ScyllaDB Cloud Terms of Service
Last updated: March 24, 2019

These Terms of Service (the “Terms”) govern customer’s relationship with ScyllaDB Inc. and its subsidiaries and affiliates (collectively “ScyllaDB” or “we”) and set forth the terms and conditions under which ScyllaDB makes available ScyllaDB’s Cloud Service, as provided by ScyllaDB (“Services”) to each customer (the “Customer” or “you”) accessing or using the Services. The Terms are effective as of the date Customer checks the “I agree” box, agreeing to the terms and conditions of these Terms (the “Effective Date”). ScyllaDB may revise the Terms at any time without notice to you. The revised Terms of will be effective when posted. You can review the most current Terms of Use.

1. Customer Agreement

1.1. By checking the click-box that indicates acceptance of the Terms or by using the Services, Customer is agreeing to follow and be bound by the Terms. Customer agrees that it is entering the Terms on behalf of an entity only, and not as an individual person. Customer represents and warrants that: (i) you have full legal authority to bind Customer to the Terms; (ii) you have read and understand the Terms; and (iii) you agree, on behalf of Customer, to the Terms. If you do not have the legal authority to bind Customer, please do not check the click-box to accept the Terms. If Customer does not accept the Terms, then it cannot use the Services.

1.2. As part of the Services we may be required to collect, access and/or process certain information of you or as part of your Content. For information on how we collect, use and share personal data, please see our Privacy Notice, available at: https://www.scylladb.com/privacy/

1.3. THE PRIVACY NOTICE IS AN INTEGRAL PART OF THE TERMS. YOU MAY NOT USE THE SERVICES IF YOU DISAGREE WITH ANY OF THE PROVISIONS INCLUDED IN THE PRIVACY NOTICE.

2. Services

2.1. Subject to the terms and conditions of the Terms, ScyllaDB shall provide you with our Database as a Service technology to enable you to access, and use your database with greater efficiency and connectivity while ScyllaDB manages and operates the database for you in accordance with the Terms. Our Services include the following features:

– High availability and multi-zone deployment;
– 24×7 monitoring;
– Response time of 30 minutes.

2.2. As we strive to provide you with the highest quality of cloud services, we use our best efforts to use the highest industry standards, including with respect to security. We have invested considerable effort in designing and implementing all of our system components in a way which is conducive to the highest level of security in accordance with industry standards.

2.3. ScyllaDB provides support services to customers wishing to use our expert support services in connection with their use of the Services. The service level agreement we currently offer with respect to the Services is available at: www.scylladb.com/cloud-service-level-agreement (“SLA”).

2.4. ScyllaDB shall use its best commercial efforts to provide Customer with the Services in accordance with the Terms. However, ScyllaDB reserves the right to suspend Customer’s access to the services: (i) for scheduled maintenance where we have provided you with prior notice of such scheduled maintenance, or (ii) in the event Customer is in breach of the Terms, (including, among others, failure to pay the Fees).

2.5. Customer acknowledges and agrees that ScyllaDB is using the services and/or products of third party partners or service providers to facilitate provisioning the Services to you. As such, certain warranties and obligations, including with respect to the SLA, shall be limited to the same warranties as are extended to ScyllaDB by such third-party partners and/or sub-contractors.

3. Registration

3.1. In order to use the Services, Customer will be required to register with ScyllaDB, and provide certain information, such as name, email, address, including, billing information and other information required to perform the Services. Please note that while you are not obligated to provide ScyllaDB with any personal details, without certain information some or all of the Services may not be available to you.

3.2. If Customer wishes to use the Services it must provide all information as requested by ScyllaDB in the registration process, and Customer represents and warrants that all such information shall be accurate and complete. Customer shall keep such information up-to-date. Customer agrees not to share its password(s), account information, or access to the Services with any other person. Customer is responsible for all activities that occur under your account, regardless of whether undertaken by you, your employees or a third party (including contractors or agents) and ScyllaDB and our affiliates are not responsible for unauthorized access to your account. Customer will contact us immediately if it believes an unauthorized third party may be using its account or if your account information is hacked, lost or stolen.

4. Customer’s Data

4.1. You agree that you will only upload, share, use, or otherwise make available on or through the Services information, data or any other content (“Content”) that you have the right and authority to share and for which you have the right and authority to grant to ScyllaDB all of the licenses and rights set forth hereunder. By uploading, sharing or using the Content, you grant ScyllaDB a worldwide, limited, royalty-free, non-exclusive, sub-licensable license to use, reproduce, modify, adapt, publicly display, and transmit the Content solely for the purpose of carrying out the Services in accordance with the Terms (“Content License”)

4.2. In connection with the Services Customer hereby warrants and represents that it shall not upload, share, use or provide ScyllaDB any Content which is: (a) infringing on a third party’s privacy or includes, copies or transmits another’s confidential, sensitive or personal information not in accordance with applicable law; (b) illegal, harmful, fraudulent, infringing third party rights, including intellectual property rights; (c) constitutes patient, medical or other information related to an individual’s physical or mental health, or the provision of or payment for health care, whether that information is regulated by the Health Insurance Portability and Accountability Act, as amended and supplemented, and the regulations thereunder (collectively, “HIPAA”), or any similar federal, state, or local laws, rules, or regulations, unless Customer has signed a Business Associate Agreement (as defined by HIPAA) with ScyllaDB; (d) is unauthorized, or for which you do not have the right and authority to share and/or grant the necessary rights and licenses for; (e) contains harmful code or any other malicious program; or (f) violating or promotes the violation of any applicable laws or regulations.

4.3. Customer acknowledges and agrees that ScyllaDB shall have the right to retain certain information and/or Content for archival purposes, including, among others, for billing purposes, legal requirements or disaster recovery purposes. ScyllaDB shall use its best commercial efforts to retain such archival copies only for period that is legitimately required, but in no event longer than 60 days as of date of deletion or termination of the Terms, unless required otherwise under applicable laws.

4.4. Customer agrees that while ScyllaDB will use its best efforts to maintain an up to date back-up of the Content, ScyllaDB does not guarantee that we will hold the latest version at the time of technical failure or data corruption. In such event of technical failure or data corruption, ScyllaDB shall work towards restoring such Content from the last known good archival version of the Content which ScyllaDB possess.

4.5. Except for willful misconduct or fraud, ScyllaDB shall not be liable to any damage incurred in connection with a breach of this Section ‎4 by ‎Customer, and Customer shall indemnify and hold ScyllaDB harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or in connection with any claim due to the Customer’s breach of this Section ‎4. ‎

4.6. Without derogating from the foregoing, ScyllaDB has no obligation to monitor the Services or screen Customer’s Content that is shared on or through the Services. However, ScyllaDB reserves the right to review the Services and Content and to monitor all use of and activity on the Services, and to remove or choose not to make available on or through the Services any Content in its sole discretion. ScyllaDB may remove Content that is illegal or infringes on the rights of a third party.

5. Grant of License

5.1. Subject to and conditioned upon compliance with the terms and conditions of the Terms, including the limitations, conditions, restrictions and obligations set forth below, ScyllaDB grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited right to use the Services for the Subscription Term, for internal business purposes of Customer (the “Cloud License”). For the purpose of the Terms, the Subscription Term shall mean the period for which Customer has paid to receive the Services until expiration or termination of the Services in accordance with the Terms.

5.2. Use Restrictions. Customer hereby represents and warrants that it shall not: (a) copy the Services or any portion thereof; (b) deny service to, hack, crack, reverse engineer, disassemble, or decompile the Services in any form or by any means; (c) modify or create derivative works of the Services; (d) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Services or any software thereto incorporated; (e) use the Services for any illegal or unauthorized purpose, including in breach of these Terms, or in a manner which infringes third parties’ rights in any way, including intellectual property rights; (f) incorporate the Services into the structure, machinery or controls of any aircraft, other aerial device, military vehicle, hovercraft, waterborne craft or any medical equipment; or (g) distribute, sell, sublicense or otherwise transfer or provide access to the Services to any third party, including, without limitation, provision of database management services through the Services.

6. Intellectual Property rights

6.1. ScyllaDB retains exclusive ownership of all rights, interests and title in the Services and any part thereof and Customer acknowledges that all rights, title and interest in and to the Services and any and all trademarks, trade names, copyrights, patents, patentable inventions, and any and all other intellectual property rights used or embodied in or in connection therewith, are and shall remain in the exclusive property of ScyllaDB, subject only to the rights and licenses expressly granted by ScyllaDB hereunder. Customer shall make no claim of right to any Services to be supplied by ScyllaDB hereunder and acknowledges that as between ScyllaDB and Customer, such Services are proprietary to ScyllaDB.

6.2. Customer hereby agrees that ScyllaDB shall be free to use for any purpose whatsoever any ideas, concepts, know-how, or techniques contained in any communications you send to us, including, but not limited to, feedback, comments, suggestions, and the like, including, but not limited to, for the development, production and marketing of products and services that incorporate such information, without compensation to you. Without derogating from the above, it is hereby clarified that all rights, title and interests in and to any feedback, suggestions, ideas or other inputs that you provide us in connection with the Services (the “Feedback”) shall vest solely with ScyllaDB, and will be owned exclusively by ScyllaDB (and the Feedback is hereby irrevocably assigned to ScyllaDB, to the extent necessary to reflect the above).

7. Orders, Payment Terms and Taxes

7.1. Customer agrees that all purchase orders (“PO”) or credit card orders made via the Services are subject to the terms and conditions of the Terms. POs are subject to the acceptance of ScyllaDB. All POs are non-refundable and non-cancellable except as expressly provided in the Terms.

7.2. Customer’s use Services is subject to the full and timely payment of fees identified on the ScyllaDB website interface and/or Services that are applicable to the specific Service selected by Customer (the “Fees”). Fees will be calculated and billed based on the specific terms as set forth in the applicable PO, either a pay-as-you-go or annual subscription basis. Fees may include additional fees based on any usage that exceeds the processing and storage capacity purchased, as shall be mutually agreed by the parties in the PO or on the ScyllaDB Cloud website available at: https://www.scylladb.com/product/scylla-cloud/#pricing.

7.3. If your billing information and the payment source you have provided while registering for the Services is invalid, if charges billed to you are declined or not paid or if you fail to pay the Fees when due, your account may be suspended or cancelled, at ScyllaDB’s sole discretion.

7.4. Taxes. Customer is responsible for any taxes applicable to the Fees, and Customer will pay ScyllaDB for the Services without any reduction for any taxes, including, among others, VAT or sales taxes. If ScyllaDB is required to collect or pay taxes, the taxes will be invoiced to Customer, unless Customer provides ScyllaDB with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. If required under applicable law, Customer will provide ScyllaDB with applicable tax identification information that ScyllaDB may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse ScyllaDB for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.

7.5. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to ScyllaDB, ScyllaDB will issue a corrected invoice, specifying the correct amount of Fees in the affected invoice. Customer will be responsible for paying the resulting net balance due on that corrected invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within 60 days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of ScyllaDB and will only be in the form of credit for the Services.

7.6. ScyllaDB uses a third-party credit card processing service to process the Fees. ScyllaDB may change its third-party credit card processing service from time to time. Customer consents to the use of such service and to the transfer of Customer’s credit card details to such third-party processor. In the case that ScyllaDB switches to another credit card processor, the Customer may be required to update billing details manually. Customer agrees to be bound by any separate terms applicable to the processing service. Customer’s credit card will be charged automatically for Customer’s order of the Services and subsequent consumption.

7.7. Late Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by applicable law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by ScyllaDB in collecting such late payments amounts. If Customer is late on payment for the Services, ScyllaDB may suspend the Services or terminate the Agreement for breach pursuant to Section ‎13.2 below.

8. Confidential Information

8.1. During the term of this Agreement and thereafter, the parties (i) shall treat as confidential and proprietary all information which is identified as confidential or proprietary, or which can be reasonably deemed to be such, and which is disclosed by one party to the other; (ii) shall not disclose such information to any third party, except for such party’s employees and consultants which have a specific need to know such information for the purpose of this Agreement and only if such employees or consultants executed a confidentiality agreement protecting such information by terms no less stringent than those contained in this Section. The foregoing shall not apply to any information that the party receiving such information can prove by reasonable written and dated records: (a) is already in the party’s possession, prior to the disclosure thereof, other than as a result of the breach of a legal or contractual obligation on the part of the receiving party; (b) was lawfully received by such party from a third party having rights to disclose, and under no confidentiality obligations known to such party with respect to such information; (c) is or becomes a part of the public knowledge through no wrongful act of receiving party; (d) is approved for release in writing by the party to whom the confidential or proprietary information belongs; or (e) is or was developed independently by the receiving party without reliance on, reference to or use of any information of the other party, and without any breach of the Terms, as evidenced by contemporaneous written documents.

8.2. Any breach or threatened breach of this Section may cause irreparable harm to the disclosing party for which there is no adequate remedy at law. Therefore, the disclosing party will be entitled to seek injunctive relief without the necessity of proving actual damages or posting a bond, in addition to any other remedies available at law.

9. Warranty and Disclaimers

9.1. ScyllaDB and Customer each represent and warrant that they have the right, power, and authority to enter into the Terms and perform their respective obligations hereunder.

9.2. CUSTOMER AGREES THAT SCYLLADB HAS MADE NO EXPRESS WARRANTIES TO IT REGARDING THE SERVICES AND THAT THE SERVICES ARE BEING PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. SCYLLADB DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SERVICES; EXPRESS OR IMPLIED; INCLUDING; WITHOUT LIMITATION; ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; BE TIMELY OR SECURE, MERCHANTABILITY; QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SCYLLADB DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, EXCEPT AS EXPRESSLY PROVIDED HEREUNDER.

9.3. FURTHERMORE, SCYLLADB MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE SERVICES HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR: (I) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT STORED THEREIN; (II) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (III) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES THROUGH THE ACTIONS OF ANY THIRD PARTY; AND/OR (VI) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SERVICES; CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SCYLLADB TO ANY THIRD PARTY. SINCE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY, AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.

10. Indemnification

10.1. Customer will defend and indemnify ScyllaDB from and against any third-party claim, demand, damages or lawsuit arising out of or relating to (a) Customer’s breach of the Terms; (b) Customer’s violation of applicable laws or regulations in connection with the Services; or (c) Customer’s Content or the combination of the Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the Content, and Customer will pay such damages or costs as are attributable to any such action. ScyllaDB will promptly notify you of any claim subject to this Section, but ScyllaDB’s failure to promptly notify you will affect your obligations only to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement.

10.2. ScyllaDB will defend and indemnify Customer and its affiliates against any third-party claim, demand, damages or lawsuit arising out of or relating to (a) violation of applicable laws or regulations in connection with the Services breach; or (b) the Services infringement or misappropriation of a third party’s patent, copyright, trade secret, or trademark.

11. Limitation of Liability

11.1. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW AND OTHER THAN IN CONNECTION WITH SCYLLADB’S WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT WILL SCYLLADB BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE; LOSS OF DATA, INTERRUPTION OF BUSINESS; OR ANY INDIRECT; SPECIAL; INCIDENTAL; OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; EVEN IF SCYLLADB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2. SCYLLADB SHALL NOT BE LIABLE FOR any loss, damage, or CORRUPTION of any data OR CONTENT under any circumstances or for any consequences related to changes, restrictions, suspensions, or termination of the Services or the terms. These limitations will apply to CUSTOMER even if the remedies fail of their essential purpose.

11.3. Other than in connection with ScyllaDB’s willful misconduct or fraud, in no event shall the total cumulative liability of ScyllaDB, for all claims arising out of or relating to the Terms, exceed the lower of: (i) total amounts actually paid by Customer to ScyllaDB during the period of the 6 months preceding the date of such liability, or (ii) US$ 50,000. The foregoing provision limiting the liability of ScyllaDB shall apply regardless of the form or cause of action, whether in contract or tort, or a breach of a fundamental term or condition.

11.4. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THE TERMS DO NOT APPLY, AND ALL OTHER TERMS SHALL REMAIN IN FULL FORCE AND EFFECT.

12. Intellectual Property Infringement

12.1. If ScyllaDB reasonably believes the Services might infringe a third party’s intellectual property rights, then ScyllaDB may, at its sole option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.

12.2. If ScyllaDB does not believe the remedies in Section ‎12.1 above are commercially reasonable, then ScyllaDB may suspend or terminate Customer’s use of the impacted Services.

12.3. Without affecting either party’s termination rights, this Section 12 states the parties’ only rights and obligations under the Terms for any third party’s intellectual property rights allegations in connection to infringement by the Services.

13. Term and Termination

13.1. The “Term” of the Terms will begin on the Effective Date and continue until the Terms are terminated as set forth in this Section 13 or expire as set forth in the relevant PO.

13.2. Termination for Breach. Either party may terminate the Terms for breach if: (i) the other party is in material breach of the Terms and fails to cure that breach within 30 days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

13.3. Customer may stop using the Services at any time. Customer may terminate the Terms for its convenience at any time upon a 60 days prior written notice and upon such termination, must cease use of the applicable Services. ScyllaDB may terminate the Terms for its convenience at any time upon a 60 days prior written notice without liability to Customer.

13.4. Effect of Termination. If the Terms are terminated or expire, then: (i) the rights granted by one party to the other will immediately cease, including immediate termination of the Cloud License and Content License; (ii) all Fees owed by Customer to ScyllaDB are immediately due upon receipt of the final electronic bill; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party as applicable.

14. Data Protection

14.1. ScyllaDB may process personal data that is contained in your Content or as required to perform the Services in accordance with applicable laws and regulations, and as set forth in our Privacy Notice available at: https://www.scylladb.com/privacy/

14.2. Your privacy is important to us. ScyllaDB’s Privacy Notice is incorporated into the Terms by reference. Please read the Privacy Notice carefully. By using the Services, Customer represents and warrants that you have read and agree to the practices described in our Privacy Notice, and that you have all necessary rights, authorizations and consents in connection with Personal Data (as defined in the Privacy Notice) of persons included or portrayed in the Content, if and as applicable, and that any processing of such Personal Data shall be in accordance with the terms and conditions of the Privacy Notice, as required by applicable laws.

15. Third-Party Websites

15.1. The Services or ScyllaDB’s website may provide links to websites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of the Services or our website. ScyllaDB is not responsible for any third-party content provided on or through the Services or our website or for any changes or updates to such third party websites, and you bear all risks associated with the access to, and use of, such websites and third-party content, products and services.

16. General Provisions

16.1. Assignment. The Customer may not assign, transfer, or otherwise dispose of these Terms or any of its rights, interest, or obligations hereunder without the prior written consent of ScyllaDB. ScyllaDB may transfer or assign the Terms to: (a) an affiliate of ScyllaDB; or (b) an acquirer of all or substantially all of the shares or assets of such party through change of control event. Any assignment of the Terms in violation of this provision shall be null and void.

16.2. Functionality. Customer agrees and acknowledges that the Cloud Services are currently in their testing stage, and are made available as an “Early Access” version. This means that we have not yet completed development of the Cloud Services and that not all features are completely functional or available. Occasionally, the Cloud Services might not work at all. ScyllaDB is not obligated to provide any maintenance, technical or other support for the Cloud Service unless explicitly agreed by Customer and ScyllaDB.

16.3. Notices. All notices and communications hereunder shall be in writing and shall be served by at least one of the following: (1) personal service; (2) registered or certified mail at the address of the receiving party set forth in the Terms or relevant PO (or at such different address as may be designated by such party by written notice to the other party); (3) electronic mail with electronic confirmation and followed immediately by (1) and/or (2).

16.4. Governing Law and Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws provisions, and the Courts situated in New York, New York, shall have sole and exclusive jurisdiction over the parties and any conflict and/or dispute arising out of, or in connection to, this Agreement.

16.5. Independent Parties. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. The Terms do not create any third-party beneficiary rights in any individual or entity that is not a party to the Terms. Our failure to enforce any provision of the Terms will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time.

16.6. Integration. The Terms, including the SLA and PO(s) sets forth the entire agreement between the parties on the subject hereof and supersedes any and all previously or currently existing oral or written agreements, understandings, memoranda, letters of intent, or representations on the subject matter hereof, as of the Effective Date.

16.7. Severance. If any one or more of the terms of the Terms shall for any reason be held to be invalid or unenforceable, such term shall be construed in a manner to enable it to be enforced to the extent compatible with applicable law. Any determination of the invalidity or unenforceability of any provision of the Terms shall not affect the remaining provisions hereof unless the business purpose of the terms is substantially frustrated thereby.

16.8. Third Party Beneficiary. These Terms are not intended to and shall not be construed to give any third party any interest or rights (including, without limitation, any third party beneficiary rights) with respect to or in connection with any agreement or provision contained hereunder or contemplated hereby, except as otherwise expressly provided for in these Terms.