Navix Software Terms and Conditions

Version Update June 6, 2024

1. General

The following terms and conditions (“Terms and Conditions”) provide for terms that are common to this Agreement, including all Ordering Documents and Schedules. In the event of a conflict between these Terms and Conditions and any Ordering Document or Schedule, these Terms and Conditions will control, unless expressly stated to the contrary in the Ordering Document or Schedule. The Signature Page, any Statement of Work, and any other ordering document incorporating these Terms and Conditions by reference are individually and collectively referred to as “Ordering Document(s).”

2. Services

2.1 General.
All services provided by Navix under this Agreement (“Services”), including the Software Services, will be provided to Tenant according to these Terms and Conditions, the Ordering Documents, and all schedules, exhibits, or other attachments made a part of this Agreement.

2.2 Services Delivery.
Except as otherwise set forth on an applicable Ordering Document, Navix may provide the Services from any facility and may from time to time transfer any or all of the Services being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Services.

3. Software Services

3.1 Software Services.
Navix will provide Tenant, and its authorized employees, contractors and other personnel authorized by Tenant (“End Users”) up to the number of concurrent End Users identified on the applicable Ordering Document, with access to the software products and related services provided by Navix via a web browser (or mobile application) and identified on the applicable Ordering Document (“Software Services”). End Users may be replaced with different End Users, and only active End User accounts will be measured for purposes of compliance with maximum End User limits. Tenant can activate and deactivate End Users through the administration portal of the Software Services or by emailing Navix at support@navix.io. During the Term and subject to Tenant’s compliance with this Agreement, Navix grants Tenant the non-exclusive, nontransferable, non-assignable, and limited right to allow End Users to remotely access the Software Services for Tenant’s internal business purposes in accordance with the terms of this Agreement.

3.2 Restrictions.
Tenant shall not lease, license, sell, sublicense or otherwise transfer its access to or use of the Software Services. The Software Services may only be used by Tenant and End Users (and only the number of End Users authorized on the applicable Ordering Document). In addition, Tenant shall not modify, create derivative works of, or attempt to decipher, decompile, disassemble or reverse engineer the Software Services. Nothing in this Agreement confers upon either party any right to use the other party’s Marks, except in Navix’s performance of the Services. All use of such Marks by either party will inure to the benefit of the owner of such Marks, use of which will be subject to specifications controlled by the owner.

4. Professional Services

4.1 Professional Services.
Navix may provide integration, implementation, or other professional services (each to the extent identified as professional services on a Statement of Work or Ordering Document, “Professional Services”) and Deliverables to Tenant as set forth in a Statement of Work. Navix will provide such Professional Services in accordance with the applicable Statement of Work or Ordering Document. “Deliverables” means all Creations that are delivered to Tenant by or on behalf of Navix as a part of the Professional Services, together with any items identified as such in a Statement of Work. “Creations” means any tangible or intangible thing or information, in any language, format or medium now existing or hereafter developed, and all tangible embodiments thereof, whether or not such creation is or may in the future be protected under any intellectual property right or considered Confidential Information, including ideas, creations, inventions, discoveries, innovations, industrial models, improvements, designs, methods, processes, formulae, works of authorship, products, compositions, displays, models, prototypes, samples, findings, documentation, specifications, abstracts, research and development information, know-how, procedural knowledge, industrial property, utility models, data, databases, metadata, industrial designs, mask works, Confidential Information, content, lists, electronic data files, training materials and manuals, user guides, drawings, techniques, computer software (in object, source, interpreted or other code forms), modifications to software or documentation, business information, business plans, technical knowledge, technical information, maintenance information, brochures, labels, papers, records, text, sound recordings, videos, pictures, photographs, audiovisual works, pictorial reproductions, drawings, or other graphical representations, and all other items with similar characteristics.

4.2 Change Orders.
If either party wishes to change the scope or performance of the Professional Services, it shall submit details of the requested change to the other in writing. Navix shall, within a reasonable time after such request, provide a written estimate to Tenant of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Professional Services arising from the change; (c) the likely effect of the change on the Professional Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate in good faith the terms of such change (if and when mutually agreed in writing, a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.

5. Rights Reserved

Tenant and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the “Tenant Materials” (as defined in an applicable Statement of Work, if applicable), including all intellectual property rights therein. Navix shall have no right or license to use any Tenant Materials except during the Term to the extent necessary to provide the Professional Services to Tenant. All other rights in and to the Tenant Materials are expressly reserved by Tenant. All right, title and interest, including all intellectual and proprietary rights, in and to the Software Services, Deliverables (excluding Tenant Materials), and all Navix service marks, trademarks, trade names, logos, and any modifications to the foregoing (“Marks”) (and all suggestions, feedback, contributions, enhancements, improvements, additions, modifications, or derivative works thereto and copies thereof) will remain in possession of Navix. Tenant acknowledges that the Software Services in source code form is the Confidential Information of Navix and that the source code is not licensed to Tenant by this Agreement or any Schedule and will not be provided by Navix. No right or implied license or right of any kind is granted to Tenant regarding the Services, including any right to use, reproduce, market, sell, translate, distribute, transfer, adopt, disassemble, decompile, reverse engineer the Software Services or the documentation thereof, or any portions thereof, or obtain possession of any source code or other technical material relating to the Software Services.

6. Fees and Payment Terms

6.1 Services Fees.
For the Services provided under this Agreement, Tenant will pay Navix the fees in the amounts set forth on the applicable Ordering Document. Unless otherwise set forth on the applicable Ordering Document, (1) Upfront fees are due on the Effective Agreement Date, (2) the set monthly fee shall be paid in advance beginning on the Effective Billing Date, (3) other applicable fees will be invoiced to Tenant monthly in advance and (4) any usage-based overages will be invoiced monthly in arrears, and each of the foregoing are payable immediately upon invoice. Fees are non-cancelable and non-refundable. After the Initial Term, and at the beginning of each Renewal Term thereafter, Navix may adjust the fees applicable during the upcoming Renewal Term upon written notice provided at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, as the case may be. All fees paid and expenses reimbursed under this Agreement will be in United States currency.

6.2 Late Fees.
Tenant will pay a late fee of 1.5% per month (not to exceed the maximum allowed under state law) on all balances not paid within thirty (30) days of receipt. Navix, at its option, may suspend the Services, in whole or in part, if Navix does not receive all undisputed amounts due and owing under this Agreement within thirty (30) days after delivery of notice to Tenant of the failure to pay such overdue balances.

6.3 Taxes.
The fees and expenses due to Navix as set forth in this Agreement are net amounts to be received by Navix, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by Tenant or imposed on Navix in the performance of this Agreement or otherwise due as a result of this Agreement. This section will not apply to taxes based solely on Navix’s income.

6.4 Offset.
Fees and expenses due from Tenant under this Agreement may not be withheld or offset by Tenant against other amounts for any reason.

7. Tenant Obligations

7.1 Technical Requirements.
Tenant must have the necessary equipment, software, and Internet access to be able to use the Software Services. Acquiring, installing, maintaining and operating equipment and Internet access is solely Tenant’s responsibility. Navix neither represents nor warrants that the Software Services will be accessible through all web browser releases.

7.2 Use of Software Services.
Tenant shall not and shall not permit others in using the Software Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or Navix; (ii) publish, ship, distribute or disseminate any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, immoral or otherwise objectionable material or information (including any unsolicited commercial communications); (iii) publish, ship, distribute or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (iv) engage in any conduct that could constitute a criminal offense or give rise to civil liability for Navix; (v) misrepresent or in any other way falsely identify Tenant’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Services; (vi) transmit or upload any material through the Software Services contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Navix’s, or any other person’s or entity’s, network, computer system, or other equipment; (vii) interfere with or disrupt the Software Services, networks or servers connected to the Navix systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Software Services; (viii) attempt to gain unauthorized access to the Software Services, other Navix Tenants’ computer systems or networks using the Software Services through any means; or (ix) interfere with another party’s use of the Software Services, including any parties Tenant has done business with or choose not to do business with through the Software Services. Navix has no obligation to monitor Tenant’s use of the Software Services. However, Navix may at any time monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. Tenant shall use commercially reasonable efforts, including reasonable security measures relating to administrator account access details, to ensure that no unauthorized person may gain access to the Services.

7.3 Compliance with Law.
Tenant agrees not to use (and will use its best efforts not to allow its End Users to use) the Software Services for illegal purposes or for the transmission of material that is unlawful, harassing, libelous (untrue and damaging to others), invasive of another’s privacy, abusive, threatening, or obscene, or that infringes the rights of others. Tenant is solely responsible for any and all improper use of the Software Services that occurs as a direct or indirect result of any act or omission of Tenant. Tenant will notify Navix immediately of any unauthorized use of the Software Services or any other breach of security that is known or suspected by Tenant.

7.4 Professional Services.
With respect to any Professional Services, Tenant shall have the following obligations set forth in this Section 7.4.

a. Tenant Contract Manager. Tenant shall cooperate with Navix in all matters relating to the Professional Services and appoint a Tenant employee to serve as the primary contact with respect to this Agreement (the “Tenant Contract Manager”).

b. Access and Assistance; Tenant Materials.
Tenant shall provide such access to Tenant’s premises, facilities, and computer systems and networks as may reasonably be requested by Navix for the purposes of performing the Professional Services. Tenant shall respond promptly to any Navix request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Navix to perform the Professional Services. Tenant shall provide such Tenant Materials as set forth in the applicable Statement of Work or as Navix may reasonably request in order to carry out the Professional Services, in a timely manner, and ensure that it is complete and accurate in all material respects.

c. Delay in Performance.
If Navix’ performance of its obligations under this Agreement is prevented or delayed by any act or omission of Tenant or its agents, subcontractors, consultants or employees, Navix shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Tenant, in each case, to the extent arising directly or indirectly from such prevention or delay, and Navix’ obligation to perform will be extended by the same number of days as Tenant’s contingent action is delayed.

8. Non-Disclosure and Confidentiality

8.1 Disclosure.
Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or Tenants. “Confidential Information” means any information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Tenants, pricing, and marketing; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Recipient” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.

8.2 Requirement of Confidentiality.
The Recipient agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Recipient may disclose the Confidential Information of the Disclosing Party to its, and its affiliates, officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 8; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party, in the event it becomes aware of, and provide reasonable assistance in investigating, any loss or disclosure of any of the Confidential Information of Disclosing Party. Tenant acknowledges that the Software Services and documentation are the Confidential Information of Navix. As between the parties, the Disclosing Party shall remain the sole owner of its Confidential Information. The obligations in this Section 8 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (a) is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; (c) is developed by the Recipient independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

8.3 Compelled Disclosure.
If the Recipient becomes legally compelled to disclose any Confidential Information, the Recipient shall provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Recipient remains required by law to disclose any Confidential Information, the Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, the Recipient is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

8.4 Tenant Data; Data Use.
“Tenant Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Tenant or an End User by or through the Services. Tenant hereby grants to Navix a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate Tenant Data to the extent reasonably required for the performance of Navix’s obligations and the exercise of Navix’s rights under this Agreement. Tenant warrants to Navix that Tenant has the right to provide such Tenant Data to Navix in accordance with this Agreement. Additionally, Tenant agrees that Navix has the right to generate De-identified Data from the Tenant Data, and Navix owns all Intellectual Property Rights in that De-identified Data. Tenant agrees that Navix may use De-identified Data for any legitimate business purpose both during and after the Term of this Agreement (including without limitation to develop and improve Navix’s products and services). For clarity, De-identified Data shall not contain (i) any information that identifies or can be reasonably used to identify an individual person, (ii) any information that identifies or can be reasonably used to identify Tenant. De-identified Data is not to be considered Confidential Information for the purposes of this Agreement.

9. Limited Warranty

Navix represents and warrants that (a) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof, (b) he Software Services will perform substantially in accordance with the documentation under normal use and circumstances, (c) it will perform the Professional Services in accordance with any specifications in the applicable Statement of Work or Ordering Document, and (d) it will use reasonable efforts to ensure the Services do not contain any or introduce into Tenant’s systems any malware, viruses, time bombs, Trojan horses, worms, spyware, or other similar malicious devices or code. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 9, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY Navix. NO WARRANTY IS MADE THAT USE OF THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES FUNCTIONALITY WILL MEET TENANT’S REQUIREMENTS.

10. Limitation of Liability

10.1 Exclusion of Damages.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Liability Cap.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO NAVIX PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10.3 Exceptions.
The exclusions and limitations in Section 10.1 and Section 10.2 shall not apply to: (a) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 8 (Non-Disclosure and Confidentiality); or (b) a party’s obligations under Section 11 (Indemnification).

11. Indemnification

11.1 Navix Indemnification.
Navix shall defend Tenant and its officers, directors, employees, agents, successors and permitted assigns against any third party claim, suit, action or proceeding (each, an “Action”) based on a claim that Tenant’s receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Tenant to the extent based on such an Action; provided, however, that Navix shall have no obligations under this Section 11.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Tenant to Navix; (b) use of the Services in combination with any materials or equipment not supplied to Tenant or specified by Navix in writing; or (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Navix. If the Services, or any part thereof, become, or in the opinion of Navix may become, the subject of a claim of infringement or misappropriation, Navix may, at its option: (i) procure for Tenant the right to use such Services free of any liability; (ii) replace or modify the Services to make them non-infringing; or (iii) terminate this Agreement and refund to Tenant any portion of the fees prepaid by Tenant for the infringing Services.

11.2 Tenant Indemnification.
Tenant shall defend Navix and its officers, directors, employees, agents, affiliates, successors and permitted assigns against all Actions based on a claim that any information or materials provided by Tenant (including Tenant Data), or Navix’s receipt or use thereof, in accordance with the Agreement infringes any intellectual property right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against Navix to the extent based on such an Action.

11.3 Indemnification Procedures.
The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 11.1 shall not relieve the indemnifying party of its obligations under this Section 11.1 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

12. Term and Termination

12.1 Initial Term.
This Agreement shall commence on the Effective Agreement Date and shall continue in full force and effect for the initial term set forth on the applicable Ordering Document (“Initial Term”), unless earlier terminated as provided for below. Thereafter, except with respect to any Statements of Work (which shall expire in accordance with their terms), the Initial Term shall automatically renew for successive periods of one (1) year each (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party at least 30 days prior to the end of the then-current Initial Term or Renewal Term of its intent to not renew the Agreement.

12.2 Termination.
Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement as provided below:

a. By either party if the other party commits a material breach of this Agreement and such breach remains uncured 30 days after written notice of such breach is delivered to such other party including the failure to pay any fees due to Navix; or

b. By either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.

12.3 Termination of Statement of Work.
Either party may terminate any outstanding Statement of Work without terminating the entire Agreement if the other party commits a material breach of such Statement of Work and such breach remains uncured 30 days after written notice thereof is delivered to the other party.

12.4 Effect.
Upon termination of this Agreement for any reason, all rights and licenses granted by Navix hereunder to Tenant will immediately cease. Within thirty (30) days after termination or expiration of this Agreement, each party shall return or destroy the Confidential Information of the other party.

12.5 Survival.
Termination of this Agreement or any Schedule will not affect the provisions regarding Navix’s or Tenant’s treatment of Confidential Information, provisions relating to the payments of amounts due, indemnification provisions, provisions limiting or disclaiming Navix’s liability, or any other terms which by their nature should survive, which provisions will survive such termination.

13. General

13.1 Governing Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.

13.2 Conflicting Terms.
Notwithstanding the content of any Tenant purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.

13.3 Notice.
All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; or (iii) by a nationally recognized overnight courier service; to the address set forth on the applicable Ordering Document, as may be amended by the parties by written notice to the other party in accordance with this Section 13.3.

13.4 Assignment.
Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that upon prior written notice to the other party, either party may assign the Agreement to an affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.5 Interpretation.
For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.

13.6 Severability.
In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

13.7 Attorneys’ Fees.
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

13.8 Entire Agreement.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.

13.9 Amendment; Waiver.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

13.10 Force Majeure.
Neither party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, communication or utility failures or casualties or the failures or acts of third parties.

13.11 Equitable Relief.
Each party acknowledges that a breach by a party of Section 3.2 (Restrictions) or Section 8 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

13.12 No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

13.13 Relationship of Parties.
Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.

13.14 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.