THE FOLLOWING TERMS AND CONDITIONS GOVERN ALL USE OF EN VÉRITÉ CORPORATION PRODUCTS AND SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, PLACING AN ORDER THAT REFERENCES THIS AGREEMENT, OR USING ANY EN VÉRITÉ PRODUCTS OR SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT CLICK THE BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND MAY NOT USE THE EN VÉRITÉ SERVICES.
This Software-as-a-Service (“SaaS”) Agreement is effective upon execution of an order form or other ordering document or web form referencing this SaaS Agreement (each, an “Order” and, together with this SaaS Agreement, the “Agreement”) by and between En Vérité Corporation (“Company”) and the party named as the customer in the applicable Order (“Customer”). This Agreement governs Customer’s right to access and use the Company’s services and products as described on the applicable Order.
1.1 Company and Customer may enter into one or more Orders, whether by written agreement or by clicking an acknowledgement within the interface of Company’s website, pursuant to which Customer may purchase a subscription to access and use the Company’s products and services (collectively, “Services”). Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right during the term of this Agreement to use and access the Services and related documentation and content therein solely for your internal business purposes and subject to the limitations set forth herein and in the Order. The foregoing license shall be subject to the limitations set forth for each subscription model specified in the applicable Order, including but not limited to available services and the number of license seats and diligence usage limits.
1.2 Customer acknowledges that the Services depend on the availability and accuracy of data provided by Customer to Company to enable Company to provide the Services (“Customer Data”) and other data providers. Customer is responsible for making the Customer Data available as necessary for Company to provide the Services. Customer shall be solely responsible for the accuracy and legality of Customer Data and the means by which it acquires and uses such Customer Data (including, without limitation, privacy and data protection and third-party intellectual property rights).
1.3 Company will use commercially reasonable efforts to provide Customer access to the Services and to provide Customer with reasonable technical support services in accordance with the Company’s standard practice. As part of the registration process, Customer will identify an administrative username and password for Customer’s account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate. Company reserves the right to change the way you access the Services, or to deactivate, change, or require you to change login information for the Services.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, combine, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); sell, encumber, sublicense, transfer, distribute, rent, lease, or otherwise use the Services for timesharing or service bureau purposes for the benefit of a third party, or otherwise permit any unauthorized third party to access the Services through Customer’s account; use the Services to create any service, software or documentation that performs substantially the same functionality as the Services or otherwise competes with or causes harm to Company’s products, services, or business operations, or otherwise access or monitor the Services for competitive purposes; disable, circumvent, avoid, or undermine any security or authentication device, mechanism, protocol, or procedure implemented in the Services; access or use the Services for any unlawful, fraudulent, deceptive, tortious, malicious, or otherwise harmful or injurious purpose; probe, scan, or test the vulnerability of or gain unauthorized access to the Services or engage in data-mining, deep-link, page scraping, or the use of “bots,” “spiders” or similar data gathering or extraction tools in connection with the Services; upload or send, store, run, or distribute any viruses, worms, Trojan horses, or other disabling code, malware, or harmful code or program to the Services; upload or provide for processing, or use the Services to store, display, transmit, or use any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates any privacy or intellectual property rights of a third party; use the Services in any way that violates applicable laws and regulations; or remove any proprietary notices or labels.
2.2 Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, Company’s standard published policies then in effect, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, for preventing unauthorized use of the Services, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 To the extent Company offers integrations with third-party apps, connectors, accounts, or other third-party products or services, including but not limited to integrations with accounting, and other productivity platforms, tools and/or systems (collectively, “Third-Party Products”), in connection with the Services, Customer acknowledges that such Third-Party Products are provided pursuant to, and any use is governed by, the terms of the applicable third-party agreement. If Customer chooses to use Company integrations, Customer hereby grants, and agrees to obtain for Company, all licenses and rights necessary for Company to integrate with the Third-Party Products and to otherwise provide the Services to you, including a license to access, read, copy, extract data from, and monitor your Third-Party Products. Notwithstanding anything to the contrary in this Agreement, all integrations to Third-Party Products are provided by Company “AS IS” without any warranty, and Company specifically disclaims any obligation or liability with respect to such integrations, including but not limited to any obligation to defend or indemnify under Section 8 and any liability for unauthorized disclosure, use, alteration, or destruction of Customer Data resulting from integrations with Third-Party Products and the respective third-party providers. Company does not guarantee the continued availability of any Third-Party Product integrations or of any feature of the Services designed to interoperate with the Third-Party Product, and may discontinue offering such integrations at any time without notice.
3.1 Each party (in such instances, the “Receiving Party”) understands that in the course of this Agreement the other party (in such instances, the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information shall include any non-public business information, know-how, trade secrets, and other information, in any form, which is designated as confidential or that the Receiving Party knows or should reasonably know is confidential due to the nature of the information and the circumstances surrounding its disclosure. Confidential Information of Customer includes, without limitation, non-public Customer Data. Confidential Information of Company includes, without limitation, non-public information regarding the Services and any features, functionality and performance thereof, and Company’s technology and systems, products, and security information and assessments, audit reports, pricing information, and the terms of this Agreement and any Order. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party without, to the Receiving Party’s knowledge, a breach of the third party’s obligations of confidentiality, or (d) was independently developed without use of any Confidential Information of the Disclosing Party.
3.2 The Receiving Party agrees: (i) to take reasonable precautions to protect Disclosing Party’s Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to Receiving Party’s and its affiliates’ employees, contractors, consultants, or agents who reasonably need to have access to such information to perform the Receiving Party’s obligations under this Agreement and who are bound by obligations of confidentiality and nonuse at least as restrictive as those contained in this Agreement. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by law, provided the Receiving Party: (a) gives the Disclosing Party written notice of the requirement prior to disclosure (where permitted) and reasonable assistance, at the Disclosing Party’s expense, in limiting disclosure or obtaining a protective order protecting the Confidential Information from public disclosure, and (b) discloses only such portion of the Confidential Information as is legally required, as advised by its counsel, and takes reasonable steps to obtain confidential treatment of such disclosed Confidential Information.
4.1 Customer Data shall remain the property of Customer and shall not be considered part of the Services. Customer hereby grants Company the right to access, host, analyze, process, display, copy, transmit, store, aggregate, or otherwise use Customer Data as required for Company to provide or perform the Services and for account management and other purposes compatible with providing the Services. Customer acknowledges and agrees that Customer has sole responsibility for the content, accuracy, availability, and legality of all Customer Data and for obtaining all rights and permissions related to the Customer Data to ensure Customer is lawfully able to disclose, provide, or make available the Customer Data to Company and Company is lawfully able to access, use, store, handle, and process the Customer Data in accordance with the terms of this Agreement.
4.2 Company shall own and retain all right, title and interest in and to, without limitation: (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing.
4.3 Customer may, on a voluntary basis, submit feedback, community contributions, comments, information or requests, suggestions, recommendations, and messages relating to the operations, functionality, or features of the Services or Company products (collectively, “Feedback”). All Feedback shall be considered Company’s sole and exclusive property. By providing Feedback, Customer agrees to assign to Company, at no charge, all worldwide rights, title, and interest in copyrights and other intellectual property rights in and to the Feedback. To the extent the Feedback or any portion thereof is not assignable, Customer hereby grants Company a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferrable license to display, use, incorporate into the Services, copy, modify, publish, translate, distribute, sublicense, or otherwise use the Feedback without restriction.
4.4 Company shall have the right to collect and analyze data, statistics, and aggregated or anonymized information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (collectively, “Deidentified Data”), and Company will be free (during and after the term hereof) to use, transmit, distribute, publish, and display such Deidentified Data to demonstrate or improve and enhance the Services, for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, to analyze trends and produce reports, or for any other lawful purpose. Such Deidentified Data will be used solely in aggregate or other deidentified form and will not reveal the identity of Customer. All Deidentified Data is the sole and exclusive property of Company.
5.1 Customer agrees to pay all fees described in the applicable Order for the Services (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial order term or thencurrent renewal term, upon no less than thirty (30) days prior notice to Customer (which may be sent by email). Except as otherwise expressly provided in this Agreement or applicable Order, all orders are non-cancellable and the fees are non-refundable.
5.2 Unless otherwise specified in the applicable Order, all Fees are due annually in advance. Invoiced amounts are due in full in advance upon Order placement and are non-refundable. Fees for any subscription renewal term shall be payable upon the subscription renewal date and automatically charged to the credit card on file at Company’s rates in effect at the time of renewal. If you use a credit card to set up an account or pay for the Services, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge your credit card the Fees for the initial annual subscription and subsequently upon each renewal subscription period, unless your subscription is terminated in accordance with the terms of this Agreement.
5.3 Without limiting Company’s other rights or remedies, any unpaid amounts hereunder 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 costs or expenses of collection, and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
6.1 Subject to earlier termination as provided below, this Agreement commences on earlier of the date specified on the applicable Order or the date you first access a subscription service (“Effective Date”) and shall continue until the end of the subscription period unless terminated in accordance with Section 6.2. Unless otherwise specified in the Order, each subscription shall automatically renew for additional successive one-year terms (collectively, the “Term”), unless either party requests termination prior to the end of the then-current term as set forth during the Order process.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured during the written notice period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. If Customer fails to timely pay any Fees owing under this Agreement, Company may, in addition to any other rights or remedies it may have, suspend performance of the Services until full payment is received, or terminate this Agreement upon written notice.
6.3 Upon termination, Customer shall promptly discontinue using all Services and immediately pay all outstanding Fees due. Company may terminate Customer access to the Services immediately upon termination. Upon termination or expiration of this Agreement, Company is permitted to retain Customer Data in accordance with its internal document retention policies, and/or to the extent the materials are routinely backed-up or archived on Company’s systems in accordance with its routine archival, security, and/or disaster recovery procedures, provided that to the extent any retained data is Customer’s Confidential Information, Company shall maintain any such retained Confidential Information in confidence in accordance with the terms of this Agreement.
7.1 Each party represents and warrants to the other that: (a) this Agreement and each Order constitutes a valid and binding agreement enforceable against it in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of any Order or performance of this Agreement; and (c) it will exercise its rights and perform its obligations hereunder in accordance with all applicable laws and regulations.
7.2 Company represents and warrants that the Services will be provided in a manner reasonably designed for the secure maintenance of Customer Data, and Company will use up-to-date, generally-accepted virus detection devices to regularly scan the Services for known viruses and other harmful components and will use commercially reasonable efforts to remediate same, as appropriate. Company further warrants to Customer that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Customer’s sole and exclusive remedy for a breach of the foregoing warranty, and Company’s sole liability, shall be to use commercially reasonable efforts to remedy the breach.
7.3 Customer represents and warrants to Company that (i) it has obtained all permissions and consents required by law or otherwise necessary for Company to lawfully receive, process, and store the Customer Data and integrate with any Third-Party Products and access data therefrom, in connection with providing the Services; and (ii) it will comply with the restrictions set forth in Section 2 of this Agreement in its use of the Services.
7.4 CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED TO PROVIDE ACCOUNTING, TAX, INVESTMENT, OR OTHER FINANCIAL OR LEGAL ADVICE OR RECOMMENDATIONS. ALL REPORTS AND OTHER RESULTS OF THE SERVICES ARE BASED UPON THE DATA INPUT FROM CUSTOMERS AND OTHER THIRD-PARTY PROVIDERS AND RELIES ON THE ACCURACY AND COMPLETENESS OF SUCH DATA.
7.5 COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE UNDERLYING DATA USED TO PROVIDE THE SERVICES OR THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR WILL MEET YOUR REQUIREMENTS. FURTEHR, COMPANY ALSO DISCLAIMS ANY WARRANTY REGARDING THE LOSS OR CORRUPTION OF DATA OR CONTENT UPLOADED TO, STORED OR TRANSMITTED BY THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CUSTOMER DATA OR OTHER SUBMISSIONS.
7.6 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 Company shall defend Customer from and against, and shall pay all damages awarded by a court of competent jurisdiction or agreed to by Company in settlement of, third-party claims brought against Customer alleging Customer’s use of the Services in accordance with this Agreement infringes upon a third-party trademark, patent or any copyright (“Infringement Claim”). In the event of an Infringement Claim, Company may, in its sole discretion, either (i) procure for Customer the necessary right to continue using the Services; (ii) replace or modify any infringing portion of the Services with an equivalent substitute; (iii) modify the Services so as to be non-infringing; or (iv) if none of the foregoing are commercially feasible, terminate this Agreement and refund to Customer any prepaid but unused Fees. Customer shall promptly notify Company of any and all threats, claims and proceedings related to an Infringement Claim and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company’s obligations under this Section 8.1 will not apply to the extent an Infringement Claim arises out of (a) breach of this Agreement by Customer; (b) use of the Services other than in accordance with this Agreement or Company’s policies and related documentation; (c) modification of the Services by Customer or another third party; (d) portions or components of the Services not supplied by Company or that are modified or combined with other products, processes, or materials after delivery by Company; and (e) the Customer Data. THIS SECTION 8.1 SETS FORTH COMPANY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
8.2 Customer agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns from and against any losses, costs, liabilities, damages, and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) Customer’s violation of this Agreement or any representation or warranty contained herein; (ii) Customer’s actual or alleged infringement, misappropriation, or violation of any personal or proprietary rights of a third party, (iii) Customer’s violation of applicable laws, rules, or regulations, and/or (iv) Customer’s use of the Services and the Customer Data, including without limitation the quality, content, accuracy, legality, or effectiveness thereof, or any communications, transactions, or results arising therefrom. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will fully cooperate with Company in asserting any available defenses.
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER (i) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OR INACCURACY OF DATA, COSTS ASSOCIATED WITH PROCURING SUBSTITUTE OR REPLACEMENT SERVICES, OR OTHERWISE, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR (ii) UNDER OR RELATED TO THIS AGREEMENT FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT, ACT, OR OMISSION GIVING RISE TO SUCH CLAIM.
10.1 Company implements and maintains reasonable administrative, physical, and technical safeguards intended to protect against the unauthorized access, use, disclosure, alteration, or destruction (other than by Customer). Customer is responsible for protecting its Equipment, passwords and other login information from access or use by unauthorized parties and for promptly notifying Company of any suspected security breach. Customer is fully responsible, and Company has no liability, for any viruses, worms Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system contained in or originating from Customer Data. Customer agrees that it will not include any personal data or personal information as such terms are defined under applicable privacy or data protection laws (“Personal Data”) in the Customer Data provided to Company or otherwise uploaded to the Services, without the prior written consent of Company and execution of a Data Processing Agreement by the parties. Customer agrees that Company will have no liability with respect to Personal Data unless Company has explicitly consented to such data being uploaded or otherwise included in the Customer Data. Customer further acknowledges and agrees that Company is not compliant with Payment Card Industry Data Security Standards (“PCI DSS”) and under no circumstances will Customer upload financial account or payment card information except to Company’s third party payment processor for payment for the Services. Customer represents and warrants that it will comply with all applicable laws, regulations, guidelines, and Customer’s own privacy policy with respect to Customer’s use of the Services and collection, transfer, use, distribution, provision, and display of any data in connection with use of the Services.
11.1 Upon prior written approval in each case, Customer grants Company the right to reference Customer as a customer in promotional material (including, but not limited to, advertising, press and similar public disclosures in any medium or format) relating to the Services. However, at any time Customer can revoke this right by submitting a written exclusion request and Company will thereafter refrain from using Customer’s name in promotional material and remove the Customer’s name from all such existing promotional material (which shall be completed within 30 days), if any.
12.1 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 is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The parties hereto are independent contractors and no agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. There are no intended third-party beneficiaries under this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Each party agrees that any dispute or controversy arising out of, in relation to, or in connection with this Agreement, or the making, interpretation, construction, performance or breach hereof, shall be finally settled by binding arbitration in San Francisco, California under the then current rules of JAMS by one (1) arbitrator appointed in accordance with such rules. The arbitrator may grant injunctive or other relief in such dispute or controversy. The decision of the arbitrator shall be written, final, non-appealable, conclusive and binding on each party to the arbitration. Judgment upon the award may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and/or an order of enforcement as the case may be. Each party agrees that, any provision of applicable law notwithstanding, they will not request and the arbitrator shall have no authority to award, punitive or exemplary damages against either party. The costs of the arbitration, including administrative and arbitrator’s fees, shall be shared equally by the parties. Each party shall bear the cost of its own attorneys’ fees and expert witness fees. Nothing herein shall preclude either party from seeking interim or provisional relief in the form of a temporary restraining order, preliminary injunction, or other interim relief concerning a dispute prior to or during an arbitration necessary to protect the interests of such party. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
