These terms and conditions along with a schedule of services, fees and any additional terms provided to you (“Schedule”) create a contract (“Agreement”) between you (“Client”) and Carl Street, Inc a Delaware Corporation (“CarlStreet”) DBA AutoVision (each a “Party” and together “Parties”). Please read the Agreement carefully and confirm by clicking “Agree” or signing as appropriate.
WHEREAS, Client desires to obtain access to the Services (as defined below) with respect to certain of its information technology needs;
WHEREAS, CarlStreet wishes to provide the Services to Client, each on the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree as follows:
1.1 Purpose. This Agreement sets forth the terms and conditions under which CarlStreet agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software and web-based applications to Authorized Users, predominantly by and through access to and the maintaining of an account at the AutoVision website located and accessible at (https://www.autovision.com) (“Platform”) and associated features and (ii) if applicable, all other implementation of Services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Client’s access to, and use of, such Subscription Services allowing access to and use of the Platform, as more specifically provided at Schedule, attached hereto, which shall ultimately control the complete scope of the provided Services.
1.3 Subscription Services. Subscription Services are provided for Client’s access to and use of the Platform and its associated features and in each case shall be subject to user limitations, Fees, subscription term and other applicable terms and conditions as provided in this Agreement or as may be set out upon the Platform from time to time.
1.4 Professional Services. Professional Services shall include all support for the Platform including its operation, updating, uptime, and outputting, creation and synthesizing of information as may occur in its regular course of operation, irrespective of any concerned person accessing the Platform. Professional Services may also include the creation for Client of customized account features, spin-off SaaS packages, project-based deliverables or any other service stated at Schedule which is specific to Client beyond Client’s general receipt of Platform access and enjoyment of its operability and routine functions.
Wherever applicable, Professional Services described at Schedule may be further specified or updated by a statement of work, which when consented to in writing by both Parties, shall dictate the nature of particular customized Professional Services and associated deliverables, if any.
Each such applicable statement of work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, Fees, term and other applicable terms and conditions for all such Professional Services and associated deliverables.
1.5 Changes to Platform. CarlStreet may, in its sole discretion, make any changes to the Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of CarlStreet’s products or Services to Client or any of its clients, customers or users, (b) the competitive strength of, or market for, CarlStreet’s products or Services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. Platform Access and Authorized Users
2.1 Administrative Users. During the configuration and set-up process for Client’s account on the Platform and/or the creation of any customized deliverables by way of Professional Services, Client will identify an administrative user name and password for Client’s account(s). CarlStreet reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
2.2 Client Users and Authorized Users. Client may allow such number of Client’s employees and/or independent contractors (“Client Users”) or such other designees such as customers or affiliates of Client (“Designated Users”) (together “Authorized Users”) as is indicated upon and in each subject to any ‘additional user’ or ‘additional device’ Fees as may be applicable by statement at the schedules attached hereto. All subscriptions allowing for use of (including access to) the Services are for Authorized Users only and cannot be shared or used by more than one user, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of or access to the Services.
2.4 Account Responsibility. Client will be responsible for (i) all uses of any account or deliverable that Client has access to, whether or not Client has authorized the particular use or user, and regardless of Client’s knowledge of such use, and (ii) securing its CarlStreet account, passwords (including but not limited to administrative and user passwords) and files. CarlStreet is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3. Additional restrictions and responsibilities
3.1 Software Restrictions. Client will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform, any aspect of a deliverable or the Services, or any Software, documentation or data related to the same (“Software”); (ii) modify, translate, or create derivative works based on the Platform, Services or a deliverable or any Software; (iii) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or the Platform or any aspect of the Services or a deliverable in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software, Platform, Service or deliverable. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the confidential information of CarlStreet, and Client will comply with Section 4 with respect thereto.
3.3 Cooperation. Client shall provide all cooperation and assistance as CarlStreet may reasonably request to enable CarlStreet to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing CarlStreet with such access to Client’s premises and its information technology infrastructure as is necessary for CarlStreet to perform the Services and/or deliver deliverables in accordance with this Agreement.
3.4 Training and Education. Client shall use commercially reasonable efforts to cause Authorized Users to be at all times, educated and trained in the proper use and operation of the Platform or of any deliverables, or other usable or operable thing resulting from the Services, and to ensure in each case that the same is used in accordance with applicable terms, manuals, instructions, specifications and documentation as may apply and be provided by CarlStreet from time to time.
3.5 Client Systems. Client shall be responsible for obtaining and maintain, both the functionality and the security of, any equipment and ancillary services needed by Client or any of its Authorized Users, to connect to, access, or otherwise use the Platform or any aspect of a deliverable or the Services, including modems, hardware, servers, Software, operating systems, networking, web servers, etc.
3.6 Restrictions on Export. Client may remove or export from the United States or allow the export or reexport of the Software or any aspect of deliverables, the Platform or anything resulting from the Services, including any direct product thereof, in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
4.1 Confidential Information. Each Party receiving or accessing any information under this Agreement (the “Receiving Party”) understands that it has been or may be exposed to technical or financial information relating to the other Party’s business (the “Disclosing Party”) where such information may include anything that by virtue of non-public dissemination, has some measure of economic or proprietary value to the Disclosing Party (hereinafter referred to as “Confidential Information”). Confidential information of CarlStreet includes non-public information regarding features, functionality and performance of the Platform, the Services, deliverables and the Software. Confidential information of Client includes non-public data provided by Client to CarlStreet to enable the provision of access to, and use of, the Services as well as all Client content, data and information recorded and stored on the Platform exclusive of any contribution by CarlStreet (“Client Data”) The terms and conditions of this Agreement, including all pricing and related metrics, are CarlStreet’s Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public without any violation of this Agreement or breach of any other obligation of confidentiality or non-disclosure, (ii) was in its possession or known by it prior to receipt from the Disclosing Party without any violation of this Agreement or breach of any other obligation of confidentiality or non-disclosure, (iii) was rightfully disclosed to it without restriction by a third Party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-Use and Non-Disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and Confidential Information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performances called for under, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part, including cooperating in the obtaining of a protective order. For purposes of this section, ‘advanced notice’ shall mean at least 10 days more than the minimum amount of time for the concerned court to hear a noticed motion regarding the matter, prior to any final action that actually compels disclosure, and in any case shall also mean at the earliest notice available to the Receiving Party of the demand or seeking of an order to cause such disclosure, whichever is earlier.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. Proprietary rights
5.1 Ownership. Client shall own all right, title and interest in and to the Client Data. CarlStreet shall own and retain all right, title and interest in and to (i) the Platform, Software the Services, and all improvements, enhancements or modifications thereto, (ii) any Software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). With respect to deliverables, ownership of the deliverables shall be determined and stated in accordance with the schedules attached hereto, but in all cases wherever deliverables include or encompass any Confidential Information of CarlStreet or any Services IP, other than Services IP developed exclusively and paid for by Client pursuant to the terms of applicable schedules attached hereto or corresponding statements of work, such Confidential Information and/or Services IP shall remain owned by CarlStreet and shall at most only be usable by Client pursuant to applicable license terms specified in controlling schedules or statements of work as attached hereto or otherwise referencing this Agreement. To the extent Client acquires any right, title or interest in any Services IP, Client hereby assigns all of its right, title and interest in such Services IP to CarlStreet.
5.2 Client Data. Client hereby grants to CarlStreet a non-exclusive, transferable, sublicensable, worldwide, royalty-free and full paid up license to use and otherwise exploit (i) Client Data to provide the Services to Client hereunder and as necessary or useful to monitor and improve the Platform, Software the Services and deliverables (except that in no case may Client Data be incorporated into any deliverable for any party other than Client or another party expressly designated by Client), both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any vendor list or vendor contact information that is provided to CarlStreet by Client or uploaded to any Platform by or on behalf of Client.
For the avoidance of doubt, CarlStreet may use, reproduce and disclose Platform, Software, and Services related information, data and material that is anonymized, deidentified, or otherwise rendered not reasonably associated or linked to Client or any other identifiable individual person or entity for product and service improvement and other lawful purposes, all of which information, data and material will be owned by CarlStreet, even where such information has been improved, modified, influenced or updated by CarlStreet’s referencing or access to Client Data or CarlStreet’s creation of any deliverables.
It is Client’s sole responsibility to back-up Client Data during the Term, and Client acknowledges that it will not have access to Client Data through CarlStreet or any Platform following the expiration or termination of this Agreement.
The foregoing notwithstanding, if there is any particular Client Data that Client specifically wishes to disallow CarlStreet from utilizing in any fashion in conjunction with the improvement of CarlStreet’s Platform, Services, Software or other deliverables, Client may specify the same or state specific parameters for any such use at the applicable Schedulettached hereto and the same must be discussed and agreed between the Parties by the time of execution of this Agreement.
5.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
6. Fees, Renewals & Payment
6.1 Fees. Client will pay CarlStreet the then-applicable Fees described in an order form, statement of work, and/or otherwise attached hereto at Schedule, as applicable, in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any Fees incurred through Client’s use of the Platform, Software, Services or deliverable whether in accordance with this Agreement or in the event of any use which exceeds parameters of the same (e.g. more users than originally contemplated or authorized).
6.2 Renewal and Renewal Fees. Upon the commencement of any Renewal Term (as defined below and otherwise at Schedule), (i) Client shall be liable to CarlStreet for payment of a Renewal Fee. Upon such commencement, Client hereby consents to CarlStreet charging any such Renewal Fee to the credit card or other payment method associated with Client’s account without need to provide any further notice or receive further consent from Client. Unless otherwise specified at Schedule, the Renewal Term shall be applicable to the Term of any Subscription Service and/or Professional Service that is provided to Client on any periodic basis or for any other defined period of time. In each such case the Renewal Term shall be for the same period of time as the previous Term, but in any case, shall not be for a period of less than one month or more than one year. All Renewal Fees shall be at the same rates and bases as the immediately previous Term or Renewal Term, unless otherwise specified in the schedules attached hereto. The foregoing notwithstanding, no less than 30 days before a Renewal Term for any Service takes effect, CarlStreet may issue written notice to Client that any applicable Renewal Fee will be at a different rate or for a different amount (“Fee Change Notice”). Upon the issuance of any such Fee Change Notice, Client shall be permitted fifteen (15) days to elect in writing to not renew the concerned Service, irrespective of any other required time period for notice of intent not to renew.
Except where otherwise specified at Schedule, the Term of this Agreement with respect to all Subscription Services and all Professional Services shall be one year, subject to automatic renewal for successive one-year Renewal Terms. Either Party may cause this Agreement to not automatically renew for a given Renewal Term by delivery to and receipt by the other Party of written notice of intent not to renew, no more than 90 days and no less than 30 days before the automatic renewal would otherwise take effect. In the case of a timely notice of intent not to renew, this Agreement shall terminate at the expiration of the then current Term or Renewal Term, as the case may be. If allowed pursuant to the schedules attached hereto, Client may elect to cause the non-renewal of certain of the Services but not all of them. CarlStreet may cause the non-renewal of any of the Services upon the notice specified above or otherwise set forth at the schedules attached hereto. Renewal provisions shall not apply to orders for deliverables unless otherwise specified herein.
6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Client shall reimburse CarlStreet for reasonable out-of-pocket expenses incurred by CarlStreet in connection with performing the Professional Services to the extent the same constitutes any customized Service or deliverable creation on behalf of Client, as set forth at Schedule.
6.4 Payment. CarlStreet may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by CarlStreet thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable order form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, CarlStreet may suspend Services in the event of payment delinquency.
6.5 Payment Disputes. If Client believes that CarlStreet has billed Client incorrectly, Client must contact CarlStreet no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to CarlStreet’s client support department or the applicable account manager. Billing statements alleged to be incorrect but not so alleged within the above stated time shall be deemed accurate, without effect on any other billing statement.
6.6 Taxes. Client shall pay, and shall be liable for, all taxes relating to CarlStreet’s provision of the Services hereunder. CarlStreet shall pay, and shall be liable for, taxes based on its net income or capital. For the avoidance of confusion, each of the Parties hereto assumes complete responsibility for its own assessment/determination of tax consequences and tax obligations and neither party has received nor relied upon any tax advice from the other.
6.7 No Deductions or Setoffs. All amounts payable to CarlStreet hereunder shall be paid by Client to CarlStreet in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
7. Term and Termination
7.1 Term. This Agreement shall remain in effect until its Termination as provided below (the “Term”). The Term of each statement of Services shall begin on the applicable “effective date” as set forth in this Agreement or otherwise as specified with respect to any separate statement of work, applicable Schedulend/or until the provision of concerned deliverable, as the case may be. For the avoidance of confusion this means that as specified by applicable schedules and/or statements of work, performances and obligations under or arising from this Agreement, may have various but non-conflicting termination dates. Any terms of periodic renewals or Fee changes related to the duration of a particular term shall be set controlled by the provisions of Schedules A as attached hereto, if the same are contrary to the provisions of this section or Section 6.2 above.
7.2 Termination. CarlStreet may terminate this Agreement upon written notice to Client of thirty (30) days. In addition to any other remedies it may have, either Party may also Terminate this Agreement upon written notice if the other Party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both Parties after receipt of written notice of such breach from the non-breaching Party. Either Party may terminate this Agreement upon immediate written notice if doing so is necessary to prevent irreparable harm or upon a complete repudiation of the obligations under this Agreement by the non-terminating Party.
7.3 Effect of Termination. Upon termination of the Agreement, ongoing Services, accesses or rights of use or applicable licenses, if any, shall terminate and Client shall immediately cease all use of, and all access to, the Subscription Services, the Professional Services and CarlStreet shall immediately cease providing or allowing any of the same. During any applicable notice period for termination, the Parties shall reasonably cooperate with each other to wind-up their relationship including giving effect to the return of any information of each other, the noticing to concerned third parties (at the expense of the Party seeking the giving of such notice), and the payment of all outstanding Fees, which shall continue to accrue during any such period up through the date of termination. In all cases, any and all Client Data, Services IP, or Confidential Information, shall be returned to Client and/or CarlStreet, as applicable, along with any copies thereof (except to the extent that the same is expressly permitted by the terms of this Agreement to be utilized beyond the Term), within fifteen (15) days of the date of termination. Any payment of outstanding Fees shall be made within this period of time as well or within fifteen (15) days of last invoicing, and shall be deemed acceptable and payable unless made the subject of a bona fide dispute by delivery of written notice within such same period of time.
7.4 Survival. All provisions of this Agreement that are so expressly stated extend beyond the Term of this Agreement or that by their inherent nature must do so, shall so survive. All other rights and obligations shall be of no further force or effect upon termination or the expiration of the Term as the case may be.
8. Warranty and Disclaimer
8.2 Disclaimer Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, CARL STREET DOES NOT WARRANT THAT ACCESS TO THE PLATFORM, SOFTWARE OR SERVICES OR USE OF DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES CARL STREET MAKE ANY WARRANTY AS TO THE SPECIFIC RESULTS THAT MAY BE OBTAINED FROM USE OF ANY OF THE SAME OR FITNESS FOR ANY SPECIFIC PURPOSE OTHER THAN AS EXPRESSLY STATED HEREIN. FURTHER, CARL STREET MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING THE PLATFORM, SERVICES, SOFTWARE OR DELIVERABLES, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CLIENT ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN CARL STREET AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORM, SOFTWARE, SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” AND CARL STREET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING NOTWITHSTANDING, CARL STREET MAY PROVIDE CERTAIN LEVELS OF UP-TIME FOR THE PLATFORM, SERVICES, SOFTWARE OR DELIVERABLES AS SET FORTH AT SCHEDULE ATTACHED HERETO.
9. Limitation of Liability.
In no event shall (i) either Party’s liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability exceed in the aggregate the total Fees paid or owed by Client hereunder during the twelve (12) months immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident), and (ii) either Party have any liability to the other for any lost profits or revenues or for any indirect, incidental, consequential, cover, special, exemplary or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether or not the Party has been advised of the possibility of such damages. The foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law or in the event of an act of intentional misrepresentation, fraud, piracy, willful infringement after notice to cease, or other act constituting actual malice.
10. Governing Law and Dispute Resolution.
This Agreement is governed in all respects by the laws of the State of California, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the United Nations Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the Parties hereto. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either Party may send a notice to the other Party of its intention to file a case with the AAA under this section (“Arbitration Notice”). The arbitration will be conducted in San Francisco, California, by a single arbitrator knowledgeable in the commercial aspects of “Software as a Service” arrangements and intellectual property. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each Party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the Fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
CarlStreet may, from time to time, host and/or maintain the Platform or some other aspect of the Services, Software or deliverables using a third party technology service provider and Client acknowledges that CarlStreet cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Client agrees that CarlStreet may identify Client as a Client and use Client’s logo and trademark in CarlStreet’s promotional materials. Client may request that CarlStreet stop doing so by submitting an email to email@example.com at any time. Client acknowledges that it may take CarlStreet up to 30 days to process such request. Notwithstanding anything herein to the contrary, Client acknowledges that CarlStreet may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and, except as otherwise specified in the routine provision of Services or course of communication regarding the same, be addressed to a known officer or controlling person of the concerned Party with at least one copy to the address first set forth above or as otherwise specified subsequently in writing by the Party to receive such notice. All communications will be deemed to have been received on the date actually received. Either Party may change its address for notices by giving written notice of the new address to the other Party in accordance with this section.
14. Force majeure.
CarlStreet is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of god, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Client or any authorized user.
Neither Party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. CarlStreet may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with the Platform, Services, Software or deliverables shall not be deemed a sublicensee under this Agreement.
16. General Provisions.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with any statement of Services, service level agreement, deliverables order or specification entered into hereunder and all exhibits, annexes, schedules and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has authority of any kind to bind the other Party in any respect whatsoever. In the event of a conflict between this Agreement and any statement of Services or specifications in a particular schedule, such statement of Services and/or schedule shall prevail unless otherwise expressly indicated in this Agreement or such statement of Services or schedule. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “section” or “schedule” are references to a section of, or schedule to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings. Each of the Parties hereto acknowledges that this Agreement is entered into between merchants on an equal basis of commercial footing and each of them has had sufficient opportunity to review the terms of this Agreement with their preferred counsel or advisors. In the event of any ambiguity in this Agreement, there shall be no presumption against the drafter as both or all Parties hereto shall be deemed to have drafted this Agreement and waive the provisions of California Civil Code § 1654. In the event of a conflict between the specific provisions of any Schedulettached hereto and the general provisions of this Agreement, the provisions of the schedule shall control.