1 Definitions. Capitalized terms used in this Agreement shall have the following meanings:
1.1 “End User” means the individual or entity owns, leases, operates, purchases, sells, trades, or otherwise has an interest in a vehicle that is evaluated, scanned, analyzed, or processed through the Solution by or on behalf of Customer.
1.2 “End User Data” means any data, information, or content submitted, uploaded, or otherwise generated by or on behalf of an End User in connection with the access or use of the Solution, including vehicle diagnostic data, device readings, account information, and usage data.
1.3 “End User Terms” means APPRAISALPRO’s then-current consumer-facing terms and conditions applicable to End Users’ access to and use of the Solution, as may be updated from time to time, and currently made available at https://www.fixdapp.com/terms-of-service/
1.4 “Fees” means the fees payable by Customer to APPRAISALPRO as may be set forth out on an Order Form or the then-current pricing for the Solution as set out on APPRAISALPRO’s website.
1.5 “Hardware” means the APPRAISALPRO device or sensor connected to the End User vehicle which enables use of the Solution.
1.6 “Service” means any website,software-as-a-service platform, or other dashboard that enables the APPRAISALPRO vehicle information and related services, and all related mobile applications or other software provided or made available by APPRAISALPRO.
1.7 “Software” means any software, firmware, mobile application, web application, application programming interface (API), code, algorithm, artificialintelligence functionality, or other software component that is provided, madeavailable, embedded in, incorporated into, or otherwise used in connection withthe Service or the Hardware, including all updates, upgrades, patches, bugfixes, modifications, enhancements, derivative works, and related documentation.
1.8 “Solution” means the Service, Hardware, and Software.
2 Grant of Rights.
2.1 License Grant. Subject to the terms and conditions of this Agreement, APPRAISALPRO grants Customer a limited, non-exclusive, non-transferable, non-sublicensable (except as set out in Section 2.2) right during the Term to access and use the Solution solely for Customer’s internal business purposes and related operations. Customer’s use of the Solution is limited to the scope, quantities, and authorized users set forth in the applicable Order Form.
2.2 End User License. Subject to the terms and conditions of this Agreement, APPRAISALPRO grants Customer a limited, non-exclusive, non-transferable right during the Term to make the Solution available to Customer’s End Users solely as necessary to exercise Customer’suse of the Solution under this Agreement. Customer acknowledges and agrees that each of Customer’s End Users will accept APPRAISALPRO’s then-current End User Terms prior to accessing or using the Solution or any component thereof. APPRAISALPRO shall provide Customer and its End Users with any access credentials or other mechanisms to permit and enable access to the Solution.
2.3 No Implied Licenses. All intellectual property rights relating to the Solution are and shall remain at all times the exclusive property of APPRAISALPRO. Customer does not acquire any rights or licenses therein except those expressly granted in this Agreement and does not receive any title to the Solution or any changes or modifications thereto or any intellectual property rights throughout the world contained therein.
2.4 Restrictions. Customer agrees that the Solution will not be used in connection with (i) cars with modified engine or electronic control systems, or (ii) cars of any make, model, or year which are not supported by the Solution, as set out on https://www.fixdapp.com/compatibility-test/ or as otherwise communicated to Customer in writing from time to time. Customer shall not: (a)sublicense (except where expressly permitted under Section 2.2), resell, rent, lease, transfer, assign, make available on a time-share or service bureau basis, or otherwise commercially exploit or make the Solution available to any third party; (b) use the Solution in any unlawful manner (including, without limitation, in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Solution, (c) modify, adapt, or hack the Solution to, or otherwise attempt to, gain unauthorized access to the Solution or any related systems or networks, or (d) use the Solution to obtain or attempt to access any materials or information through any means not intentionally made available or provided for through the Solution.
2.5 Changes to the Solution. Customer acknowledges and agrees that APPRAISALPRO may modify the Solution or may release a new version of the Solution at any time and for any reason including, without limitation, to address customer needs or otherwise address competitive demands, to respond to a government regulation, order, or law, or to advance innovation in the Solution offering; provided, however, that APPRAISALPRO shall notify Customer at least ninety (90) days prior to the implementation of any such modification or release to the extent the same could materially reduce the functionality of the Solution. APPRAISALPRO reserves the right to add new features or functionality to, or remove existing features or functionality from, the Solution at any time without notice. Notwithstanding anything to the contrary in this Section 2.5, Customer shall have no obligation to accept, and APPRAISALPRO shall not be relieved of any responsibilities by reason of any changes that materially decrease the features or functionality of the Solution or in the aggregate materially increase security risk that could impact Customer’s network.
2.6 Hardware. Customer may order Hardware in the quantities and configurations set forth on the Order Form. APPRAISALPRO may accept or reject any Hardware order that is inconsistent with quantities or specifications agreed upon in the Order Form. APPRAISALPRO shall ship Hardware to the address(es) designated by Customer on the applicable Order Form. Risk of loss transfers to Customer upon delivery to the carrier at the point of shipment. Unless otherwise specified on the Order Form, Customer is responsible for all freight, shipping, handling, and insurance costs. Customer (or Customer’sEnd Users) is responsible for the proper installation and use of all Hardware in accordance with APPRAISALPRO’s then-current installation documentation and guidelines. APPRAISALPRO shall have no liability for inaccurate data, damage, or malfunction of the Hardware arising from improper installation, misuse, or use in connection with any vehicle make, model, or year not supported by APPRAISALPRO.
3 Fees;Invoicing; Payment.
3.1 Fees and Pricing. In consideration of Customer’s use of the Solution, Customer shall pay APPRAISALPRO the Fees. APPRAISALPRO may modify the Fees upon 30 days’ prior written notice, with any such modification taking effect at the start of the next monthly billing cycle following the notice period.
3.2 Payment Terms. Customer shall maintain a valid credit card or bank account authorized for ACH debit (the “Payment Method”) on file with APPRAISALPRO at all times during the Term. Customer hereby authorizes APPRAISALPRO to automatically charge or debit the Payment Method on file for all Fees due under this Agreement. APPRAISALPRO will initiate each charge or debit within five (5)Business Days of the applicable invoice date. Customer is responsible for ensuring that its Payment Method is current, valid, and has sufficient funds or available credit to satisfy each charge or debit. Customer shall promptly notify APPRAISALPRO and update its Payment Method upon any change, expiration, or cancellation.
3.3 Failed Drafts; Suspension. If any charge or debit is declined, returned for non-sufficient funds (“NSF”), or otherwise fails for any reason, or if Customer fails to maintain a valid Payment Method on file as required by Section 3.2, APPRAISALPRO may, without further notice and without prejudice to any other remedy available to it under this Agreementor applicable law, immediately suspend Customer’s access to the Solution until(a) all outstanding Fees have been paid in full by an alternative payment method acceptable to APPRAISALPRO in its reasonable discretion, and (b)Customer has restored a valid Payment Method on file. Any NSF charges, bank fees, or processing costs incurred by APPRAISALPRO as a result of a failed draft shall be passed through to and reimbursed by Customer upon demand. Suspension of access does not relieve Customer of its obligation to pay all accrued and outstanding Fees, which shall continue to accrue during any period of suspension. Any amounts not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, from the due date until the date of actual payment.
3.4 Taxes. Each Party shall be solely responsible for all taxes imposed on its own net income or revenues arising under or in connection with this Agreement. Any sales, use, value-added, excise, or other transaction taxes imposed by any governmental or taxing authority on amounts payable by Customer under this Agreement shall be the sole responsibility of Customer. Customer shall self-assess and remit any such taxes directly to the applicable governmental authority. APPRAISALPRO shall have no obligation to collect, report, or remit any such taxes on Customer’s behalf.
4 Ownership. All right, title, and interest in and to the Solution, all modifications, enhancements, and derivatives of the Solution, all End User Data, and all intellectual property rights contained in any of the foregoing, shall be owned or licensed from a third party by APPRAISALPRO. Additionally, all software, technology, inventions, intellectual property rights, documents, deliverables, or other materials related to or generated by APPRAISALPRO pursuant to providing the Solution shall be the exclusive property of APPRAISALPRO. APPRAISALPRO shall own and continue to own all right, title, and interest in and to any and all ideas, suggestions, enhancements, recommendations, or other feedback provided by Customer related to the Solution. During the Term and thereafter, APPRAISALPRO may use End User Data and anonymized or general information derived from End User Data for the purpose of improving APPRAISALPRO’s services and providing aggregated or data analytical services without restriction or fee.
5 Artificial Intelligence Functionality.
5.1 Generally. The Solution may include artificial intelligence, machine learning, large language model, generative artificial intelligence, or similar automated functionality (collectively, “AI Features”) that generate responses, recommendations, explanations, summaries, or other content based on information submitted to or processed by the Solution (“AI Outputs”).
5.2 AI Outputs. AI Outputs are provided solely for informational purposes and are generated through automated processes. AI Outputs may be inaccurate, incomplete, outdated, inconsistent, or otherwise incorrect. Customer acknowledges that AI Outputs are not reviewed or verified by APPRAISALPRO before being provided and should not be relied upon as the sole basis for any decision. AI Outputs do not constitute mechanical advice, vehicle safety advice, professional repair advice, or any other professional service. AI Outputs may fail to identify the actual cause of a vehicle issue, may suggest incorrect causes or solutions, and may not identify all safety concerns, mechanical failures, maintenance requirements, or repair needs. APPRAISALPRO makes no representation, warranty, or guarantee regarding the accuracy, completeness, reliability, availability, usefulness, or fitness for a particular purpose of any AI Output. Without limiting the generality of the foregoing, APPRAISALPRO does not warrant that any AI Output will correctly identify a vehicle issue, accurately recommend a repair, prevent vehicle damage, improve vehicle performance, or avoid personal injury or property damage. Customer assumes all risks associated with its use of, reliance upon, or communication of AI Outputs.
6 Confidential Information.
6.1 Disclosure. During the Term, each Party may obtain or gain access to nonpublic data or information from the other Party or its affiliates that is confidential and proprietary in nature (“Confidential Information”). The Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they will: (a) retain all ownership rights in and to their respective Confidential Information; (b)maintain, and require any third party acting on its behalf to maintain, in strict confidence any of the Confidential Information of the Party in its possession or control using the same standard of care that a Party uses toprotect its own Confidential Information of a like nature and, in any event, no less than a reasonable standard of care; (c) not use, directly or indirectly, the Confidential Information for any reason other than to fulfill its obligations pursuant to this Agreement and solely for the benefit of the Party that disclosed the Confidential Information; and (d) not, directly or indirectly, use, reproduce, or disclose Confidential Information to any third party, except affiliates, in each case, without prior express written consent of the other Party. A Party will, and will ensure that any third party acting on its behalf, comply with all of the confidentiality and non-disclosure and non-use obligations hereunder. Any act or omission of the employees, contractors, agents, or affiliates of a Party that would give rise to a breach of this Agreement if arising out of the acts or omissions of such Party shall be deemed to be a breach of this Agreement by such Party. A Party will promptly notify the other Party in the event that a Party learns of the loss or any unauthorized release or use of Confidential Information, but in any event within forty-eight (48) hours of confirmation of the foregoing. The Solution and all information provided by APPRAISALPRO to Customer under this Agreement shall be deemed the Confidential Information of APPRAISALPRO, including, without limitation, drawings, object code, source code, computer program listings, techniques, algorithms, processes, technical, specifications, formulae, equipment, business strategies, know-how, drawings, pricing information, inventions, ideas, and their potential uses. Upon the request of a disclosing Party, the receiving Party agrees to destroy any documents prepared by the receiving Party using Confidential Information of the disclosing Party or derived there from, and the receiving Party agrees to provide confirmation of such destruction in writing.
6.2 Allowances. Notwithstanding anything to thecontrary in this Section, Confidential Information may be disclosed by a Party:(a) to those of its employees, agents, and consultants who require it inconnection with their duties in performing such Party’s obligations under thisAgreement and who are contractually or legally obligated to hold suchConfidential Information in confidence and restrict its use consistent with theParty’s obligations under this Agreement; (b) to the Party’s auditors, outsidecounsel, accountants, and other similar business advisors, or in connection with an actual or prospective sale or transfer of assets; and (c) to the extent required by law, pursuant to a duly authorized subpoena, court order or government authority; provided, that, (i) the Party provides the other Party with sufficient advance notice of such disclosure requirement or obligation topermit such Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (ii) the Partylimits the release of the Confidential Information to the greatest extent possible under the circumstances.
7 Data Processing. To the extent APPRAISALPRO processes any personal data (including End User Data) in connection with the provision of the Solution, such processing shall be governed by the privacy policy which is available at https://www.fixdapp.com/privacy/ (the “Privacy Policy”). In the event of any conflict between this Agreement and the Privacy Policy with respect to the processing of personal data, the Privacy Policy shall control. Customer is responsible for ensuring that it has obtained any consent or other legal basis required by applicable law to submit or otherwise make available personal data to APPRAISALPRO in connection with the Solution.
8 License to Customer Materials. APPRAISALPRO’sprovision of the Solution may require Customer to disclose to APPRAISALPRO, its affiliates, or their respective licensors or suppliers certain information and materials about Customer (collectively, “Customer Materials”), and, to the extent necessary, Customer shall obtain any consents or licenses necessary in connection with the same. Customer hereby grants to APPRAISALPRO a nonexclusive, limited license to use or obtain any Customer Materials necessary to provide the Solution to Customer.
9 Trademark Licenses. Customer shall not use APPRAISALPRO’sname, logos, trademarks, service marks, or other brand identifiers in any advertising, marketing, promotional, or other materials directed to End Users without APPRAISALPRO’s prior written approval. Any approved use of APPRAISALPRO’strademarks shall comply with any trademark usage guidelines provided by APPRAISALPRO.
10 Representations;Warranties; Disclaimers.
10.1 Representations and Warranties of APPRAISALPRO. APPRAISALPROrepresents and warrants to Customer: (a) APPRAISALPRO has the full right, power, and authority to enter into this Agreement and to perform itsobligations hereunder; (b) the execution, delivery, and performance of thisAgreement by APPRAISALPRO do not violate any agreement by which APPRAISALPRO isbound or any applicable law; (c) APPRAISALPRO will perform any servicesprovided under this Agreement in a professional and workmanlike manner usingpersonnel possessing the requisite skills, training, and experience; and (d) APPRAISALPROwill use commercially reasonable efforts to provide the Solution in accordancewith the terms of this Agreement.
10.2 Disclaimer of warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, THE SOLUTION (INCLUDING all AI FEATURES AND AI OUTPUTS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. The Solution is intended only as a supplemental informational tool and is not a substitute for inspection, diagnosis, repair, maintenance, or consultation by qualified automotive professionals. Vehicle conditions may arise from numerous causes that cannot be determined solely from diagnostic codes or information available to the Solution. APPRAISALPRO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, APPRAISALPRO DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY INFORMATION, DIAGNOSTIC RESULTS, RECOMMENDATIONS, REPORTS, ANALYSES, OR AI OUTPUTS GENERATED BY OR THROUGH THE SOLUTION WILL BE ACCURATE, COMPLETE, RELIABLE, OR SUITABLE FOR ANY PARTICULAR PURPOSE. APPRAISALPRO DOES NOT WARRANT THAT THE SOLUTION WILL IDENTIFY ALL VEHICLE CONDITIONS, MECHANICAL ISSUES, SAFETY CONCERNS, MAINTENANCE REQUIREMENTS, OR REPAIR NEEDS, OR THAT ANY RECOMMENDED REPAIR, MAINTENANCE ACTION, OR COURSE OF ACTION WILL CORRECT A VEHICLE ISSUE OR PREVENT DAMAGE, INJURY, OR LOSS. ANY WARRANTIES APPLICABLE TO THIRD-PARTYPRODUCTS, SERVICES, OR COMPONENTS INCORPORATED INTO OR PROVIDED WITH THE SOLUTION SHALL BE PROVIDED, IF AT ALL, SOLELY BY THE APPLICABLE THIRD PARTY AND NOT BY APPRAISALPRO. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT THE SOLUTION IS USED IN CONNECTION WITH VEHICLE APPRAISAL, VALUATION, OR TRADE-IN ASSESSMENT, APPRAISALPRO MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY VEHICLE VALUE ESTIMATE, APPRAISAL FIGURE, OR TRADE-IN OFFER GENERATED BY OR THROUGH THE SOLUTION. THE SOLUTION IS NOT A SUBSTITUTE FOR AN INDEPENDENT PROFESSIONAL APPRAISAL, AND NO OUTPUT OF THE SOLUTION SHOULD BE RELIED UPON AS THE SOLE BASIS FOR ANY PURCHASE, SALE, TRADE, FINANCING, OR PRICING DECISION.
11 Indemnification.
11.1 Customer shall indemnify, defend, and hold APPRAISALPROand its officers, agents, employees, affiliates, subsidiaries, assigns, andsuccessors in interest harmless from, and pay all reasonable costs andattorneys’ fees in connection with any claims, liabilities, losses, suits, anddamages asserted by a third party based on: (a) any misrepresentation of theSolution by Customer, its employees, or agents (including to any End User); (b)any promotion, sale, use, or distribution of the Solution by Customer inviolation of the terms of this Agreement; or (c) Customer’s or its End Users’reliance on any vehicle value estimate, appraisal output, or diagnostic resultgenerated by or through the Solution in connection with any vehicle purchase, sale, trade-in, financing, or pricing transaction. Customer may not settle any claim under this Section without the prior written consent of APPRAISALPRO unless such settlement relieves APPRAISALPRO of any and all liability and obligation and such settlement does not limit, unduly interfere, or otherwise adversely affect the rights granted herein or APPRAISALPRO’s obligations under this Agreement. APPRAISALPRO reserves the right to participate in the defense or settlement of any claim.
11.2 APPRAISALPRO shall defend, indemnify, and hold harmlessCustomer and its officers, directors, employees, and agents from and againstany third-party claim alleging that the Customer’s authorized use of theSolution in accordance with this Agreement infringes or misappropriates suchthird party’s United States patent, copyright, trademark, or trade secret, andshall pay any damages, costs, and reasonable attorneys’ fees finally awardedagainst Customer or agreed to by APPRAISALPRO in settlement of such claim. APPRAISALPROshall have no obligation under this Section to the extent any claim arisesfrom: (a) any modification of the Solution by any person other than APPRAISALPROor its authorized contractors; (b) the combination, operation, or use of theSolution with any software, hardware, products, services, or data not providedor authorized by APPRAISALPRO, if the alleged infringement would have beenavoided but for such combination, operation, or use; (c) Customer’s continueduse of the Solution after APPRAISALPRO has provided a non-infringingreplacement, modification, or workaround; or (d) Customer’s use of the Solutionin violation of this Agreement or the applicable documentation. APPRAISALPRO shall not settle any claim under this Section without Customer’s prior written consent unless such settlement fully releases Customer from all liability and imposes no admission of liability or other obligation on Customer.
12 LIMITATION OF LIABILITY.
12.1 WITH RESPECT TOANY BREACH OF CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS AND THE INDEMNIFICATION OBLIGATIONS OF EITHER PARTY, WHICH SHALL HAVE NO LIMIT OF LIABILITY, in no event shall either Party HAVE any LIABILITY TO the other party FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE DAMAGES, COSTS, or LOSSES, LOST PROFITS, OPPORTUNITY COSTS OR LOSS OF DATA, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 EXCEPTWITH RESPECT TO (i) BREACHES OF CONFIDENTIALITY OR DATA SECURITY OBLIGATIONS AND (ii) THE INDEMNIFICATION OBLIGATIONS OF EITHER PARTY, APPRAISALPRO’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL OREQUITABLE THEORY, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO APPRAISALPRO IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 Dependencies. APPRAISALPRO shall not be responsible for any delay or failure in the performance of its obligations under this Agreement if and to the extent such delay or failure is caused by the actions or omissions of Customer or Customer’s agents or due to a breach of this Agreement by Customer. APPRAISALPRO shall have no liability to Customer to the extent such delay or failure is the result of any failure of Customer to: (a) materially perform its obligations set forth in this Agreement; or (b) provide accurate and complete data and instructions in accordance with the procedures set forth in this Agreement. Any delays in performance by APPRAISALPRO shall result in a corresponding extension in the time periods for performance by APPRAISALPRO of any of its obligations that rely on the performance of Customer that was delayed.
12.4 Other Limitations. The obligations of APPRAISALPRO under this Agreement run only to Customer and not to its affiliates or any other persons. Under no circumstances will any other person be considered a third-party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement. Customer will have no rights or remedies against APPRAISALPRO except as specifically provided in this Agreement.
13 Term and Termination.
13.1 Term. The term of this Agreement shall commence on the Effective Date and shall remain in effect, continuing to renew in one-monthincrements, until terminated in accordance with this Section 13 (“Term”).
13.2 Termination for Convenience. Either Party may terminate this Agreement or any applicable Order Form at any time without cause by providing written notice to the other Party at least ten business days prior to the start of the next monthly renewal period. If notice is provided fewer than ten business days before the next monthly renewal, the Agreement will renew for one final monthly increment and terminate at the end of that subsequent month. Customer’s payment obligations for Fees shall continue through and including the effective date of termination, and no refund shall be owed for any partial monthly billing period remaining as of such date.
13.3 Effect of Termination. Upon termination of this Agreement: (a) all licenses granted by APPRAISALPRO to Customer and its End Users hereunder shall immediately terminate and Customer acknowledges that APPRAISALPRO may immediately terminate, block, or discontinue its End Users’ ability to access the Solution; and (b) Customer shall promptly return or destroy all APPRAISALPRO Confidential Information inCustomer’s possession or control and certify such return or destruction in writing to APPRAISALPRO upon request.
14 Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of APPRAISALPRO contained herein will survive the expiration or earlier termination of this Agreement; and (b) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.
15 General Terms.
15.1 Applicable Law. This Agreement is to be interpreted, construed, and governed according to the laws of the State of Delaware as those laws are applied to contracts entered into and to be performed entirely in that State and without giving effect to its conflicts of law provisions. Any claim or controversy arising out of or related to this Agreement or any breach hereof shall be submitted to a court of applicable jurisdiction in the State of Delaware, New Castle County, and each Party hereby consents to the jurisdiction and venue of such court.
15.2 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.3 Attorneys’ Fees. If either Party prevails in any suit or proceeding relating to this Agreement, the prevailing Party will have the right to recover from the non-prevailing Party its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees, and expenses upon appeal, separately from and in addition to any other amount included in such judgment.
15.4 Injunctive Relief. It is understood and agreedthat, notwithstanding any other provisions of this Agreement, breach of theprovisions of this Agreement by either Party will cause the non-breaching Partyirreparable damage for which recovery of money damages would be inadequate, andthat the non-breaching Party shall therefore be entitled to obtain timelyinjunctive relief to protect the non-breaching Party’s rights under thisAgreement in addition to any and all remedies available at law.
15.5 Notices. Allnotices required to be given in writing under this Agreement shall be inwriting and shall be given or made by delivery in person, by courier service,or by registered or certified mail (postage prepaid, return receipt requested)at the address listed on the cover page.
15.6 No Partnership, Joint Venture, or Fiduciary Relationship Created. This Agreement does not constitute a joint venture orpartnership arrangement between the Parties, and it does not create anyrelationship of principal and agent, or otherwise between the Parties. NeitherParty will be liable for obligation incurred by the other, except as mightotherwise be expressly provided in this Agreement. All employees of each Partywill remain the employee of that Party, and will not be subject to anydirection or control by the other Party. Each Party will maintain its own professionalliability and workers’ compensation insurance for its own employees and willwithhold and pay all applicable payroll, other taxes, and obligations of anemployer with respect to its employees. Nothing contained in this Agreementwill be interpreted as creating a partnership, joint venture, or employmentrelationship of the Parties, it being understood that the sole relationshipcreated hereby is one of independent contractor.
15.7 Waiver. The failure of either Party to require performance by the other Party of any provision here of shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
15.8 Severability. In the event that 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 provision 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.
15.9 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
15.10 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Customer may not assign or otherwise transfer its interest or any part there of under this Agreement to any person or entity without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
15.11 Compliance with Laws. Each Party shall be responsible, at itsexpense, for complying with all applicable laws and regulations of eachjurisdiction where the Solution is used or deployed, including laws andregulations pertaining to access or use of data monitoring devices in consumerproducts.
