Last updated: April 27, 2023
Master Services Agreement
This Master Services Agreement (“MSA“) is entered into as of the date of the initial Order Form incorporating this MSA by reference (the “Effective Date”) by and between the Walnut entity identified in the Order Form (“Walnut” or “We”) and the entity identified as the Customer in such Order Form (“Customer” or “You”), and governs the access and use of Walnut’s Services by the Customer and its Authorized Users. Walnut and the Customer shall be referred to separately as a “Party” and collectively as the “Parties.”
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS MSA.
1. Definitions
1.1. “Affiliates” – means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means either: (a) ownership or control of more than 50% of the voting interests of the subject entity; or (b) the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise.
1.2. “Authorized Users” means an individual who is authorized by Customer to use the Services on behalf of the Customer, and to whom the Customer has purchased a subscription to the Platform. Authorized Users may include, Customer’s or its Affiliates’ employees, consultants, contractors, and agents.
1.3. “User Account” means a unique user account registered by an Authorized User under the Customer’s account.
1.4. “Customer Data” means materials, information, data, text, images and other forms of content submitted or uploaded to the Platform by the Customer and any of its Authorized Users.
1.5. “Demo(s)” means demonstrations of Customer’s products and services that were created by the Customer through Walnut’s Platform.
1.6. “Documentation” means materials, user guides, manuals, drawings and any documentation related to the Services or any parts thereof, provided by Walnut.
1.7. “Insights” means any and all insights, analytics, conclusions, distinctions, reports, ratings, indexing, and scores, regarding the Demos, as produced and provided by Walnut as part of the Services.
1.8. “Support Services” means onboarding, technical and operational support, as may be provided by Walnut, directly or through third-party service providers, in connection with the Services.
1.9. “Order Form” means an ordering form or document or an online order entered into between Customer and Walnut (or Affiliates of either party), specifying the Service(s) or Professional Service(s) (if any) to be provided under this MSA.
1.10. “Service(s)” means any of Walnut products and/or services, including subscription to the Platform, Support Services and Professional Services (if applicable), provided within the framework of a trial period, test, proof of concept process, commercial engagement or otherwise, whether in exchange of payment or otherwise, as may be further detailed in an Order Form or any other written agreement between the Customer and Walnut.
1.11. “Service Material” means any elements, such as text, data, software, graphics, logs, software, Documentation, and/or information about or provided through the Services.
1.12. “Subscription Term” shall have the meaning ascribed thereto in Section 14.1.
1.13.“Platform” means Walnut’s proprietary demo creation and sales experience software as a service platform.
1.14. “Professional Services” means professional services specified in the Order Form, including without limitation enablement services, training, and consulting services.
1.15. “Walnut Data” means Walnut’s proprietary data (including Insights) and/or confidential data obtained by Walnut and/or licensed to it from third parties, underlying its products and Services.
1.16. “Walnut IP” means all worldwide intellectual property rights in and to the Platform, Services, Services Materials, Walnut Data, and any part thereof, and all software, technical innovations, modifications, enhancements, derivatives, versions, bug fixes, customizations, improvements, and updates thereto, whether registered or unregistered.
2. License
2.1. Grant of License. Subject to full compliance with this MSA and the applicable Order Form, Walnut grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access, use and permit Customer and its Authorized Users to access and use the Services, during the applicable Subscription Term, solely for internal business purposes and for sharing Demos via the Platform with Customer’s prospective clients. Except as provided herein or in the applicable Order Form, Customer shall have no other rights with respect to the Services, Platform, Walnut Data, and Service Materials, or any portion or derivative thereof.
2.2. Trial Period. Notwithstanding anything to the contrary in this Agreement, if Walnut has made available to Customer free, trial, or evaluation access to the Platform (“Trial Access”), such access is limited to evaluating the Platform to determine whether to purchase a subscription from Walnut. Customer may not use the Trial Access for any other purposes, including but not limited to competitive analysis, commercial, professional or for-profit purposes. Walnut has the right to terminate the Trial Access at any time. Unless Customer purchases a subscription for the Services, upon any such termination or expiration, Customer’s Trial Access shall cease. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WALNUT WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL ACCESS.
3. User Account Registration
Customer acknowledges that it retains administrative control over to whom it grants access as an Authorized User pursuant to this MSA and the applicable Order Form. Customer may specify one or more Authorized Users as administrators to manage its account (“Administrator”), and Walnut is entitled to rely on communications from such Administrator and other Customer employees when servicing Customer’s account. The Customer undertakes to provide accurate, true and up to date information, and acknowledges the processing of any personal data or personal information are processed as detailed in the Walnut Privacy Policy available at: https://www.walnut.io/privacy. Customer shall keep, and cause its Authorized Users to keep, in strict confidence the login credentials for the User Account. Customer is responsible for use or misuse of the User Account Services by its Authorized Users, or any third party within Customer’s control, and for their compliance with this MSA, Order Form, and any documentation provided by Walnut. Customer shall promptly notify Walnut if it becomes aware of any unauthorized use or access to Customer’s account or the Platform.
4. Usage Restrictions
Customer shall not, and shall not permit any third party, to: (a) use the Services or any Service Material to create derivative works or develop any similar or competitive service; (b) use the Services or any Service Material in violation of applicable law or any third party’s rights; (c) attempt to modify, frame, republish, transmit, rent, disseminate, re-sell, assign, distribute, time share or similarly exploit the Services, Walnut Data and Service Materials, or any portion thereof; (d) circumvent any security or access control mechanism of the Services (by way of ‘virtualization’, ‘multiplexing’, ‘pooling’ or otherwise), or any part thereof; (e) harvest, collect or mine information about users of the Services; (f) reverse engineer, copy, modify, adapt, hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (g) allow User Accounts to be shared or used by more than one individual per Authorized User (except that User Accounts may be reassigned to new Authorized Users replacing individuals who no longer use the Services for any purpose); (i) access or use the Services in a manner that interferes with or disrupts the integrity of performance of the Services; and (j) use the Services to send unauthorized and/or unsolicited commercial communications.
5. Acceptable Customer Data Policy
Customer is fully and solely responsible and liable for any Customer Data, or any part thereof. Customer will not, and shall ensure its Authorized users will not submit any Customer Data which: (a) violates any third-party rights (including intellectual property, confidentiality and privacy rights); (b) is defamatory of any person or entity; (c) is obscene, offensive, hateful or inflammatory; (d) bully, insult, intimidate or humiliate; (e) promotes sexually explicit materials; (f) promotes violence; (g) promotes discrimination of any kind; (h) may deceive or mislead any person or entity; (i) promotes any illegal activity; (j) is in contempt of court; (k) is threatening, abusive or invade another’s privacy or cause annoyance, inconvenience or needless anxiety; (l) is likely to harass, upset, embarrass, alarm or annoy any other person; (m) leads to the impersonation of any person or the misrepresentation of Customer’s identity or affiliation with any person; and (n) contains and/or introduces any viruses, malware, torjan horse and/or any other type of malicious or harmful code, component or element. Walnut does not monitor or endorse any Customer Data or any opinion, recommendation, or advice expressed in any Customer Data and expressly disclaims any and all liability in connection with the Customer Data. In the event Customer Data includes sensitive information or personal health information which will require additional safeguards and protection, it is solely Customer’s liability and responsibility to notify Walnut in writing.
6. Third Party Services and Integrations
Walnut and/or Customer may enable third party services and integrations for use with the Services, such as online applications, or services that connect with the Services (“Third Party Services”). Any use by Customer or its Authorized Users of such Third-Party Services is solely the responsibility of Customer and the applicable third-party provider. By enabling Third-Party Services, Customer is expressly instructing Walnut to obtain all authentications records, Customer’s confidential data, and personal data, which is necessary to facilitate the integration and provide the Services to the Customer. Customer acknowledges that providers of such Third-Party Services may have access to Customer Data in connection with the interoperation and support of such Third-Party Services with the Services. To the extent Customer authorizes the access or transmission of Customer Data through a Third-Party Service, such Third-Party Service terms will govern, and Walnut shall not be responsible for, any use, disclosure, modification or deletion of such Customer Data or for any act or omission on the part of such third-party provider or its service. Walnut disclaims any liability or responsibility for errors as a result of the integration with Third Party Service integration, and it is hereby explicitly stated that any errors or omissions which occur due to such integration with Third Party Services are not subject to Walnut’s support service.
7. Professional Services
Walnut may provide Customer with Professional Services pursuant to the terms set forth in this Section 7 and the applicable Order Form. In such an event, Customer hereby acknowledge and agree that: (a) it will not be entitled to accumulate unused Professional Services hours from year to year, without Walnut’s prior written consent; and (b) it will provide Walnut with limited access to Customer’s products and services for the sole purpose of providing Customer with the Professional Services.
8. Intellectual Property Ownership
8.1. Customer IP. As between the Parties, Customer shall retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data, Demo(s) and Insights, excluding the Walnut IP. Notwithstanding anything to the contrary in this MSA, Customer acknowledges and agrees that: (a) the Demos and Insights will only be available to Customer during the Subscription Term; and (b) upon expiration or termination of this MSA and/or the applicable Order Form, for any cause, Customer will no longer have the ability to use or access the Demos and Insights.
8.2. Walnut IP. Walnut and its licensors, as the case may be, own all rights, title, and interest in and to the Walnut IP, as defined above. Customer and its Authorized Users may not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform, Service Materials, or other materials, if any. Nothing in this MSA shall be interpreted to provide Customer or any Authorized User with any rights in the Walnut IP, the Platform or Services, except to the limited license granted under Section 1 above.
8.3. Customer Feedback. Customer, from time to time, may voluntarily submit to Walnut feedback, comments, suggestions, information, questions, data, ideas, performance testing results, feature requests, benchmarks, or other information relating to the Services (“Customer Feedback”) Walnut may freely use, disclose, license, distribute, and exploit any Customer Feedback in any of its products and services, in any manner, in perpetuity and without any obligation, royalty, or restriction, provided Customer shall not be identified in connection with any such Feedback without Customer’s written consent. Walnut shall be the sole owner of any improvement, modification, invention and/or development relating to its products and/or services (whether patentable or not) made on the basis of or in connection with Customer Feedback.
8.4. License to use Customer Data. Subject to the terms of this MSA, Customer hereby grants to Walnut a non-exclusive, nontransferable, non-sublicensable, non-assignable (except as provided herein), worldwide, royalty-free right to access, use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Data and derivatives thereof solely to the extent necessary to provide the Services and to comply with applicable laws during the applicable Subscription Term.
8.5. Usage Data. Walnut may process information about Customer’s or its Authorized Users use of the Platform and Services, such information may include without limitation, access logs, sessions replays, clickstream, errors, and crashes, all as detailed in the Walnut Privacy Policy available at https://www.walnut.io/privacy (the “Usage Data”). the Usage Data is used internally for development, operations, fixing errors and crashes, and improvement of the Services.
9. Confidentiality Obligations
Each of Customer and Walnut (each, a “Recipient”) may have access to certain non-public, proprietary, confidential and/or trade secret information, data and materials regarding the technology, business and/or future plans of the other Party (the “Disclosing Party”), provided or made accessible in any manner or form, (“Confidential Information”). Recipient will not use the Confidential Information except in accordance with this MSA. Recipient will not disclose the Confidential Information to any third party, except its employees, directors, officers, corporate affiliates, advisors or consultants (collectively, the “Representatives”) that have a need to know the Confidential Information to fulfill Recipient’s obligations hereunder, and are subject to non-disclosure and non-use obligations substantially similar to those set forth herein, provided Recipient remains liable for breach of confidentiality by its Representatives. Recipient shall keep the Confidential Information confidential by using similar measures it uses in respect of its own confidential information, which shall be no less than industry standard. Notwithstanding anything else to the contrary in this MSA, Confidential Information shall not include information (i) already lawfully known to or independently developed by Recipient without access to or use of Confidential Information of the Disclosing Party, (ii) generally known to the public or disclosed in published and publicly available materials, (iv) lawfully obtained from any third party without restrictions, or (v) required to be disclosed by an order of a competent court, provided that Recipient shall provide that to the extent permitted by the applicable law, the Disclosing Party with prompt written notice of such requirement and cooperate with Disclosing Party as required to challenge such requirement or obtain a protective order. Upon request from the Disclosing Party, all Confidential Information shall be returned to the Disclosing Party or destroyed. This Section shall be in effect for the Subscription Term of this MSA and for three years thereafter.
10. Data Protection
The processing of personal data or personal information by Walnut on behalf of the Customer, to the extent the Insights or Customer Data include personal data or personal information, is subject to and governed by the Walnut Data Processing Agreement available at https://www.walnut.io/dpa (“DPA”) which are incorporated into this Agreement upon the execution of the MSA by both parties.
11. Security
Walnut shall implement and maintain reasonable organizational and technical safeguards consistent with industry practices to protect the security, and confidentiality of all Customer Data so as to restrict access thereto and distribution thereof to any third party other than as directed and authorized by Customer, including: access and authorization controls, intrusion detection, security monitoring and logging, and anti-virus protections. Notwithstanding, the Customer is responsible for properly configuring and using the Services (including any implementation of Third-Party Services or Integrations) and taking appropriate steps to maintain the security, protection and backup of the Customer Data. Walnut does not undertake to retain any preservations or backups of the Customer Data. The Customer is solely responsible for the integrity, preservation and backup of the Customer Data, regardless of whether the use of Services includes a backup feature or functionality, and to the fullest extent permitted by law, Walnut shall have no liability for any data loss, unavailability, or other consequences related to the foregoing.
12. Representation and Warranties
12.1. Mutual Warranties. Each party represents and warrants that: (a) it has the right, power, and authority to enter into this agreement and perform its obligations hereunder; (b) this MSA is legally binding upon it and enforceable in accordance with its terms and applicable Order Form; (c) the execution and performance of his MSA and any Order Form does not conflict with any contractual obligations it has to any third party or legal requirement; and (d) it shall comply with all applicable laws and regulations in connection with its rights and obligations under this MSA.
12.2. Walnut Warranties. Walnut warrants that during the applicable Subscription Term: (a) the Services, when used in accordance with this MSA and the applicable Order Form, will perform in substantial conformity with the applicable documentation provided by Walnut; (b) the Services will not be subject to any open source components that would create an obligation for Walnut or Customer to make source code or data publicly available; and (c) it shall perform the Services in a professional manner and shall use reasonable commercial efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The above warranty will not apply to: (i) errors caused by misuse, unauthorized modifications or combination with third-party hardware, software, products or services not approved in writing by Walnut; and (ii) Services that are provided on a no-charge or evaluation basis.
12.3. Customer Warranties. Customer represents and warrants that: (a) it has and will continue to have throughout the Subscription Term all rights, licenses, and consents necessary to provide the Customer Data to Walnut and to permit Walnut to use and process Customer Data in accordance with the terms of this MSA, DPA, and Order Form; (b) Customer Data does not and will not infringe, misappropriate, defame, or violate any proprietary or personal right of any third party, including without limitation, intellectual property, and privacy rights.
13. DISCLAIMER
EXCEPT AS EXPRESSELY PROVIDED HEREIN, THE SERVICES AND ALL RELATED COMPENENTS AND INFORMATION ARE PROVIDED “AS IS” AND WALNUT AND ITS AFFILIATES EXPRESSELY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WALNUT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WALNUT IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY AND SERVICE FAILURES, INTERCEPTION. ALTERATION, OR OTHER DAMAGES RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF WALNUT. CUSTOMER ACKNOWLEDGES AND AGREES THAT WALNUT IS NOT A DATA RETENTION SERVICE. CUSTOMER MUST CREATE BACKUPS OF ITS DATA, AND WALNUT SHALL HAVE NO RESPONSIBILITY OR LIABILITY IN RESPECT OF ANY LOSS OFF OR DAMAGE TO ANY CUSTOMER DATA.
14. Prices & Payment
14.1. Prices. The applicable prices for Customer’s access to the Services shall be set forth in the Order Form (“Price(s)”). Unless agreed otherwise in the Order Form, Prices are payable annually in advance within 30 days of the invoice date. The Prices are exclusive of all applicable transaction taxes, including sales, use and VAT taxes, and Customer will be responsible for all taxes and other amounts imposed by any governmental agency on the Prices payable under this MSA (except for corporate income tax imposed on Walnut). Payment shall be made in US Dollars, unless agreed differently in the Order Form. In the event the Prices are expressed in different currency than USD in the applicable Order Form, any conversion to USD shall be calculated using the conversion rate published in the Wall Street Journal, applicable for the date of payment. Except as otherwise specified herein or in an Order Form, (i) Prices are based on the purchased Services and not their actual usage, (ii) payment obligations are non-cancelable and amounts paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
14.2. Incremental Increase. Upon each renewal of this MSA or the applicable Order Form, Walnut may increase its Prices by up to 5% of the Prices applicable to the preceding twelve-month period.
14.3. Overage Prices. Walnut reserves the right to calculate the total number of Authorized Users on a periodic basis, and, if such number of Authorized Users exceeds the amount of subscriptions purchased by the Customer in the applicable Order Form (“Additional Authorized Users”), then Walnut reserves the right to invoice Customer for any Additional Authorized Users based on the Prices specified in the most recent Order Form, on a pro rata basis for the remaining period in Customer’s then current Subscription Term, so that all Authorized Users Subscription Term coincide and are co-terminus.
14.4. Interest. If any invoiced amount is not received by Walnut by the due date, then without limiting Walnut’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law plus collection costs, whichever is lower, and/or (b) Walnut may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the Order Form.
15. Term and Termination
15.1. Term. The term of these MSA shall commence on the effective date of the first Order Form, and end upon the termination of all Order Forms entered between the Parties (“Subscription Term”). If no Order Form is executed by the Parties, these MSA shall commence on the date of Customer’s first access to or use of the Services and continue to be in effect for the entire period of Customer’s access to the Services.
15.2. Termination For Convenience. Unless expressly agreed in an Order Form, this MSA may not be terminated for convenience by the Customer.
15.3. Termination for Cause. Either Party may terminate this MSA and any Order Form under this MAS if the other Party: (a) has committed any material breach which was not cured within 14 days of notice to the breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty (60) days. Notwithstanding the above, Walnut may suspend and/or terminate this MSA and any applicable Order Form with immediate effect if: (i) the Prices owed by Customer under the applicable Order Form are overdue and are not paid within 7 business days following written notice by Walnut; (ii) Customer uses the Services in violation of applicable law; and (iii) Customer is making unauthorized use of the Services in a manner that Walnut reasonably believes may cause a liability for Walnut, security risk, or disruption to others’ use of the Services. For the avoidance of doubt, suspension shall not relieve Customer’s obligation to pay amounts due.
15.4. Effect of Termination. Upon expiration or termination of this MSA and/or an Order Form for any reason, Customer (a) will immediately cease any and all use of and access to all Services and delete any and all copies of documentation provided by Walnut and any other Walnut Confidential Information in its possession; and (b) shall pay any outstanding Prices and other amounts owed to Walnut. Customers acknowledges that following termination, it will have no further access to any Demos, and that Walnut may delete any such data as may have been stored by Walnut. Sections 4, 5, 8, 9, 12.3, 13, 14, 15.4, 16, 17, 20, and 21 shall survive the expiration or termination of this MSA, for any reason.
16. Indemnification
16.1. By Customer. Customer will indemnify, defend, and hold harmless Walnut from and against any and all claims, costs, damages, losses, liabilities, and expanses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, actions, and demands arising from or relating to any Customer Data, or breach or alleged breach by Customer of Sections 4 (Usage Restrictions) & 5 (Acceptable Customer Data Policy).
16.2. By Walnut. Walnut will indemnify, defend, and hold harmless Customer from and against any and all claims, actions, demands, costs, damages, losses, liabilities, and expanses (including reasonable attorneys’ fees and costs) arising out of or in connection with a third-party claim alleging that Customer’s authorized use of the Services infringes or misappropriate any copyright, patent, or trademark right of that third party. However, in no event will Walnut have any obligations or liability under this Section 15.2 to the extent the claim against Customer arises from: (a) Customer or any Authorized User’s use of the Services other than as permitted under this MSA or the applicable Order Form; or (b) use of the Services in a modified form or in combination with products, services, content, or data not furnished to Customer by Walnut.
16.3. Potential Infringement. If the Services becomes, or in Walnut’s reasonable judgment is likely to become, the subject of a claim of infringement, then Walnut may in its sole discretion: (a) obtain the right, at Walnut’s expense, for Customer to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services to correct such infringement. If Walnut, at its sole discretion, determines that none of the above options are commercially reasonable, then Walnut may suspend or terminate Customer’s use of the Services, in which case Walnut shall provide Customer with a prorated refund of any prepaid, unused Prices applicable to the remaining portion of the Subscription Term. Sections 15.2 and 15.3 state Walnut’s sole liability and the Customer’s exclusive remedy for infringement claims.
16.4. Indemnification Process. The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall provide the indemnifying party with all information and assistance reasonably requested by the indemnifying party in defending the claim. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld.
17. Limitation of Liability
17.1. Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
17.2. Liability Cap. IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA OR ANY ORDER FORM UNDER THIS MSA (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
18. Publicity
Customer hereby grant Walnut a royalty free, global right and license to: (a) refer to Customer as a customer of Walnut; (b) freely display Customer’s name, trademarks, trade names, and/or logos, on all of Walnut’s websites and/or promotional platforms and materials (collectively, “Promotional Platforms”); and (c) freely disclose and describe on all Promotional Platforms the existence and nature of Customer’s engagement with Walnut.
19. Amendments or Modifications
Walnut may update, upgrade or make changes to the Services, at its sole discretion, on a regular basis so long as such updates and upgrades do not materially adversely affect the functionality thereof. Walnut may change the provisions of this MSA at any time by posting a new version of this MSA on the Platform and its website. Walnut will notify Customer of any material change that could be prejudicial to Customer’s rights or increase its responsibilities, at least 30 days before such change takes effect. Any continued use of the Platform, after any change to this MSA becomes effective, constitutes acceptance of the amended MSA.
20. Notices
Customer hereby agrees to receive notices from Walnut under this agreement electronically and confirms that such notice shall have the same legal effect as a physical notice. Notices affecting this MSA will be sent to administrators through Customer’s account or email and will be deemed received within 24 hours.
21. Miscellaneous
This MSA set forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. No amendments or waivers shall be effective unless in writing and executed by both parties. Walnut may assign all of its rights and obligations under this MSA to a purchaser of all or substantially all of Walnut’s assets or share capital. Customer and its Authorized Users may not assign any rights or obligations under this MSA to any third party and assignments in violation of the foregoing shall be void. Nothing in this MSA creates any agency, employment, joint venture, or partnership relationship between the parties. This MSA shall be governed by the laws of the State of Delaware without regard to conflicts of law provisions thereof. The parties agree that the competent courts in the State of Delaware shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. If any part of this MSA is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of this MSA shall remain in effect.