Terms & Conditions
PLATFORM GENERAL TERMS AND CONDITIONS
These PLATFORM GENERAL TERMS AND CONDITIONS (“Terms”) are agreed between Perl Street, Inc. a Delaware corporation ("Perl Street"), and the client (“Client”) named in the Order Form (“Order Form”) which incorporates these Terms by reference through the link provided. Perl Street and Client may be referred to individually as a “Party” and together as the “Parties”. Except as otherwise stated in these General Terms and Conditions or in an Order Form (as that term is defined below), or as the context otherwise requires, the term “Agreement” means these Terms and Conditions and any Order Form entered into pursuant to these Terms and Conditions.
1. BACKGROUND.
Perl Street operates a technology-enabled system through which it provides its clients with services in connection with financing and other activities.
2. DOCUMENTS COMPRISING AGREEMENT.
These Terms govern Perl Street’s provision of services and related deliverables to Client (“Services”), with terms and specifications that apply to the particular Services, and the fees and any other amounts being charged to the Client by Perl Street for delivery of such Services and deliverables (the “Compensation”), set forth in an Order Form (“Order Form”). An Order Form is a document agreed to by each Party, and that sets out in detail the particular services and related deliverables and any specific terms and conditions governing their deliver not contained in these Terms or different from the terms and conditions contained in these Terms. Upon execution of any Order Form by both Parties, these Terms will be incorporated by reference into, and become a part of such Order Form. As a result, each Order Form shall serve as a separate agreement under which Perl Street will provide the Services covered by that Order Form to Client. Terms and conditions of general application are contained in these Terms will apply to each Order Form, except that if there are any terms and conditions in an Order Form(s) that conflict with the terms and conditions in these Terms, then the terms and conditions in these Terms will govern except in the case where the Order Form expressly (including a citation to the Section of the Agreement being superseded) provides otherwise.
3. PAYMENT AND INVOICING.
3.1 Client will pay Perl Street the amount of Compensation on the schedule set out in the applicable Order Form(s) Additionally, Client will reimburse Perl Street for any reasonable expenses incurred by Perl Street during the course of performing the Services and other reasonable incidental expenses and out-of-pocket costs. Any such aforementioned expenses must be approved by Client prior to being incurred by Perl Street.
3.2 Client is responsible for, and agrees to pay, all applicable sales, use, excise, personal property and value-added taxes, or taxes of a similar nature (excluding personal property taxes on items owned and used exclusively by Perl Street and taxes based on Perl Street’s net income, which will be borne by Perl Street), imposed by any federal, state, provincial, or local government, or other taxing authority on all Services or deliverables being provided under these Terms. For the avoidance of doubt, the Compensation does not include such taxes. The Parties agree to cooperate with each other to minimize any applicable sales, use, value-added, withholding or similar tax and, in connection therewith, the Parties will provide each other with such relevant tax information as reasonably requested (including, without limitation, resale or exemption certificates, multi-state exemption certificates, value added tax numbers, information concerning the use of assets, materials and notices of assessments). Client shall be responsible for paying any tax, penalty or interest resulting from its failure to timely pay the appropriate taxes for Services or deliverables provided by Perl Street, and shall indemnify and hold Perl Street harmless against any such tax, penalty, or interest.
3.3 Perl Street will invoice the Client monthly unless otherwise stated in an applicable Order Form. Unless Client notifies Perl Street in writing of its good faith reason to dispute any Compensation reflected in an invoice and provides reasonable supporting documentation, it will pay all amounts within thirty (30) days after the date it receives an invoice. In the event that any portion of any invoice is subject to good faith dispute, Client will pay in full the undisputed amount of such invoice within sixty (60) days after the date it receives an invoice and will pay in full the balance determined to be due within thirty (30) days after the dispute is resolved. In the event Client fails to pay any undisputed amount when due, or if an amount is not disputed in good faith or is found to be due and owing in full, interest (computed monthly) shall be charged on any such unpaid amount at the rate of 1.5% per month or, if less, the highest rate allowed by law, from the due date until such invoices are paid in full.
4. CONFIDENTIALITY
4.1 In connection with these Terms as well as any Order Form or subscription agreement involving Client and Perl Street (a “Subscription Agreement”), a Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) information which is commercially sensitive, confidential, proprietary, non-public and/or trade secret to the Disclosing Party (“Confidential Information”). While any Order Form remains in effect and for a period of three (3) years thereafter, the Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any party other than its officers, directors, employees, contractors, and agents (“Representatives”) who have a need to know such information in connection with the Services or deliverables under an Order Form or Subscription Agreement, who are informed, prior to disclosure, of the confidential and sensitive nature of such Confidential Information and who are bound by obligations of confidentiality and nonuse with respect to the Confidential Information no less stringent than those contained herein. The Receiving Party shall be responsible for any breach of these Terms by any of its Representatives. The Receiving Party shall exercise the same degree of care in safeguarding and protecting the confidentiality of the Disclosing Party’s Confidential Information that the Receiving Party exercises with respect to its own Confidential Information, but in no event less than a reasonable degree of care. The Terms and the terms and conditions of any Order Form or Subscription Agreement entered into between the Parties, and the course of its negotiation shall be considered Confidential Information of each of the Parties. The termination of all Order Forms or any business relationship between, or involving, both Parties, shall not relieve either Party of its obligations with respect to Confidential Information disclosed pursuant to the terms hereof. These obligations are in addition to any obligations a Party may have with respect to trade secrets under applicable law.
4.2 Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is, at the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the Receiving Party; (ii) was rightfully known to the Receiving Party as of the time of its disclosure without being subject to an obligation of confidentiality as demonstrated by the Receiving Party’s contemporaneous written evidence; (iii) is independently developed by the Receiving Party without reference to or reliance on the Confidential Information, as demonstrated by the Receiving Party’s contemporaneous written evidence; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the Disclosing Party, as demonstrated by the Receiving Party’s contemporaneous written evidence. The foregoing notwithstanding, it is not a violation for the Receiving Party to disclose Confidential Information if it is compelled to disclose by a subpoena or order issued by a court of competent jurisdiction or other governmental body or agency (each, an “Order”) or is otherwise required to make disclosure Confidential Information in accordance with any applicable law, rule or regulation (“Legal Requirement”), provided that the Receiving Party gives the Disclosing Party prompt written notice of the Order or Legal Requirement (where legally permitted) and cooperates fully with the Disclosing Party (without any additional cost to the Disclosing Party and where legally permitted) prior to disclosure to provide the Disclosing Party with the opportunity to interpose any and all objections it may have to disclosure of the information required by the Order or Legal Requirement, or to otherwise limit any disclosure required by the Order or Legal Requirement to the maximum extent permitted by law and all information disclosed shall otherwise remain Confidential Information until an exception provided in Section 4.2 applies to it.
4.3 The Receiving Party shall not retain any rights to any of the Disclosing Party’s Confidential Information, and shall not use said Confidential Information for any purpose other than to provide or receive Services or deliverables hereunder, as the case may be; to further the business relationship between the Parties; to evaluate a possible future relationship between the Parties; or to enforce its rights hereunder. On the written request of the Disclosing Party, the Receiving Party shall promptly destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party, including any information derived therefrom, provided that the Receiving Party may (a) retain, but not use, archived versions of such Confidential Information for a period of up to twenty-four (24) months after the expiration or termination of the last Order Form entered into pursuant hereto and (b) retain and use Confidential Information reasonably need for the purpose of enforcing its rights and establishing it has fulfilled its obligations under any Order Form solely to enforce its rights hereunder and to establish it has fulfilled its obligations hereunder for a period of twenty-four (24) months after the expiration of such Order Form and further provided that any Confidential Information so retained shall continue to be Confidential Information until such time as an exception provided in Section 4.2 applies to it.
4.4 The Receiving Party will ensure that reasonable safeguards are in place designed to preclude unauthorized access to or use of the Disclosing Party’s Confidential Information, provided that such safeguards are at least equivalent to the greater of those (a) required by applicable law, rule, or regulation, or (b) used by the Receiving Party with respect to its own Confidential Information. In the event the Receiving Party becomes aware of unauthorized access to or use of the Disclosing Party’s Confidential Information, it shall so inform the Disclosing Party immediately and in writing, and shall use its best efforts to assist the Disclosing Party in investigating such unauthorized access or use and taking corrective actions with respect thereto.
5. PROPRIETARY RIGHTS.
5.1 All code, software programs, processes, methodologies, algorithms, and related know-how and residual knowledge developed, created, or used by Perl Street, its agents or third party licensors in connection with the performance of Services or delivery of deliverables hereunder, including, without limitation, any computer programs, software products, processing platforms or other tools named on an Order Form, and any documentation relating thereto including any modifications, enhancements, new versions or derivative works thereof, and all trade secrets, copyrights, patents and other intellectual and proprietary rights therein (collectively referred to as the “Technology”), are Perl Street Confidential Information and are owned by and remain the property of Perl Street or its third party licensor(s).
5.2 All data that Perl Street provides for use to its clients, including the Client, including all Perl Street-owned licensed data and any third-party data Perl Street licenses for or on behalf of its clients and all information derived from using any of the foregoing (collectively, “Perl Street Data”) is Perl Street Confidential Information and shall remain the property of Perl Street or its third party licensor(s).
5.3 Client acknowledges that in receiving Services hereunder, Client shall obtain no rights to the Technology or the Perl Street Data beyond the use thereof for the term specified in the applicable Order Form. Additional clarification and delineation of various Technology components that may encompass an overall Client services solution or any exceptions to ongoing use rights may only be addressed in the individual Order Form(s) and in connection with the specifically negotiated business-related terms therein.
6. REPRESENTATIONS, CONFLICTS, WARRANTIES AND WARRANTY EXCLUSIONS.
6.1 Perl Street warrants that (a) the Services it provides shall be performed in a professional and workmanlike manner, and (b) the Services it provides will be provided in material accordance with the agreed-upon requirements and specifications.
6.2 In providing the Services, Perl Street relies on information provided by third parties. While Perl Street will not knowingly share incorrect information, it does not take on the responsibility of verifying information from any person. Perl Street will, therefore, have no liability for the accuracy or completeness of any third-party information. Client is solely responsible for deciding which, if any, financing option to pursue.
6.3 Perl Street may have business relationships with investors in Perl Street or its affiliates. This could for instance include lenders presented to Client as potential sources of loans. In the event that Perl Street presents a potential lender to Client which is an investor in Perl Street or where it knows that such potential lender is an investor in an affiliate of Perl Street, Perl Street will disclose such fact to Client.
6.4 Each Party represents and warrants to the other that (a) it shall comply with all applicable laws in performing its responsibilities and exercising its rights under any Order Form, Subscription Agreement or these Terms; and (b) it is or will be authorized to enter any Order Form, or Subscription Agreement, including these Terms.
6.5 Client acknowledges and agrees that Perl Street is not acting as a broker or dealer in any securities transaction in connection with the Services and that its Compensation under any Order Form does not constitute commission in connection therewith.
6.5 Client represents and warrants that any information or content provided by or on behalf of Client, to Perl Street is true and complete and that it has the legal right to disclose and use all such information or content for the purposes contemplated hereby or by the applicable Order Form or Subscription Agreement, and has obtained all applicable consents or authorizations therefor, if any. Client shall not request Perl Street to receive, store, use or disclose any such information or content in a manner that would violate Client’s privacy policy or that would violate any applicable law, rule or regulation or agreement to which Client is bound. If Client’s fundraising activities involve the sale of securities then it warrants that its offer and sale of securities shall be made in compliance with all applicable laws, rules and regulations.
6.6 OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, AND TO THE EXTENT THAT THE LAW ALLOWS, PERL STREET MAKES NO WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ITS PERFORMANCE OF SERVICES UNDER ANY ORDER FORM OR SUBSCRIPTION AGREEMENT. PERL STREET SHALL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS IN WHOLE OR IN PART FROM THE ACT OR OMISSION OF A THIRD PARTY. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
6.7 Client will not seek to or duplicate, compile, disassemble, decompile, reproduce, use or in any way reverse engineer any Perl Street Data or Perl Street Confidential Information except as explicitly authorized in an Order Form. Perl Street will not seek to or duplicate, compile, disassemble, decompile, reproduce, use or in any way reverse engineer any Client Data or Confidential Information except as explicitly authorized in an Order Form or as required to provide the Services pursuant to an Order Form.
7. LIMITATION OF LIABILITY.
7.1 NEITHER PERL STREET NOR CLIENT WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH ANY ORDER FORM, SUBSCRIPTION AGREEMENT OR THE SERVICES OR ANY DELIVERABLES THEREUNDER, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT; PROVIDED THAT THIS SHALL NOT APPLY TO THE RIGHT OF PERL STREET TO COMPENSATION PAYABLE THEREUNDER OR TO DAMAGES INCURRED AS A CONSEQUENCE OF A BREACH OF SECTION 4 (“CONFIDENTIALITY”) OR SECTION 8 (“INDEMNIFICATION”) OF THESE TERMS.
7.2 EXCEPT FOR DAMAGES CAUSED BY A BREACH OF THE TERMS SET FORTH IN SECTION 4 (“CONFIDENTIALITY”) AND SECTION 8 (“INDEMNIFICATION”), FOR WHICH THE AFOREMENTIONED SHALL HAVE AN AGGREGATE LIABILITY LIMITED TO ONE HUNDRED THOUSAND DOLLARS ($100,000), CLIENT AGREES THAT PERL STREET’S AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES ACCRUING WITH RESPECT TO ANY ORDER FORM SHALL IN NO EVENT EXCEED THE AMOUNT OF COMPENSATION CLIENT PAID TO PERL STREET, UNDER THE APPLICABLE ORDER FORM, EXCLUDING ANY AMOUNTS PAID ON A PASS-THROUGH BASIS, DURING THE PRECEDING TWELVE (12) MONTH PERIOD.
7.3 EXCEPT FOR DAMAGES CAUSED BY A BREACH OF THE TERMS SET FORTH IN SECTION 4 (“CONFIDENTIALITY”) AND SECTION 8 (“INDEMNIFICATION), CLIENT SHALL HAVE AN AGGREGATE LIABILITY LIMITED TO THE GREATER OF (A) ONE HUNDRED THOUSAND DOLLARS AND (B) THE AMOUNT THE CLIENT AGREED TO PAY PERL STREET UNDER AN APPLICABLE ORDER FORM FOR THE MOST RECENT CALENDAR YEAR PLUS ANY NON-CANCELABLE FEES OR EXPENSES INCURRED BY PERL STREET IN CONNECTION WITH SUCH ORDER FORM CLAIMS FOR UNPAID COMPENSATION DUE PURSUANT TO SECTION 3 (“PAYMENTS AND INVOICING”) ARE EXCLUDED FROM THE FOREGOING LIMITATION AS ARE CLAIMS FOR COMPENSATION THAT WOULD ACCRUE UNDER AN ORDER FORM IF CLIENT TERMINATES THE ORDER FORM IN BREACH OF THIS AGREEMENT OR SUCH ORDER FORM.
8. INDEMNIFICATION.
8.1 Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other, its employees, principals (shareholders or holders of an ownership interest, as the case may be) and agents, from and against any losses arising out of or resulting from (i) bodily injury or death of any person or damage to real and tangible personal property directly caused by the negligence or willful misconduct of the indemnifying Party, its personnel or agents during the course of performing the Services; (ii) any workers’ compensation claims that are made by the employees of the indemnifying Party against the other Party, provided that such claims are not due to the negligence or intentional misconduct of the other Party; (iii) third-party claims resulting from the breach of a Party’s obligations set forth in an Order Form or Subscription Agreement, including these Terms;(iv) use of the Services or any output of the Services other than as expressly authorized herein or in an Order Form; and (vii) services or goods provided using the Services or the output of the Services.
Client further agrees to indemnify, defend, and hold harmless Perl Street, its affiliates, and their respective directors, officers, employees, and agents from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any claim that the Client's use of the Services in violation of an Order Form, Subscription Agreement or these Terms infringes or misappropriates the intellectual property rights of a third party. If any indemnification or reimbursement sought hereunder is judicially determined to be unavailable to any person required to be indemnified hereunder (an “Indemnified Person”) for a reason other than the gross negligence or willful misconduct of such Indemnified Person, then the Indemnifying Party agrees to contribute to the losses, claims, damages, liabilities and expenses for which such indemnification or reimbursement is held unavailable (i) in such proportion as is appropriate to reflect the relative benefits to the Indemnifying Party on the one hand, and Indemnified Person on the other hand, in connection with the transactions to which such indemnification or reimbursement relates or (ii) if the allocation provided by clause (i) above is judicially determined not to be permitted, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Indemnifying Party on the one hand, and the Indemnified Person on the other hand, as well as any other relevant equitable considerations. Client agrees that, for the purposes of this Section, the relative benefits received by Client, on the one hand, and Perl Street on the other hand, in connection with the applicable Order Form shall be deemed to be in the same proportions as the total value paid or received or to be paid or received by Client as a result of or in connection with the applicable Order Form, bears to the compensation paid or to be paid to Perl Street under such Order Form. The relative fault of Client, on the one hand, and Perl Street, on the other hand, shall be determined by reference to, among other things, whether any untrue or alleged untrue statements of a material fact or omission or alleged omission to state a material fact giving rise to the claim for indemnification relates to information supplied by the Client or by Perl Street and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Client and Perl Street agree that it would not be just and equitable if contribution pursuant to this Section 8.1 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an Indemnified Person and referred to above in this Section 8.1 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Person in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
8.2 To receive the foregoing indemnities, the Indemnified Person shall promptly notify the Indemnifying Party in writing of a claim or suit and provide reasonable cooperation (at the Indemnifying Party’s expense) and grant the Indemnifying Party the sole and full authority to defend the claim or suit; provided, however, the Indemnified Party may participate in the defense of such claim or suit with counsel of its selection and at its sole expense. The Indemnifying Party shall have no obligation to indemnify the Indemnified Party under any settlement made without the Indemnifying Party’s written consent, provided that such consent shall not be unreasonably withheld, conditioned, or delayed, and that the Indemnified Party has made a good faith attempt to consult with the Indemnifying Party prior to agreeing to the settlement. The Indemnifying Party shall not settle any claim or suit under this Section 8 on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission (which shall not be unreasonably withheld, conditioned, or delayed). Each Party will promptly communicate to the other any offer received by or proposed to be made in settlement of any claim, matter or action that is subject to indemnification under this Section 8, and each Party will promptly and reasonably consider any such settlement offer or proposal that the other Party desires to accept or make.
9. INSURANCE.
Perl Street shall place and maintain with responsible insurance carriers, policies and amounts of insurance as set forth herein.
Comprehensive General Liability: $1,000,000 per occurrence and $2,000,000 in the aggregate Excess or Umbrella: $1,000,000 per occurrence
Employee Dishonesty/Crime: $1,000,000 per occurrence
Workers Compensation: Statutory
Cybersecurity insurance: $1,000,000 per occurrence and $2,000,000 in the aggregate
10. TERMINATION; EFFECT OF TERMINATION.
10.1 Termination of Order Form(s) and Subscription Agreements.
(a) In the event that a Party has breached any material provision contained in an applicable Order Form or any Subscription Agreement, the non-breaching Party may terminate such Order Form or Subscription Agreement by providing thirty (30) days prior written notice to the Party committing the breach, which notice shall set forth a description of the breach in reasonable detail. If the breach is cured to the reasonable satisfaction of the non-breaching Party within the above-mentioned thirty (30) day period, the non-breaching Party shall provide notice to the other Party of its satisfaction with the cure and the Order Form or Subscription Agreement shall continue in effect in accordance with its terms as if no breach had occurred. If the breach is subject to being cured but the breaching Party reasonably requires more than thirty (30) days to cure such breach, then the cure period shall be extended by such time as is required to reasonably cure the breach so long as the breaching party is working diligently to cure such breach.
(b) In the event that either Party shall: (i) cease conducting business in the normal course; (ii) become insolvent; (iii) admit in writing its inability to meet its debts generally as they become due; (iv) make a general assignment for the benefit of creditors; (v) suffer or permit the appointment of a receiver, trustee, liquidator or conservator for its business or assets; (vi) avail itself of, or become subject to, any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors; or (vii) commence or have commenced against it proceedings for its dissolution, winding-up or liquidation, then, at the option of the other Party, all applicable Order Form(s) and Subscription Agreement(s), shall terminate immediately.
(c) Any other right to terminate an Order Form or Subscription Agreement prior to the expiration of its term may be addressed only in the applicable Order Form and in connection with the specifically negotiated business related terms therein.
10.2 In the event of termination of an Order Form:
(a) Client shall pay Perl Street all amounts due to Perl Street under all outstanding invoices, including any invoice presented in connection with such termination, within thirty (30) days of such termination, it being understood that any amounts subject to interest pursuant to Section 3.3 hereof shall be so subject pursuant to this Section 10.2(a). Payment of these amounts shall not bar any remedy, legal or equitable, otherwise available to Perl Street; and
(b) All obligations of the Parties hereunder shall cease except such obligations that survive termination hereunder pursuant to Section 11.13 herein.
11. MISCELLANEOUS.
11.1 Marketing/Publicity. Client will, if asked by Perl Street, participate in a written press release with Perl Street regarding the Services or deliverables provided hereunder. Perl Street may list Client as one of its clients on its website and in any marketing materials. In connection with the foregoing and the provision of any Services hereunder, Perl Street shall have the right to use Client’s name(s), trademark(s), and trade name(s) in such press release and marketing materials and on such website.
11.2 Notices. Any notices required or permitted pursuant to any Order Form or Subscription Agreement, (i.e., for material breaches, material changes not otherwise addressed in such Order Form process, notices or claims for indemnification, etc.) shall be in writing and deemed to have been sufficiently given or served for all purposes when sent by email, presented personally or sent by reputable, national overnight courier or of by registered or certified U.S. mail with postage thereon prepaid, to the Party to whom it is address at the address(es) set forth in the applicable Order Form or any other address as a Party may provide to the other in accordance with this Section 11.2. Notices for Perl Street should be sent to: 200 Vesey Street, New York, NY 10281, notices@perlstreet.com, or any other address as Perl Street may provide to the other Party in accordance with this Section 11.2. Notices for Client should be sent to the address in the records of Perl Street. Notices shall be deemed given upon presentation, if delivered by hand; on the business day following deposit with the courier of sent by courier; and on the sixth (6th) business day following deposit in the U.S. mail if mailed.
11.3 Headings. The section headings to these Terms do not form a part of it, but are for convenience only and shall not affect or limit the meaning of the Sections.
11.4 Drafting. This Agreement shall be interpreted as if jointly drafted by each of the Parties, and no interpretation shall be made for or against either Party based on who drafted these Terms or any provision hereof.
11.5 Force Majeure. Neither Party shall be liable to the other by reason of any failure or delay in performance of any Order Form or Subscription agreement, including any Terms, in accordance with its terms, except any obligation to pay money, if such failure or delay arises out of unforeseeable causes beyond the reasonable control and without the fault of such Party. Such causes may include, but are not limited to: acts of God or of the public enemy, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unavailability of energy resources, riots or war, any unusually severe weather conditions, or any changes in or the enactment of any government laws or regulations. In the event of any such force majeure occurrence, the disabled Party shall promptly and in writing advise the other Party that it is unable to perform in whole or in part due to a force majeure event, the scope and expected duration of such inability to perform, and of any developments (or changes therein) that appear likely to affect the ability of the disabled Party to perform any of its obligations in whole or in part.
11.6 Waivers. No waiver by either Party of any default hereunder by the other shall operate as a waiver of any other default or of a similar default on a future occasion. No waiver of any term or condition hereof by either Party shall be effective unless the same shall be in writing and signed by both Parties.
11.7 Severability. In the event that any provision of these Terms, any Order Form or Subscription Agreement (other than a provision which goes to the essence of the consideration therefor) is declared invalid, unenforceable or void, to any extent, by a court of competent jurisdiction, the remainder of such Terms, Order Form or Subscription Agreement and the application thereof shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law and the invalid, unenforceable or void provision shall be deemed to be automatically amended and replaced by a valid and enforceable provision which accomplishes as far as possible the purpose and the intent of the invalid or unenforceable provision.
11.8 Applicable Law. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the state of New York, USA, without regard to principles of conflicts of laws. The Parties agree that courts of competent jurisdiction in the City, County, and State of New York and the United States District Court for the Southern District of New York shall have exclusive jurisdiction with regard to any action arising out of any breach or alleged breach of any Order Form or Subscription Agreement, including these Terms. The Parties agree to submit to the personal jurisdiction of such courts and any other applicable court in the City, County, and State of New York and waive any objection as to the venue of such courts and waive any claim that they may have that any of the foregoing courts is an inconvenient forum. The Parties further agree that the mailing of any process shall constitute a valid and lawful process against such Party. The Federal Arbitration Act., 9 U.S.C Section 1 et seq. shall govern any arbitration arising under any Order Form or Subscription Agreement.
11.9. Arbitration. The Parties agree that all controversies, claims, disputes, and matters in question arising out of or related to these Terms, the performance under these Terms, the breach of these Terms, or any other matter or claim whatsoever (including but not limited to tort claims) shall be decided by binding arbitration before the American Arbitration Association, utilizing its Commercial Rules. Venue for any arbitration between the Parties shall be had and is mandatory in New York City, New York to the exclusion of all other places of venue, for all matters that arise under any Order Form or Subscription Agreement, including these Terms.
11.10 Modifications. The Order Form and Subscription Agreement may not be modified except as mutually agreed to in writing, signed by an authorized representative of each Party. Subject to any conflicting terms in an Order Form, these Terms may be modified at any time or from time to time by Perl Street by posting such terms on its website.
11.1 Relationship of Parties. Perl Street is an independent contractor of Client. Nothing herein shall be construed as creating a joint venture, partnership, employer-employee, or similar relationship.
11.12 Cumulative Rights. Except as otherwise expressly set forth in these Terms or an Order Form or Subscription Agreement, all of the rights and remedies of the Parties (whether evidenced hereby or by any other agreement, instrument or document or granted by statutory or decisional law) shall be cumulative, but may be exercised singularly or concurrently.
11.13 Survival. Notwithstanding anything herein to the contrary, all terms of these Terms as well as any Order Form or Subscription Agreement logically construed to survive the term of shall survive the termination of such Order Form or Subscription Agreement.
11,14 Assignment Either Party shall have the right to assign all rights and liabilities under any Order Form or Subscription Agreement to any person or entity that: (i) acquires all or substantially all of its operating assets, or (ii) results from a merger or reorganization pursuant to any plan of merger or reorganization to which such Party is a party; provided that the non assigning Party may terminate such Order Form or Subscription Agreement upon notice for a period of 30 days after it learns of such assignment Notwithstanding the previous sentence, Perl Street may assign any Order Form or Subscription agreement and to an affiliate without the consent of Client. Any other assignments by either Party, in whole or part, shall require the prior written consent of the other Party without which any such assignment shall be null and void ab initio. All Order Forms and Subscription Agreements shall inure to the benefit of and be binding upon the Parties and each Party’s successors, permitted assigns, and legal representatives.
11.15 Counterparts. This Agreement, including any Order Forms or other instruments entered into pursuant hereto may be signed in counterparts, each of which shall be deemed an original, but all of which, when taken together, will constitute one and the same instrument. The Parties agree that the execution of these Terms or any Order Form or ancillary document by exchanging pdf signatures and/or by industry-standard electronic signature software and transmission by fax or by electronic mail of an executed counterpart thereof shall be deemed to constitute due and sufficient execution and delivery of such counterpart. In any proceeding arising under or relating to the Agreement, each Party hereby waives any right to raise any defense or waiver based upon execution or delivery of these Terms or any Order Form or ancillary document by means of such electronic signatures or maintenance of the executed instrument electronically.
11.16 Entire Agreement. The terms and conditions of any Order Form or Subscription Agreement, including these Terms, embody the entire agreement and understanding between the Parties hereto with respect to the subject matter thereof and supersedes all prior agreements, commitments, arrangements, negotiations, or understandings, whether oral or written, between the Parties with respect thereto. There are no agreements, covenants, undertakings, representations or warranties with respect to the subject matter of any Order Form or Subscription Agreement, other than those expressly set forth or referred to herein or in the applicable Order Forms or Subscription Agreements.