Terms of Service

Last Modified: October 22, 2025

PLEASE READ THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY KERNEL TECHNOLOGIES, INC. (“COMPANY” OR “KERNEL”), A DELAWARE CORPORATION. BY CLICKING THE “SUBMIT” BUTTON, OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER TO THE TERMS OF THIS AGREEMENT. USE OF COMPANY’S SERVICES IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THE “ORDER FORM” SHALL MEAN THE “CHOOSE A PLAN” PAGE ON THE KERNEL WEBSITE TO WHICH THE KERNEL SERVICES RELATE. IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD NOT SELECT THE “SUBMIT” BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE KERNEL WEBSITE. THE PARTIES AGREE AS FOLLOWS:

1. Definitions

Affiliates — means (a) an entity of which a party directly or indirectly owns more than fifty percent (50%) of the stock or other equity interest, (b) an entity that owns more than fifty percent (50%) of the stock or other equity interest of a party or (c) an entity which is under common control with a party by having more than fifty percent (50%) of the stock or other equity interest of such entity and a party owned by the same person, but such entity shall only be deemed to be an Affiliate so long as such ownership exists.

Customer Data — means all data, information, and other materials submitted by Customer to the Services.

Documentation — means any user guide, help information and other documentation and information regarding the Services that is delivered by Company to Customer in electronic or other form, available at https://www.onkernel.com/docs/introduction, including any updates provided by Company from time to time.

Kernel Website — means the website located at https://www.onkernel.com/.

Services — means the products and services made available by Company to Customer as may be mutually agreed to by the parties in an Order Form.

2. Company Services

2.1 Order Forms

This Agreement will be implemented through one or more written Order Forms. Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein. Company may provide the Services directly, or indirectly using contractors or other third party vendors or service providers. Customer may enter into Order Forms on behalf of its Affiliates, provided that Customer shall remain responsible for all obligations under such Order Forms.

2.2 Services

Subject to all terms and conditions of this Agreement, Company will provide the Services described in an applicable Order Form. Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license to use and access the Services solely for Customer’s internal business purposes in accordance with the Documentation for the applicable term of the Order Form.

2.3 Access and Account Setup

Company will provide Customer with access privileges that permit Customer to access and manage its account (“Customer Account”) and access, analyze and download Customer Data. Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer must provide accurate and complete information and keep the Customer Account information updated. The number of Customer employees that may access the Customer Account is listed in the applicable Order Form. Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer may never use another person’s user account or registration information for Company’s Services without permission. Customer must notify Company immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account. Customer shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Customer.

2.4 Modifications

From time to time, Company may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Company shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Company may make improvements and modifications to the Services at any time in its sole discretion; provided that Company shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.

2.5 Feedback

Customer may (but is not obligated to) provide suggestions, comments or other feedback to Company with respect to the Service (“Feedback”). Company acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

2.6 Cooperation

Customer acknowledges that the Services may require the reasonable cooperation of Customer personnel, as may be requested by Company from time to time. Without limiting the foregoing, where agreement, approval, acceptance, consent or similar action by Customer is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, and Customer acknowledges that any delay or failure on the part of Customer to provide the same will relieve Company of its obligations under any Order Form for the pendency of such delay or failure.

2.7 Third-Party Integrations

The Services may contain features designed to interoperate with services or applications operated or provided by third parties (“Third-Party Integrations”). To use such features, Customer may be required to obtain access to such Third-Party Integrations from their providers. Any exchange of Customer Data or other data between Customer and any third-party provider is solely between Customer and such third-party provider and is subject to such third party’s terms. Company does not warrant or support Third-Party Integrations or services (whether or not they are designated by Company as being certified or otherwise).Company is not responsible for third-party integrations or their terms of use.

3. Proprietary Rights

3.1 Customer Data

Customer hereby grants to Company a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data for the purpose of providing the Services to Customer. Except for the limited rights and licenses expressly granted to Company under this Agreement, no other license is granted, no other use is permitted and Customer shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data. Customer, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and Customer acknowledges and agrees that Company shall have no liability with respect to the foregoing.

3.2 Aggregate Data

Customer agrees that Company is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder (“General Knowledge”), including that it could have acquired performing the same or similar services for another customer. Customer further agrees that Company shall have a perpetual, worldwide, non-exclusive, irrevocable right and license to use, store, copy, create derivatives, archive Customer Data (a) to create anonymized compilations and analyses of Customer Data that is combined with data from numerous other customers (“Aggregate Data”), (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”) and (c) to create, develop, enhance algorithms, machine learning and other generally available tools in connection with the Services using anonymous Customer Data. Company shall have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose, including, but not limited to product improvement and marketing to other customers of the Services; provided, however, that Company shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Customer Data.

3.3 Limited License

Except for the limited rights and licenses expressly granted to Customer hereunder, no other license is granted, no other use is permitted and Company (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services, including all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Company in providing the Services, and all Company trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Customer Data, which shall be deemed to be the Confidential Information (defined below) of Customer.

3.4 Restrictions

Except as expressly permitted in this Agreement, Customer shall not directly or indirectly (a) use any of Company’s Confidential Information to create any service, software, documentation or data that is similar to or competes with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts.

3.5 Data Processing Addendum

To the extent that, in connection with the Platform or Services, Customer provides any Customer Data that contains “Personal Data” from a European “Data Subject” that is subject to the European Union’s General Data Protection Regulation, Provider’s data processing addendum (“DPA”) available at https://www.onkernel.com/docs/dpa will apply. Any terms not defined in this Section 3.5 will have the meanings given to them in the DPA.

4. Confidentiality

4.1 Confidentiality Obligations

During the term of this Agreement, from time to time, either party may disclose (“Disclosing Party”) or make available to the other party (“Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products or services in connection with this Agreement (together, “Confidential Information”). Confidential Information of each party includes, without limitation, business plans, customer relationships, acquisition plans, systems architecture, information systems, computer programs and codes, processes, methods, operational procedures, finances, budgets, policies and procedures, product plans, projections, analyses, plans or results, the existence of any business dealings or agreements between Customer and Company, and any other information which is normally and reasonably considered confidential. Each party agrees that during the term of this Agreement and thereafter: (a) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement; and (b) it will not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return or destroy all copies of any Confidential Information to the Disclosing Party.

4.2 Exclusions

For purposes hereof, Confidential Information will not include any information that: (a) was previously known without restriction by the Receiving Party; (b) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (c) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without disclosure restrictions; or (d) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).

4.3 Required Disclosures

Nothing herein shall prevent a Receiving Party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify the Disclosing Party in writing of such requirement to disclose (to the extent legally permissible) and (b) cooperate with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order. Furthermore, either party may disclose the terms and existence of this Agreement in connection with merger, acquisition, change of control, or sale of all or substantially all of such party’s assets or stock.

5. Payments

5.1 Fees

Customer agrees to pay Company all fees and expenses in the amounts and at the times specified in the applicable Order Form (the “Fees”). For clarity, if Customer orders Services from a reseller, the Fees shall be set forth in the agreement between Customer and such reseller. All other rights and obligations of the parties regarding the any Services ordered from any reseller are as set forth in this Agreement. In the event of a conflict between the terms of this Agreement and the terms of the agreement between Customer and a reseller, the terms of this Agreement shall control to the extent of such conflict.

5.2 Taxes

Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on Company’s net income. If Company is deemed to have the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.3 Payment Terms

Unless specified otherwise or subject to a good faith dispute, and except as may be otherwise set forth in an Order Form, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within thirty (30) days after Customer’s receipt of invoice in US dollars at Company’s address or to an account specified by Company.

5.4 Expenses

Where indicated on an applicable Order Form, Customer agrees to pay all of Company’s out of pocket costs and expenses incurred by Company in the performance of its obligations under this Agreement including, without limitation, amounts incurred for air fare, travel, automobile rental, accommodations and an employee per diem.

6. Warranties and Disclaimers

6.1 General

Each party represents and warrants that: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

6.2 Customer

Customer represents and warrants to Company that Customer owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement.

6.3 Company

Company represents and warrants that it will perform the Services in compliance with all applicable laws, rules and regulations.

6.4 Disclaimers

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.

7. Indemnification

7.1 Company

(a) Indemnity. Except as provided below, Company agrees to (i) defend Customer against any claim by a third party that the Services infringe a valid US patent (issued as of the Effective Date set forth in an applicable Order Form), or any copyright or trade secret, of such third party and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If the Services become or, in Company’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Company may, at its option (1) obtain for Customer the right to continue using the Services or (2) replace or modify the infringing portions of the Services so that it becomes non-infringing without substantially compromising its principal functions. If (1) and (2) are not reasonably available to Company, then it may (3) terminate this Agreement upon written notice to Customer and refund to Customer any Fees for the Services that were pre-paid for the then-current term, pro-rated for the remainder thereof. The foregoing states the entire liability of Company, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

(b) Exclusions. Company shall have no liability or obligation hereunder with respect to any claim based upon (i) any use of the Services not strictly in accordance with this Agreement or in an application or environment for which it was not designed or contemplated, (ii) any Customer Data, (iii) modifications, alterations, combinations or enhancements not created by or for Company, (iv) any portion of the Services that implements Customer’s requirements, (v) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which Customer or any of its Affiliates has an interest.

7.2 Customer

Customer agrees to defend Company against any claim by a third party that is related to (a) Company’s authorized use of any Customer Data, (b) Customer’s breach of any representation, warranty, covenant or other agreement made herein or (c) claims excluded under Section 7.1(b), and to indemnify Company for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims.

7.3 Procedures

Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.

8. Limitation of Liability

IN NO EVENT SHALL COMPANY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO IT HEREUNDER DURING THE PREVIOUS 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Term and Termination

9.1 Term

This Agreement shall commence on the Effective Date set forth in an applicable Order Form and shall continue for the initial term specified in the Order Form (the “Initial Term”). Unless earlier terminated as provided herein, the Initial Term shall automatically renew for successive terms of one (1) year each (each, a “Renewal Term”), unless Customer notifies Company of its intent not to renew this Agreement at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term.

9.2 Termination

This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Termination of this Agreement shall terminate all outstanding Order Forms.

9.3 Effects of Termination

Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) Customer shall cease using the Services (if Customer continues to use the Services, then Company reserves the right to continue to charge Customer); (c) upon Customer’s request, Company shall return all Customer Data in a format mutually agreed by the parties to the extent it is technically feasible for Company to do so (provided that Company may retain any Aggregate Data in its possession or control); and (d) the provisions of Sections 2.5 (Feedback), 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payments), 6.4 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 shall survive.

10. General Provisions

10.3 Entire Agreement

This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control. This Agreement supersedes any vendor forms, order forms, invoices, policies, or other terms and conditions provided by Customer. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects.

10.4 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. Unless waived by Company in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in San Francisco County, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

10.5 Remedies

Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 4, the non-breaching party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

10.6 Notices

All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed or the following business day, if transmitted by email; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

10.7 Force Majeure

In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.

10.8 Publicity

Customer hereby grants Company a limited, non-transferable (except to the extent this Agreement is transferred by Company in accordance with Section 10.7), non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing Company’s services, both on Company’s public-facing website and in marketing and promotional materials. Customer agrees to participate in the creation of a single (1) written case study or testimonial (collectively, the “Promotional Materials”) with Company prior to the end of the Initial Term and grants Company full publication rights with respect to all such Promotional Materials.

10.9 Assignment

This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, Company may assign this Agreement to (a) an Affiliate or (b) any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of each party hereto.

10.10 Third-Party Beneficiaries

This Agreement is entered into solely between, and may be enforced only by, Customer and Company. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.

10.11 Independent Contractors

The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.