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Lutinx.com Earner Terms of Service
The ultimate update is: January 03, 2023
These Terms of Service and any policies referenced herein (“Terms”) govern your access and use of LutinX’s Certificate Cloud Services and form a legally binding agreement between you (“Customer”, “you” or “your”) and LutinX, Inc.(“LutinX”, “we” or “us”). This Earner Terms of Service (the “Earner TOS”, or/and “Terms”) is entered into by and between LutinX, Inc., a Delaware corporation (“LutinX”), and you. As used herein, “Earner” or “you” refers to the person or entity accessing, downloading or using the LutinX Services by means of a user. LutinX and Earner may be referred individually as a “Party” and collectively as the “Parties.”
LutinX may modify these Terms at any time by posting a revised version on this website or otherwise providing notice to Customer. By continuing to use the Services after the effective date of any modifications to these Terms, Customer agrees to be bound by the modified terms. LutinX reserves the right to ask Customer to acknowledge acceptance through an electronic click-through.
1.1 “Applicable Law(s)” means any law, rule, regulation, directive, or other binding requirements (as may be implemented, amended, extended, or re-enacted from time to time), applicable to either Party’s performance under this Agreement, including but not limited to those applicable to the processing of Personal Data, which may include in particular, the CCPA, the GDPR, the UK GDPR, the Children’s Online Privacy Protection Rule and/or the UK ICO Age-Appropriate Design Code. If Customer is an educational agency or institution, Applicable Laws may include also include the Family Educational Rights and Privacy Act (“FERPA”).
1.2 “Authorized User” means those employees, agents, customers, individuals, and independent contractors of Customer that are authorized by Customer to access and use the Services and to whom Customer has assigned a user ID or password.
1.3 “Certificate Cloud Services” means any of the products, plans, and services offered by LutinX, including those under the name “LutinX Certificates”, “LutinX Portfolios”, “LutinX Professional Profiles”, “LutinX Recommendations”, “LutinX Professional Services” or successor branding. For the avoidance of doubt, Certificate Cloud Services includes Services. Certificate Cloud Services exclude: (a) third party Credentials including without limitation any such third-party certification, testing and identity verification; and (b) non-LutinX applications.
1.4 “Confidential Information” shall have the meaning set forth in Section 11.1.
1.5 “Content” means the LutinX content, information, data products and services, and Documentation made available as part of the Certificate Cloud Services.
1.6 “Credentials” means evidence of achievement, ability, attainment, authenticity, compliance, completion, eligibility, entitlement, experience, identity, membership, qualifications, title or other attributes, qualities or traits.
1.7 “Customer Data” means Customer’s content, information, data and Personal Data which Customer desires to process and disseminate by accessing and using the Service and any Customer icons, marks and/or logos Customer desires to have displayed on the Service pages. As between Customer and LutinX, Customer Data shall also include Credentials whether of (or issued by), Customer or third parties
1.8 “Documentation” means the online guides and user manuals for the Certificate Cloud Service.
1.9 “Intellectual Property Rights” means all patents, patent registration or applications, business processes, data rights, copyrights, trade names, trademarks, trade secrets, know-how, mask works, or any other intellectual property rights, whether registered or unregistered, arising or enforceable under United States law or the law of any other jurisdiction.
1.10 “Ordering Document” means any order form, purchase order, PO, or similar procurement document issued by you and signed, or otherwise agreed to by LutinX, for the Services.
1.11 “Personal Data” means any data, including Customer Data, that is “personal information,” “personal data,” “personally identifiable information,” “nonpublic personal data,” or similar terms as defined by and regulated by Applicable Laws.
1.12 “Service Contract” means any agreement executed between you and LutinX for the Services, including without limitation, the Certificate Cloud Services Agreement or other similar service agreement.
1.13 “Services” means, collectively, the specific products, plans and/or services of the Certificate Cloud Services ordered by you or that LutinX has authorized you to use and access.
1.14 “Term” shall have the meaning set forth in Section 7.1.
1.15 “Third Party Applications” means third party applications, websites, and services.
2. LICENSE GRANTS.
2.1 Service. Subject to the terms and conditions of this Agreement, the “LutinX Services” are a proprietary software as a service platform belonging to LutinX. LutinX grants Customer a non-exclusive, non-transferable, worldwide license to access and use the Services to input and process Customer Data for Customer’s own internal business purposes. Customer shall only allow Authorized Users to access the Service, and shall ensure that Authorized Users review and comply with the terms and conditions of this Agreement. There are no implied licenses. All rights not expressly granted are reserved by LutinX and its licensors.
2.2 General Terms. To use the LutinX Services, you agree that: (a) your Earner account on the LutinX Services must be in your real name; (b) you are not already restricted by LutinX from using the Services; and (c) you are of the “Minimum Age” required to use the LutinX Services. “Minimum Age” means 13 years old. However, if law requires that you must be older in order for LutinX to lawfully make available to you the LutinX Services to you without parental consent (including using of your personal data) then the Minimum Age is such older age. Creating an account with false information is a violation of our terms, including accounts registered on behalf of others.
2.3 Restrictions. Customer shall not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (other than Authorized Users) the Services or the Content in any way; (b) modify or make derivative works based upon the Service or the Content; (c) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (d) attempt to access portions of the Certificate Cloud Services for which it has not ordered or is not authorized by LutinX to access; or (e) reverse engineer or access the Certificate Cloud Services or Content in order to: (i) build a competitive product or service; or (ii) copy any Content or any ideas, features, functions or graphics of the Certificate Cloud Services.
2.4 Customer Data. Customer hereby grants to LutinX a non-exclusive, worldwide license, to use, reproduce, create derivative works, display, store and perform Customer Data as reasonably necessary to provide the Services.
2.5 Visibility. You will have the option of making your profile publicly viewable or restricting visibility of your profile from the public. Publicly accessible profiles will show your first name and last name. You will also have the ability to display your earned Credentials publicly.
2.6 Responsability for content. LutinX has no obligation to pre-screen Content (including, but not limited to, Earner Content), although LutinX reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the foregoing, LutinX shall have the right to remove any Content, including but not limited to, Earner Content that violates this Earner TOS or that it reasonably deems objectionable.
2.7 Credential Issuers. You acknowledge and agree that the issuer of a Credential (an “Issuer”) is solely responsible for the criteria for issuance of a Credential, and any dispute relating to the issuance or receipt of a Credential must be resolved solely between you and the Credential issuer. Credential issuers may revoke a Credential from you for any reason, and without notice. You agree that LutinX is not responsible for such an action by an Issuer. Further, LutinX is not responsible for the validity or veracity of any Credential issued by an Issuer.
LutinX reserves all of its intellectual property rights in the LutinX Services. Using the LutinX Services does not give you any ownership in any LutinX intellectual property or the content or information made available by LutinX or through the LutinX Services. Trademarks and logos used in connection with the LutinX Services are the trademarks of their respective owners. LutinX and other LutinX trademarks, service marks, graphics, and logos used in the LutinX Services are trademarks or registered trademarks of LutinX.
4. OPERATION OF THE SERVICES.
4.1 Implementation of Services. Promptly following the Agreement Start Date, LutinX shall provide Customer with access to the Services. Customer will issue user IDs or passwords to its Authorized Users and Customer acknowledges that Customer is fully responsible for all liabilities incurred by such use, and for any liabilities incurred through use of such passwords by anyone who obtains such passwords until Customer notifies LutinX’s customer service of such unauthorized use. LutinX may temporarily disable access to the Service if Customer reports unauthorized use of the Service.
4.2 Services Operation. LutinX shall host, maintain and operate the Certificate Cloud Services for use by Customer and Authorized Users. LutinX shall use commercially reasonable efforts to: (a) deploy industry standard security and encryption controls including without limitation, firewall and SSL technology; (b) monitor, track and report on Certificate Cloud Services availability; and (c) limit access to the Services only to Authorized Users.
4.3 Compliance with Laws. Customer shall use the Services in compliance with all Applicable Laws, statutes, rules, regulations and terms of service. If necessary to comply with any of the foregoing, LutinX may modify or suspend access to the Service. This remedy shall be in addition to, and shall not limit LutinX’s ability to terminate this Agreement based on material breach or pursue damages or other remedies available under law and equity.
4.4 Upgrades. Customer understands that LutinX may make upgrades to the Certificate Cloud Services or the manner in which they are made available, and that those upgrades may create differences in how the Certificate Cloud Services operate in the future.
4.5 Protection of Customer Data. LutinX will maintain administrative, physical, and technical safeguards designed for the protection of Customer Data. Those safeguards will include measures designed for preventing unauthorized access, use, modification or disclosure of Customer Data by LutinX personnel except: (a) to provide the Certificate Cloud Services and prevent or address service or technical problems; (b) to comply with all Applicable Laws; or (c) as expressly permitted in writing by Customer.
4.6 Warranties. LutinX warrants that the LutinX Services will work in accordance with its intended purpose. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LUTINX MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LutinX EXPRESSLY AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. LutinX does not warrant (a) uninterrupted or error-free operation of the LutinX Services or (b) that LutinX will correct all defects or prevent third-party disruptions. The warranties hereunder will not apply if there has been misuse, modification, damage not caused by LutinX, failure to comply with instructions provided by LutinX, or if limited by an Order Form. Earner is responsible for determining its compliance with applicable laws and regulations and LutinX makes no warranty or representation regarding Earner’s compliance therewith.
5. FEES AND PAYMENT.
5.1 All payments of fees and charges are due net fifteen (15) days from the date of invoice, subject to Customer’s maintaining satisfactory credit arrangements with LutinX. LutinX reserves the right to modify Customer’s credit terms at any time. Amounts not paid after 30 days (15 days overdue) are subject to a late payment charge of one and one-half percent (1.5%) per month, or if less, the highest rate permitted by law.
5.2 The prices for the Service are exclusive of all federal, state, or local sales, use, VAT or excise taxes, Customer shall pay all sales, use, excise, VAT and other taxes which may be levied upon either Party in connection with this Agreement, excluding taxes based on LutinX’s net income.
6. CUSTOMER RESPONSIBILITIES.
6.1 In registering for the LutinX Services, you agree to: (a) provide true, accurate, current and complete information about Earner as prompted by the LutinX Services’ registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or LutinX has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, LutinX may suspend or terminate your account and deny you access to the LutinX Services.
6.2 You are fully responsible for all activities that occur under your account. You agree to try to choose a strong and secure password and keep your password secure and confidential. You may not share your password with anyone. You agree to notify LutinX immediately of any unauthorized use of your password or account or any other breach of security. You are responsible for anything that happens through your account unless you close it or report misuse. You acknowledges that LutinX is not affiliated with any issuer of Credentials and that Customer’s selection and use of Credentials is at Customer’s sole risk and expense.
6.4 LutinX may discontinue your access to the LutinX Services or your Credentials if 1) you violate this Earner TOS, or 2) a legal tribunal orders that LutinX remove the Credential or data relating to you, or 3) you request that your data be removed from the LutinX Services.
6.5 You shall not: (a) send spam or otherwise duplicative or unsolicited messages; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Certificate Cloud Services; or I attempt to gain unauthorized access to: (i) the Certificate Cloud Services or its related systems or networks; (ii) other user’s accounts; or (iii) optional components of the Certificate Cloud Services that Customer has not paid for.
6.7 You shall indemnify LutinX and its suppliers against any and all claims, losses, costs and expenses, including reasonable attorneys’ fees, which LutinX and its suppliers may incur arising from your failure to comply with your responsibilities.
7. TERM AND TERMINATION.
7.1 This Agreement shall commence on the Effective Date and shall remain in effect for the Initial Term unless terminated earlier as provided in Section 7.3. This Agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term”) unless either Party gives the other Party written notice at least thirty (30) days prior to the expiration of the current term of its intent not to renew, in which case the Agreement shall expire at the end of such term. The Initial Term, together with all Renewal Terms, if any, shall be the “Term”.
7.2 The fees payable during each subsequent Renewal Term shall be subject to an annual increase equal to the most recent Consumer Price Index (CPI) published by the U.S. Bureau of Labor Statistics. The annual pricing increase shall not exceed 6% in a single Renewal Term.
7.3 Either Party may terminate this Agreement for material breach by giving written notice to the breaching Party as provided below, subject to a thirty (30) day cure period. If the breaching Party has failed to cure a material breach within thirty (30) days of receiving written notice of such breach from the non-breaching Party, the nonbreaching Party may give a second written notice to the breaching Party immediately terminating this Agreement. In addition, if Customer fails (or is otherwise unwilling or unable), to perform Customer’s responsibilities, LutinX may, in its sole discretion and without limiting its other remedies, limit, suspend, or terminate Customer’s account(s) and access to the Services, delete or remove Customer Data and/or Credentials, and take technical and/or legal steps to prevent you from using the Services.
7.4 Upon the termination or expiration of this Agreement: (a) all licenses granted to Customer hereunder shall immediately terminate; and (b) each Party shall, at the other Party’s option, return or destroy all copies of Confidential Information or other material then in its possession owned solely by such other Party and upon written request provide written certification by an authorized officer of such destruction. Upon the termination or expiration of this Agreement the definitions contained herein and the following Sections 1, 3, 6, 7.3, 8, 9, 10, 11, 12 and any payment obligations incurred prior to the termination or expiration of this Agreement shall survive such termination or expiration.
LutinX shall defend any claim, suit or proceeding brought against Customer so far as it is based on a claim that Customer’s authorized use of the Certificate Cloud Services hereunder infringes any copyright, trade secret right or United States patent (existing as of the Agreement Start Date). As a condition to such defense, Customer will provide LutinX with prompt written notice of the claim and permit LutinX to control the defense, settlement, adjustment or compromise of any such claim. Customer shall have no authority to settle any claim on behalf of LutinX. The foregoing sets forth Customer’s sole and exclusive remedy, for infringement or misappropriation by LutinX of third-party intellectual property rights.
9. WARRANTY DISCLAIMER.
THE CERTIFICATE CLOUD SERVICES, DOCUMENTATION AND ANY SUPPORT SERVICES ARE PROVIDED “AS IS”. LutinX AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. LutinX DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM LutinX’S NETWORK AND OTHER PORTIONS OF THE INTERNET. ACCORDINGLY, LutinX DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. Customer acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation except those specifically set forth herein.
10. LIMITATION OF LIABILITY.
10.1 TO THE EXTENT PERMITTED UNDER LAW (AND UNLESS LUTINX HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT THAT OVERRIDES THIS CONTRACT), LUTINX AND ITS AFFILIATES (AND THOSE THAT LutinX WORKS WITH TO PROVIDE THE LUTINX SYSTEM) SHALL NOT BE LIABLE TO YOU OR OTHERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, RELATED TO THE SERVICES (E.G. OFFENSIVE OR DEFAMATORY STATEMENTS, DOWN TIME OR LOSS, USE OF, OR CHANGES TO, YOUR INFORMATION OR CONTENT).
10.2 IN NO EVENT SHALL THE LIABILITY OF LUTINX AND ITS AFFILIATES (AND THOSE THAT LUTINX WORKS WITH TO PROVIDE THE SERVICES) EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, $100.
10.3 THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND LUTINX AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G. WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) AND EVEN IF LUTINX OR ITS AFFILIATES HAS BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
10.4 SOME LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.
11. CONFIDENTIAL INFORMATION.
11.1 Any information that is transmitted by one Party (the “Disclosing Party”) to the other (the “Receiving Party”) hereunder and: (a) if in written form, is marked “confidential” or with a similar legend by the Disclosing Party before being furnished to the other; or (b) if disclosed orally or visually is identified as such prior to disclosure and summarized, in writing, by the Disclosing Party to the Receiving Party within thirty (30) days, shall be deemed to be the confidential information of the Disclosing Party for purposes of this Agreement (“Confidential Information”). Each Receiving Party expressly undertakes to retain in confidence and not to disclose to any third party any such Confidential Information received from the Disclosing Party hereunder. Each Receiving Party further agrees to make no use of such Confidential Information except as necessary to exercise the rights or fulfil the obligations expressly granted under this Agreement. Each Receiving Party shall take reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent such Confidential Information from falling into the public domain or into the possession of any unauthorized person. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and legal or accounting advisors who need access to such Confidential Information in order to affect the intent of this Agreement and who have entered into written confidentiality agreements with such Party which protects the Confidential Information of the Disclosing Party. The Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Disclosing Party’s Confidential Information. The Receiving Party agrees to assist the Disclosing Party in remedying such unauthorized use or disclosure of its Confidential Information.
11.2 Confidential Information shall not include information that: (a) was in the public domain at or subsequent to the time it was communicated to the Receiving Party by the Disclosing Party through no fault of the Receiving Party; (b) was rightfully in the Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to the Receiving Party by the Disclosing Party; (c) was developed by employees or agents of the Receiving Party independently of and without reference to any information communicated to the Receiving Party by the Disclosing Party; or (d) was communicated by the Disclosing Party to an unaffiliated third party free of any obligation of confidence.
12.2 The LutinX Services will allow you to share your Credentials on certain third-party websites and applications, including social media.
12.3 You agree that we may provide notices and messages to you in the following ways: (i) within the LutinX Services, or (ii) sent to the contact information you provided us (e.g., email, mobile number, physical address). You agree to keep your contact information up to date.
12.4 You are responsible for managing your preferences on your account. You may review your privacy and notification settings at any time to control and limit messages you receive from us. LutinX will not transfer your personal information to third parties without your consent. LutinX may collect fees from third parties for information transfers to which you have consented.
12.5 When you direct LutinX to share your Digital Badges and Credentials with third-parties, you may be subject to additional terms disclosed at such time.
13. GENERAL PROVISIONS.
13.1 This Agreement shall be governed by laws of the State of Delaware, without giving effect to any conflicts of laws provisions that would require the application of the laws of a different state.
13.2 Except as expressly provided herein, all rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. Failure by either Party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other term.
13.3 Any notice or reports required or permitted to be given under this Agreement shall be given in writing and shall be delivered via email, in person, facsimile transmission or by certified or registered mail, postage prepaid, return receipt requested, and shall be deemed given upon personal delivery, three (3) days after deposit in the mail or upon acknowledgment of receipt of facsimile transmission. Notices shall be sent to the individuals executing this Agreement at the addresses first set forth above or such other address as either Party may specify in writing.
13.4 Customer shall not assign, voluntarily, by operation of law, or otherwise, any rights, or delegate any duties, under this Agreement without LutinX’s prior written consent. LutinX may without Customer’s consent, assign all or any part of its rights and duties under this Agreement pursuant to a corporate reorganization, or to any entity with whom LutinX merges, which LutinX acquires or is acquired by, or to whom LutinX sells all or substantially all of its assets to which this Agreement relates. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
13.5 The Parties are independent contractors and nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties.
13.6 Customer consents to LutinX’s use of Customer’s name and logo in routine customer lists appearing on LutinX’s website, various marketing materials or internal and external presentations. Notwithstanding the foregoing, LutinX may use Customer’s name, logo and a description of LutinX solutions provided to Customer in LutinX case studies and press releases, during the Term of this Agreement, provided that LutinX submits proposed content to Customer for review prior to use. Customer may object to any proposed use in its absolute discretion and shall have the right to modify or revoke any use of its name and logo at any time. LutinX’s use of Customer’s name and logo does not create any ownership right therein and all rights not granted to LutinX are reserved by Customer.
13.7 Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of: (a) any provision of any present or future law or regulation of the United States or any Applicable Law that applies to the subject matter hereof; and (b) strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government action, acts of terrorism, earthquakes, power outages or any other cause which is beyond the reasonable control of such Party.
13.8 If any provision of this Agreement shall be unenforceable or invalid under any Applicable Law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provisions shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of Applicable Law or applicable court decisions.
13.9 This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimiles shall be treated as originals.
13.10 The section headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.
13.11 Notwithstanding anything to the contrary in this Agreement, to the extent there is a conflict or inconsistency between these Terms and the Service Contract or any applicable Ordering Document, the following order of precedence shall govern and control any such conflict (unless such term(s) contradict a requirement under Applicable Law in which case such requirement shall prevail): (1) the applicable Ordering Document; (2) the Service Contract (3) these Terms. For the avoidance of doubt, in the event of any such conflict, all non-conflicting terms of these Terms shall remain in full force and effect.
13.12 The Agreement, including all exhibits, addenda and any attachments to the Agreement, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral. Except as expressly provided, the Agreement may not otherwise be amended except through mutual written agreement by a duly authorized representative of each Party.