Manufacturer Portal Terms of Service

THESE MANUFACTURER PORTAL TERMS OF SERVICE GOVERN YOUR ACCESS AND USE OF THE MANUFACTURER INSTANCE OF THE MOBILE AND WEB-BASED PRODUCT DATA, SYNDICATION AND RELATED SERVICES (THE “PORTAL”) MADE AVAILABLE BY CUT+DRY. BY ACCEPTING THESE TERMS VIA CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS OR BY OTHERWISE USING OR ACCESSING THE PORTAL YOU AGREE TO BE BOUND BY THE TERMS.  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 THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PORTAL.

1.            Definitions.

As used in this Agreement:

“Agreement” means these Terms of Service and other terms, agreements, policies referenced herein.

“Content” means the audio and visual information, Documentation, software specifications, software, product data or images, products and services made available via the Portal, other than Manufacturer Materials.  Content includes System Data and any information or data derived from Cut+Dry’s monitoring of access to or use of the Portal by Manufacturer or end-users but does not include Manufacturer Materials.

"Cut+Dry," “Vendor”, "we," "our," or "us" means Cut and Dry Inc., a Delaware corporation.

“Manufacturer” or “Company” means you or your entity.

“Manufacturer Materials” means any files, graphics, text, emails, data or other information, content or materials provided by Manufacturer (or its agents or licensors) to Cut+Dry in connection with this Agreement, or uploaded by Manufacturer to the Portal or collected by Cut+Dry from Manufacturer, including without limitation Manufacturer’s contact information, employee information, Manufacturer’s products, images, promotional information, or other material submitted by Manufacturer to Cut+Dry.

“Documentation” means any manuals, instructions or other documents or materials that Cut+Dry provides or makes available to Manufacturer in any form or medium and which describe the functionality, components, or requirements of the Portal or Content, including any software specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.

"Order" means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.

“Personal Information” means any information (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) that may otherwise be considered “personal data” or “personal information” under applicable Data Protection Laws.

"Services" means the Portal and if applicable certain products or services related to the Portal, each to the extent made available by Cut+Dry. The Services enable Manufacturer to add and manage certain of its digital product identifiers and descriptors and related brand content on the Platform and syndicate or otherwise promote such products across the Manufacturer’s distributor partner’s product catalogs, order guides and other eCommerce and digital touchpoints where end-buyers may interact with Manufacturer’s products.

“System Data” means data and information collected, derived, or otherwise generated by the Services that has been anonymized, de-identified, and/or aggregated so as not to identify or permit identification of an individual. For the avoidance of doubt, C+D may use, modify, and display System Data for any lawful business purpose.

2.              Services.  Subject to the terms of this Agreement, Cut+Dry will provide the Services.  Cut+Dry may utilize subcontractors to perform all or a portion of the Services.

3.              Access and Use of the Portal.

3.1.           Portal Access.  Subject to the terms herein, Cut+Dry hereby grants Manufacturer, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Portal solely for purposes as specified in this Agreement. No implied license(s) are granted herein, and Manufacturer may not use the Portal except pursuant to the limited rights granted in this Agreement.

3.2.           Portal Restrictions.  The Portal constitutes protected copyrighted material and valuable trade secrets of Cut+Dry.  Accordingly, Manufacturer will not (a) authorize or permit use of the Portal by persons other than its employees, agents and independent contractors of Manufacturer who are authorized by Manufacturer to use it (“Authorized Users”), (b) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Portal, (c) use or access the Portal for the purpose of building a competitive product, (d) copy, frame, modify or create any derivative works of the Portal (or any component, part, feature, function, user interface, or graphic thereof), including without limitation by any automated or non-automated scraping, except to the extent such restriction is prohibited by applicable law, (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Portal is compiled or interpreted, (f) use the Portal as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or software offerings, (g) perform or disclose any benchmark or performance tests of the Portal, (h) perform or disclose any security testing of the Portal or associated infrastructure, including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing, (i) remove or modify any program markings or any notice of Cut+Dry’s or its licensors’ proprietary rights, (j) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, (k) send or store malicious code in connection with the Portal, (l) attempt to gain access to the Portal or its related systems or networks in a manner not authorized by Cut+Dry, or (m) cause or permit any Authorized Users or any other party to do any of the foregoing.  Manufacturer is responsible for its Authorized Users’ compliance with the terms of this Section 3.2.

Manufacturer hereby acknowledges that the Portal is intended only to allow Manufacturer’s Authorized Users to use the Portal for the purposes set forth in this Agreement and that the Portal is not intended for storage or use of any data not related to such purpose.

3.3.           Access Protocols.  Cut+Dry shall provide to the Manufacturer the necessary access credentials and protocols to allow Authorized Users to access the Portal (the “Access Protocols”).  As between Manufacturer and Cut+Dry, Manufacturer shall be responsible for all acts and omissions of Authorized Users, including those which, if undertaken by Manufacturer, would constitute a breach of this Agreement, and any act by a person (whether or not an Authorized User) using Manufacturer’s Access Protocols. Manufacturer is responsible for maintaining the confidentiality of all Access Protocols and will immediately notify Cut+Dry of any suspected security breach or unauthorized access to the Access Protocols.

3.4.           No Interference with Service Operations.  Manufacturer and its Authorized Users will not (a) interfere with or disrupt performance of the Portal or the data contained therein, (b) circumvent, disable, or interfere with security-related features of the Portal or features that prevent or restrict use, access to, or copying the Portal or any content or other data belonging to other users, or that enforce limitations on use of the Portal or any content belonging to other users, or (c) impose an unreasonable or disproportionately large load on the Portal’s infrastructure.

3.5.           Suspension of Portal and Scheduled Maintenance.  Cut+Dry reserves the right to suspend the Services or Portal at any time and to take down applicable servers hosting the Portal to conduct scheduled and emergency maintenance.                  Cut+Dry will not be responsible for any damages or costs incurred by Manufacturer due to unavailability of the Portal.

4.              Confidentiality.

4.1.           Confidential Information.  “Confidential Information” means any and all proprietary or confidential data and information disclosed by Cut+Dry (the “Discloser”) to Manufacturer (the “Recipient”), or obtained by or on behalf of the Recipient through inspection or observation of the foregoing; in any case as a consequence of, or in relation to, the performance of its obligations or rights under this Agreement and whether in writing, or in oral, graphic, electronic or any other form.  The Confidential Information of Cut+Dry includes (a) any software, including both source and object code, (b) any other deliverables and documents furnished by Cut+Dry (including, without limitation, the oral and visual information relating thereto and provided in Cut+Dry publications), (c) any software specifications, (d) the architecture, structure, protocols, business, operational and technical information including but not limited to any and all strategies, formulas, product formulations, concepts, techniques, processes, designs, secrets, methods, cost data, computer programs, software, scientific or technical know-how, and financial, marketing, (e) the business plans, forecasts, projections and analyses related to Cut+Dry’s business, (f) business procedures, marketing plans, and client lists or personal data, any and all information concerning the suppliers or customers of Cut+Dry, and (g) any and all other information in any form or media supplied to Manufacturer by Cut+Dry or that Manufacturer obtained or received or developed or otherwise acquired in the course of or as a result of Manufacturer’s relationship with Cut+Dry (collectively “Cut+Dry Proprietary Information”).

4.2.           Exclusions.  Confidential Information does not include information that (a) is or becomes publicly known through no act or omission of the Recipient, (b) was rightfully known by Recipient without confidential or proprietary restriction before receipt from the Discloser, (c) becomes rightfully known to Recipient by a third party without confidential or proprietary restriction from the Discloser, (d) is independently developed by the Recipient without the use of or reference to the Confidential Information of the Discloser, or (e) Discloser has authorized Recipient to use or disclose pursuant to the terms of this Agreement or otherwise in writing.

4.3.           Nondisclosure and Nonuse.  Except as otherwise set forth in this Agreement, Manufacturer (a) will maintain in confidence the Confidential Information of Cut+Dry, (b) will not use or grant the use of the Confidential Information of Cut+Dry except to the extent reasonably necessary in connection with Manufacturer’s activities as expressly authorized by this Agreement, and (c) will not disclose the Confidential Information of Cut+Dry except on a need-to-know basis to Manufacturer’s directors, officers, employees, and consultants, to the extent such disclosure is reasonably necessary in connection with Manufacturer’s activities as expressly authorized by this Agreement.  To the extent that disclosure to any person is authorized by this Agreement, prior to disclosure, Manufacturer will require that the recipient be bound by similar confidential obligations with respect to the use of the Confidential Information as expressly permitted under this Agreement.  Manufacturer will notify Cut+Dry promptly upon discovery of any unauthorized use or disclosure of Cut+Dry’s Confidential Information.

4.4.           Permitted Disclosure.  The confidentiality and non-disclosure obligations under this Section 4 will not apply to the extent that Recipient is required to disclose information by applicable law, regulation, rule (including rule of a stock exchange or automated quotation system), or order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities; provided, however, that Recipient will provide advanced written notice of such disclosure to Cut+Dry and provide the Cut+Dry sufficient opportunity to object to any such disclosure or to request confidential treatment or a protective order (if applicable).

5.              Intellectual Property Ownership.

5.1.           IP Ownership.  Notwithstanding any terms to the contrary in this Agreement, as between the parties Cut+Dry owns and will continue to own all right, title, and interest in and to all intellectual property rights embodied in or related to all discoveries, inventions, developments, improvements, works of authorship, information, data, know-how, ideas or other technology, intellectual property or results conceived, created, generated, developed or reduced to practice, whether directly or indirectly or solely or jointly with others, resulting from the performance of the Services, as well as the Portal and all Cut+Dry Proprietary Information.  Cut+Dry may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Services.  Any derivative work Manufacturer or any Authorized Users may create of any part of the Portal or Services shall be owned solely by Cut+Dry.  To that end, Manufacturer hereby irrevocably transfers and conveys to Cut+Dry, without further consideration, all right, title and interest that Manufacturer or any Authorized User may have or acquire in any such derivative work.

5.2.           Manufacturer’s Trademarks.  Manufacturer hereby grants to Cut+Dry a non-exclusive, worldwide, royalty-free license to use and display the Manufacturer’s name, logo and other trademarks (“Manufacturer Trademarks”) designated by Manufacturer to provide the Services and to market and/or cross-sell Manufacturer product offerings.  Subject to the foregoing license, Manufacturer will retain all intellectual property rights that it may have in and to the Manufacturer Trademarks, and all use thereof by Cut+Dry shall inure to the sole benefit of Manufacturer.

5.3.           Manufacturer Materials.  Subject to Sections 5.2 and 5.4, Manufacturer hereby grants to Cut+Dry a non-exclusive, royalty-free, transferable, perpetual right and license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and create derivative works of Manufacturer Materials  in whole or in part, and in any form,  for use in connection with the Services and Cut+Dry’s (and its successors' and affiliates') business, including without limitation for (a) the provision, support and improvement of the Portal and other Services, including without limitation the syndication and promotion of Manufacturer’s products on the Portal, (b) promoting and redistributing part or all of the Portal and other Services to Cut+Dry’s retail customers and distributor and manufacturer foodservice customers and partners,  (c) building and training Cut+Dry’s machine-learning models to provide the Portal and product taxonomies, and (d) as required in response to judicial or other governmental requests, subpoenas, warrants, and court orders, or as otherwise required by applicable law or permitted under this Agreement.  Manufacturer hereby authorizes Cut+Dry to store copies of any or all of Manufacturer Materials as Cut+Dry deems necessary in order to facilitate any of the foregoing.  Manufacturer represents and warrants that (a) it has all rights, consents and/or permissions necessary to grant the licenses in this Section 5.3, including under any and all copyright, trademark, and other intellectual property rights, as well as any moral rights, rights of privacy, rights of publicity and similar rights of any type in or to Manufacturer Materials, (b) use of any such Manufacturer Materials (including derivative works) by Cut+Dry or Cut+Dry’s partners, and in compliance with the foregoing licenses, does not and will not infringe any intellectual property rights of any third party, including any third party logos and trademarks, and (c) the Manufacturer Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.

Manufacturer may not upload to or otherwise make available on the Portal or to Cut+Dry any content or data (including content data or intellectual property of any third party) for which Manufacturer does not have all necessary rights, licenses, consents or permissions needed to so make available such content or data on the Service.  If Manufacturer Materials includes data or any intellectual property of third party persons (such as data or intellectual property licensed to Manufacturer by third parties) Manufacturer is responsible for ensuring such third parties have consented to the collection and sharing of such data with Cut+Dry for the purposes set forth herein and shall not include in Manufacturer Materials any content or data for which it does not have all necessary rights, licenses, consents or permissions.    Manufacturer is solely responsible for the accuracy, quality, content and legality of Manufacturer Materials and any transfer of Manufacturer Materials outside of the Portal by Manufacturer or any Authorized User.  While Cut+Dry may archive certain Manufacturer Materials while the Manufacturer’s accounts are active and not in default, if there is any loss of Manufacturer Materials, Manufacturer’s exclusive remedy is for Cut+Dry to use commercially reasonable efforts to attempt to replace or restore the lost data from the latest backup (if any) of the Manufacturer Materials that Cut+Dry has maintained in accordance with its ordinary storage procedures.  Without limiting any of the foregoing, Manufacturer is solely responsible for archiving Manufacturer Materials for use after the close of an account.

5.4.           Personal Information. This Agreement is subject to, and intended to comply with, any applicable local, state and federal laws, rules and regulations relating to the use, collection, retention, storage, security, disclosure, transfer, sale or other processing of Personal Information, including, but not limited to, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“Data Protection Laws”). Cut+Dry will collect, use, retain and process Personal Information contained in Manufacturer Materials consistent with the terms of Cut+Dry’s privacy policy available at https://www.cutanddry.com/legal/ (the “Privacy Policy”) and solely for the purpose of providing the Services set forth in the Agreement and in accordance with Manufacturer’s instructions set forth in the Agreement or in writing or as otherwise permitted by applicable Data Protection Laws, including for a permitted business or operational purpose such as performing analytics, address suppression, and recordkeeping. System Data may be used by Cut+Dry for lawful business purposes, including for the purposes of using, disclosing, and compiling statistical or analytical data regarding the performance, provision and operation of the Services, training Cut+Dry’s machine-learning models to provide the Portal to Manufacturer, Distributors, Distributor Customers and Authorized Users, and for providing and improving Cut+Dry’s products and services. Manufacturer’s use of the Services is subject to the Privacy Policy, which is hereby incorporated by reference into the Agreement. By using the Services, Manufacturer agrees that it has read, understood, and agrees to the data collection, use, disclosure, and management provisions in the Privacy Policy. Cut+Dry reserves the right to update the Privacy Policy from time to time. All updates to the Privacy Policy will be effective on the date they are posted.

5.5.           Feedback.  Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Manufacturer to Cut+Dry with respect to the Services or Cut+Dry’s business (collectively, “Feedback”) will be owned by Cut+Dry and constitute Confidential Information of Cut+Dry which may not be disclosed to any third party.  Cut+Dry will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise.

6.              Warranties.

6.1.           Mutual Warranties.  Each party represents and warrants to the other party that (a) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement, (b) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms, and (c) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound.

7.              Disclaimer and Limitation of Liability.

7.1.           TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUT+DRY PROVIDES THE SERVICES, INCLUDING THE PORTAL AND ANY SOFTWARE RELATED TO THE SERVICES, ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND AND USE OF THE PORTAL AND RELATED SOFTWARE IS AT MANUFACTURER’S OWN RISK.  CUT+DRY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.  MANUFACTURER ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST CUT+DRY, FOR THE SELECTION OF THE SERVICES TO ACHIEVE MANUFACTURER’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES OR ANY SOFTWARE RELATED TO THE SERVICES IN MANUFACTURER’S BUSINESS.  MANUFACTURER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SERVICES, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS.  CUT+DRY DOES NOT WARRANT THAT THE SERVICES WILL MEET MANUFACTURER’S REQUIREMENTS, THAT THE OPERATION OF THE PORTAL OR ANY SOFTWARE COMPRISING THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

7.2.           EXCEPT TO THE EXTENT PROHIBITED BY LAW IN NO EVENT WILL CUT+DRY BE LIABLE TO THE MANUFACTURER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT.

7.3.           CUT+DRY SHALL NOT BE LIABLE TO THE MANUFACTURER FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT OF FEES PAID TO CUT+DRY BY MANUFACTURER IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT.

8.              Indemnification.

8.1.           Manufacturer Indemnity.  To the maximum extent permitted by applicable law, Manufacturer will defend, indemnify and hold Cut+Dry harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) incurred as a result of any claim, demand, action or proceeding by a third party to the extent arising out of or caused by (a) Manufacturer’s unauthorized use of the Portal, (b) Manufacturer’s breach of the representations and warranties in Section 5.3 (Manufacturer Materials) and Section 6.1 (Mutual Warranties), (c) Manufacturer’s breach of the obligations set forth in Section 4 (Confidentiality), (d) Manufacturer products or services, including the offer, sale, and fulfillment (except to the extent directly caused by the Services), refund, cancellation, return, or adjustments thereof and for the avoidance of doubt any product liability or similar claims arising or resulting from the use of any products, (e) the sales, use, or other taxes and regulatory fees assessed, incurred, or required to be collected or paid for in connection with any advertisement, offer or sale of Manufacturer products (made on through or in connection with the Services), or the failure to meet Manufacturer’s related tax registration obligations or duties or (f) Manufacturer’s breach of the obligations set forth in Section 10 (Compliance with Law).

9.              Term and Termination.

9.1.           Term and Termination.  This Agreement commences on the date Manufacturer first accepts the Agreement or accesses the Portal and continues until terminated. Manufacturer can cease using the Portal at any time and Cut+Dry may terminate Manufacturer’s access to the Portal and the Agreement at any time for any reason with or without notice.

9.2.           Effect of Termination.  In the event of any termination or expiration of this Agreement, (a) all rights granted to Manufacturer hereunder will immediately cease, (b) Manufacturer will immediately discontinue all use of the Services, (c) Manufacturer will promptly cease use of any applicable Portal, (d) Manufacturer will certify to Cut+Dry in writing that it has completed (b) and (c) above, (e) Cut+Dry will immediately cease providing all Services under this Agreement, (f) Manufacturer will immediately pay to Cut+Dry any amounts (if any) due and payable up to the effective date of termination of this Agreement, and (g) this sentence and Sections 4,  5, 6, 6.1, 7, 8, 10, and 11 will survive any expiration or termination of this Agreement.

10.           Compliance with Law.  In connection with this Agreement, Manufacturer and its agents will comply with all applicable laws and regulations, including (without limitation) health and safety laws, state licensing laws, and Data Protection Laws.  Manufacturer agrees not to use the Services, including the Portal, in a manner that would violate applicable law.  In no event will Cut+Dry be liable for any Manufacturer violation of law.

11.           Miscellaneous.

11.1.        Entire Agreement.  This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any other agreements or understanding with respect to such subject matter, unless made in writing and expressly incorporated into the Agreement.

11.2.        Assignment.  Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect.  Notwithstanding the foregoing, Cut+Dry may assign this Agreement to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise without such consent.  This Agreement will inure to the benefit of and be binding upon and enforceable against any successor or permitted assignee.

11.3.        Force Majeure.  Neither party will be liable for delays in its performance caused by events beyond its reasonable control, such as fires, floods, epidemics, computer viruses, earthquakes, riots, acts of terror, acts of God, storms, labor shortages or strikes, acts of civil or military authority or similar occurrences.

11.4.        Publicity.  Manufacturer consents to Cut+Dry’s use of Manufacturer’s name and logo (i) on the Cut+Dry website and publicly available printed materials, identifying Manufacturer as a user of the Portal and describing Manufacturer’s use of the Services on a non-confidential basis, or (ii) a press release with respect to Manufacturer’s use of the Services.

11.5.        Notices.  Any notice or communication under this Agreement must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, or mailed by registered or certified mail, in each case to the address of the receiving party as identified in this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party.  Such notice will be deemed to have been given as of the date it is delivered.

11.6.        Right to Amend. Subject to the terms hereunder and applicable law, Cut+Dry has the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services (an “Agreement Change”) with notice that is reasonable in light of the circumstances (by, for example, posting the updated Agreement on its website (which will be effective immediately upon posting unless otherwise stated) or sending Manufacturer notice via email or through the Services). Use of the Services after notice of any Agreement Change will confirm that Manufacturer has read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Manufacturer’s acceptance of the changed Services, as applicable. Further, (a) any dispute that arose before the effective date of an Agreement Change shall be governed by the version of the Agreement that was in place when the dispute arose and (b) in the event that an Agreement Change negatively and materially impacts Manufacturer’s rights under this Agreement, then Manufacturer may reject such Agreement Change by ceasing to use the Portal within 5 days following the date of notice by Cut+Dry of the Agreement Change.   

11.7.        Waiver; Severability.  No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy will operate as a waiver or affect any other right or remedy.  If any provision is deemed by a court unenforceable or invalid, that provision will be stricken or modified so as to be enforceable to the maximum extent permitted by law, and the remainder of this Agreement will be in full force and effect.

11.8.        Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions.  The state or federal court in San Francisco, California will be the jurisdiction in which any suits must be filed if they relate to this Agreement.

11.9.        Counterparts.  This Agreement may be executed by the parties by exchange of signature pages by mail, facsimile, email or other electronic means (if email or electronically, signatures in Adobe PDF, via electronic signature or similar format), in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument.