TERMS OF SERVICE
These Terms of Service (“Terms”) are expressly incorporated into and made a part of that certain Master Services Agreement by and between you and Faraday. For purposes of these Terms: (i) the term “you” shall refer to Client; (ii) the term “we,” or “us” shall refer to Faraday; and (iii) all capitalized terms used herein but not otherwise defined shall have the meanings given to them in the Order Form.
1. Faraday Service Overview. Faraday is a cloud software provider that aims to improve customer acquisition metrics for your business through our web site at faraday.io (the “Site”), and our related web sites, services, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), including those services provided pursuant the Agreement (collectively, with the Site, our “Service”).
2. Accounts and Registration. To access most features of the Service, you must register for an account. You are solely responsible for maintaining the confidentiality of your account and password, and agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
3. Payment. Access to the Service, or to certain features of the Service, will require you to pay fees, including, without limitation, those set forth in the Statement(s) of Work (the “SOW Fees”). All fees are in U.S. Dollars and are non-refundable. Faraday may change the SOW Fees, including by adding fees, on a going-forward basis by providing you with at least thirty (30) days prior written notice of the change to the SOW Fees. If you do not agree to the change in SOW Fees, you may terminate the Statement of Work to which the change applies by providing Faraday with written notice of termination within thirty (30) days of your receipt of notice of the change. Unless otherwise provided in the applicable Statement of Work, all fees will be due and payable within thirty (30) days of your receipt of an invoice from Faraday. Any amounts not paid when due shall be subject to finance charges of the lesser of one and one-half percent (1.5%) per month or the highest amount permitted by applicable law. If you fail to pay any amounts when due, in addition to any other rights and remedies available to Faraday, Faraday also reserves the right to suspend its performance of and/or your access to any Service under this Agreement until all payments are brought current. You will pay, or reimburse Faraday for all duties, taxes (other than taxes on Faraday’s income), fees or other amounts assessed or imposed by governmental authorities in relation to the Service. You will promptly reimburse Faraday for all reasonable costs and expenses incurred by Faraday in collecting any past due fees or any interest thereon, including, without limitation, attorneys’ fees, court costs, and collection agency fees.
4. User Subscriptions; Service Use.
4.1 Users. The Service may be accessed only by your employees and by your authorized agents who have agreed in writing to be bound by the terms and conditions of the Agreement (collectively, “Users”). You shall be solely responsible for the actions and inactions of your Users.
4.2 Service. The Service and Materials (as defined herein) may be used solely by your Users, for your business and for assisting you in improving customer acquisition for products and services sold directly by you. You hereby represent and warrant that neither you nor your Users will utilize any data, analytical results or content provided by the Service on behalf or for the benefit of any third party without the prior written consent of Faraday.
5. User Data
5.1 User Data. Certain features of the Service may permit users to upload data regarding their sales, customers and business (“User Data”). You retain copyright and any other proprietary rights that you may hold in your User Data.
5.2 User Data Representations and Warranties. You are solely responsible for your User Data and the consequences of posting or publishing User Data. By uploading or otherwise providing User Data, you affirm, represent, and warrant that:
a. you lawfully acquired all User Data, including, without limitation, in compliance with the CAN-SPAM Act and related laws, and are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Faraday to use and distribute your User Data as necessary to exercise the licenses granted by you in the Agreement and in the manner contemplated by Faraday, the Service, and these Terms; and
b. your User Data, and the use of your User Data as contemplated in the Agreement, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) cause Faraday to violate any law, rule or regulation.
5.3 User Data. Faraday may, at any time and without prior notice, screen, remove, edit, or block any User Data that, in our sole judgment, violates these Terms, is inaccurate, outdated, or otherwise objectionable. If notified that User Data allegedly does not conform to these Terms, including any notice under the Digital Millennium Copyright Act (DMCA), we may investigate the allegation and determine, in our sole discretion, what action to take, which may include terminating accounts of repeat infringers and/or removing User Data, which we reserve the right to do at any time and without notice.
6. Prohibited Conduct. YOU AGREE NOT TO:
6.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law, including, without limitation, the Fair Credit Reporting Act and the CAN-SPAM Act;
6.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
6.3 post, upload, or distribute any User Data or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
6.4 use any consumer data provided to you by Faraday: (a) as a factor in establishing an individual’s eligibility for credit or insurance; (b) in evaluating an individual for employment purposes; (c) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; (d) in a way that would cause the consumer data provided by Faraday to constitute a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.; (e) in any other manner that would cause such use of the Materials to be construed as a consumer report by any authority having jurisdiction over any of the Parties; or (f) other than in accordance with the Direct Marketing Association’s Guidelines, as may be updated from time-to-time;
6.5 use the Service or any customer data provided by Faraday for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited mass distribution of email;
6.6 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, disassembling, decompiling or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
6.7 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect, personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
6.8 perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
6.9 sell or otherwise transfer the access granted under the Agreement to the Service or any Materials (as defined herein) or any right or ability to view, access, or use the Service or any Materials;
6.10 use the Service or any Materials to create or assist any third party in creating a service that is competitive with the Service; or
6.11 attempt to do any of the acts described in this Section 6, or assist or permit any person in engaging in any of the acts described in this Section 6.
7. Third-Party Services and Linked Accounts.
7.1 Faraday may provide tools through the Service that enable you to export information, including User Data and content, to third-party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third-party services are not under our control, and we are not responsible for any third-party service’s use of your exported information.
7.2 The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
7.3 Faraday may allow you to link your account(s) on the Service to your accounts on certain third-party services, such as LinkedIn or Facebook (“Linked Accounts”). If you link your account on the Service to a Linked Account, you are authorizing Faraday to store and use your access credentials to access your Linked Account on your behalf as your agent to integrate your experience with the Service with content, information, and features available through such Linked Account. This may include transmission, storage, and retrieval of documents from your Linked Accounts. Linking, accessing or using a third-party service through the Service in this manner may be subject to additional terms established by the applicable third-party service, and it is your sole responsibility to ensure that you have a valid and continuing right to use your Linked Accounts, and that you comply with such third-party service terms and policies.
8. Termination of Use; Discontinuation and Modification of the Service.
8.1 If you fail to cure a violation of any provision of the Agreement within fifteen days (15) days of your receipt of written notice from us describing the violation, then we may terminate the Agreement or the Statement of Work to which the violation relates. In addition, if you violate any provision of the Agreement, we may automatically suspend your access to the Service. We may also terminate the Agreement at any time, with or without cause, by providing you with at least thirty (30) days prior written notice of such termination. We reserve the right to modify the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you, provided that, if such modification materially adversely effects your ability to access or use the Service, you may terminate the Agreement upon written notice to us within thirty (30) days of the date of such modification.
8.2 In the event of any termination of the Agreement, your right to access and/or use the Service shall immediately terminate and you shall return to us or destroy all Materials. Any provisions of the Agreement which by their nature or express terms should survive termination or expiration shall survive termination or expiration including, without limitation, Section 3 and Sections 5 through 22 of these Terms. All pre-paid fees are non-refundable unless the Service is terminated by us without cause, in which case we will refund any unused pre-paid fees to you.
10. Ownership; Proprietary Rights.
10.1 The Service. The Service is owned and operated by Faraday. The visual interfaces, graphics, design, compilation, information, data, results, computer code (including source code or object code), products, software, services, the terms and conditions of the Agreement and all other elements of the Service (“Materials”) are protected by intellectual property and other laws. All Materials contained in the Service are the property of Faraday or our third-party licensors. Except as expressly authorized by the Agreement, you may not make use of the Materials. The Materials are the confidential information of Faraday and you will not disclose the Materials to any third party other than Users without the express written consent of Faraday. Faraday reserves all rights to the Materials not granted expressly in the Agreement.
10.2 Limited License. By uploading or otherwise providing User Data, you grant Faraday a worldwide, perpetual, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Data, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). In connection with the license in this paragraph, Faraday covenants that it shall (i) use User Data for the purpose of providing the Service or (ii) use User Data in a de-identified format for the purposes of aggregating with other data to calculate, model, and analyze trends, events, costs, and outcomes in connection with the Service.
11. Client Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Faraday and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Faraday Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your violation of any portion of the Agreement, any representation, warranty, or agreement referenced in the Agreement or any applicable law or regulation; (b) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (c) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
12. Faraday Indemnity.
12.1 Infringement Claim. Faraday shall indemnify and defend, or at its option, settle, any claim, suit or proceeding brought against you based on an allegation that use of the Service by you as authorized in this Agreement infringes upon any United States patent or any copyright or violates any trade secret rights of any third party (each an “Infringement Claim”), provided that you promptly notify Faraday in writing of your notification or discovery of an Infringement Claim such that Faraday is not prejudiced by any delay of such notification. Faraday shall pay any damages finally awarded against you in such Infringement Claim and the reasonable costs associated with the settlement of any Infringement Claim. In no event shall Faraday be liable for any other losses arising from any Infringement Claim. Faraday shall have sole control over the defense or settlement of any Infringement Claim, and you will provide reasonable assistance in the defense of same (Faraday will reimburse you for reasonable expenses incurred in providing such assistance).
12.2 Infringement Cures. Following notice of any Infringement Claim, or if Faraday believes such a claim is likely, Faraday will, at its sole expense and option: (i) procure for you the right to continue to use the allegedly infringing Service; (ii) replace or modify the allegedly infringing Service to make it non-infringing; or (iii) cancel the allegedly infringing Service (with you retaining no right to continue to access or use the allegedly infringing Service) and refund any fees paid by you to Faraday to access and use the cancelled Service during time periods after the date of cancellation.
12.3 Limitation. Faraday assumes no liability, and shall have no liability for any Infringement Claim based on: (i) your use of any Service after notice that you should cease use of such Service due to an Infringement Claim; (ii) any modification of the Service by you or at your direction; or (iii) your combination of the Service with any programs, data (including any User Data), software, hardware, business processes or other materials not specifically provided by Faraday, if such Infringement Claim would have been avoided by the exclusive use of the Service alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
13. Disclaimers; No Warranties
THE SERVICE AND ALL DATA, ANALYTICAL RESULTS OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. USER DATA AND ANY DATA, ANALYTICAL RESULTS and CONTENT AVAILABLE THROUGH THE SERVICE MAY BE LOST IN CONNECTION WITH USE OF THE SERVICE. THE FARADAY ENTITIES MAKE NO WARRANTY AS TO THE ACCURACY OF ANY DATA, ANALYTICAL RESULTS OR CONTENT PROVIDED THROUGH THE SERVICE, AND DISCLAIM ANY ENHANCED ABILITY TO VERIFY THAT ANY SUCH DATA, ANALYTICAL RESULTS OR CONTENT ARE UP-TO-DATE. THE FARADAY ENTITIES DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS, DATA AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE FARADAY ENTITIES DO NOT WARRANT THAT THE SERVICE, OR ANY PORTION OF THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY DATA, ANALYTICAL RESULTS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Faraday ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY DATA, ANALYTICAL RESULTS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN DATA, ANALYTICAL RESULTS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT DATA, ANALYTICAL RESULTS OR CONTENT.
14. Limitation of Liability
IN NO EVENT WILL THE FARADAY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE AGREEMENT, YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FARADAY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE FARADAY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT, YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, ANY PORTION OF THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO FARADAY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (B) $100.
EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Dispute Resolution and Arbitration
15.1 Generally. You and Faraday agree that every dispute arising in connection with the Agreement will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE AGREEMENT YOU AND FARADAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Despite the provisions of Section 15.1, the Parties agree that nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either Party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) to file suit in a court of law for breach by you of the payment provisions of Section 3 ; or (e) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Arbitrator. Any arbitration between you and Faraday will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Faraday.
15.4 Notice; Process. A Party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Faraday’s address for Notice is: Faraday, Inc., 431 Pine St, Suite 113, Burlington, VT 05401. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). Both Parties agree to use good faith efforts to resolve the claim directly, but if an agreement is not reached within 30 days after the Notice is received, you or Faraday may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Faraday must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If a dispute between you and Faraday is finally resolved through arbitration in your favor, Faraday will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Faraday in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
15.5 Fees. If you commence arbitration in accordance with these Terms, Faraday will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Chittenden County, Vermont. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either Party made within 14 days of the arbitrator’s ruling on the merits.
15.6 No Class Actions. YOU AND FARADAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Faraday agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
15.7 Enforceability. If Section 15.6 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the Parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to the Agreement.
17. Independent Contractors. The relationship of you and Faraday is that of independent contractors, and neither you nor Faraday is an employee, agent, partner or joint venturer of the other.
18. Governing Law and Jurisdiction. The Agreement shall be governed by and construed under the laws of the State of Vermont without regard to conflict of laws provisions. Subject to Section 15, the federal and state courts located in Vermont shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of the Agreement. Each Party hereto expressly consents to the personal jurisdiction of the courts of Vermont and service of process being effected upon it by certified mail, return receipt requested, sent to the address set forth on the signature page of the Order Form.
19. Attorneys’ Fees. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or relating to this Agreement, then the substantially prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the substantially non-prevailing party.
20. Limitation on Claims. No action arising under or in connection with the Agreement may be brought by Client more than two (2) years after Client becomes aware of or should reasonably become aware of the occurrence of events giving rise to the cause of action.
21. Force Majeure. Any Party hereto will be excused from performing its obligations under the Agreement as a result of an act of God, war, utility or communication failures, or other causes beyond the Party’s reasonable control. Both Parties will use reasonable efforts to mitigate the effect of a force majeure event.
22. Miscellaneous. The Agreement represents the entire and exclusive understanding and agreement between you and Faraday regarding the subject matter thereof and supersedes and overrides all prior agreements on the same subject matter. The Agreement shall not be modified other than in accordance with the Terms and/or by a writing signed by you and Faraday. If there is any conflict between the Order Form, the Terms and the Statements of Work, then the terms of each document will take precedence in the following order: first, the Order Form; second, the Terms; and third, the Statements of Work. You may not assign or transfer the Agreement or any of your rights or obligations under the Agreement, in whole or in part, by operation of law or otherwise, without Faraday’s prior written consent. The failure to require performance of any provision of the Agreement will not affect a Party’s right to require performance at any other time after that, nor will a waiver by a Party of any breach or default of the Agreement, or any provision of the Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in the Agreement is for convenience only and will not have any impact on the interpretation of any provision. If any part of the Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. The Agreement may be executed in two or more counterparts (including via .pdf or similar electronic transmission), each of which will be deemed an original and all of which together will constitute one and the same instrument.