PAYOUTS NETWORK PASS-THROUGH TERMS AND CONDITIONS

These Pass-Through Terms and Conditions (“Agreement”) govern your access and use of (i) PNI’s proprietary technology and business-rule based platform and to enable Client to execute certain payouts (“Issued Payouts) via the PNI online client console or through integration with one or more PNI APIs or through PNI’s third-party resellers (collectively with other services provided by PNI in connection with this Agreement, the “Services”).

All references to “Client” are to the entity or organization agreeing to these terms, and you represent and warrant that you have the right, power and authority to enter into this Agreement on behalf of Client.

This Agreement becomes binding and effective on Client upon the earliest of (the “Effective Date”): (1) when you access or use the Services obtained through a PNI-authorized reseller (each, a “Reseller”), (2) when you click an “I Accept,” “I Agree,” “Submit” or similar button or check box referencing this Agreement, or (3) when you enter into an order with a PNI-authorized reseller that incorporates this Agreement by reference.

Client acknowledges the agreement between PNI and Reseller authorizing Reseller as a reseller of the Services (the “Reseller Contract”) requires Reseller to incorporate this Agreement into orders/agreements with Client that involve giving Client access to the Services (“Client Orders”), and Client expressly agrees that PNI shall have the benefit of and right to enforce this Agreement against Client. In the event any provision of this Agreement is deemed to conflict with a provision of a Client Order or other agreement between Client and Reseller with respect to Services or other subject matter of this Agreement, the applicable provision of this Agreement shall control as between Client and PNI.

1. Services
   1. Engagement. Client hereby engages PNI and, subject to the Client Order(s) and this Agreement, PNI hereby accepts such engagement and agrees to provide the Services to Client during the Term (defined below) in accordance with the terms and conditions of this Agreement. PNI will provide the Services in accordance with all applicable laws, regulations, sponsor bank, and payment card brand operating rules and processes and in accordance with network timelines and procedures relating to the processing of transactions and the settlement of funds. To enable the Services, Client hereby authorizes and grants Reseller the rights to receive, store, and protect Clients API key(s) used in connection with the Services. Nothing in this Agreement shall prevent PNI from offering, licensing, distributing, marketing or otherwise selling or providing the Services or any products or services similar thereto to any third party. Client acknowledges and agrees that Client’s competitors and other third parties may access or receive the Services through agreements executed with PNI at the same time as Client.
   2. Client Materials.
      1. Services by PNI, Client may submit to PNI certain content and marketing materials, including without limitation names, graphics, images, symbols, trademarks, service marks, logos, trade names and other content (collectively, the “Client Content”) as well as information regarding Client’s geographic location(s) (“Client Locations”). Subject to the license below, Client shall own and hold all right, title and interest in and to all Client Content. Client grants to PNI a nonexclusive, worldwide, fully-paid, nontransferable license to display, use, perform, publish, copy, reproduce, transmit, resize and distribute the Client Content solely to perform the Services. Further, Client hereby consents to PNI’s collection, use and disclosure of Client Locations for the purposes of confirming consumer claims of disbursements, redemptions of vouchers, (as applicable), or for other use as necessary for the provision of Services. Notwithstanding the foregoing, PNI shall not be obligated to use any of the Client Content and in no event shall PNI be required to use any Client Content that violates any applicable law, rule, or regulation.
      2. Modification and Approval of Client Content. PNI shall not make any changes to the Client Content without the Client’s prior written or emailed consent; provided, that PNI shall have the right to resize and/or re-format all or any portion of the Client Content as necessary for use in connection with the Services.
   3. Client Obligations.
      1. Information and Instructions. Client will provide all information and other assistance as reasonably requested by PNI or Reseller as necessary for the provision of the Services. PNI may rely upon any instructions, authorizations, approvals or other information provided to PNI by Client or its representatives or Reseller. Client acknowledges that PNI’s ability to deliver the Services is dependent upon Client’s full and timely cooperation with PNI, as well as the accuracy and completeness of any Client Content, information and data that Client provides to PNI. PNI may adjust the delivery and performance timing of the Services, if any, due to any act, omission or failure by Client to provide such Client Content, information and/or assistance. PNI shall not be liable for any costs, expenses or liabilities resulting from the acts or omissions in Client Content or resulting from Client’s failure to fulfill any of its obligations under the
      2. No Bad Faith, No Representations. Client will (i) not make any representations, warranties, or guarantees, not otherwise expressly permitted by PNI, to any third party concerning the Services; (ii) not make statements implying that the Services are owned by or proprietary to Client or any party other than PNI; and (iii) comply with all applicable laws and regulations in performing its obligations set forth in the Agreement, including without limitation laws relating to privacy, data collection, and informed consent.
      3. Client Compliance with Payment Card Network Rules and Regulations; Acknowledgements.
         1. Client acknowledges and agrees that it is bound by and compliant with payment card network program rules governing payment card activity under agreements Client has directly and separately entered into for processing services.
         2. Client further acknowledges and agrees as follows:
            1. Neither PNI nor any issuing or processing financial institution that provides payment card services, including but not limited to statement credit, debit or other original credit transaction activity by MasterCard International Incorporated or Visa U.S.A. Inc. related to transactions processed under the Agreement (each a “Partner”) will process Issued Payouts or otherwise provide any data for transactions that are routed by issuing banks or merchants to other payment processors or that are otherwise not processed on a Partner’s payment system, transactions on prepaid cards or transactions in any restricted Client codes or vice categories determined by such Partner in such Partner’s sole discretion.
            2. PNI and its Partners may be unable to track every transaction made with an enrolled card, including PIN-based purchases, purchases initiated through identification technology that substitutes for a PIN, payments of existing card balances, balance transfers, cash advances, ATM transactions, convenience checks, payments made for certain prepaid and non-reloadable cards such as certain gift cards, Visa Buxx and similar cards, payments made for payment instruments that can readily be converted to cash (for example, travelers cheques, money orders, wire transfers, and similar products or services).
            3. Neither PNI nor any Partner makes any representation or guarantee as to the timing of any original credit transaction payment or other statement crediting or debiting activity.
      4. Compliance
         1. Operational Compliance. Client acknowledges that it is responsible for compliance with all applicable foreign, federal and state laws, regulations, third-party terms and conditions, payment card brand operating rules codes, standards, and processes related to: (i) its origination of Issued Payouts; (ii) verification of the identity of each Issued Payout recipient (for which it agrees to retain appropriate documentation); and (iii) privacy, data collection, informed consent, data protection, data storage, data processing, data and infrastructure security, payment card processing, export and import, and all other federal and state laws applicable to Client in relation to Client products and services. Client will comply with the third-party terms and conditions as required by PNI partners and other third-parties for PNI’s provision of the Services. For the avoidance of doubt, such third-party terms and conditions are hereby incorporated into this Agreement and breach of any of the terms and conditions of such third-party terms constitute breach of the terms of this Agreement.
         2. Lawful Conduct of Business. Client shall have and maintain all required certifications, credentials, licenses, registrations, approvals, and permits necessary to lawfully conduct business in accordance with law and this Agreement.
         3. End User Information and Data Law Compliance. Client shall at all times during and after the term of this Agreement provide to PNI, in such written, electronic, or other form as PNI may reasonably request for purposes of administering Services on behalf of Client, and providing maintenance and support or other services to Client, all customer and end user information collected or received by Client in connection with the Services, and, for any end user information consisting of or reflecting personal information: (i) obtain the written consent of all customers and end users that their information may be transferred or disclosed to PNI; (ii) maintain appropriate administrative, physical, and technical safeguards for the protection of the privacy, security, confidentiality, and integrity of such customer and end user Information; and (iii) comply, and ensure that its employees, agents, and contractors comply, with all applicable laws regarding data privacy and security, required data breach notifications and personal information. Client agrees it will immediately notify PNI of any and all material breaches of PNI Confidential Information or customer or end user information.
2. Terms & Conditions
   1. Term of this Agreement. This Agreement shall commence as of the Effective Date and shall continue for, with respect to each Client Order, the subscription term for the Services specified in the applicable Client Order.
   2. Termination for Material Breach. Either Party may terminate this Agreement upon written notice to the other Party and Reseller if the other Party commits a material breach of this Agreement and fails to cure such material breach within thirty (30) days after receipt of written notice of same.
   3. Termination for Insolvency. In the event that either Party (i) makes a general assignment for the benefit of its creditors or admits in writing its inability to meet its debts as they mature; (ii) files a petition in bankruptcy or commences voluntary dissolution; (iii) files a proceeding, petition, or answer seeking or consenting to its organization or the readjustment of its indebtedness under any present or future federal bankruptcy law or other federal, foreign, or state law of similar nature, or the appointment of a receiver, trustee, or liquidator of all or substantially all of its property; or (iv) in the event, under circumstances not covered by the foregoing provisions, a judgment, decree, or order shall be entered by a court of competent jurisdiction determining that proceedings for reorganization, arrangement, adjustment, composition, liquidation, dissolution, or winding up or any similar relief under any present or future federal, foreign, or state law of similar nature have been instituted against such Party, or appointing a receiver, trustee, or liquidator of all or substantially all of its property, and such judgment decree or order shall remain unstayed and in effect for sixty (60) calendar days, then the other Party may terminate this Agreement in its entirety upon ten (10) calendar days’ written notice to such Party and Reseller.
   4. Effect of Termination. Upon the effective date of expiration or termination of this Agreement, PNI shall cease providing the Services hereunder. Termination of this Agreement shall not relieve Client of any liability which accrued hereunder nor preclude PNI or Client from pursuing all rights and remedies they may have at law or in equity with respect to any breach of this Agreement.
3. Confidential Information.
   1. Definition of Confidential Information. As used herein, the term “Confidential Information” means the existence of this Agreement, the terms hereof, and any and all other information received by a Party in connection with this Agreement, including without limitation all information relating to the Parties’ technical, marketing, product and business affairs, both current and future, including without limitation products and services and the pricing for the same and any royalty or fee arrangements; customers, prospective customers, suppliers or employees, business methods, procedures and techniques, technology, marketing information or plans, information received from or with respect to any banking or payments processing institution or other PNI vendor or supplier and all other proprietary and trade secret information, whether oral, graphic, written, electronic or in machine-readable form.
   2. Obligations. Each Party covenants and agrees that it shall hold, and shall cause its employees, agents, subcontractors and affiliates to hold (pursuant to written agreements at least as restrictive as this Agreement or pursuant to fiduciary or other duties), confidential all Confidential Information of the disclosing Party and shall not use or disclose such Confidential Information, except as expressly permitted in this Agreement, without the prior written consent of the disclosing Party. Any duplication, use, disclosure, or other act or omission by any person or entity that obtains access to or possession of Confidential Information through the receiving Party that would be a breach of this Agreement if committed (or, as applicable, omitted) by the receiving Party shall be a breach of this Agreement by the receiving Party. With respect to any personally identifiable information or sensitive information received, accessed, transmitted or processed, each Party shall at all times, be compliant with all data security and data privacy laws to the extent applicable thereto, including without limitation, the Gramm-Leach-Bliley Act and the General Data Protection Regulation (Regulation (EU) 2016/679). Each Party shall take all reasonable precautions necessary to safeguard the confidentiality of the other Party’s Confidential Information including, at a minimum, those precautions taken by a Party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. PNI shall notify Client promptly – and in all cases within twenty-four (24) hours of confirmation - of any unauthorized disclosure of Client’s Confidential Information as well as of PNI’s investigative efforts and a timeline for a remediation plan.
   3. Exclusions. Confidential Information does not include information which the receiving Party can show through written documentation (i) was known to the receiving Party or in the public domain before disclosure by the disclosing Party, (ii) becomes part of the public domain after disclosure by a publication or other means except by a breach of this Agreement by the receiving Party, (iii) was received from a third party under no duty or obligation of confidentiality to the disclosing Party, or (iv) was independently developed by the receiving Party without reference to Confidential Information. Upon expiration or termination of this Agreement, all Confidential Information will be promptly returned to the disclosing Party or, upon the consent of the disclosing Party, destroyed and certified as destroyed by the receiving Party. In addition, either Party, subject to the terms of this Agreement, may (i) retain copies of Confidential Information as required by law or regulation, and (ii) in accordance with industry-standard legal, disaster recovery or records retention requirements, store such Confidential Information in an archival format which may not be returned or destroyed. To the extent either Party retains copies of the Confidential Information, such Party shall limit further uses and disclosures of Confidential Information to purposes that are consistent with this Agreement. Notwithstanding anything in this Agreement to the contrary, either Party may disclose Confidential Information in response to an order of a court or other governmental body or if otherwise required by legal requirements to be disclosed, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party and made a reasonable effort to assist the other Party in its efforts to obtain a protective order at the other Party’s expense.
4. Proprietary Rights.
   1. Reservation of Rights. PNI acknowledges and agrees that Client retains all rights, title and interests in and to the Client Content supplied to PNI hereunder. PNI reserves all rights, title and interests in and to the Services (excluding any Client Content) and any other technology, copyrightable material or other intellectual property or other information, data or materials that are proprietary to PNI and provided to or accessed by Client in connection with this Agreement (collectively, the “PNI Intellectual Property”). Client acknowledges that no rights are granted to Client hereunder other than as expressly set forth herein.
   2. Prohibited Uses of the Services. Client hereby agrees not to: (i) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the PNI Intellectual Property, any passwords or any usernames without the express prior written consent of PNI; (ii) make a copy of the PNI Intellectual Property or any part thereof; (iii) make a copy of the PNI Intellectual Property publicly available on the Internet (or any other public or private communication network) for use or download by one or multiple users; (iv) except as otherwise specifically provided by this Agreement, use or install the PNI Intellectual Property (or permit others to do same); (v) scrape, data mine, reverse engineer, decompile, disassemble, prepare derivative works based on or otherwise modify the PNI Intellectual Property, in whole or in part; (vi) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the PNI Intellectual Property, or falsify or delete any author attributions, legal notices or other labels of the origin or source of the Service; (vii) misrepresent the source of ownership of the PNI Intellectual Property; (viii) export or re-export (directly or indirectly) the PNI Intellectual Property into any country forbidden to receive the PNI Intellectual Property by any export laws or regulations, or where the PNI Intellectual Property is otherwise in violation of such country’s laws and/or regulations, which may be amended from time to time; (ix) engage in any fraudulent, misleading, illegal or unethical activities related to the PNI Intellectual Property or that otherwise may be detrimental to PNI, (x) make any representations, warranties or guarantees to prospective clients, customers, end-users or any other third party regarding the PNI Intellectual Property that are incompatible with or in addition to those set forth herein; and (xi) use the PNI Intellectual Property other than for Client’s own legitimate business purposes as described in the Agreement.
   3. Suggestions and Feedback. PNI shall have, and Client hereby grants, a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual right to use, modify and/or incorporate into the PNI Intellectual Property any ideas, suggestions, recommendations or other feedback provided to PNI by Client regarding the Services or any other PNI intellectual property. Client and PNI acknowledge and agree that any such feedback may be freely used by PNI without any obligation to Client.
5. Disclaimers; Limitations on Liability.
   1. Disclaimer of Warranties. THE SERVICES AND ALL OTHER PNI INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND OTHER THAN AS EXPRESSLY CONTEMPLATED HEREIN, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY PNI, ITS LICENSORS, PARTNERS OR SERVICE PROVIDERS, EITHER EXPRESS OR IMPLIED WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
   2. Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   3. Limitation on Direct Damages. EXCEPT TO THE EXTENT ARISING FROM AN INFRINGMENT CLAIM, IN NO EVENT SHALL PNI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID TO PNI BY RESELLER IN CONNECTION WITH THE APPLICABLE CLIENT ORDER(S) IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE FEES PAYABLE HEREUNDER.
6. Indemnification
   1. Indemnification by PNI. PNI shall defend and hold harmless Client and its officers, directors, employees, agents, successors and assigns from and against any claim, action, suit, proceeding, damages, losses, expenses, costs, and liabilities of any kind brought by a third party (“Third-Party Claim”) against Client to the extent arising from that the Services infringe or misappropriate the trade secrets or other intellectual property rights of a third party (each, an “Infringement Claim”), and shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by PNI in any settlements arising out of such Infringement Claim; provided, that the alleged infringement does not arise as a result of (i) the Client Content (unaltered by PNI except as permitted by this Agreement) or any other information furnished by Client or its agents or (ii) any act or omission of Client. THIS SECTION VI(a) STATES THE ENTIRE OBLIGATION AND LIABILITY OF PNI WITH RESPECT TO THIRD-PARTY CLAIMS, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
   2. Indemnification by Client. Client shall defend, indemnify and hold PNI and its Partners, affiliates, officers, directors, employees, agents, successors and assigns harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any Third-Party Claim made or brought against PNI arising out of or related to (i) the Client Content (unaltered by PNI except as permitted in this Agreement); (ii) Client’s failure to redeem any Issued Payout, if any, or otherwise out of the failure of performance of any obligation set forth in the Agreement; or (iii) Client’s breach of this Agreement, misuse of the Services or wrongdoing in connection with its use of the Services or this Agreement.
   3. Indemnification Procedure. The Party seeking indemnification or contribution under this Section VI (the “Indemnitee”) shall promptly give to the other Party (the “Indemnitor”) written notice of the Third-Party Claim for which Indemnitee claims to be entitled to indemnification under this Agreement. The Indemnitor or its insurer shall retain sole control of the conduct of the defense of the Third-Party Claim, including, without limitation, the selection and management of counsel. The Indemnitor may not, without the Indemnitee’s prior written consent, settle, compromise or consent to the entry of any judgment in any such Third-Party Claim, unless such settlement, compromise or consent: (i) includes an unconditional release of the relevant Indemnified Parties from all liability arising out of such Third-Party Claim; and (ii) is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, any Indemnitor. The Indemnitee may, upon written notice to the Indemnitor, and at the Indemnitee’s sole cost and expense, select its own counsel to participate in and be present for the defense of any such Third-Party Claim.
7. Services Changes, Discontinuations. PNI shall have the right, in its sole discretion, to change the design of the Services. PNI shall have the right, in its sole discretion, to discontinue developing, producing, licensing or distributing the Services, or discontinue some or all of the features or functionality of the Services, provided it provides Client with notice of any plans to do so at least ninety (90) days’ in advance of the date of discontinuation (“Discontinuation Date”); however, if modification or discontinuation is necessary due to action by a Partner or PNI’s sponsor bank, such written notice shall be effective immediately. PNI shall not be liable to Client or to any third party for any modification, suspension, or discontinuation of the Services pursuant to this Section. If modification requires a significant change to Client’s business operations, Client reserves the right to immediately terminate this Agreement upon written notice to PNI.
8. Miscellaneous
   1. Compliance with Law. The Parties shall comply with all applicable local, state and federal laws and regulations in the performance of their respective obligations under this Agreement.
   2. No Waiver; Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
   3. References; Press Release. PNI may use Client’s name and logo for marketing purposes related to the Services under this Agreement. PNI shall not use or display any trademarks, service marks, logos, trade names, taglines, or other intellectual property of Client, or state or imply any endorsement by Client of any product or service of PNI, without the prior written consent of Client in each instance.
   4. Consents and Approvals. Except as set forth expressly herein, whenever a consent or approval of the other Party is required, such consent and approval shall not be unreasonably withheld, conditioned or delayed.
   5. Disputes. Subject to the terms of this Agreement, the Parties shall follow the dispute resolution process set forth in this Section in connection with all disputes, controversies or claims, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory (other than equitable relief for which either Party is entitled to seek for breaches of confidentiality) arising out of or relating to this Agreement or breach of alleged breach of this Agreement (collectively, “Disputes”). The Parties will use all reasonable efforts to settle all Disputes through good faith negotiations.
   6. Governing Law/Venue/Attorney Fees and Costs. This Agreement is governed by the laws of the State of Delaware, excluding its conflict of laws provisions. EACH PARTY HEREBY AGREES TO WAIVE ANY RIGHT TO TRIAL BY JURY. Venue for any disputes or actions shall be in state or federal courts of competent jurisdiction located in Delaware. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs, and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs, and expenses of appeals, in addition to any other relief to which such party is entitled.
   7. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if (i) delivered personally, (ii) mailed by certified or registered mail return receipt requested, postage prepaid, (ii) by email, with read receipt, or (iii) sent by overnight guaranteed delivery service, and addressed as either Party may from time to time designate to the other. Any such notice or communication shall be deemed to have been given on (a) the day such notice or communication is personally delivered, (b) three (3) calendar days after such notice or communication is mailed by prepaid certified or registered mail, (c) one (1) business day after such notice or communication is sent by email, or (d) one (1) business day after such notice or communication is sent by overnight courier. In the event of delivery of notice to PNI, such service shall be directed to PNI at the address on the Cover Page, Attn: CEO – LEGAL NOTICE.
   8. Severability. In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
   9. Survival. The Parties acknowledge and agree sections of this Agreement that logically should extend past its termination shall survive the expiration or termination of this Agreement, including but not limited to: Sections II(d) (Effect of Termination), III (Confidential Information); IV (Proprietary Rights); V (Disclaimers; Limitations on Liability); VI (Indemnification); and this Section VIII (Miscellaneous).
   10. Force Majeure. If either Party is unable to perform any of its obligations under this Agreement (except for Client’s payment obligations) due to, including without limitation, a natural disaster, actions or decrees of governmental bodies, telecommunications carriers, terrorist activities or other events beyond such Party’s reasonable control, such Party’s obligations under this Agreement shall be suspended during the duration of any such event.
   11. Assignment. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties. Notwithstanding the preceding sentence, neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably delayed, conditioned or withheld; provided, that (a) either Party may assign this Agreement without the consent of the other Party to an affiliate or in conjunction with a change in control or a sale of all or substantially all of such Party’s assets; and (b) PNI may subcontract its obligations hereunder to certain Partners, third-party service providers or subcontractors, provided that PNI will remain responsible for the obligations performed by any such service providers and subcontractors to the same extent as if such obligations were performed by PNI hereunder.
   12. Independent Contractors. Each Party shall remain an independent contractor and nothing in this Agreement shall be deemed to constitute the Parties as partners, agents or joint ventures. Further, neither Party shall have the authority to act, or attempt to act, or represent itself, directly or by implication, as an agent of the other or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the other, nor shall either be deemed the agent or employee of the other.
   13. Equitable Remedies. Each Party acknowledges that a breach of its obligations under Section III or Section c of this Agreement could cause irreparable harm to the other Party and that monetary damages may be difficult to ascertain. Therefore, without prejudice to the rights and remedies otherwise available to it, each Party shall be entitled to seek relief by way of injunction or specific performance.
   14. Third Party Beneficiaries. This Agreement is made and entered into solely for the protection and benefit of the Parties hereto.
   15. Entire Agreement; Headings. This Agreement embodies the entire agreement between the Parties, supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof (excluding the Client Order), whether oral or written, and may be amended only by a written instrument duly signed by the Parties. The headings and subheadings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.