Chart-Reuse
Software License Agreement

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This Chart-Reuse Software License Agreement (the “Agreement”) is between you and Upstream Policy Institute Inc. (d/b/a Upstream) (“Upstream” or “we”) that owns the Chart-Reuse™ Software (the “Software”) that you are accessing or using.  If you are agreeing to this Agreement not as an individual but on behalf of your company, government entity, or other entity for which you are acting, then “you” means your entity and you are binding your entity to this Agreement. Upstream may modify this Agreement from time to time, subject to the terms below. The Software is not intended for and should not be used by anyone under the age of 13. You must ensure that all Authorized Users are at least 13 years old. 

The “Effective Date” of this Agreement is the date of your initial access to or use of the Software.

1. Scope of Agreement

1.1. Software. This Agreement governs your purchase of access to Software and any related services from Upstream. 

2. Accounts; Authorized Users

2.1. Account Registration. You must register for an account with Upstream in order to access Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account. 

2.2. Authorized Users. Only Authorized Users may access and use the Software. You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data. All use of the Software must be solely for the benefit of you or your Affiliates and must be within the Scope of Use.

3. Use of the Software

3.1. Your License Rights. Subject to the Terms and Conditions of this Agreement, Upstream grants you a non-exclusive, non-sublicensable and non-transferable license to access Software during the applicable License Term for your own business purposes, in accordance with this Agreement and all applicable Laws, Rules, or Regulations.

3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate Software into a product or service you provide to a third party; (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (f) remove or obscure any proprietary or other notices contained in the Software; (g) use the Software for competitive analysis or to build competitive products; (h) publicly disseminate information regarding the performance of the Software; or (i) encourage or assist any third party to do any of the foregoing.

3.3. Attribution. In any use of the Software, you must not remove, obscure, or alter in any way the following attribution to Upstream on all user interfaces to the Software: in every case, hyperlinks to http://www.upstreamsolutions.org and http://www.chart-reuse.eco must be included in the attribution and must be in the same format as delivered in the Software. 

3.4. System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software. Upstream will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by Upstream. 

3.5. Indemnification by You. You will defend, indemnify and hold harmless Upstream from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against Upstream (a) arising from or related to your breach of this Agreement; (b) by a third party related to your use of the Software or related services provided by Upstream; or (d) by a third party relating to any non-Upstream content or data used by you in connection with the Software. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Upstream at your expense.

4. Upstream Commitments

4.1. Support and Maintenance. During the period for which you have paid for access to the Software, Upstream will provide support and maintenance for the Software. Support and maintenance for the Software includes access to new releases, if and when available, any reference to “Software” in this Agreement includes new releases. 

4.2. Additional Services. Subject to this Agreement, you may purchase Additional Services from Upstream that may from time-to-time be offered. Additional Services may be subject to additional policies and terms as specified by Upstream. 

5. License Term, Returns and Payment

5.1. License Term and Renewals. The License Term includes the time period you use the software during your 60-day trial period and extends through the duration of your use of the software as a paying or no-paying user. Your payment terms will be indicated at the time of check-out. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable License Term. Unless you have selected the “auto renewal” option in your account, any renewals must be mutually agreed upon by the parties. All renewals are subject to the applicable Software and Additional Services continuing to be offered and will be charted at then-current rates.

5.2. Return Policy. As part of our commitment to customer satisfaction, you may terminate your initial order of the applicable Software under this Agreement, for no reason or any reason, by providing notice of termination no later than thirty (30) days after the order date for the Software. In the event that you terminate your initial order Upstream will terminate your access to Software and Upstream will refund you the amount paid under the initial order. This termination and refund right apply only to your initial order and if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that Upstream may change this practice in the future.

5.3. Increased Scope of Use. During your License Term, you may increase your Scope of Use (e.g., adding Authorized Users, adding Projects, etc.) by placing a new order, or, if made available by Upstream, directly through the applicable Software. Any increases in your Scope of Use will be subject to additional fees, as set forth in the applicable order. 

5.4. Payment. You will pay all fees in accordance with each order, by the due dates and in the currency specified in the order. If a purchase order number is required in order for an invoice to be paid, then you must provide such a purchase order number by emailing the purchase order number to admin@upstreamsolutions.org.

5.5. Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Upstream you may pay to Upstream the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Upstream any such exemption information, and Upstream will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available. 

6. No-Charge Software. We may offer certain Software to you at no charge, including free accounts, trial use, and Beta Versions. Your use of No-Charge Software is subject to any additional terms that we may specify and is only permitted during the License Term we designate (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this Agreement, the terms and conditions of this Agreement governing Software fully apply to No-Charge Software. We may terminate your right to use No-Charge Software at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta versions of Software that we make available are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. We make no promises that any beta versions will ever be made generally available. 

7. Ownership and Feedback. The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Upstream and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to Upstream.  From time to time, you may choose to submit Feedback to us. Upstream may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Upstream’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

8. Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, if they are bound to confidentiality obligations no less protective of the Disclosing Party and that the Receiving Party remains responsible for compliance by them with the terms of this section. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

9. Term and Termination

9.1. Term. This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.

9.2. Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 

9.3.  Termination for Convenience. You may choose to stop using the Software and terminate this Agreement at any time for any reason upon written notice to upstream, but, unless you are exercising your right to terminate early pursuant, upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

9.4.  Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using all Software and Confidential Information or other materials of Upstream in your possession. If this Agreement is terminated by you in accordance with Section 9.2 (Termination for Cause), Upstream will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by Upstream in accordance with Section 9.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to Upstream for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

9.5.  Survival. The following Sections will survive any termination or expiration of this Agreement: 3.2 (Restrictions), 3.8 (Indemnification by You), 5.4 (Payment), 5.5 (Taxes), 6 (No-Charge Software) (disclaimers and use restrictions only), 7 (Ownership and Feedback), 8 (Confidentiality), 9 (Term and Termination), 10.3 (Warranty Disclaimer), 11 (Limitations of Liability), 12 (IP Indemnification by Upstream) (but solely with respect to claims arising from your use of the Software during the License Term), 14 (Dispute Resolution), 15 (Export Restrictions), and 16 (General Provisions).

10. Warranties and Disclaimer

10.1.  General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.

10.2.  Virus Warranty. Upstream further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware, or other harmful code.  For any breach of the foregoing warranty, your sole and exclusive remedy, and Uptream’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.

10.3.  Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1 (GENERAL WARRANTIES) AND 10.2 (VIRUS WARRANTY), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND UPSTREAM AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. UPSTREAM WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF UPSTREAM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER UPSTREAN NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; OR (E) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.2 (VIRUS WARRANTY), THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

11. Limitations of Liability

11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

11.2.  Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

11.3.  Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any orders, (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of Section 3.2 (Restrictions).

11.4.  Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 11 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

12. IP Indemnification by Upstream. We will defend you against any claim brought against you by a third party alleging that the Software, when used as authorized under this Agreement, infringes any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by Upstream (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right or license for your continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate your right to continue using the Software and refund any license fees prepaid by you for use of the Software for the terminated portion of the applicable License Term. Upstream’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Upstream with respect to your license to Software in the twelve (12) month period immediately preceding the Claim is less than US $5,000; (2) if the Software is modified by any party other than Upstream, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Upstream product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Software; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a Claim without Upstream’s prior written consent. THIS SECTION 12 STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY UPSTREAM UNDER THIS AGREEMENT.

13. Publicity Rights. We may identify you as an Upstream customer in our promotional materials. We will promptly stop doing so upon your request sent to chart-reuse@upstreamsolutions.org.

14. Dispute Resolution

14.1.  Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 14.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 14.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

14.2.  Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Maine, USA, without giving effect to the principles of that State relating to conflicts of laws and (b) each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Maine and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Maine, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. 

14.3.  Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 14.1 (Informal Resolution) and Section 14.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent Upstream from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

14.4. Exclusion of the UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.

15. Export Restrictions. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.

16. Changes to this Agreement.

16.1. Modifications Generally. We may modify the terms and conditions of this Agreement (including Upstream Policies) from time to time, with notice given to you by email, through the Software or through our website.  Together with notice, we will specify the effective date of the modifications.

16.2 No-Charge Software:  You must accept the modifications to continue using the No-Charge Software.  If you object to the modifications, your exclusive remedy is to cease using the No-Charge Software.

16.3 Paid Licenses:  Typically, when we make modifications to the main body of this Agreement (excluding the Upstream Policies), the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew. In some cases – e.g., to address compliance with Laws, or as necessary for new features – we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications.  For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.

16.4     Upstream Policies:  Our products and business are constantly evolving, and we may modify the Upstream Policies from time to time, including during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the Upstream Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to the Upstream Policies will take effect automatically as of the effective date specified for the updated policies.

17. General Provisions

17.1.  Notices. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by email to chart-reuse@upstreamsolutions.org  or by U.S. Mail to Upstream, ℅ Chart-Reuse, PO Box 1352, Damariscotta, ME 04543. Your notices to us will be deemed given upon our receipt.

17.2.  Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

17.3.  Assignment. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement.  Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.

17.4. Entire Agreement. This Agreement is the entire agreement between you and Upstream relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and Upstream with respect to the Software or any other subject matter covered by this Agreement.  No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

17.5. Conflicts. In event of any conflict between the main body of this Agreement and either the Upstream Policies or Product-Specific Terms, the Upstream Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

17.6. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 15 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of Upstream and you.

17.7.  Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants).  Headings are for convenience only.  If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

17.8. Independent Contractors. The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.