These Enterprise Terms are by and between Shade, Inc., a Delaware corporation ("Shade"), and the Customer set forth in the Order Form. In the event of any conflict between these Enterprise Terms and the terms of any Order Form (if any), the terms of the Order Form shall control. For clarity, each of Customer's affiliates and subsidiaries are authorized to use the Services under this Agreement and will not be required to execute a separate Order Form for use of the Services.
Order Forms; Access to Services. Upon mutual execution, each Order Form shall be incorporated into and form a part of this Agreement. For each Order Form, subject to Customer's compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Shade grants Customer an enterprise-wide, non-exclusive, limited, non-sublicensable, non-transferable right and license to provide access and use of the Shade product(s) and/or service(s) specified in such Order Form (collectively, the "Services") during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Shade's applicable official user documentation for such Services (the "Documentation"). Shade will provide Customer with access privileges that permit Customer to access and manage its account ("Customer Account"). The Services may be accessed by any of Customer's employees and consultants; provided, that Customer shall be responsible for the acts or omissions of any person who accesses the Services through the Customer Account. Customer is solely responsible for maintaining the confidentiality of usernames and passwords associated with the Customer Account. Customer must notify Shade immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account.
Implementation. Upon payment of any applicable fees set forth in each Order Form, Shade agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form ("Implementation Assistance"). If Shade provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Shade otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Shade at its then-current hourly rates for consultation.
Service Level Agreement. Subject to Customer's payment of all applicable fees, Shade shall use commercially reasonable efforts to provide the Services and the Support Agreement available at https://shade.inc/legal/support-agreement. Customer acknowledges and agrees that Shade reserves the right to access the Customer Account in order to respond to Customer's requests for support.
Updates; Pre-Release Products. From time to time, Shade may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge ("Updates"), and such Updates will become part of the Services and subject to this Agreement; provided that Shade shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Shade may make improvements and modifications to the Services at any time in its sole discretion; provided that Shade shall use commercially reasonable efforts to give Customer reasonable prior notice of any major change that might adversely impact Customer's use of the Services.
Fees; Payment. Customer shall pay Shade the fees as set forth in each Order Form ("Fees"). Unless otherwise specified in an Order Form, all fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Shade may change its fees and payment terms at its discretion; provided however, that such changes will not take effect under this Agreement until the start of the next payment period. Shade will provide written notice to Customer for any changes to the fees that affect the Services. Customer's continued use of the Services after the price change becomes effective constitutes Customer's agreement to pay the changed amount. Support and maintenance fees shall be invoiced monthly as incurred or as otherwise set forth in an Order Form. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law, plus all expenses of collection and may result in immediate suspension of Services upon written notice to Customer of late payment. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Shade's net income). All Fees paid are non-refundable and are not subject to set-off. At any time during the Term, Customer may submit an Order Form to increase the service capacity of the Services and, upon Shade's acceptance of such Order Form, Customer shall pay the Fees for such increased capacity, pro-rated for the remainder of the Initial Term or then-current Renewal Term (as applicable), and such Order Form shall renew concurrently with Customer's then-current subscription for a period equal to the Initial Term. Fees for additional usage, including usage fees incurred in excess of the service capacity, shall be paid in arrears within thirty (30) days of the invoice date, or as otherwise set forth in the applicable Order Form. If applicable, fees and payment terms for professional services shall be set forth in a separate statement of work, which shall be governed by this Agreement.
Ownership; Feedback. As between the parties, Shade retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Shade for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the "Services" and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Shade with respect to the Services ("Feedback"). Shade acknowledges and agrees that all Feedback is provided "AS IS" and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Shade a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Shade's right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) resell, sublicense, copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use the Services to build an application or product that is competitive with any Shade product or service (including the Services); (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (h) bypass any measures Shade may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (i) perform any benchmark tests or analyses relating to Shade's website or Services without express permission from Shade, or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party; (j) use the Services to impersonate another person or misrepresent authorization to act on behalf of others or Shade; (k) introduce software or automated agents or scripts into Shade's website in order to produce multiple accounts, to generate automated searches, requests or queries, or to strip or mine content or data from Shade's website; (l) access Shade's website through automated methods, including any use of robots or other computer code which calls Shade's website; (m) engage in any name-squatting behavior within Shade's namespaces; (n) use the Services or Shade's infrastructure for proxying, scraping or creating virtual private networks or virtual private servers; or (o) send unsolicited messages through the Services. Customer is responsible for all of Customer's activity in connection with the Services, including but not limited to uploading Customer Content (as defined below) onto the Services. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services. Customer (i) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Services in a manner that violates any third-party intellectual property, contractual or other proprietary rights. Customer acknowledges that Shade may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data, code or other content will be retained by the Services, the maximum storage space that will be allotted on Shade's servers on Customer's behalf, and the maximum compute capacity provided for the execution of builds and functions and the maximum network data transferred by the Services. Shade shall promptly notify Customer if Customer exceeds any such limits.
Customer Content. For purposes of this Agreement, "Customer Content" shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Content, including all intellectual property rights therein. Customer, not Shade, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content. Customer represents and warrants that it has all rights necessary to provide the Customer Content to Shade as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third-party rights (including, without limitation, intellectual property rights and rights of privacy) and in compliance with all applicable laws. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Shade may (a) internally collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies, and use and modify (but not disclose) Customer Content for the purposes of (i) providing the Services to Customer and (ii) generating Aggregated De-Identified Data (as defined below), and (b) freely use, retain and make available Aggregated De-Identified Data for Shade's business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Shade's products and services). "Aggregated De-Identified Data" means data submitted to, collected by, or generated by Shade in connection with Customer's use of the Services, but only in aggregate, de-identified form which can in no way be linked specifically to Customer. Shade owns all right, title and interest in and to Aggregated De-Identified Data. Aggregated De-Identified Data will not include any Customer Content. Customer agrees and acknowledges that Customer Content may be irretrievably deleted if Customer's account is ninety (90) days or more delinquent.
Privacy; Data Security. Shade shall use commercially reasonable efforts to comply with the terms of the Data Processing Addendum available at https://shade.inc/dpa, as applicable. To the extent Customer opts into the Facial Recognition and People Search feature, which involves the Processing of Biometric Data (as such terms are defined in the Biometric Addendum), Customer acknowledges that is use and operation of the Facial Recognition and People Search feature is subject to the Biometric Addendum available at https://shade.inc/legal/biometric-data-addendum and agrees to comply with all of its terms. Customer shall configure Customer Content, including any of Customer's projects or deployments, such that the transmission, storage or use in any way shall not expose personal data without proper consent from each applicable individual. Customer shall properly implement encryption and regularly back-up Customer Content. Shade will have no liability to Customer for any unauthorized access or use of any of Customer Content or any corruption, deletion, destruction or loss of any Customer Content to the extent that is attributable, in whole or in part, to Customer's misconfigurations or an insecurity in Customer's website or project, or any malware or malicious content on Customer's website or in any Customer Content or Customer's project or deployments.
Artificial Intelligence. Customer acknowledges and agrees that: (a) that certain output from the Services will be generated by artificial intelligence or machine learning; (b) due to the nature of artificial intelligence and machine learning are rapidly evolving fields of study, and use of the Services may in some situations result in incorrect or inaccurate output; (c) Customer must verify the accuracy and appropriateness of any output from the Services before relying on any such output; (d) relying upon any output from the Services without first verifying accuracy with a qualified human could cause harm, including but not limited to legal, financial, and physical harm; and (e) Customer has no rights to any information generated through the Services by or for other customers of Shade, regardless of any level of similarity to information provided to Customer. Shade cannot control, and has no duty to take any action, regarding how Customer may interpret, rely on, or use any output from the Services or what actions Customer may take as a result of having been exposed to output, and Customer hereby releases Shade from all liability for Customer having acquired or not acquired output through the Services.
Confidentiality. For purposes of this Agreement, "Confidential Information" shall mean to the extent previously, presently or subsequently disclosed by or for either party (the "Disclosing Party") to the other party (the "Receiving Party") all financial, business, legal and technical information of the Disclosing Party or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that (a) was rightfully known to the Receiving Party without restriction before receipt from the Disclosing Party, (b) is rightfully disclosed to the Receiving Party without restriction by a third party, (c) is or becomes generally known to the public without violation of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party or its employees without access to or reliance on such information. The pricing information set forth in an applicable Order Form, Documentation and Feedback are Shade's Confidential Information, and the Customer Content is Customer's Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and shall not disclose such Confidential Information to any third party except as expressly permitted herein without the Disclosing Party's written consent. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party's Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party's request, destroy the Confidential Information of the Disclosing Party within fourteen (14) days after the effective date of termination or expiration, as applicable; provided however, that the Receiving Party may retain copies of the Disclosing Party's Confidential Information for routine backup and archival purposes subject to the confidentiality obligations set forth herein. The Receiving Party may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Receiving Party shall promptly notify the Disclosing Party of any disclosure requirement and provide reasonable assistance to the Disclosing Party in the Disclosing Party's efforts to prevent and/or limit the disclosure.
Third-Party Services. Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third-Party Services"), including without limitation through integrations or connectors to such Third-Party Services that are provided by Shade. Shade is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third-Party Services (including any Customer Content or other information relating thereto) and for complying with any applicable terms or conditions thereof. Shade does not make any representations or warranties with respect to Third-Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third-party provider's terms and conditions.
Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. Each Order Form shall specify the Initial Term, Renewal Term (if any), and terms applicable to each. The Initial Term and each Renewal Term (if any) are collectively referred to herein as the "Term." In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Shade may suspend or limit Customer's access to or use of the Services if (a) Customer's account is more than sixty (60) days past due, (b) Shade receives any claims or allegations from third parties or authorities relating to the Customer Content or (c) Customer's use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services, which interferes with Shade's ability to provide access to the Services to other customers; provided that in the case of subsections (b) and (c): (i) Shade shall use reasonable good faith efforts to work with Customer to remove the applicable Customer Content or resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (ii) prior to any such suspension or limitation, Shade shall use commercially reasonable efforts to provide notice to Customer describing the nature of the claim, damage or degradation; and (iii) Shade shall reinstate Customer's use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, confidentiality, indemnity and limitations of liability. For clarity, any termination or transition assistance services provided by Shade to Customer, including any assistance in exporting the Customer Content, shall be billable at Shade's standard rates then in effect.
Indemnification.
Shade will indemnify, defend and hold Customer, its officers, directors, consultants, employees, agents, successors and assigns harmless from any and all amounts actually paid to any third party in connection with claims, liabilities, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") relating to any claim that the Services, as provided by Shade to Customer under this Agreement and used within the scope of this Agreement, infringe or misappropriate any intellectual property right of such third party (each, an "Infringement Claim"). In the event of any such Infringement Claim, Shade may, at its option: (i) obtain a license to permit Customer the ability to continue using the Services; (ii) modify or replace the relevant portion(s) of the Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement by providing notice to Customer, and provide Customer with a refund of any prepaid, unearned Fees (prorated on a daily basis for the then-current billing period), if any. Notwithstanding the foregoing, Shade will have no liability for any Infringement Claim to the extent that it results from: (1) modifications to the Services made by a party other than Shade or its agents, or otherwise not approved by Shade or its agents or allowed under this Agreement; (2) the combination, operation or use of the Services with equipment, devices, data (including Customer Content) or software not provided or approved by Shade; (3) Customer's failure to use updated or modified versions of the Services provided by Shade to avoid a claim; or (4) Customer's use of the Services other than in accordance with this Agreement ((1) through (4), collectively, the "Excluded Claims"). The indemnification obligations set forth in this Section 14(a) are Shade's sole and exclusive obligations (and Customer's sole and exclusive remedies) with respect to infringement or misappropriation of intellectual property rights of any kind.
Customer will indemnify and hold Shade, its officers, directors, consultants, employees, agents, successors and assigns harmless from any and all Losses relating to any claim cause by (i) any of the Excluded Claims, (ii) Customer's breach of any representation, warranty or obligation under this Agreement, and (iii) any claim that Customer Content or the use of Customer Content in connection with the Services may violate any law, rule, or regulation or infringe or violate the rights of a third party. If Shade receives any notice or claim that Customer Content may violate any law, rule, or regulation or infringe or violate the rights of a third party, Shade may (but is not required to) suspend the Services hereunder with respect to such Customer Content.
Any claim for indemnification hereunder is contingent upon the indemnified party providing (i) prompt written notice of the liability, (ii) reasonable cooperation, information, and assistance in connection therewith, and (iii) the indemnifying party with the sole control and authority to defend, settle or compromise such liability, provided that the indemnified party may participate in such defense at its sole cost. The indemnifying party will not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party will not be liable for any settlement made without its prior written consent.
Warranties and Disclaimers.
Warranties. Each party represents and warrants that (i) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized, (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder, (iii) this Agreement is legally binding upon it, and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement to which it is a party. Customer further represents and warrants that (1) Customer owns all Customer Content or has obtained all permissions, releases, rights or licenses required to engage in posting and other activities (and allow Shade to perform its obligations) in connection with the Services without obtaining any further releases or consents; (2) Customer Content does not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy, or publicity, or other personal or proprietary right; and (3) Customer will use the Services only in compliance with all applicable laws and regulations and the Documentation.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHADE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, AND SHADE DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
Limitation of Liability. EXCEPT FOR BREACHES OF SECTION 11, INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR LICENSORS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO SHADE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Publicity. Customer hereby consents to inclusion of its name and logo in Shade's public-facing client lists and marketing materials that may be published as part of its marketing and promotional efforts, including on Shade's website. Customer also agrees that Shade may (but is under no obligation to) issue press releases and publish testimonials and case studies with statements attributed to a named employee of Customer.
Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, embargoes or blockades occurring after the date of this Agreement, or national or regional emergency, in each case, which effects could not have been avoided through reasonable business continuity planning (each of the foregoing, a "Force Majeure Event"). In the event of such Force Majeure Event, the affected party shall provide a prompt notice to the other party, stating the period of time the occurrence is expected to continue, and the affected party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Notwithstanding the foregoing, Customer shall not be excused from its payment obligations as a result of the occurrence or persistence of such Force Majeure Event.
Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Customer and Shade with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Shade with respect thereto. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York County, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided that (a) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of all or substantially all of such party's assets or stock, and (b) Shade may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches.