VENDOR TERMS AND CONDITIONS
Last updated: January 22, 2018
These Vendor Terms and Conditions (the "Terms and Conditions") govern and are incorporated into the Vendor Agreement between Hijinks and Vendor (collectively, the "Agreement"). Hijinks, subject to the terms of this paragraph, may amend and modify the Agreement in its sole discretion and at any time. The most recent version of the Terms and Conditions will be available on the Website and, when the Terms and Conditions are updated, notification of such updates will be emailed to Vendor at the email address provided in Vendor's user account ("Vendor Account"). Vendor agrees that this notification method constitutes adequate notice to inform Vendor of any amendments to the Agreement and Vendor expressly agrees to be bound by any such amended Agreement. Unless otherwise defined herein, all capitalized terms used herein shall have the meaning set forth in the Vendor Agreement.
1.1. Hijinks is authorized to promote and sell Experiences on behalf of Vendor and subject to the terms of this Agreement. Hijinks will sell Experiences through an integration with the Vendor's booking software or issue a Booking Code to evidence purchaser's purchase of an Experience, which will be sent to the purchaser electronically once payment is received. Purchaser will then redeem the Booking Code with Vendor by presenting the Booking Code in paper, electronic or other form. Vendor is the provider and seller of Experiences.
1.2. Hijinks is authorized to promote and sell Experiences and Booking Codes on Vendor's behalf through any platform, including the Website, in Hijinks' sole discretion. The Experiences may be offered through a variety of distribution channels, including the Internet, the Website, affiliate websites, email, mobile applications and other types of electronic platforms and distribution channels.
1.3. For advance-appointment Experiences, Hijinks may, in its sole discretion, require Vendor to provide Hijinks with a calendar of available appointment times and allow Experience purchasers to schedule appointments through Hijinks and any third party service Hijinks may use. Hijinks may audit Vendor response times using various audit methods. If Hijinks, in its sole discretion, determines that Vendor's response time or the quality of service provided to Experience purchaser's is unsatisfactory, Hijinks may terminate the Agreement and return the purchaser's payment for unredeemed Experiences.
1.4. Hijinks reserves the right to reject, revise, or discontinue any Experience offered by Hijinks or through the Website, at any time and for any reason in Hijinks' sole discretion, and to terminate any Experience and to remove all references to any Experience from the Website, and to redirect or delete any URL used in connection with any Experience.
1.5. Vendor shall honor and accept the Booking Codes provided by Hijinks to purchasers. If the Experience purchased and evidenced by a Booking Code is no longer available, Vendor must always allow the purchaser to redeem the Booking Code towards any other goods and services offered by Vendor at that time, at least in an amount equivalent to the amount of the purchaser's payment for the Booking Code ("Purchase Amount"). If applicable, and if a purchaser redeems a Booking Code for less than the Purchase Amount, the Vendor is responsible for handling any unredeemed value as required by applicable law.
1.6. Vendor agrees and acknowledges that Vendor shall not, in providing an Experience or in redeeming a Booking Code, inflate prices or impose any additional charges, fees, conditions or restrictions that contradict or are inconsistent with the terms of the Experience and Booking Code. Vendor agrees and acknowledges that it shall not impose different terms or a different cancellation policy than what is imposed on its non-Hijinks customers.
1.7. Vendor is responsible for all purchaser service in connection with an Experience and Booking Code and for supplying all goods and services associated with an Experience. Vendor is also responsible for any purchaser loyalty programs associated with an Experience.
1.8. Vendor is responsible for informing Hijinks of any inaccuracies or changes in the Experiences listed on the Website, including, without limitation, the price of the Experience. Vendor agrees to provide Hijinks with accurate hours and dates of operation, complete with any exceptions, and a valid phone number for the Vendor's applicable locations. If any of the information related to a Vendor's applicable location changes, Vendor agrees to notify Hijinks immediately of such change.
1.9. Vendor agrees to accept refunds, returns or cancellations of Experiences in compliance with applicable laws, but in any event: (i) will accept returns for nonconforming Experiences at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Experience; and (ii) will not impose a more restrictive return policy on purchasers than Vendor's regular return policy as applied to Vendor's purchasers in the ordinary course of Vendor's business.
2.1. The Commissions retained by Hijinks from the proceeds of the Purchase Amount are compensation to Hijinks for marketing, promotion and advertising the Experience, as well as distribution of the Booking Codes on behalf of Vendor. Vendor agrees to retain the Remittance in trust for the benefit of any purchasers who hold unredeemed Booking Codes until the Vendor provides the Experience and redeems the Booking Code, refunds the purchaser of any unredeemed Booking Code, or otherwise escheats the amount required to the applicable taxing authority, if applicable. The amount held in trust shall be returned to Hijinks upon demand for refunds to purchasers. Hijinks is authorized to review Vendor's credit history, including a soft credit check.
2.2. Hijinks and its third-party partners are authorized to initiate ACH credit transaction entries to Vendor's depository account at the depository financial institution named in this Agreement or as otherwise provided to Hijinks by Vendor in writing (the "Vendor Bank Account"). In (i) the event of an error or (ii) to facilitate a customer refund, Hijinks and its third party partners are authorized to initiate debit entry adjustments to the Vendor Bank Account to correct such error or facilitate such customer refund. Vendor agrees and acknowledges that Hijinks' ACH transactions to Vendor Bank Account must comply with provisions of applicable law and that ACH payments may take at least six (6) business days to become available after processing.
2.3. Vendor shall not attempt to bill or collect reimbursement from any third-party payor, including, without limitation, any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity ("Third-Party Payor"), for any of Vendor's services, including, but not limited to, the Experiences. Vendor will accept the Remittance as payment in full for all services provided by Vendor. Vendor is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including, without limitation, any requirements related to offering discounted services.
2.4. In the event Hijinks receives written notice of a validly issued tax levy, whether state, provincial or federal, relating to past-due taxes owed by Vendor, Hijinks may, in accordance with applicable law, deduct any such amounts from payments due to Vendor.
2.5. Hijinks shall collect tax on the Purchase Amount. Subject to the provisions of this Section 2, Hijinks shall remit the applicable tax on its Commission to the appropriate tax authority and will pass the balance of the tax on the purchase to Vendor via the Remittance, for Vendor to remit or apply as applicable to the appropriate tax authority. It is Vendor's responsibility to report and remit the correct tax due to the appropriate tax authority. Hijinks is not responsible for reporting or remitting any taxes required to be reported or remitted by Vendor. Vendor may be asked to provide Hijinks with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Vendor's name for the value of payments made. Vendor shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Vendor is required to be so registered in connection with the Experience and pursuant to the terms and redemption of the Experience. Vendor shall be responsible for paying any and all sales, use or any other taxes related to the Experience or the goods and services associated therewith.
2.6. Subject to the provisions of Section 2.5, Vendor bears the sole financial responsibility for any and all sales, use, excise, general, GST, or other such and similar taxes, including any related interest penalties and additions imposed on or arising from the transactions contemplated by this Agreement between Hijinks and Vendor, if any. Tax rates are subject to change.
2.7. Hijinks may be required by taxing authorities to withhold taxes on behalf of Vendor. Hijinks reserves the right to deduct any and all such taxes from amounts due to Vendor and to remit such amounts to the appropriate taxing authority. Hijinks may also be required to report withholding tax payments to the appropriate taxing authorities. Hijinks shall provide evidence of payment of withholding taxes to Vendor no later than 60 days after payment of withholding taxes.
2.8. Hijinks, notwithstanding anything to the contrary, will have no obligation to advance amounts that have been paid to Hijinks by a purchaser until Vendor has complied with Vendor's obligations and requirements under this Agreement. If Hijinks reasonably believes that Vendor has breached any provisions of this Agreement, Hijinks may, in its sole discretion, delay, offset, withhold or suspend future payments to Vendor. If Vendor is unwilling to, or in Hijinks' reasonable discretion is unable to, perform its obligations under this Agreement, Hijinks is authorized to delay, offset, withhold or suspend future payments to Vendor in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Vendor for any refunds and/or other amounts payable by Vendor under this Agreement.
2.9. Payment processing services for Vendor on the Website are provided by Stripe, Inc. ("Stripe") and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to this Agreement or continuing to operate as a Vendor, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Hijinks enabling payment processing services through Stripe, you agree to provide Hijinks accurate and complete information about you and your business, and you authorize Hijinks to share it and transaction information related to your use of the payment processing services provided by Stripe.
3. Purchaser Data Restrictions
3.3. Vendor shall notify Hijinks immediately if Vendor suspects or becomes aware of any unauthorized access to or use of Purchaser Data or any confidential information of Hijinks. Vendor shall cooperate with Hijinks in the investigation of any such breach and the mitigation of damages. Vendor will bear all associated costs incurred by Hijinks to comply with applicable laws, including, without limitation, any data breach laws, or arising from any unauthorized access or acquisition of Purchaser Data while such data is in Vendor's reasonable possession or control. Upon termination of this Agreement, Vendor shall, as directed by Hijinks, destroy or return to Hijinks all Purchaser Data in Vendor's possession or in the possession of any agent of Vendor.
4.1. Hijinks and its partners are authorized to communicate with Vendor regarding products, promotions and other services that may be of interest to Vendor. Communications may be in the form of email or other communications. Hijinks may solicit Vendor's opinion for market research.
5. Intellectual Property Rights
5.1. Vendor grants to Hijinks a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (i) Vendor's name, logos, trademarks, service marks, domain names and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Vendor (collectively, "Vendor IP"); and (ii) any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Vendor (collectively, "Other IP"), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed (the "License"). Use of Vendor IP or Other IP as contemplated in this Agreement is in Hijinks' sole discretion.
5.2. Vendor acknowledges and agrees that, between the parties, Hijinks owns all interest in and to the Website, Purchaser Data, Hijinks' trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected by means of the Website, all audiovisual content, video or audio recordings, photographs, graphics, artwork, text or any other content created by Hijinks or at Hijinks' direction, or assigned to Hijinks, and any materials, software, technology or tools used or provided by Hijinks to promote, resell or distribute the Experiences and conduct its business ("Hijinks IP"). Vendor shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Hijinks IP or any portion thereof, or use such Hijinks IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution. Vendor shall keep the Hijinks IP confidential, and shall not prepare any derivative work based on the Hijinks IP or translate, reverse engineer, decompile or disassemble the Hijinks IP. Vendor shall not take any action to challenge or object to the validity of Hijinks' rights in the Hijinks IP or Hijinks' ownership or registration thereof. Except as specifically provided in this Agreement, Vendor and any third party assisting Vendor with its obligations in this Agreement, are not authorized to use Hijinks' IP in any medium without prior written consent from an authorized representative of Hijinks. Vendor shall not include any trade name, trademark, service mark, domain name or social media identifier of Hijinks or its affiliates or partners, or any variant or misspelling of the same, in any trademark, domain name, email address, social media identifier, meta-data or search engine keyword. Vendor shall not use or display any Hijinks IP in a manner that could reasonably imply an endorsement, relationship, affiliation with or sponsorship between Vendor or a third party and Hijinks. All rights to the Hijinks IP not expressly granted in this agreement are reserved by Hijinks.
5.3. If Vendor provides Hijinks or any of its agents or affiliates with suggestions, reviews, feedback, modifications, images, text, data or other information or content about a Hijinks product or service or otherwise in connection with this Agreement, any Hijinks IP, or Vendor's participation in the Experience (collectively, "Suggestions"), Vendor irrevocably assigns to Hijinks all right, title, and interest in and to the Suggestions. In the event Vendor's assignment to Hijinks is invalid for any reason, Vendor hereby irrevocably grants Hijinks and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display and distribute Suggestions; (ii) adapt, modify, re-format, and create derivative works of Suggestions for any purpose and sublicense the foregoing rights to any other person or entity. Vendor warrants that: (a) Suggestions are Vendor's original work, or Vendor obtained Suggestions in a lawful manner; and (b) Hijinks and its sublicensee's exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Vendor agrees to provide Hijinks such assistance as Hijinks may require to document, perfect or maintain Hijinks' rights in and to Suggestions.
6. Representations and Warranties
6.1. Vendor represents and warrants that:
6.1.1. Vendor has the right, power and authority to enter into this Agreement;
6.1.2. Vendor, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Vendor's goods and services will be provided;
6.1.3. the Booking Code, upon being delivered by Hijinks, will be available immediately for redemption and Vendor will have in stock or reasonably available a number of units or reservations of the Experience sufficient to fulfill its redemption obligations;
6.1.4. any terms and conditions of a Booking Code, including any discounts or goods and services offered thereunder do not and will not violate any local, state, provincial, territorial or federal law, statute, rule, regulation or order, including, without limitation, any law or regulation governing the use, sale and distribution of alcohol and any laws governing vouchers, gift cards, coupons and gift certificates;
6.1.5. Vendor's redemption of the Booking Code will result in a bona fide provision of goods and/or services by Vendor to the purchaser;
6.1.6. Vendor owns all interest in and to the Vendor IP and has licensing rights in, with the right to sublicense to Hijinks, the Other IP, and has the right to grant the License stated in this Agreement;
6.1.7. The Vendor IP and the Other IP, the Experience, Hijinks' use and promotion thereof, and the results of such Experiences will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity;
6.1.8. the Vendor IP and Other IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives right to civil liability or otherwise violates any law;
6.1.9. any advertising or promotion of Vendor's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law;
6.1.10. Vendor and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses, and certifications relating to any Experience to provide the goods and services contemplated by this Agreement;
6.1.11. Vendor's business information and direct deposit details as provided by Vendor are accurate and Vendor is the authorized entity to receive the funds forwarded by Hijinks;
6.1.12. Vendor is not authorized to resell, broker or otherwise disclose any Purchase Data to any third party, in whole or in part, for any purpose, and Vendor is not authorized to copy or otherwise reproduce any Purchaser Data other than for the purpose of redeeming or verifying the validity of purchases of Experiences and Booking Codes in connection with this Agreement; and
6.1.13. the Experience is (i) merchantable and suitable for the purposes, if any, contemplated by this Agreement, and (ii) genuine, bona fide products or services, as described herein and does not violate the rights of any third party.
7. Term and Termination
7.1. This Agreement will continue in effect until terminated by in either party in accordance with this Section (the "Term"). Hijinks may terminate this Agreement, at any time and for any reason, upon written notice to Vendor. Vendor may terminate this Agreement upon seven (7) business days prior written notice to Hijinks, however, termination of this Agreement will not in any way affect Vendor's obligation to redeem any Booking Code according to the terms of this Agreement, including the obligation to honor the Booking Code for the Purchase Amount. Provisions of this Agreement which are intended to survive termination shall continue in full force and effect after the Term.
8. Compliance with Laws
9.1. To the extent allowed by applicable law, Vendor agrees to defend, indemnify and hold Hijinks, its affiliates, related entities, and any of its respective officers, directors, agents and employees, harmless from and against any and all claims, lawsuits, investigations, penalties, damages, losses or expenses (including, but not limited to, reasonable attorneys' fees and costs) arising out of or relating to any of the following: (i) any breach or alleged breach by Vendor of this Agreement, or the representations and warranties made in this Agreement; (ii) any claim for sales, use or similar tax obligations of Vendor arising from the sale of an Experience and sale and redemption of a Booking Code; (iii) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Booking Codes or Experiences or unredeemed cash values of Booking Codes or Experiences or any other amounts under any applicable abandoned or unclaimed property or escheat law, including, without limitation, any claims for penalties and interest; (iv) any claim arising out of a violation of any law or regulation by Vendor or governing Vendor's goods and/or services; (v) any claim arising out of Vendor's violation of law or regulation governing the use, sale, and distribution of alcohol; (vi) any claim by a purchaser or any other person arising out of or relating to the goods and services provided by Vendor and/or redemption of the goods and services at the Vendor's location, including, without limitation, any claims for false advertising, product defects, personal injury, death, or property damages; (vii) any claim by a purchaser for the Purchase Amount; (viii) any claim arising out of Vendor's misuse of Purchaser Data or any violation of an applicable data privacy or security law; and (ix) any claim arising out of Vendor's negligence, fraud or willful misconduct. Hijinks shall maintain the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Hijinks and Vendor.
10. Limitation of Liability
10.1. HIJINKS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ABOUT THE SUITABILITY OF THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTEMPLATED BY THIS AGREEMENT OR CONTAINED ON THE WEBSITE OR ANY PORTION THEREOF FOR ANY PURPOSE, AND THE INCLUSION OR OFFERING OF ANY PRODUCTS OR SERVICES ON THIS WEBSITE DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION OF SUCH PRODUCTS OR SERVICES. THE WEBSITE AND ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
10.2. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, HIJINKS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES TO BE PROVIDED BY HIJINKS PURSUANT TO THIS AGREEMENT AND THE WEBSITE AND ALL SOFTWARE AND CONTENT CONTAINED ON THE WEBSITE; WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HIJINKS DOES NOT WARRANT THAT THE WEBSITE AND SERVICES WILL BE UNINTERRUPTED OR EFFOR FREE; OR THAT ANY DEFECT OR ERROR WILL BE CORRECTED; OR THAT THE WEBSITE WILL BE SECURE AND FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT ANY CONTENT OR INFORMATION (REGARDLESS OF WHETHER IT COMES FROM VENDOR, FROM A USER, OR FROM HIJINKS) ON THE WEBSITE WILL BE ACCURATE, RELIABLE, COMPLETE OR UP TO DATE; OR THAT YOUR USE OF THE WEBSITE WILL PRODUCE ANY DESIRED RESULT. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES PUBLISHED ON THIS WEBSITE MAY INCLUDE INACCURACIES OR ERRORS, INCLUDING RESERVATION AVAILABILITY AND PRICING ERRORS. HIJINKS DOES NOT GUARANTEE THE ACCURACY OF, AND DISCLAIMS ALL LIABILITY FOR, ANY ERRORS OR OTHER INACCURACIES RELATING TO THE INFORMATION AND DESCRIPTION OF EXPERIENCES DISPLAYED ON THIS WEBSITE.
10.3. SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO VENDOR. BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HIJINKS HEREBY EXCLUDES ALL WARRANTIES.
10.4. IN NO EVENT SHALL HIJINKS OR ANY HIJINKS SHAREHOLDER, MEMBER, OFFICER, DIRECTOR, EMPLOYEE, AGENT, REPRESENTATIVE, ADVISOR, CONSULTANT OR CONTRACTOR BE LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF VENDOR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. HIJINKS HAS NO LIABILITY AND WILL MAKE NO REFUND IN THE EVENT OF ANY DELAY, CANCELLATION, OVERBOOKING, STRIKE, FORCE MAJEURE, OR OTHER CAUSES BEYOND HIJINKS' DIRECT CONTROL, AND HAS NO RESPONSIBILITY FOR ANY ADDITIONAL EXPENSE, OMISSIONS, DELAYS, RE-ROUTING, OR ACTS OF ANY GOVERNMENT OR AUTHORITY. IN NO EVENT SHALL HIJINKS OR ANY HIJINKS SHAREHOLDER, MEMBER, OFFICER, DIRECTOR, EMPLOYEE, AGENT, REPRESENTATIVE, ADVISOR, CONSULTANT OR CONTRACTOR BE LIABLE TO VENDOR OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. HIJINKS' SOLE AND COMPLETE LIABILITY TO VENDOR FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY BOOKING CODES IS LIMITED TO THE AMOUNT OF FEES RETAINED BY HIJINKS HEREUNDER FOR THE PRECEDING SIX (6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. ANY CLAIM BY OR ON BEHALF OF VENDOR IN CONNECTION WITH ANY PAYMENT MADE BY HIJINKS, INCLUDING, WITHOUT LIMITATION, CLAIMS ALLEGING THAT VENDOR WAS UNDERPAID, MUST BE MADE IN WRITING TO HIJINKS WITHIN NINETY (90) DAYS FROM THE DATE HIJINKS REMITS THE PAYMENT AT ISSUE AND ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY VENDOR TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. General Provisions
11.1. The parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise or agency between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other party in any way.
11.2. The Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
11.3. Vendor is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Hijinks' prior written consent. Hijinks may transfer or assign this Agreement to a present or future affiliate or subsidiary or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business of Hijinks, or by operation of law.
11.4. Except as otherwise specifically provided in this Agreement, this Agreement may only be amended, modified or supplemented by a writing signed by Hijinks and Vendor.
11.5. The Agreement will be construed and interpreted in accordance with the laws of the Province of Ontario and the Country of Canada. Vendor agrees to the exclusive jurisdiction and venue of courts in Ontario, Canada, and waives any objection to such jurisdiction and venue.