Licensed Products. The Products are licensed to the Company, and remain the property of Vivalink. The Products include the proprietary Vivalink machine readable (object code) version of computer programs that is installed on the Product (“Product Software”). Products shall at all times retain the legal status of personal property of Vivalink and Vivalink shall own all title to the Products. The Products are ordered pursuant to a separately-executed order form document that describes the number, type, cost, and license period for each of the Vivalink units and services ordered (“Order Form”). Each Order Form is subject to this Agreement and shall be deemed incorporated herein by reference.
Delivery. Vivalink shall deliver all Products ordered pursuant to an Order Form to Company’s address set forth in an Order Form and delivered to Company or its carrier agent F.O.B. shipping location, at which time risk of loss and title will pass to the Company. Company will also bear all applicable taxes, duties, and similar charges that may be assessed against the Products after delivery to the carrier at Vivalink’s facilities. As used in this Agreement, the term F.O.B. will be construed in accordance with the International Chamber of Commerce “Incoterms” (published 2020).
Limited License. Subject to the terms and conditions of this Agreement, Vivalink hereby grants Company a limited, non-exclusive, non-sublicensable, revocable, non-transferable, non-assignable right and license in the Territory during the Term to: (i) combine each Product listed on an Order Form in connection with Company’s Base Product to provide to end users (a “User”); and (ii) use the written materials regarding the use of the Product Software made available from time to time (“Documentation”) in connection with Company’s permitted use of the Product.
Prohibited Use. Company shall not: (i) pledge, loan, mortgage, or attempt in any other manner to dispose of the Products or to permit any liens, encumbrances, or legal process to be incurred or levied on the Products; (ii) copy, modify, or create derivative works or improvements, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any Product or Product Software; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available any Product to any third party except in combination or integration with Company’s Base Product as permitted by this Agreement; (iv) remove, delete, alter, or obscure any trademark, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Product; (v) access or use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law; (vi) combine the Product with any third-party materials, such as adhesives, without Vivalink’s prior written consent; or (vii) access or use the Products for purposes of the development of a competing software, service or product to Vivalink’s detriment or commercial disadvantage.
Non-Exclusive Relationship. Vivalink reserves the unrestricted right to license, sell, market, and make available the Products and Product Software worldwide to any third party and to do so through any method of its choosing.
Upgrades. Company agrees that its license of the Products and Product Software is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Vivalink regarding future functionality or features of the Products or the Product Software. From time to time, Vivalink may, in its sole discretion, make available certain additions, enhancements, new modules, and other upgrades that include new features and substantial increases in functionality to the Product Software which is made available by Vivalink to its customer for an additional fee (“Upgrade”) to a Product or Product Software. Nothing in this Agreement obligates Vivalink to make Upgrades available to Company as part of the Product Software or otherwise unless specifically included in an Order Form.
2) Company Obligations.
Care of Products and Product Software. Company shall ensure at all times that the environment in which each Product operates, and its and each User’s use of each Product complies with the requirements set forth in the Agreement and the Documentation. Without limiting foregoing, Company shall: (i) keep each Product in a climate controlled environment, reasonably free from dust and free from moisture; (ii) maintain each Product in a physically secure environment in order to prevent, damage, unauthorized use, and theft; (iii) notify Vivalink of any discrepancies or malfunctions encountered with, or damage to, each Product within five (5) business days of discovery; (iv) manage and provide User education regarding the Product to avoid misuse and mishandling of the Product; and (v) ensure that each Product is free from abuse, theft, and damage with the same degree of efforts as Company uses for any other similar equipment used in connection with the Company Base Product, but in no case with less than a reasonable care.
Company Personnel. Company shall require all personnel, employees, consultants, contractors, agents, officers, and representatives (“Company Personnel”) to adhere to the terms and conditions of this Agreement. Company is solely responsible for all acts or omissions of Company Personnel in connection with their use of the Product and Product Software.
Repair or Replacement Required. If repairs to or replacement of a Product is necessary to fix any damage that occurred while the Product was in Company’s possession or reasonable control, including with third party users to which the Company grants access, Vivalink may invoice Company for all amounts incurred by Vivalink for such repairs or replacement, and Company will pay all such amounts within in accordance with Section 3.
Use of Marks. Neither party shall: (i) engage in any action, or allow any of its Personnel to engage in any action, that tends to disparage, dilute the value of, or reflect negatively on the other party, its business operations, reputation, products, services, or any logos, trade names, trademarks, trade dress, service marks, images, graphics or other identifying words, symbols, slogans and indicia used, held for use, or otherwise adopted for commercial purposes by the other party (individually the “Vivalink Marks” and “Company Marks” and collectively the “Marks”); (ii) not directly or indirectly engage in any unfair, unethical, misleading, or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of the other party or any of the other party's Marks, (iii) not alter, obscure, or remove any of the other party’s Marks or intellectual property or other proprietary right notices placed on any Products, Product Software, Documentation, marketing materials, or other materials that a party may provide to the other party pursuant to this Agreement (“Vivalink Materials” or “Company Materials” collectively “Materials”); (iv) ensure that all Products Company sells or licenses in connection with the Company’s Base Product, and all related quotations, specifications, and descriptive literature, and all other materials, carrying a Vivalink Mark, if any, are marked with the appropriate intellectual property or other proprietary right notices in accordance with Vivalink’s instructions; and (v) not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any of the other party’s Mark or any mark that is confusingly similar to or will dilute the distinctive nature of the other party’s Marks.
Company Data. Company is responsible for any data that is provided or transmitted by Company or its Users to Vivalink or the specific part of the Products and Product Software used by Vivalink to process, store, or host Company Data (the “Company Data System”), or otherwise is received by Vivalink or the Company Data System on behalf of Company or its Users, in both cases, in providing the Products to Company as provided, transmitted, or used by Company and its Users in connection with the Products (“Company Data”).
Usage Data. Company shall not interfere with the collection of any performance and usage information relating to User’s use of a Product which the Product generates or collects which is in aggregated or deidentified form only (“Usage Data”). Usage Data does not: (i) identify natural human persons; (ii) include any information that would be considered PHI under the HIPAA Rules; or (iii) include any personally identifiable data. Vivalink and the Products collect, generate, and derive Usage Data for Vivalink’s business purposes, including to: (i) track usage; (ii) provide support for the Products; (iii) monitor the performance and stability of the Products; (iv) prevent or address technical issues with the Products; and (v) improve the Products and develop derivative and new products and services.
3) Consideration.
Fees. Company shall pay Vivalink all fees for the Products specified in an Order Form prior to fulfillment and not to exceed thirty (30) days from the date of invoice in U.S. dollars ($). Payment obligations are non-cancelable, fees paid are non-refundable, and quantities purchased cannot be decreased during the term. Fees do not include shipping and handling, customs, Taxes, or credit card fees.
Invoicing. Vivalink shall send invoices to the Company address indicated in an Order Form.
Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Company shall pay all Taxes associated with its purchases hereunder. If Vivalink has a legal obligation to pay or collect Taxes for which Company is responsible under this Section 3.c, Vivalink may invoice Company and Company will pay that amount unless Company provides Vivalink with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, each party is solely responsible for taxes assessable against it based on its income, property, and employees.
Suspension and Acceleration. Any payments that are more than thirty (30) days overdue will bear a late payment fee of one and a half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. If any charge owed by Company under this Agreement is thirty (30) days or more overdue, Vivalink may, without limiting its other rights and remedies, suspend Company’s right to access and use the Products until such amounts are paid in full.
4) Proprietary Rights.
Ownership of Vivalink Materials. As between Company and Vivalink and subject to Company’s limited rights under this Agreement, all right, title and ownership in and to the Vivalink Materials and any parts or components thereof as well as any modifications, customizations or improvements to Vivalink Materials (including Upgrades), including all intellectual property rights embodied therein, will remain exclusively at all times with Vivalink. No rights are granted to Company other than as expressly set forth in this Agreement. Company shall promptly notify Vivalink of any claim which may be adverse to Vivalink’s interest in the Vivalink Materials
Feedback. If Company provides any feedback to Vivalink concerning the functionality or performance of the Products (including identifying potential errors and improvements or the Documentation), Company hereby assigns to Vivalink all right, title, and interest in and to such feedback, and Vivalink is free to use such feedback without payment or restriction.
Vivalink Marks. Subject to the terms and conditions of this Agreement, Vivalink hereby grants to Company a revocable, limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to use Vivalink Marks during the Term solely to publicly identify Vivalink as the developer and owner of the Products, to be exercised in accordance with Vivalink's then current quality control, usage, and other trademark guidelines as the same may be updated by Vivalink from time to time in its sole and absolute discretion. At Vivalink’s request, Company shall promptly: (i) discontinue the display or use of any Vivalink Mark, or (ii) change the manner in which a Vivalink Mark is displayed or used. All of Vivalink Marks, and all goodwill associated therewith, shall inure solely to the benefit of Vivalink.
Company Marks. Company hereby grants to Vivalink a non-exclusive license to use any logos, trade names, trademarks, trade dress, service marks, images, graphics or other identifying words, symbols, slogans and indicia used, held for use, or otherwise adopted for commercial purposes by Company (“Company Marks”) solely to publicly recognize the relationship created by this Agreement between Company and Vivalink.
Company Data. As between Company and Vivalink, Company owns all rights, title, and interest to Company Data. Company hereby grants Vivalink the right to collect, use, store, disclose, transmit, and otherwise process Company Data to provide the Product and as otherwise provided for under this Agreement, including to collect, generate, and derive Usage Data. Vivalink may use Company Data in an aggregated and anonymized manner in connection with its and its affiliates’ internal business purposes, including without limitation, to improve the Products and develop derivative and new products and services and prepare promotional or advertising materials for the Products or other Vivalink offerings.
Usage Data. As between the parties, Vivalink owns all rights, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Products made based on the Usage Data.
5) Term and Termination.
Term. This Agreement commences on the Effective Date and unless otherwise terminated under Section 5.b, continues for 12 months (“Initial Term”) and will automatically renew for additional periods (“Renewal Term”) equal to the Initial Term or Renewal Term (the “Term”), unless a party gives notice at least sixty (60) days before the end of the Initial Term or Renewal Term, as applicable, of its intent to terminate this Agreement. The Products and services are licensed only for the period set forth in an Order.
Termination. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach of this Agreement, if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Effect of Termination. Upon the effective date of termination of the Agreement: (i) Company will, and will cause all Users to, immediately cease using the Products; (ii) Company will, and will cause all Users to return the Products to Company so that Company may return the Products to Vivalink (provided Company may destroy the Products in the alternative on the condition Company delivers a written certification of the same to Vivalink); (iii) any and all outstanding payment obligations of Company under this Agreement will become due immediately; (iv) cease all display, advertising, promotion, and use of all of Vivalink Marks and shall not thereafter use, advertise, promote, or display any trademark, trade name, or product designation or any part thereof that is similar to or confusing with Vivalink Marks; and (v) each party either will return to the other party the tangible embodiments of the other party’s Confidential Information in its possession or destroy all such materials within thirty (30) days after the effective date of such expiration or termination, except as required to comply with any applicable legal or accounting record keeping requirement, and provide the other party with a written certification acknowledging such destruction and will not retain any copies of such Confidential Information. Termination for material breach will not preclude the non-breaching party from pursuing any and all remedies available to it at law or in equity.
The following provisions will survive termination of this Agreement: Sections 1.e, 3.a, 3.c, 3.d, 4.a, 4.b, 5.d, 7, 8, 9, and 10.
6) Representations and Warranties.
Promptly notify the indemnifying Party in writing, specifying the nature and amount of the Losses claimed. The indemnifying Party shall have the right to assume control of the defense and settlement of any claim, suit, or action for which indemnification is sought, provided that the indemnifying Party shall not settle any such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed, or conditioned.
7) Limitation of Liability.
EXCEPT FOR BREACH OF CONFIDENTIALITY PROVISIONS PROVIDED HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT AND ANY CLAIMS ARISING OUT OF THIS AGREEMENT WHETHERMutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it has the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party; (ii) it has obtained all applicable rights, licenses, consents, permissions, and waivers necessary to meet its obligations under this Agreement; and (iii) it is in compliance with, and shall not violate, any applicable law or regulation in connection with its performance under this Agreement.
Vivalink Warranties. Vivalink warrants that the Products and Product Software will perform substantially in accordance with the Documentation. If a Product does not perform as warranted, Vivalink will, at its option, undertake to correct the Products or Product Software, replace the Products or Product Software, as applicable, free of charge, or, if neither of the foregoing is commercially practicable, terminate this Agreement and refund to Company any pre-paid, unused fees for the Products. This warranty remains in effect throughout the Term. The foregoing are Company’s sole and exclusive remedies for breach of this warranty and Vivalink’s sole and exclusive liability for breach of the warranty in this Section 6.b. The warranty set forth in this Section 6.b is made to and for the benefit of Company only. The warranty in this Section 6.b will apply only if: (i) the Product is being used in accordance with the Agreement and Documentation; (ii) the Product Software has not been modified, altered, or added to by persons other than Vivalink or Vivalink’s authorized representative; and (iii) the non-performing units are returned to Vivalink.
Mutual Warranties. Each Party represents and warrants that: (i) it will comply with all applicable privacy and data protection laws and regulations applicable to the Products; and (ii) it has provided all notices to, and obtained all consents, authorizations, permissions from, third parties that are required to grant the other Party the rights, titles, and interests granted in this Agreement with respect to the Products and Company Data.
Disclaimers. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT. EXCEPT FOR THE LIMITED REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 6, VIVALINK DISCLAIMS ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SUPPLIERS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE VIVALINK MATERIALS OR ANY PORTION THEREOF, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. VIVALINK DOES NOT WARRANT THAT ANY USE OF THE PRODUCTS OR PRODUCT SOFTWARE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS OR HARMFUL COMPONENTS. VIVALINK DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS OR PRODUCT SOFTWARE OR ANY PORTION THEREOF WILL BE APPROVED OR ACCEPTED BY ANY GOVERNMENTAL OR REGULATORY BODY OR THAT ANY SUCH APPROVAL WILL NOT BE REVOKED. VIVALINK DOES NOT GUARANTEE ANY SPECIFIC RESULTS OF ANY USE OF THE PRODUCTS OR ANY PORTION THEREOF. NO ADVICE OR INFORMATION COMPANY OBTAINS FROM VIVALINK NOT EXPRESSLY SET FORTH IN THIS AGREEMENT WILL CREATE ANY WARRANTY. COMPANY UNDERSTANDS AND AGREES THAT COMPANY TAKES COMPLETE RESPONSIBILITY FOR ITS USERS’ USE OF THE PRODUCTS OR ANY PORTION THEREOF AND ANY USE IS AT COMPANY’S AND ITS USER’S OWN DISCRETION AND RISK.
8) Indemnification.
Vivalink Indemnification. Vivalink agrees to indemnify and hold harmless Company, its officers, directors, employees, agents, successors, and assigns (collectively referred to as the "Indemnified Parties"), from and against any and all claims, suits, actions, demands, liabilities, costs, expenses, damages, and losses (including reasonable attorneys' fees) (collectively referred to as "Losses") incurred by the Indemnified Parties arising out of or related to: (i) Any breach of any representation, warranty, or covenant made by Vivalink under this Agreement; (ii) Any third-party claim that the products or services provided by Vivalink, as described in this Agreement, infringe upon any intellectual property rights of such third party; and (iii) Any violation of applicable laws or regulations by Vivalink in connection with the provision of its products or services under this Agreement.
Company Indemnification. Company agrees to indemnify and hold harmless Vivalink, its officers, directors, employees, agents, successors, and assigns (collectively referred to as the "Indemnified Parties"), from and against any and all claims, suits, actions, demands, liabilities, costs, expenses, damages, and losses (including reasonable attorneys' fees) (collectively referred to as "Losses") incurred by the Indemnified Parties arising out of or related to: (i) Any breach of any representation, warranty, or covenant made by Company under this Agreement; (ii) Any third-party claim that the products or services provided by Company, as described in this Agreement, infringe upon any intellectual property rights of such third party; (iii) Any violation of applicable laws or regulations by Company in connection with the provision of its products or services under this Agreement. Procedures. In the event that an Indemnified Party becomes aware of any matter for which it may seek indemnification under this Agreement, the Indemnified Party shall ARISING OUT OF A BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST REVENUES, PROFITS, SAVINGS OR BUSINESS) OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR BREACH OF CONFIDENTIALITY PROVISIONS PROVIDED HEREIN, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO COMPANY OR ANY OTHER PARTY UNDER THIS AGREEMENT WHETHER ARISING OUT OF A BREACH OF CONTRACT, BREACH OF WARRANTY, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID OR PAYABLE TO VIVALINK UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
9) Confidential Information.
Definition. “Confidential Information” means any proprietary or non-public information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) in written, graphic, machine readable, oral, or other tangible or intangible form. The Product Software is deemed to be Vivalink’s Confidential Information. Company Data is not Confidential Information.
Exclusions. Confidential Information does not include any information that: (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure without confidentiality obligations; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
Non-Use and Non-Disclosure. The Receiving Party will not: (i) disclose the Confidential Information of the Disclosing Party to any third party, except to third parties who need to know such Confidential Information in connection with the Receiving Party’s rights and obligations under this Agreement that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section; and (ii) use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. A Receiving Party is permitted to disclose Confidential Information of the Disclosing Party to the extent required by law so long as it gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assistance in obtaining a court order protecting such Confidential Information from public disclosure.
Confidentiality of Agreement. The terms of this Agreement are Confidential Information of both parties. Either party may publicize the existence of this Agreement, but not the terms of this Agreement without the prior written consent of the other party except as required by securities or other applicable laws.
10) Miscellaneous.
Governing Law. This Agreement will be governed by and construed and interpreted in accordance with California law (without giving effect to its conflicts of laws principles the result of which would permit the application of a law other than United States federal law or California law to this Agreement). Each party hereby irrevocably agrees that all claims, proceedings and disputes arising in connection with this Agreement shall be brought in a federal or state court located in California.
Force Majeure. If an act of God, war, riot, civil commotion, explosion, fire, government action, court order, pandemic, epidemic or other disease outbreak, any labor shortage related to any of the foregoing, or other similar circumstance beyond a party’s reasonable control (a “Force Majeure Event”) prevents, hinders, or delays performance of either party’s obligations under this Agreement (except for the obligation to pay Fees) for more than thirty (30) days at any time during the Term, either party will have the right to terminate the affected portion of this Agreement as of the date specified by such party in a written notice of termination to the other party; provided the party claiming a Force Majeure Event will take all commercially reasonable actions that may be necessary to mitigate the impact of its non-performance.
Audit. Vivalink will provide regulators, auditors and inspectors with reasonable assistance and access to its facilities for the limited purpose of performing audits or inspections of Vivalink’s business as required by Company’s agreements with study sponsors. Any requests under this provision that require more than five hours in a calendar year will be billed by Vivalink and paid for by Company at a rate of $200 per hour.
Notice. Any notice required or permitted to be given under this Agreement will be in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in an Order Form and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this section.. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
Assignment. This Agreement is not assignable or transferable by either party, unless because of a change of control of the assigning party.
Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but will apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement
. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
Entire Agreement; Modification. This Agreement contains the entire, final, integrated, and exclusive agreement between the parties as to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties. No amendments, or modifications to the Agreement will be valid and binding except if in writing and signed by authorized representatives of the parties.
Interpretation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Each party acknowledges that this Agreement was fully negotiated by the parties and, therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision
Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to act as an agent or have control over the day-to-day activities of the other party. Financial and other obligations associated with each party’s business are the sole responsibility of that party. Nothing in this Agreement will create a joint venture, joint enterprise or partnership, or any relationship other than that of independent contractors, which is the only relationship intended by the parties.
Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original and both of which together shall constitute one and the same instrument. For purposes of this Agreement, a facsimile or electronic copy or PDF of a party’s signature printed by a receiving facsimile machine or printer shall be deemed an original signature
