End User License Agreement

PLEASE READ CAREFULLY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON OR BY INSTALLING, ACCESSING AND/OR USING ONE LAYER’S PRODUCTS (EITHER THE SAAS PRODUCT AND/OR THE ON-PREM PRODUCT, AS DEFINED BELOW), YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, OR THE COMPANY YOU REPRESENT (“YOU” OR “USER”), ARE ENTERING INTO A LEGAL AGREEMENT WITH THE ONE LAYER ENTITY SPECIFIED IN THE APPLICABLE ORDER (“ONE LAYER”), WHETHER DIRECTLY WITH ONE LAYER OR THROUGH A PARTNER, RESELLER OR DISTRIBUTOR AUTHORIZED BY ONE LAYER (“PARTNER”), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT SELECT “I AGREE” OR INSTALL OR USE THE ONE LAYER’S PRODUCTS (EITHER THE SAAS PRODUCT AND/OR THE ON-PREM PRODUCT) UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD AND AGREED TO THIS AGREEMENT. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW. 

IF YOU HAVE PURCHASED THE APPLICABLE PRODUCT SUBSCRIPTION GRANTED HEREUNDER FROM A PARTNER (“PARTNER ORDER”), THEN, AS BETWEEN YOU AND ONE LAYER, THIS AGREEMENT SHALL PREVAIL. ANY RIGHTS GRANTED TO YOU IN SUCH PARTNER ORDER WHICH ARE NOT CONTAINED IN THIS AGREEMENT, APPLY ONLY IN CONNECTION WITH THE PARTNER. IN THAT CASE, YOU MUST SEEK REDRESS OR REALIZATION OR ENFORCEMENT OF SUCH RIGHTS SOLELY WITH THE PARTNER AND NOT ONE LAYER. 

1. Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meaning: 

1. “Documentation” means the user’s guides and technical manuals delivered by One Layer and/or Partner to User. 

1. “Feedback” means any suggestions, comments, questions, ideas, enhancement, requests, recommendations or feedback (whether orally or in writing) with respect to the Product.  

1. “Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, patents, patent applications, patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, together with translations, adaptations, derivations and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyrightability, copyrightable works, copyrights (including droit morale), and applications, registrations and renewals in connection therewith; (iv) mask works and applications, registrations and renewals in connection therewith; (v) trade secrets and Confidential Information (as defined in Section ‎5.1); and (vi) other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium. 

1. “On-prem Product” means the object code version of One Layer’s on-prem software as described in the applicable Order, including any Documentation and any updates and/or upgrade thereto (to the extent delivered). 

1. “Order” means either a Partner Order or User Order, as the case may be. 

1. “Product” means the On-prem Product and/or the SaaS Product licensed to User under the applicable Order. 

1. “SaaS Product” means One Layer’s software as a service solution and applicable Documentation as further described in the applicable Order. 

1. “Subscription Activation Key” means the code provided to User for activation of the applicable Product. 

1. “User Order” means any written or electronic order form issued by One Layer and agreed to by User by clicking and/or execution, as applicable, for the provision of the applicable rights granted under this Agreement. 

1. Subscription 

1. Grant of Rights. Subject to the terms and conditions of this Agreement and the applicable Order, One Layer hereby grants User a personal, non-exclusive, non-sublicensable, non-transferable, revocable right to use the Product, as described in the applicable Order, during the term of this Agreement, solely for User’s internal business purposes (“Subscription”), subject to the payment of the applicable subscription fees. User shall be solely responsible for providing all equipment, systems, assets, access, and ancillary goods and services needed to access and use the Product, for ensuring their compatibility with the Product. 

1. Acceptance. All Products shall be deemed accepted upon delivery of the Subscription Activation Key. 

1. Documentation. One Layer and/or the Partner may make Documentation available for User to use for its internal business purposes and solely in connection with User’s use of the Product during the term of this Agreement. User may only use the Product in accordance with the Documentation, subject to the use limitations specified in this Agreement, the Order and applicable laws and regulations. User may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered as One Layer’s Confidential Information.   

1. Reservation of Rights; Use Restrictions. Other than the rights explicitly granted in this Agreement, User shall have no other rights, express or implied, in the Product. Without limiting the generality of the foregoing, User agrees and undertakes not to: (i) sell, lease, sublicense or distribute the Product, or any part thereof, or otherwise transfer the Product or allow any third party to use the Product in any manner; (ii) reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form the Product’s source code; (iii) modify, revise, enhance or alter the Product; (iv) copy or allow copies of the Product to be made (except for backup purposes); (v) make the Product accessible to other users or the public; (vi) circumvent, disable or otherwise interfere with security-related features of the Product or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Product; (vii) interfere or attempt to interfere with the integrity or proper working of the Product; (viii) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Product; (ix) use the Product to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement; and/or (x) represent that it possesses any proprietary interest in the Product. The respective right(s) granted to User under this Agreement may be further subject to User’s compliance with additional use restrictions and/or limitations specified in the applicable Order (such as maximum number of authorized users), which, for the avoidance of doubt, are in addition to, and without derogating from, any other use restrictions set forth herein. 

1. Professional Services. One Layer may offer certain professional services in conjunction with Product (“Professional Services”). The use of Professional Services are subject to additional terms and conditions, and may entail additional costs and expenses.  

1. Open Source and Third Party licenses. The Product may include: (i) certain open source code software and materials (as shall be listed in the Documentation of the Product) (“Open Source Software”) that are subject to their respective open source licenses (“Open Source Licenses”); and (ii) certain third party software which are not subject to Open Source Licenses (“Third Party Software”). Such Open Source Licenses contain list of conditions with respect to warranty, copyright policy and other provisions. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of this Agreement, the provisions of the Open Source Licenses shall prevail. Without derogating from the generality of the foregoing, it is clarified that any Open Source Software included in the Software is provided on an “AS IS” basis, without indemnity or warranty of any kind, whether express or implied.  

1. Support Services. In addition to the above-mentioned license, during the term of this Agreement and subject to the payment of the applicable subscription fees, One Layer will provide User with reasonable assistance, support, consulting and training services for the Product via telephone or email, to answer any questions or concerns relating to the Product. The support services may be performed by One Layer and/or One Layer’s certified third party providers. One Layer shall be responsible for such service providers’ performance of the support services. 

1. Suspension. One Layer reserves the right to temporarily suspend provision of the support services: (a) if User is 7 days or more overdue on a payment; (b) if One Layer deems such suspension necessary as a result of User’s breach under Section 2.4 (Use Restriction); or (c) as required by law or at the request of governmental entities. 

1. Usage Audit. One Layer may request, at least once per year during the term of this Agreement, that User furnish it with a report, concerning User’s use of the Product, in order to verify that User’s usage of the Product is in accordance with the terms of this Agreement and the applicable Order.  

1. Intellectual Property Rights. 

1. Title and Ownership. ONE LAYER DOES NOT SELL OR TRANSFER TITLE IN THE PRODUCT, OR ANY PART THEREOF, TO USER. The Documentation, the Product (either the On-prem Product and/or the SaaS Product) and/or any copies thereof, including without limitation any derivative works made (regardless of whether such derivative works were made and/or developed pursuant to the request and/or specifications of User, and irrespective of any support and/or assistance One Layer may, will or had received from User, or any third party on its behalf, with respect thereto), as well as any updates or upgrades thereto, if provided to User pursuant to this Agreement, shall remain One Layer’s sole and exclusive property. All Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to the Product, or part thereof, are and shall be owned solely and exclusively by One Layer. Nothing in this Agreement shall constitute a waiver of One Layer’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such.  

1. Feedback. It is further agreed that to the extent User provides One Layer and/or the Partner with Feedback, User represents that it is free to do so and that it shall not knowingly provide One Layer with Feedback that infringes upon third parties’ Intellectual Property Rights. User further acknowledges that notwithstanding anything herein to the contrary, any and all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to One Layer and that such shall be considered One Layer’s Confidential Information. It is further understood that use of Feedback, if any, may be made by One Layer at its sole discretion, and that One Layer in no way shall be obliged to make use of any kind of the Feedback or part thereof.  

1. Analytics Information. Any anonymous information, which is derived from the use of the Product (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used for providing the Product and any services with respect thereto, for development, and/or for statistical purposes. Such Analytics Information is One Layer’s exclusive property and may be used by One Layer at its sole discretion. The User agrees and acknowledges that One Layer may collect, monitor, store and use Analytics Information and without One Layer’s violation of any confidentiality obligations hereunder, One Layer may use Analytics Information in order to enhance and improve the Products and its own services. As between the parties, User is, and shall be, the sole and exclusive owner of all data and information inputted or uploaded to the Product by User (“User Data”).  

1. Confidentiality 

1. Confidential Information. Each party (“Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (“Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, would reasonably be considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. 

1. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder, and in any event, the Receiving Party shall remain responsible for the acts or omissions of its employees and contractors to the same extent as if such acts or omissions were performed by the Receiving Party. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Receiving Party agrees not to use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement. 

1. Exceptions. The Receiving Party’s obligations under this Section, with respect to any Confidential Information of the Disclosing Party, shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The Receiving Party’s obligations with respect to Confidential Information shall expire 5 years from the date of termination or expiration of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise. 

1. Warranties. One Layer warrants that: (i) it has the right to grant User the Subscription; (ii) for a period of 90 days from the delivery of the On-prem Product (“Warranty Period”), the On-prem Product will materially conform to One Layer’s published technical specifications in effect as of the date of manufacture; and (iii) with respect to the SaaS Product, under normal authorized use, the SaaS Product shall substantially perform in conformance with its Documentation. User’s sole and exclusive remedy and One Layer’s sole remedy for breach of these warranties shall be: (a) with respect to the On-prem Product, to notify One Layer within the Warranty Period, detailing the nonconformance, in which case One Layer shall use commercially reasonable efforts to replace or repair the On-prem Product or the applicable portion thereof; and/or (b) with respect to the SaaS Product, to use commercially reasonable efforts to repair the SaaS Product. Where One Layer’s notifies User of failure to repair or replace the Product, each party shall have the right to terminate this Agreement within 14 days of One Layer’s report of such failure, and in the event of termination, User will have the right to be reimbursed for any amounts pre-paid by it for the remaining, unused period of the Subscription. 

1. Warranty Exclusions. The warranties set forth in Section ‎6 are contingent upon User’s proper use of the Product, and shall not apply if One Layer reasonably determines that the defective Product: (i) has been subject damage caused by abuse, misuse, alteration, neglect, negligence or unauthorized repair, storage or installation; (ii) has failed due to a force majeure event; (iii) by the use or attempted use of Product other than in accordance with the Documentation or that supplied and supported by One Layer; (iv) User’s failure to implement software updates provided by One Layer specifically to avoid such failure; or (v) the combination of the Product with equipment or software not authorized or provided by One Layer. One Layer will use commercially reasonable efforts to repair, replace or, if applicable, refund pursuant to the foregoing warranty. 

1. Warranty Disclaimers. AS BETWEEN USER AND ONE LAYER, AND EXCEPT AS SET FORTH IN SECTION ‎6, THE PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR INTENDED OR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THAT THE PRODUCT WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS OR WILL ACHIEVE ANY SPECIFIC RESULTS OR TOOLS AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. ONE LAYER DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE ERROR-FREE. ONE LAYER WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ONE LAYER DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS PROVIDED OR MADE TO USER BY THE PARTNER, AND SUCH WARRANTIES AND REPRESENTATIONS ARE THE SOLE RESPONSIBILITY OF THE PARTNER. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply. 

1. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL ONE LAYER AND/OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE PRODUCT. IN ADDITION, ONE LAYER’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM USER’S USE OF OR INABILITY TO USE THE PRODUCT, SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID OR PAYABLE BY USER TO ONE LAYER OR PARTNER (AS APPLICABLE) FOR USING THE PRODUCT OVER A 12 MONTH PERIOD, TO BE CALCULATED ON A PRO-RATA BASIS IN ACCORDANCE WITH APPLICABLE ORDER. THE FOREGOING LIMITATIONS AND EXCLUSIONS IN THIS SECTION ‎9 SHALL APPLY: (i) EVEN IF ONE LAYER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR LOSSES; (ii) EVEN IF ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE; AND (iii) REGARDLESS OF THE BASIS OR THEORY OF LIABILITY.  

1. Indemnification  

1. Indemnification by One Layer. One Layer shall defend and hold harmless User, from and against any third party claim, action, suit or proceeding alleging that the Product, when used pursuant to One Layer’s instructions and in conformity with the Documentation, infringes any valid patent or copyright of a third party (each, an “Infringement Claim”), and One Layer shall pay User all costs, liabilities, damages and reasonable attorney’s fees finally awarded against User by a court of competent jurisdiction in connection with such Infringement Claim or paid by User in resolving or settling such Infringement Claim. If the Product, or parts thereof, becomes, or in One Layer’s opinion may become, the subject of an Infringement Claim, One Layer may, at its option, either (i) procure for User the right to continue using the Product; (ii) modify or replace such Product with substantially equivalent non-infringing products; or (iii) if One Layer determines that the foregoing remedies are not reasonably available, terminate this Agreement. Notwithstanding the foregoing, One Layer shall have no indemnification obligations with respect to any third party claim or action based on or related to: (a) the use of the Product, or any part thereof, in combination with any software, hardware, data, or other materials or products not supplied by One Layer, if such infringement would have been avoided by use of the Product alone; (b) use of the Product other than as specified in or in violation of this Agreement and/or in the applicable Documentation, if such infringement would have been avoided but for such use; (c) the modification of the Product by anyone other than One Layer, where such infringement would not have occurred but for such modification; and/or (d) use of prior versions of the Product commencing a reasonable time after a new version has been provided by One Layer or Partner to User  if such infringement would have been avoided but for such use of prior versions. 

1. Indemnification Process. One Layer’s indemnification obligations shall be subject to User: (i) notifying One Layer promptly in writing of such action; (ii) ceding complete control over the defense and/or settlement of the Infringement Claim; (iii) providing reasonable cooperation and assistance in the defense of such Infringement Claim; and (iv) not entering into any settlement or compromise of any such action without One Layer’s prior written consent. 

1. Entire Liability. THE FOREGOING STATES THE ENTIRE LIABILITY OF ONE LAYER AND USER’S SOLE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 

1. Export Laws. User agrees to comply with all applicable export laws and regulations to ensure that neither the Product nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. For clarity, and without derogating from Section ‎12 (Term and Termination) below, in case of any change of any applicable law, policy or regulation, which might affect One Layer’s business, One Layer will have the right to terminate this Agreement and the rights granted hereunder and the User shall have no claims regarding such termination. 

1. Term and Termination  

1. Term. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement and the Subscription granted under Section ‎2.1 shall remain in effect for the duration of the term set forth in the applicable Order.  

1. Termination for Breach. Either party may terminate this Agreement at any time by giving written notice to the other party if the other party is in breach or default of any material provision of this Agreement, and, if such breach curable, fails to cure the breach or default, within 30 days after being given written notice by the non-breaching party, specifying details of the breach or default and requiring the same to be remedied. 

1. Termination in the Event of Default. Either party may terminate this Agreement immediately, in the event the other party: (i) is judged bankrupt or insolvent; (ii) makes a general assignment for the benefit of its creditors; (iii) a trustee or receiver is appointed for such party or for any of its property; or (iv) any petition by or on behalf of such party is filed under any bankruptcy or similar laws. 

1. Consequences of Expiration or Termination. Upon expiration or termination of this Agreement pursuant to Sections ‎12.1– ‎12.3 above, User will: (i) immediately cease use of the On-prem Product and with respect to any SaaS Product, upon any termination or expiration of this Agreement, the license granted to User under this Agreement will revert to One Layer and User will cease all use of the SaaS Product; (ii) return the Product and all copies thereof, as well as the Documentation to One Layer; (iii) erase or otherwise destroy all copies of the Product in its possession, which is fixed or resident in the memory or hard disks of its computers; and (iv) return to One Layer any and all Confidential Information then in its possession. If requested by User, One Layer may delete all User Data, on accordance with the applicable law, without affecting any of One Layer’s rights to the Analytics Information. Notwithstanding the foregoing, in the event of expiration or termination of this Agreement for any reason, Receiving Party may maintain such copies of Disclosing Party’s Confidential Information as may be: (a) required to comply with applicable law or regulation; or (b) required by Receiving Party’s internal record keeping policies; provided that any such retained Confidential Information shall remain subject to the confidentiality terms of this Agreement. If applicable, User shall be responsible to download its User Data prior to termination of this Agreement. 

1. Survival. The provisions of this Section 12.5 and Sections ‎2.4 (Reservation of Rights; Use Restrictions), ‎4 (Intellectual Property Rights), 5 (Confidentiality), ‎8 (Warranty Disclaimer), ‎9 (Limitation of Liability), ‎12.4 (Consequences of Expiration or Termination), ‎13 (Assignment), 14 (Governing Law and Disputes) and ‎16 (General) shall survive the termination, expiration or other ending of this Agreement.  

1. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by One Layer without restriction or notification. Any assignment in breach of this Agreement shall be null and void. 

1. Governing Law and Disputes. This Agreement, and any disputes between User and One Layer in connection with this Agreement or the Product shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules; and User agrees to submit to the personal and exclusive jurisdiction of the courts located in New York County, New York, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding anything to the contrary, One Layer may seek injunctive relief or other relief necessary to prevent or restrain a breach of this Agreement in the local jurisdiction in which the breach occurs.  

1. Publicity. User hereby agrees that One Layer may use the existence of its business relationship with the User for advertising purposes or for other external communication purposes (including press releases); the same shall apply to One Layer’s use of a User’s name, trademarks or logo as a reference customer. 

1. General. This Agreement, including the preamble to this Agreement, shall constitute the entire agreement between User and One Layer concerning the Product. In the event of a conflict between this Agreement and the Order, then, subject to One Layer’s prior written consent, the terms of the Order shall prevail with respect to the subject matter of such Order. One Layer hereby rejects any term, provision or condition in User purchase order or other communication which conflicts with, or purports to add to or modify this Agreement and any such term, provision or condition shall be deemed stricken and shall not be binding upon One Layer unless and until an officer of One Layer expressly accepts such term, provision or condition in writing. No amendment to this Agreement will be binding unless in writing and signed by One Layer and User. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, (i) the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect; and (ii) the invalid provision shall be substituted with a provision that most closely approximates the original legal and economic effect of the invalid provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. All section and sub-section headings used in this Agreement are for convenience only, and shall not be relied upon or used in interpreting this Agreement.