iCap Network Access Agreement
AI-MEDIA
iCAP NETWORK ACCESS AGREEMENT
RECITALS:
A. Ai-Media has launched the premium iCap Network that provides superior efficiency and quality in respect of Captioning services than its Legacy Network.
B. The Agency hereby seeks access to the premium iCap Network to provide Captioning services to Content Providers. If the Agency currently accesses Ai-Media’s Legacy Network, the Agency will transition from the Legacy Network to the premium iCap Network.
C. Ai-Media has agreed to provide Access on the terms set out in this Agreement.
OPERATIVE PART:
- DEFINITIONS
The following capitalised words are defined as follows in this Agreement:
(a) Access has the meaning given in clause 3(a);
(b) Access Code means a string or passphrase generated by a Content Provider on the iCap Network to allow the Agency to connect to the Content Provider’s Content and provide Captions;
(c) Ai-Media means Ai-Media Technologies LLC of 241 West Federal Street Youngstown, OH 44503;
(d) Agency means you, the third party iCap user;
(e) Agreement means this agreement and includes the descriptions of parties, recitals, schedules and annexures to the agreement;
(f) Captioning means any real-time captioning or transcription services provided by the Agency for Content accessed via the iCap Network;
(g) Captions means the captions, caption files and/or transcripts delivered by the Agency to the Content Provider via the iCap Network;
(h) Claims means actions, suits, causes of action, arbitrations, debts, dues, costs, claims, demands, verdicts, orders and judgments either at law or in equity or arising under a statute and whether or not the matters giving rise to those claims are known to the parties at the date of this Agreement;
(i) Commencement Date means the later of 1 November 2023 or the date at which the Agency first uses the iCap Network following 1 November 2023;
(j) Confidential Information means all information and material (whether oral, in writing or electronic) relating to a party and its business, that is not publicly available (other than by breach of this Agreement), including without limitation strategic, corporate, operational and financial information. Confidential Information also includes the contents of this Agreement;
(k) Content means any audio, video, written files, documents or materials that are made available over the iCap Network;
(l) Content Provider means any third party provider of Content, such as TV networks, live venue operators and online streaming service content creators;
(m) EEG Cloud means the Ai-Media website located at www.eegcloud.tv/login
(n)Fees means the fees as prescribed in Clause 3(a);
(o) Force Majeure Event means any event beyond the reasonable control of the party affected by it, in consequence of which that party cannot reasonably be required to perform its obligations under this Agreement including but not limited to, fire, outbreaks of war, pandemics, epidemics, acts of hostility, terrorist activity, national emergency, government action, or any act of God (but does not include a lack of funds of a party);
(p) iCap Access Code means the string or passphrase that is issued to the Agency to access Content on the iCap Network;
(q) iCap Network means Ai-Media’s cloud hosted closed captioning and subtitle delivery network, connecting Content Providers to captioning services, as more particularly described at Ai-Media’s iCap web page, together with the Optional SDK Feature if subscribed to by the Agency;
(r) Initial Term means 3 years thereafter, agreement continues in accordance with clause 2(a);
(s) Insolvency Event means the occurrence of any one or more of the following events in relation to a party:
i) an application is made to a court for an order that it be wound up, declared bankrupt or that an administrator, liquidator provisional liquidator or receiver or receiver and manager be appointed, and the application is not withdrawn, struck out or dismissed within twenty one (21) days of it being made;
ii) a liquidator or provisional liquidator is appointed and the appointment is not terminated within fourteen (14) days of it being made;
iii) an administrator or a controller is appointed to any of its assets and the appointment is not terminated within fourteen (14) days of it being made;
iv) it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;
v) it proposes a winding-up or dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
vi) it is insolvent as disclosed in its accounts, or otherwise states that it is insolvent, or it is presumed to be insolvent under an applicable law;
vii) it becomes an insolvent under administration or action is taken which could result in that event and the proceeding is not dismissed within twenty one (21) days of the date action is taken;
viii) a writ of execution is levied against it or a material part of its property which is not dismissed within twenty eight (28) days;
ix) it ceases to carry on business or threatens to do so, other than for reorganisation or restructuring; or
x) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition;
(t) Intellectual Property all copyright, designs and industrial designs, circuit layouts, trademarks, service marks and commercial names and designations, trade secrets, know-how, confidential information, patents, invention and discoveries, literary artistic and scientific works, inventions in all fields of human endeavour, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;
(u) Intellectual Property Rights means all rights in Intellectual Property, including current and future registered and unregistered rights, whether conferred by statute, common law or equity, in any jurisdiction in the world;
(v) Legacy Network means Ai-Media’s legacy cloud hosted closed captioning and subtitle delivery network, connecting Content Providers to captioning services, which shall be shortly sunsetted by Ai-Media in favour of the premium iCap Network;
(w) Loss means, in relation to any person, any damage, loss, cost (including legal costs on a full indemnity basis), expense or liability incurred by the person or any claim, action, proceeding or investigation made against the person however arising and whether present or future, fixed or unascertained, actual or contingent;
(x) Optional SDK Feature means the iCap software development kit to enhance and automate Captioning workflows, which may be subscribed to by the Agency as an optional feature upon agreement with Ai-Media;
(y) Privacy Policy means the Ai-Media policy located at: https://www.Ai-Media.tv/privacy-policy/
(z) Personnel means a party’s employees, agents and contractors;
(a) Term means the Initial Term and all Renewal Periods in accordance with clause 2(a) (if any); and
(aa) User has the meaning given in clause 3(e).
2. TERM
(a) This Agreement will commence on the Commencement Date and, unless terminated earlier in accordance with this Agreement, will continue for the Initial Term. This Agreement will be renewed automatically for successive periods of 12 months each (Renewal Period) on expiry of the Initial Term or then current Renewal Period unless either party gives the other party not less than 90 days’ (in the case of the Agency) or 6 months’ (in the case of Ai-Media) written notice of non-renewal before the end of the Initial Period or then current Renewal Period (as applicable).
ACCESS
(a) Subject to the Agency paying the Fees and complying with the terms of this Agreement, Ai-Media grants to the Agency a limited, non-exclusive, non-transferable, non-sublicensable, revocable right for it and its Personnel to access and use the iCap Network, during the Term, solely for the Agency to provide Captioning for Content Providers (Access).
(b) In order to obtain Access, the Agency must first request an account for the Agency’s organisation on EEG Cloud from Ai-Media Tech Support to use the iCap Network (Company Account). This Company Account will be used by the Agency to register and administer individual users who can provide Captioning, and by Content Providers to identify the Agency on the iCap Network and generate Access Codes. The Agency must provide the following as part of the request:
i) a preferred company code that is unique to the Agency and provides a reasonable way for third parties to identify the Agency accurately on the iCap Network;
ii) authorised contact information for matters related to the Company Account; and
iii) the name and contact details of a designated initial user to receive the root administrative account for the Agency.
(c) It is a condition of Access that the Agency must cease use of the Legacy Network (if applicable) and update to the latest iCap software by downloading, installing and using the latest release made available by Ai-Media on EEG Cloud.
(d) To avoid doubt and not withstanding anything to the contrary herein, parties acknowledge and agree that the Legacy Network will be shutdown on the Commencement Date.
(e) Only individuals with a unique user account registered by the Agency under its Company Account will be entitled to access the iCap Network (User), and only with their account credentials (username and password) issued to them.
(f) The Agency must ensure that all Users keep the credentials for their account confidential. Users may not share their account credentials with other Users or any other person.
(g) The Agency is responsible for granting and removing permissions and credentials to any Users, and for the activities of all its Users and any other person using the Agency’s Company Account, a User account, or the credentials of a User.
(h) The Agency must notify Ai-Media immediately on becoming aware of unauthorised disclosure or use of Company Account or User account credentials.
FEES
4.1 Fees
(a) In consideration of the provision of Access, the Agency will pay Ai-Media the Fees as follows:
| iCap Feature | Fee (US$ per hour) |
| iCap Network Access | $2.00 |
| iCap SDK Feature/Usage (if selected) | $2.00 |
(b) The Fees may be changed by Ai-Media after the expiry of the Initial Term by notice to the Agency sixty (60) days prior to the change taking effect. If the Agency does not agree to the relevant variation of Fees, then the Agency may terminate this Agreement on written notice to Ai-Media and this Agreement will terminate on the day that the relevant variation of Fees takes effect.
(c) The Fees are exclusive of tax, fees, imposts or charges imposed under law (where applicable).
(g) Ai-Media will issue the Agency a tax invoice with raw data usage reports monthly in arrears setting out the Fees for the previous month. The Agency must make payment within thirty (30) days of receipt of a tax invoice from Ai-Media.
(e) The Agency must pay Ai-Media the Fees by Electronic Funds Transfer to Ai-Media’s nominated bank account.
(f) Ai-Media may set-off any amount payable to the Agency by Ai-Media under this Agreement against any amount payable by the Agency to Ai-Media under this Agreement.
(g) If the Agency does not make a payment by the due date required under this Agreement, without prejudice to Ai-Media’s rights under clause 11, Ai-Media may do any or all of the following:
i) charge interest at the rate of ten per cent (10%) per annum on all overdue amounts owed by the Agency to Ai-Media, calculated and accruing daily, until the relevant overdue amount (and accrued interest) is paid; or
ii) suspend the Agency’s Access until any outstanding amount due by the Agency under this Agreement has been paid.
5. AGENCY OBLIGATIONS AND PROHIBITIONS
a. The Agency must:
(i) co-operate with Ai-Media and provide information and documentation as Ai-Media reasonably requires to enable Ai-Media to provide Access;
(ii) obtain all necessary consents from its Personnel to Ai-Media’s collection and use of personal information submitted to Ai-Media or the iCap Network in accordance with Ai-Media’s Privacy Policy;
(iii) ensure that any devices used for Access meet the minimum system requirements as directed by Ai-Media;
(iv) arrange its own internet service and obtain any equipment necessary to connect to the iCap Network to provide Captioning;
(v) only use the iCap Network to provide Captioning, and only via a User;
(vi) keep any Company Account and User account credentials (username and passwords) confidential and secure; and
(vii) comply with all applicable laws in the use of the iCap Network.
(b) The Agency must not, and must procure that its Personnel do not:
(i) use the iCap Network for any unlawful, fraudulent or criminal purpose;
(ii) use the iCap Network in any way that interrupts, damages or impairs the iCap Network;
(iii) use the iCap Network to cause nuisance, annoyance or inconvenience, in any manner whatsoever,
(iv) rent, lease, sell, make available, distribute or sub-license its Access to the iCap Network to any person unless expressly authorised in this Agreement;
(v) permit any other person to access and use its Company Account or any User account on the iCap Network;
(vi) harm the iCap Network in any manner whatsoever, including but not limited to the transfer of files that contain viruses, trojans or other harmful programs, accessing or attempting to access the accounts of other users or captioners, penetrate or attempt to penetrate any security measures, launch any automated program or script (for example web robots, web ants or web spiders);
(vii) reverse engineer, de-compile, tamper or seek to access the source code, designs or patents of or in respect of any part of the iCap Network, the Intellectual Property of Ai-Media, or other goods or services of Ai-Media or its affiliates;
(viii) modify or make derivate works based on the iCap Network or any Intellectual Property of Ai-Media;
(ix) use the iCap Network or any Intellectual Property of Ai-Media to develop a product or service similar to or that competes with the iCap Network, or procure or encourage any third party to do the foregoing;
(x) remove or alter any copyright, trade mark, logo or other proprietary notice or label appearing on the iCap Network; or
(xi) in any way use the iCap Network, and must ensure its Captions do not contain any materials, which in any respect:
(A) may be obscene, indecent, pornographic, vulgar, profane, racist, sexist, discriminatory, offensive, derogatory, harmful, harassing, threatening, embarrassing, malicious, abusive, hateful, menacing, defamatory, untrue or political, except to the extent necessary to accurately Caption the Content; or
(B) may infringe or breach the Intellectual Property Rights of any third party.
(c) If the Agency or any of its Personnel breach any of the provisions in clause 5(b), without prejudice to any other rights under this Agreement or at law, Ai-Media may suspend or terminate Access (and the licence granted under clause 3(a)) for any or all Users.
6. ICAP NETWORK
(a) Ai-Media does not warrant, guarantee or make any representation that:
(i) the iCap Network will be compatible with all hardware and software which the Agency or User may use;
(ii) the iCap Network, or the server that make the iCap Network available on the internet are free of software viruses, free from errors, or that the iCap Network will operate uninterrupted;
(iii) Ai-Media’s security procedures will be error-free, that transmissions over the iCap Network will always be secure, or that unauthorised third parties will never be able to defeat security measures Ai-Media implements or those of Ai-Media’s third party service providers; or
(iv) Access will be uninterrupted or error-free.
(b) Ai-Media will use its reasonable efforts to make the iCap Network available for the Agency to Access. Ai-Media’s target is a minimum of 99. % Uptime for the iCap Network during any calendar month, however Ai-Media cannot guarantee it. The Agency acknowledges that the iCap Network is dependent on third-party services, including but not limited to cloud hosting services, and telecommunications services. If the iCap Network becomes unavailable, Ai-Media will work as quickly as reasonably possible to restore Availability. “Uptime” means the number of hours in a calendar month when the iCap Network is Available. “Available” means the iCap Network is available to be Accessed via the internet, excluding any unavailability caused by (i) the Agency (including its equipment, software or other technology); (ii) third parties; (iii) system maintenance; (iv) Ai-Media’s suspension or termination of the Agency’s Access in accordance with this Agreement; (v) factors outside of Ai-Media’s reasonable control, including a Force Majeure Event; or (vi) internet access or related problems beyond the demarcation point of EEG Cloud.
(c) Ai-Media implements and maintains physical, technical and administrative security measures designed to protect delivery of Content and Captions over the iCap Network from unauthorized access, use, modification, or disclosure.
(d) Ai-Media will provide the Agency with reasonable 24 x 7 remote technical support for any issues that the Agency or a User encounters in using the iCap Network. To request technical support, the Agency must contact Ai-Media using the support contact details made available on Ai-Media’s website. Ai-Media will endeavour to respond to requests as soon as reasonably practicable.
(e) Ai-Media may make improvements or other changes to the iCap Network from time to time in its sole discretion, with or without notice to the Agency (subject to the remainder of this clause). If the improved or modified iCap Network is not acceptable to the Agency, the Agency’s only recourse is to stop using the iCap Network and terminate this Agreement under clause 12(b). Notwithstanding the foregoing, Ai-Media will use reasonable efforts to provide substantial and reasonable notice (not less than 90 days) in respect of any improvement or change that renders the Agency’s current hardware inoperable with the proposed improvement or change, or that would otherwise have a material adverse impact on the Agency’s use of the iCap Network. Ai-Media may also discontinue the iCap Network or any portion or feature of it for any reason at any time on not less than 90 days.
(f) Ai-Media collects certain data and information about Agencies and Users in connection with use of the iCap Network. Ai-Media collects and uses any personal information contained within such data and information in accordance with the Privacy Policy, which the Agency acknowledges. Ai-Media will not use data or information collected about Agencies or Users to attempt to solicit the Agency’s customers or the contractors that the Agency uses to perform Captioning.
(g) Ai-Media is permitted to subcontract performance of some or all of its obligations under this Agreement to any person, provided that Ai-Media is responsible for the acts or omissions of any subcontractor.
7. CONTENT AND CAPTIONS
(a) The Agency is solely liable for the Captions, including the content, timeliness, accuracy of the Captions, and compliance with applicable laws, regulations and standards in connection with the Captions.
(b) The Agency agrees and warrants that:
i) it owns, or has sufficient rights to create the Captions and transmit the Captions to the Content Provider via the iCap Network;
ii) it has obtained (or has ensured that each Content Provider it provides Captioning to has obtained) all necessary consents to the collection and use of any personal information or data in order for the Agency to provide the Captions and for Ai-Media to store and use the Captions to provide the iCap Network in accordance with this Agreement;
iii) it is authorised to provide the licence in clause 11(b);
iv) the Captions do not infringe the rights of any third party, including Intellectual Property Rights and privacy rights; and
v) the Captions do not infringe any law, statute, regulation or standard.
(c) The Agency acknowledges that any Captioning engagement is between the Agency and the Content Provider, and that the Content Provider and not Ai-Media is responsible and liable for:
i) the volume (if any) of Captioning services that the Agency is engaged to provide to the Content Provider;
ii) creation and maintenance of Access Codes; and
iii) the Content, including its selection, classification, accuracy, completeness and quality, as well as any exposure of Users to harmful, offensive or distressing materials through the Content.
8. WARRANTIES
(a) Each party warrants that:
i) it is validly existing under the laws of the place of its incorporation and has the power and authority to carry on its business;
ii) it has the power to enter into and perform its obligations under this Agreement; and
iii) it has all necessary licences, approvals, permits and consents to enter into this Agreement and perform the obligations under it.
(b) Ai-Media warrants that it will use reasonable care and skill in performing its obligations under this Agreement.
9. LIABILITY
(a) Except in the case of death or personal injury caused by Ai-Media’s negligence, the liability of Ai-Media under or in connection with this Agreement for any Loss or Claim whether arising in contract, tort, negligence, breach of statutory duty or otherwise, shall not exceed the total Fees paid by the Agency to Ai-Media under this Agreement.
(b) Neither party will be liable to the other party for any indirect, special, economic or consequential loss or damage, or any loss of revenue, profits, goodwill, data, opportunities or anticipated savings, whether arising in negligence, breach of contract, statute or otherwise.
(c) Nothing in this Agreement is intended to exclude, restrict or modify any guarantees under law which apply and cannot be excluded, restricted or modified. Otherwise, all terms, conditions, warranties and representations, whether express or implied by statute, custom, course of dealing or performance, are excluded unless expressly set out in this Agreement. Without limiting the foregoing, or clause 6(a), Ai-Media excludes any implied warranty of merchantability, fitness for a particular purpose, or noninfringement.
(d) Notwithstanding clause 7(a), to the extent permitted by law, Ai-Media’s liability for a breach of any guarantee or warranty imposed under this Agreement or under law that cannot be excluded, is limited at Ai-Media’s election to:
i) the supplying of Access again; or
ii) the payment of the cost of having the Access supplied again.
(e) The Agency hereby indemnifies and must keep indemnified Ai-Media from and against any Loss or Claim suffered or incurred by Ai-Media, arising from or in connection with:
i) the Agency’s use of the iCap Network in any manner not expressly permitted under this Agreement;
ii) the Captions, including their creation, content or accuracy, or the Agency’s delivery or failure to deliver them; or
iii) the Captions infringing the Intellectual Property Rights of a third party.
10. CONFIDENTIALITY
(a) A party must not, and must ensure that its Personnel do not, either during or after the Term, disclose any Confidential Information which has disclosed to it by the other party, except
i) as required by law judicial or parliamentary body, securities exchange or governmental agency, or
ii) with the previous written consent from the other party.
(b) A party and its Personnel must only use the Confidential Information disclosed to it by the other party, for the purpose of performing its obligations under this Agreement.
(c) A party must at all times store Confidential Information disclosed to it, safely and securely.
(d) A party must immediately notify the other party in writing of any actual, threatened or suspected unauthorised disclosure of any Confidential Information.
(e) Upon termination or expiry of this Agreement, each party must deliver to the other party or destroy (and provide to the other party a written statutory declaration in respect of the same), all Confidential Information in its possession or control (and any copies of the Confidential Information).
(f) The obligations of this clause 9 survive termination or expiry of this Agreement.
11. INTELLECTUAL PROPERTY
(a) Ai-Media owns and retains all rights, including Intellectual Property Rights, in the iCap Network.
(b) The Agency grants Ai-Media a limited, non-exclusive, transferrable, royalty-free, worldwide licence to copy, display, upload, transmit, store, modify and otherwise use the Captions for the purpose of providing the iCap Network.
(c) Subject to clause 11(b), all Intellectual Property Rights in the Captions remain with the Agency or its licensors.
(d) If the Agency or any User provides any feedback, recommendations, suggestions or enhancement requests in connection with the iCap Network or Ai-Media’s other products or services (Feedback), the Agency grants Ai-Media us a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback to further develop the Ai-Media’s products and services, or to create new products and services. Ai-Media will exclusively own all Intellectual Property Rights in any technology, developments, derivative works or other materials created by it or on its behalf using or incorporating Feedback, without any obligation to the Agency or any User.
12. TERMINATION
(a) A party may terminate this Agreement immediately without notice upon the happening of any of the following events:
i) If the other party suffers an Insolvency Event; or
ii) If the other party commits a material breach of this Agreement, and fails to remedy the breach within fourteen (14) days of receiving a notice from the first party identifying the breach and requiring the breach to be remedied.
(b) Either party may terminate this Agreement at any time, without cause, by providing to the other party thirty (30) days’ notice.
(c) Upon termination or expiry of this Agreement,
i) all tax invoices for Fees issued to the Agency and which have not been paid by the Agency, become immediately due and payable; and
ii) Ai-Media will issue a tax invoice in respect of Fees for Access at any time prior to the date of termination or expiry (for which Ai-Media has not previously issued a tax invoice), and the Agency must make payment within five (5) days of receipt of the tax invoice from Ai-Media.
(d) Termination of this Agreement does not affect any accrued rights or remedies of either party.
13. FORCE MAJEURE
(a) A party will not be liable for any Loss to the other party arising from any failure of or delay in performance of its obligations under this Agreement, where the failure is wholly or substantially due to a Force Majeure Event, provided that a party seeking to rely on the benefit of this clause:
i) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
ii) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
(b) Where the Force Majeure Event prevents a party from performing a material obligation under this Agreement for a period in excess of thirty (30) days, then the other party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice.
14. DISPUTE RESOLUTION
(a) Unless a party to this Agreement has complied with all of the provisions of this clause 14, that party may not commence court proceedings in connection with any dispute, controversy or Claim arising out of or relating to this Agreement, including its validity, breach or termination (Dispute), except where that party seeks urgent interlocutory relief in which case that party need not comply with this clause before seeking such relief.
(b) Notwithstanding the existence of a dispute or difference each party shall continue to perform its obligations under the Agreement.
(c) This clause 14 shall survive termination or expiry of this Agreement.
(d) A party claiming that a Dispute has arisen must give written notice to the other party setting out the nature of the Dispute (Dispute Notice).
(e) The parties must meet (which may be satisfied by means of telephone or video conference) within fourteen (14) days of service of the Dispute Notice with a view to negotiating and resolving the Dispute.
(f) If the Dispute is not settled within thirty (30) days of the date of the notice in clause 14(d), then the parties may commence court proceedings.
15. NOTICES
(a) All notices, consents, approvals, demands and other instruments required or permitted to be served under this Agreement must, unless otherwise in this Agreement expressly provided, be in writing, signed by or on behalf of the party serving the same or by that party’s solicitor and may be served upon the party at the addresses set out below:
Ai-Media:
Address: 241 West Federal Street Youngstown, OH 44503
Attention: General Counsel
Email:
Agency: Via email as provided to Ai-Media upon registration to the iCap Network
(b) Service will be sufficient if any such notice is:
i) delivered personally to the party to be served;
ii) sent by ordinary pre-paid post to either the above address or to a registered office. If a notice is posted, it is deemed to have been duly served on the third day after postage;
iii) sent by email to the email address set out in the party’s address for service and receipt is deemed to be acknowledged by the recipient by a delivery receipt notification generated by the recipient’s email system after sending of the email containing the notice or to which the notice is attached but if this delivery or receipt is later than 5.00 pm (local time) on a business day of the recipient, the notice is deemed to have been given and served on the next business day. Emailing notices will constitute sufficient and effective delivery when delivered to the recipient’s email account whether or not the specific electronic communication is accessed or read.
16. GENERAL
16.1 Relationship
(a) The relationship between Ai-Media and the Agency is that of a principal and an independent contractor. Nothing in this Agreement will constitute or be construed to constitute a party as the partner, agent, employee or representative of any other party or to create any trust relationship between them.
16.2 Entire Agreement
(a) This Agreement contains the whole agreement between the parties in respect of the subject matter of the Agreement.
16.3 Amendment
No variation or waiver of, or any consent to any departure by a party from, a provision of this Agreement is of any force or effect unless it is confirmed in writing signed by the parties and then that variation, waiver or consent is effective only to the extent for which it is made or given.
16.4 Assignment
(a) Subject to clause 6(g), no party may assign, transfer or novate, whether in whole or part, the benefit of this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party.
16.5 Waiver
(a) The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under this Agreement.
16.6 Severance
(a) If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
16.7 Acceptance
This Agreement may be executed upon the Agency’s use of the iCap Network as contemplated herein and the Agency hereby agrees to these terms upon such use.
16.8 Governing law and jurisdiction
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of Ohio, including its statutes of limitations. The parties submit to the non-exclusive jurisdiction of the courts of Ohio (United States of America) and any court hearing appeals from those courts.
16.9 Interpretation
Headings used throughout this Agreement are for reference only and do not affect the meaning or interpretation of the Agreement. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included. A reference to “person” includes a natural person, a firm, a body corporate, an unincorporated association, trust, partnership or an authority.