Terms & Conditions

1. Definitions

Terms used in this Agreement (including in the Service Order) with their initial letters capitalized have the meanings ascribed to them in this section or where they are elsewhere defined in this Agreement (including in the ServiceOrder). Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:

1. “Account” means the right of access and use to the Platform granted to Investment Advisor under this Agreement.
2. “Bridge” means Bridge Financial Technology Inc.
3. “Confidential Information” means all information disclosed (orally or in writing) by one party (“Discloser”) to any other party (“Recipient”) prior to the termination of this Agreement (before or after the Effective Date) which is marked “proprietary” or “confidential” or which the Recipient reasonably ought to know the Discloser regards as confidential.
4. “Content” means all text, pictures, sound, graphics, video and other data supplied by Investment Advisor to Bridge pursuant to the Agreement, as such materials may be modified from time to time.
5. “Data” means data uploaded to the Platform or made available via the Platform via third parties.
6.  “Effective Date” means the date set forth in the Service Order as the Effective Date. Where the Signup Page serves as Service Order, the Effective Date means the date of electronic submission of payment information and agreement to these terms.
7.  “End Users” means those customers or clients of Investment Advisor authorized by Investment Advisor to access and use the Platform in accordance with the terms and conditions of this Agreement.
8. “Fees” means all of the fees payable to Bridge by Investment Advisor in accordance with this Agreement.
9. “Investment Advisor” means that party identified as such in the Service Order.
10.  “Platform” means the online software and related services that InvestmentAdvisor and End Users may access and use in accordance with the terms and conditions of this Agreement.
11. “Service Order” means any document fully executed by the parties that sets forth information about the Services that Bridge will provide to Investment Advisor, the fees to be paid for the Services, and additional information concerning the arrangement between the parties. Where the Investment Advisor and Bridge do not have a unique Service Order, the Signup Page shall serve as the Service Order.
12.  “Services” means those services set forth in a Service Order that Bridge will provide to Investment Advisor.
13. “Signup Page” means the web URL where Investment Advisor may indicate agreement to these Terms and Conditions and securely share their payment information to fulfill their obligations as described below in Section 5. Principally one of the following URLs: https://www.bridgeft.com/xypndiscounted/  ;  https://www.bridgeft.com/xypnfree/  ;  https://www.bridgeft.com/advisorpeakoffer/

2. Term

This Agreement will begin on the Effective Date and unless terminated earlier as provided in this Agreement, will continue in effect for an initial term as indicated in the Service Order and will automatically renew for successive periods the same length as the initial term unless either party provides to the other party written notice no later than ninety (90) days prior to the then-current scheduled expiration of the term of that party’s intention that the Agreement not be renewed. If a Signup Page serves as Service Order for this Agreement, then the term shall default to twelve (12) months unless indicated otherwise on the Signup Page.

3. The Services

1. Grant of Access to Platform. Subject to the terms and conditions of this Agreement, Bridge hereby grants to Investment Advisor a non-exclusive right to access and use the Platform and to authorize End Users to authorize the platform, to the extent required for Investment Advisor to lawfully provide investment advisory services to End Users.
2. Additional Services. Bridge will perform for Investment Advisor those Services set forth in the Service Order. Changes in the scope of the Services may be made only in a writing executed by authorized representatives of both Bridge andInvestment Advisor. Bridge will have no obligation to commence work in connection with any change until the fees and/or schedule impact of the change is agreed upon by the parties. Bridge may agree to provide, upon the request of Investment Advisor, additional custom information, reporting, or services, which shall require a written addendum to this Agreement that states the scope of the request and the mutually agreed upon fee. Should the Investment Advisor choose to engage an outside party for Custom Development, Investment Advisor acknowledges that the Custom Development is dependent upon the services of that provider, regardless of whether that third-party is engaged by Bridge, or if the engagement is supported by Bridge. Bridge makes no representation or warranty with respect to, and expressly disclaims any responsibility for or liability arising from, any services performed by any third-party developer.
3. Contact Persons. Bridge will make available to Investment Advisor a primary support contact and a client service contact during regular business hours. Bridge reserves the right to determine which of its personnel shall be assigned to Investment Advisor, and to replace or reassign such personnel during at any time; provided, however, that Bridge will use reasonable efforts to accommodate Investment Advisor’s request for specific individuals to serve in these roles.
4. Third Party Platforms. Investment Advisor hereby authorizes Bridge to access third party platforms and accounts held by Investment Advisor or End Users, as applicable, and to provide and receive Data therefrom, to the extent necessary for Investment Advisor or End Users to access and use the Platform or to otherwise receive the Services. 
5. Heldaway Services. Bridge offers financial account linking and aggregation services (“Heldaway Services”) through partnership and native integration with Plaid Inc. (“Plaid”). By utilizing these Heldaway Services, you acknowledge and agree that the terms of Plaid’s Privacy Policy (currently located at https://plaid.com/legal/#end-user-privacy-policy) will govern Plaid’s use of such information, and you expressly agree to the terms and conditions of Plaid’s Privacy Policy. Further, you expressly grant Plaid the right, power, and authority to access and transmit your information as reasonably necessary for Plaid to provide the Services to you. To the extent you previously utilized account linking and aggregation services through Bridge previous service provider, Quovo, Inc., you expressly authorize Quovo, Inc. to transmit any information or data arising out of those services to Plaid so that Plaid can offer you its Services.

4. Storage and Security

1. Bridge and Investment Advisor agree to use commercially reasonable efforts to establish connectivity between their respective systems using security methods and protocols that would not be expected to be readily disabled or circumvented without the application of professional tools not readily or commercially available to consumers, or to implement technology which the parties agree is comparable to the aforementioned. Investment Advisor will otherwise be solely responsible for undertaking measures to prevent any loss or damage to Data and maintain independent archival and backup copies of all Data it uses in connection with its use of the Platform. Investment Advisor expressly agrees that it will not use, nor rely upon the Platform for backup storage of Data and that except as expressly provided in this Agreement, Bridge will have no liability for any loss or damage to any Data.
2. Investment Advisor shall be solely responsible and shall ensure that its EndUsers undertake responsibility, for safeguarding and maintaining the confidentiality of Platform account usernames and passwords and are responsible for all activities that occur under such accounts. Investment Advisor agrees and will require End Users to agree, to not permit any third party to use the Platform through any account other than accounts assigned to Investment Advisor or an End User. For purposes of clarity, Bridge and its staff (including authorized contractors) shall at all times have authority to access InvestmentAdvisor’s and End Users’ accounts for any lawful purpose, including for purposes of providing support and other customer service.

5. Charges; Payments

1. Fees. In consideration for the provision of access to the Platform and for the Services, Investment Advisor will pay to Bridge the Fees as set forth in the signed Service Order, Service Agreement, or Master Services Agreement. However, in the event that the Investment Advisor requests a change in the nature, quantities, duration or scope of Services, Bridge may charge different Fees reflecting such change. Pricing is subject to change upon renewal or extension of this Agreement.
2. Invoices. All Fees will be invoiced and all invoices are due payable within thirty (30) days of the date of the invoice unless otherwise specified on the Service Order. Interest will accrue on overdue amounts at the rate of 1.0% per month, or the greatest amount permitted by law, whichever is less.
3. Taxes. The amounts specified in any Service Order do not include any taxes, levies, duties, or similar charges assessed against or payable in connection with this Agreement, exclusive only of taxes based on Bridge’s net income (“Taxes”). Investment Advisor shall be responsible for and pay all Taxes and will reimburse Bridge should Investment Advisor fall to do so. If Investment Advisor claims to be exempt from any Taxes, then Investment Advisor shall deliver toBridge appropriate evidence of such tax exemption status.
4. Changes in Circumstances. In the event of a significant change in the level of the Services provided by Bridge to Investment Advisor, such as a change that is the result of a merger, acquisition, divestiture, or other significant change in the level of these Investment Advisor parameters: assets under management, number or accounts, average account size, number of trades performed by Bridge, or number of model plans if maintained by Bridge, Bridge and Investment Advisor agree to engage in good-faith negotiations to establish a new Fee schedule which reflects the change in service level. Any such change will require the written agreement by both Bridge and Investment Advisor.
5. Payment Authorization. By securely providing form of payment information via a Signup Page, the Investment Advisor authorizes Bridge to charge the form of payment provided for Fees as outlined. 

6. Disclaimers

INVESTMENT ADVISOR ACKNOWLEDGES AND AGREES THAT THE USE OF THE PLATFORM ENTAILS RISKS, INCLUDING, BUT NOT LIMITED TO, INTERRUPTION OF SERVICE, SYSTEM SOR COMMUNICATIONS FAILURES, DELAYS IN SERVICE, AND ERRORS IN THE DESIGN OR FUNCTIONING OF THE PLATFORM (COLLECTIVELY, A “SYSTEM FAILURE”), THAT COULD CAUSE SUBSTANTIAL DAMAGE, EXPENSE OR LIABILITY TO INVESTMENT ADVISOR. BRIDGE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,WITH RESPECT TO THE SELECTION, DESIGN, FUNCTIONALITY, OPERATION, TITLE ORNON-INFRINGEMENT OF ANY PORTION OF THE PLATFORM, AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY WITH RESPECT THERETO. WITHOUT LIMITING THE FOREGOING, BRIDGE EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT ANY PORTION OF THE PLATFORM WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE, OR THAT ANY DATA PROVIDED, STORED BY, OR ACCESSED THROUGH THE PLATFORM, REGARDLESS OF THE SOURCE OF THAT DATA, WILL BE ACCURATE, COMPLETE, UP-TO-DATEOR ERROR FREE.

7. Investment Advisor’s Responsibilities

Investment Advisor agrees to abide by and comply with the following (the“Investment Advisor Responsibilities”)

1. Maintain industry accepted practices, processes, and tools for assuring security and confidentiality of Data;
2. Promptly notify Bridge of any change in circumstances that would affect Investment Advisor’s ability to utilize the Platform;
3. Provide required Content and select functionalities for use of the Platform;
4. Provide any regulatory documents that are required to be posted;
5. Provide legal disclosures required to comply with applicable law;
6. Assume sole responsibility for Content of documents and disclosures posted via thePlatform;
7. Assure that Content posted via the Platform complies with applicable law;
8. Promptly advise Bridge of any significant End User complaints, or regulatory investigations, proceedings, judgments, or disciplinary actions concerningInvestment Advisor;
9. Assign appropriate knowledgeable persons to interact with Bridge concerning use of the Platform in a timely manner; and
10. Assist Bridge, as necessary, to establish connectivity and usage of the Platform.

8. Updates; Support; Maintenance

1. Bridge may update the Platform from time to time as determined in its sole discretion. Bridge will provide support for Platform to Investment Advisor as set forth in the Service Order and will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for planned downtime. Investment Advisor will, at its own expense, provide first tier support to End Users relating to their use of the Platform and will use reasonable efforts to resolve support issues before escalating them to Bridge.
2. ThePlatform is designed for general availability and Bridge schedules downtime during its regularly scheduled maintenance windows. Bridge will make commercially reasonable efforts to notify Investment Advisor at least twenty-four (24) hours in advance of maintenance scheduled outside of its then-current, regular maintenance windows. However, Bridge reserves the right to perform unscheduled maintenance at any time, in order to respond to urgent or critical service issues, including security and privacy breaches.

9. Confidentiality

1. Each party will hold the other party’s Confidential Information in confidence with at least as much care as it holds its own confidential information (but in no event less than with reasonable care), and neither party will disclose any of the other party’s Confidential Information to any third party.
2.  The duties of confidentiality and nondisclosure under this Agreement will not apply to any information that (i) at the time of disclosure to Recipient, had previously been published or was otherwise publicly available; (ii) is published or becomes otherwise publicly available after having been disclosed to Recipient, unless through the breach by Recipient of its obligations under this Agreement; or (iii) prior to disclosure to Recipient, was already inRecipient’s possession on a non-confidential basis.
3. Each party will use the Confidential Information solely for purposes of its performance under this Agreement and may disclose such information to its employees and professional advisors only on a need-to-know basis, provided that such employees are bound by obligations of confidentiality at least as restrictive as those set forth in this Agreement.
4.  Either party may disclose Confidential Information as required by court order or otherwise by law, provided that it gives the other party written notice in advance of such disclosure sufficient to permit the other party to seek a protective order and, if so ordered, discloses only the minimum ConfidentialInformation necessary to comply with the order.
5. Upon termination of this Agreement or at any time upon written request of Discloser, Recipient will return (or destroy at Discloser’s option) all copies of Confidential Information in its possession, custody, or control, except that Recipient may retain a copy of Confidential Information solely to demonstrate its compliance with its obligations under this Agreement. Upon written request of Discloser, Recipient will certify in writing its compliance with this requirement.
6. Each party’s obligations under this section will survive termination of this Agreement and will continue in full force and effect with respect to Confidential Information of the other party for five (5) years from the date of disclosure of such Confidential Information, except that to the extent the Confidential Information is comprised of trade secrets, the obligation of confidentiality will continue for as long as such information is protected by the applicable law of trade secrets.

10. Intellectual Property Ownership

1. As between the parties, Bridge shall retain all right, title and interest in and to the Platform, including all modifications, derivative works or improvements, and all related intellectual property rights. Bridge reserves all rights in the Platform which it has not expressly granted to Investment Advisor under this Agreement.
2. Investment Advisor will not (and will not authorize any End User or third party to) (i) decompile, disassemble, or otherwise reverse engineer the Platform or attempt to discover any source code or underlying ideas or algorithms of thePlatform, (ii) remove any product identification, copyright or other notices embedded within the Platform, (iii) modify or create a derivative work of thePlatform, (iv) relicense, provide, lease or lend the Platform to any third party, or use the Platform for timesharing or service bureau purposes, (v) copy the Platform or any portion thereof, or (vi) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Platform.
3.  Investment Advisor may provide, or Bridge may request, input or feedback regarding the Platform, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of a portion of the Platform or another Bridge site, service or product (“Feedback”). Investment Advisor acknowledges and agrees that any Feedback will be considered Confidential Information of Bridge and InvestmentAdvisor hereby assigns to Bridge all right, title and interest in and to such Feedback. Bridge will be entitled to use Feedback for any purpose without restriction or remuneration of any kind.

11. Termination

1. Basis for Termination. Either party may terminate this Agreement if: (i) the other party is in material breach of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice to do so by the non-defaulting party; (ii) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within thirty (30) days; or (iii) the other party makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, or ceases to do business as a going concern.
2. Effect of Termination. Upon termination or expiration of this Agreement for any reason, all rights of the Investment Advisor and End Users to access or use thePlatform will end. Any provision of this Agreement which by its nature should survive termination or expiration of this Agreement will so survive. Without limiting the foregoing, all permissible Sections under governing law will survive any termination or expiration of this Agreement or a Service Order.
3.  Availability of Investment Advisor Data. Provided that Investment Advisor has paid all Fees due and is not otherwise in default under this Agreement, and provided that Investment Advisor has given written notice to Bridge no less than 30 days prior to the effective termination or expiration of this Agreement, Bridge will, upon Investment Advisor’s written request, for a period of 14 days following the effective termination or expiration of this Agreement orAttachment, permit Investment Advisor to copy Data from the Platform.
4. Suspension. In addition to Bridge’s other rights or remedies which may be available under this Agreement or at law or in equity, if Investment Advisor commits a breach of this Agreement (including failure to pay any amounts when due under this Agreement), then Bridge will also be entitled to suspend performance of any of its obligations under this Agreement, including access to the Platform, upon ten (10) days’ notice to Investment Advisor. Any suspension by Bridge will not excuse Investment Advisor from its obligation to make payments under this Agreement. If, however, Bridge elects to continue to provide any of the Services or the Platform despite any such breach, its action will not constitute a waiver of any breach by Investment Advisor or in any way precludeBridge’s right to exercise any other rights or remedies available to it, including termination.
5. Termination for Increase in Data Costs. Bridge provides the Services and access to the Platform with the assumption that it will have the ability to collect and obtain Data without cost from third party Data providers. In the event that Bridge is no longer able to collect or obtain Data without cost from any Data provider, Bridge will use commercially reasonable efforts to work with Investment Advisor to continue to provide the Services and access to the Platform without increasing Fees, but in the event Bridge is no longer able to collect Data from such Data provider without cost to Bridge, Bridge reserves the right to (a) subject to Investment Advisor’s approval, increase Fees by the amount of any such costs; (b) remove the affected Data from Platform or Services, and (c) if neither (a) nor (b) is satisfactory to Investment Advisor and Bridge, terminate this Agreement upon thirty (30) days’ written notice toInvestment Advisor.

12. Representations and Warranties

1. Authority. Each party hereby represents and warrants, solely for the benefit of the other party, that (i) such party has the corporate authority to enter into and fully perform this Agreement, and (ii) such party is not violating any other agreement with any third party by entering into this Agreement.
2. Quality of Services. Bridge warrants that its Services will be performed in a good and workmanlike manner in accordance with applicable industry standards and shall re-perform any work not in compliance with this warranty brought to its attention by Investment Advisor within a reasonable time, not to exceed 90days.
3. InvestmentAdvisor Data. Investment Advisor hereby represents and warrants that it has sufficient right, title and interest in Investment Advisor Data to allow Bridge to process Investment Advisor Data on Investment Advisor’s behalf as contemplated in this Agreement.

13. Accounts

1. Creation. Use of the Platform requires that Investment Advisor register and/or create an Account. To register and create an Account, Investment Advisor must create a login credentials and provide certain information. Investment Advisor agrees to: (a) provide true, accurate, current and complete information about Investment Advisor as prompted by the registration form, and (b) maintain and promptly update the information Investment Advisor provided to keep it true, accurate, current and complete. If Investment Advisor provides any information that is untrue, inaccurate, not current or incomplete, or Bridge has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bridge has the right to block Investment Advisor’s current or future use of the Platform.
2. Account Security. Investment Advisor is responsible for maintaining the confidentiality and security of Investment Advisor’s Account, including all login information and passwords and for all activities or any other actions that occur under or are taken in connection with Investment Advisor’s Account. Investment Advisor agree to (i) immediately notify Bridge of any known or suspected unauthorized use(s) of Investment Advisor’s Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Investment Advisor’s password; and (ii) require that all End Users log out at the end of each session. Bridge will not be liable for any injury, loss or damage of any kind arising from or relating to Investment Advisor’s failure to comply with (i) and (ii) or for any acts or omissions by Investment Advisor or someone else using Investment Advisor’s Account and/or password.

14. Compliance with Laws

Each party will comply with all federal, state and local laws and regulations applicable to it (“Laws”). If, after the Effective Date of this Agreement any Law becomes effective which substantially and materially alters the ability or cost of either party to perform its obligations under this Agreement in whole or part, the parties will renegotiate the provisions of this Agreement to the extent necessary to reflect the effect of such Law. If renegotiations do not result in terms agreeable to both parties, the party that would bear the altered cost due to the change in the Law will have the right to terminate this Agreement without penalty upon thirty (30) days written notice to the other party.

15. Indemnification

1. Bridge will defend Investment Advisor in connection with claim arising from or relating to (i) any infringement by the software comprising the Platform of any third party intellectual property right, or (ii) Bridge’s performance under this Agreement that violates applicable law, and will indemnify InvestmentAdvisor for all judgments, settlements and associated costs and expenses(including reasonable attorney’s fees) arising from or related to any such allegations or claims.
2.   Investment Advisor will defend Bridge in connection with any allegation or claim brought by a third party that (i) Investment Advisor’s use of the Platform violates applicable law, or (ii)  that arises from any alleged breach by Investment Advisor of any warranty or representation made to Bridge under this Agreement, and will indemnify Bridge for all judgments, settlements and associated costs and expenses (including reasonable attorney’s fees) arising from or related to any such allegations or claims.
3. The party obligated to provide a defense in accordance with this section (the“Defending Party”) may engage counsel of its own choosing to provide such defense, provided that such counsel is and remains at all times acceptable to the other party, in that party’s reasonable discretion. In no event may the Defending Party enter into any settlement agreement or agree to any court order in which the other party admits liability, without the other party’s written consent.

16. Limitation of Liability

In no event will either party be liable for any indirect, punitive, special, consequential or like damages that may arise in connection with this Agreement, regardless of the cause of action or characterization of the damages, even if the party sought to be held liable has been advised of the possibility of such damages. In no event will Bridge’s liability to Investment Advisor under this Agreement exceed the Fees paid by Investment in the 12-month period immediately preceding the event giving rise to liability.

17. General

1. Governing Law. This Agreement will be governed in all respects by the laws of the State of Illinois as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions.
2.  NoThird Party Beneficiaries. Except as specifically identified in this Agreement, nothing in this Agreement is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
3. Relation of the Parties. The parties agree that each is acting as an independent contractor and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.
4.  Force Majeure. With the exception of Investment Advisor’s payment obligations, neither party will be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions or other acts or causes reasonably beyond the control of that party. The party experiencing the force majeure event agrees to give the other party notice promptly following the occurrence of a force majeure event and to use diligent efforts to re-commence performance as promptly as commercially practicable. In the event any failure to perform because of a force majeure event remains uncured for a period of fourteen (14)days, the other party may terminate this Agreement, without liability, by providing written notice to the other party.
5. Assignment. Neither party may assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the preceding sentence, with the exception of an assignment to a competitor of the non assigning party (which will require written consent from the non assigning party), either party may assign this Agreement without obtaining the consent of the other party, to an affiliate or to any entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the assigning party, or as part of a business restructuring, sale of stock, or other recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
6. Dispute Resolution.
7. Arbitration. Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The arbitration will be held in Chicago, Illinois. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any court of competent jurisdiction.
8. Informal Preliminary Dispute Resolution. Each party agrees that any dispute between the parties relating to this Agreement will first be submitted in writing to a panel of two senior executives each party, who will promptly meet and confer (telephone communications sufficient) in an effort to resolve such dispute through good faith consultation and negotiation. Each party’s executives shall be identified by notice to the other party and may be changed at any time thereafter also by notice to the other. Any decisions of the executives will be final and binding on the parties. In the event the executives are unable to resolve any dispute within thirty (30) days after submission to them, either party may then commence legal proceedings as provided above in this section.
9. Injunctive Relief. Nothing in this section, however, requiring informal dispute resolution prior to instituting legal proceedings will prohibit either party from seeking injunctive relief in situations where such proceedings may be appropriate, including but not limited to threatened or actual infringement of Intellectual Property Rights or misuse or disclosure of proprietary or confidential information.
10. Prevailing Party. The prevailing party in any arbitration, suit, or action brought by one party against the other party to enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to receive, in addition to such other relief as the arbitrators or court may award, its reasonable costs and expenses, including without limitation all attorneys’ fees, expert witness fees, litigation-related expenses and arbitrator and court or other costs incurred in such proceeding or otherwise in connection with bringing such arbitration, suit, or action. For purposes of this Agreement, a party is “prevailing” if that party prevails on the central issue raised in the action or claim. A party may prevail by judgment or decision in that party’s favor, consent decree, settlement agreement or voluntary dismissal with or without prejudice.
11. FurtherAssurances. The parties shall execute such further documents and do any and all such further things as may be necessary to implement and carry out the intent of this Agreement.
12. NoWaiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other provision of this Agreement. All waivers must be in writing and signed by the party waiving its rights.
13. Notices. All notices or other communications that are required or permitted under this Agreement must be in writing and will be sufficient if delivered personally or sent by nationally-recognized overnight courier or by certified mail, postage prepaid, return receipt requested, to the addresses for each party set forth in the Service Order, or to any other address provided in accordance with this section.
14. Captions and Headings. The captions and headings of clauses contained in this Agreement preceding the text of articles, sections, subsections and paragraphs are inserted solely for convenience and ease of reference only and shall not constitute any part of this Agreement, or have any effect on its interpretation or construction.
15. Severability. If any court of competent jurisdiction finds any portion of any provision of this Agreement to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable, and all other provisions of this Agreement will remain unaffected.
16. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter this Agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of the parties.