on Liability
7.1 General Representations. Each party represents and warrants that: (a) as of the Effective Date and throughout the Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
7.2 By Customer. Customer represents and warrants that (a) it has obtained and will maintain throughout the Term, all rights, consents and permissions for Customer to make available the Customer Content to Way and for Way to use the Customer Content as contemplated herein; (b) neither Customer nor its Experiences are located or take place in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (ii) Customer and Providers are not listed on any U.S. Government list of prohibited or restricted parties.
7.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. WAY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE. THE AI TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE ANY WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED, OR INFORMATIVE RESULTS OR BE FIT FOR ANY PARTICULAR PURPOSE OR USE CASE. WAY DOES NOT REPRESENT OR WARRANT THAT CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE, OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.
7.4 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL WAY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
7.5 Limitations on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY WAY UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY (1) TO A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (2) IN CONNECTION WITH CUSTOMER’S OBLIGATIONS TO PAY FEES, INCLUDING ANY FEES, ACCELLERATED FEES, INTEREST, OR FEES ASSOCIATED WITH COLLECTING FEES.
7.6 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF WAY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 7 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
8. Indemnification
8.1 Way Indemnity. Way will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Way Services infringe any U.S. patent, copyright, trademark or trade secret.
8.2 Exclusions. Section 8.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Way if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
8.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Way, its directors, officers, and employees (each a “Way Indemnified Party”) from and against any and all Losses arising out of any third party claim or action, including claims or actions brought by governmental authorities, (a) alleging a Customer breach of any Customer representation or warranty in Section 7, and (b) arising out of any Customer Indemnity Responsibility.
8.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
8.5 Infringement. If the Way Services are, or in Way’s opinion, are likely to become, the subject of any infringement-related claim, then Way will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Way Services; (b) replace or modify the infringing technology or material so that the Way Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order pursuant to which the Way Services are provided and give Customer a refund for any pre-paid but unused Fees.
8.6 THE PROVISIONS OF THIS SECTION 8 STATE WAY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
9. Notices
9.1 All notices, requests, consents and demands shall be made in writing to either party at the address set forth in the applicable Order. Either party may change its address by giving notice of the new address to the other party.
9.2 Notices required hereunder shall be deemed properly given: (i) upon personal delivery to the party to be notified; (ii) upon delivery by electronic facsimile (the transmittal of which shall be confirmed by a telephone call to the other party) to the fax number as such party may designate by advance written notice to the other party; (iii) upon delivery by electronic mail (the transmittal of which shall be confirmed by a telephone call or responsive e-mail to the other party) to the e-mail address as such party may designate by advance written notice to the other party; (iv) three business days after mailing by first class, certified mail, postage prepaid and addressed to the party to be notified at the address indicated for such party in this Agreement or at such other address as such party may designate by advance written notice to the other party; or (v) next day for delivery by guaranteed overnight delivery, which delivery is confirmed.
10. General
10.1 Assignment. Neither party may assign this Agreement or any rights or obligations acquired hereunder to any person or entity without the prior written consent of the other party; provided, however, that Way may subcontract and assign its obligations hereunder to a third party in connection with maintenance and support of the Way Services, performance of certain Services, and collection of payments hereunder, without the prior written consent of Customer. Notwithstanding the foregoing, either party may assign this Agreement upon written notice to the other party in connection with a sale or assignment of all or substantially all of its stock or assets or to a parent, subsidiary or affiliate.
10.2 Entire Agreement. This Agreement and its Schedules and Exhibits contain the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter hereof.
10.3 Construction. The headings and captions of this Agreement are provided for convenience only and are intended to have no effect in construing or interpreting this Agreement.
10.4 Severability. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held to be invalid, unenforceable or unlawful, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
10.5 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Texas. Any legal action arising out of or in conjunction with this Agreement or any breach thereof shall be exclusively brought and prosecuted in an appropriate court of competent jurisdiction within Travis County, Texas.
10.6 Relationship of Parties. Nothing in this Agreement shall be construed in any way as creating any relationship of principal and agent, or employer and employee, or any partnership, business entity or joint venture, between the parties, and neither party shall have the power or authority to enter into any agreements, act on behalf of or otherwise bind the other party in any manner unless as expressly stated otherwise hereunder.
10.7 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.