Last Updated: March 11, 2025
PLEASE READ THESE ENTERPRISE TERMS of use (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY RINSED, Inc. (“Company”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH Company WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Order Forms; License Grant. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Company grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Company product(s) and/or service(s) specified in such Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Company’s applicable official user documentation for such Services (the “Documentation”).
2. Access and Account. Company may provide Customer with access privileges that permit Customer to access the Services (“Customer Account”). Customer will identify an administrative user name and password that will be used to set up Customer’s account. Customer must provide accurate and complete information and keep the Customer Account information updated. Customer is solely responsible for the activity that occurs on the Customer Account, and for keeping the Customer Account password secure. Customer may never use another person’s user account or registration information for the Services without permission. Customer must notify Company immediately of any discovered or otherwise suspected breach of security or unauthorized use of the Customer Account or the Services. Customer shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Customer.
3. Implementation; Support. Upon payment of any applicable fees set forth in each Order Form, Company agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Company provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Company otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Company at its then-current hourly rates for consultation. Subject to Customer’s compliance with the terms and conditions of this Agreement, solely to the extent set forth on an applicable Order Form, Company will use commercially reasonable efforts to provide the support services set forth on such Order Form.
4. Updates. From time to time, Company may provide upgrades, patches, enhancements, or fixes for Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that, Company shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Company may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Company shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
5. Ownership; Feedback. As between the parties, Company and its licensors retain all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may provide suggestions, comments or other feedback to Company with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Company notwithstanding anything else. Company acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Company’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
6. Fees; Payment. Customer shall pay Company fees for the Services as set forth in each Order Form (the “Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Company’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any Service Capacity set forth on an Order Form (as defined therein), then (a) Company shall invoice Customer for such usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Company’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (b) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal shall include the additional fees for such excess usage. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Order Form Initial Term, or then-current Order Form Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
7. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use the Services to build an application or product that is competitive with any Company product or service; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (h) bypass any measures Company may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services and importing or storing data on the Services. Customer (i) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights. Customer acknowledges and agrees that the Services (including, without limitation, any source code contained therein to which Customer may be given access hereunder) (collectively, the “Company Materials”) represent valuable trade secrets and confidential information of Company. Accordingly, Customer (x) shall not use any Company Materials except as expressly set forth herein; (y) shall not disclose any Company Materials to any third party, and (z) shall use reasonable efforts to prevent any such unauthorized use or disclosure (but at least the same efforts that Customer uses to protect its own most highly sensitive and confidential information). Customer acknowledges and agrees that due to the unique nature of the Company Materials, there can be no adequate remedy at law for any breach of its obligations under this section, which breach may result in irreparable harm to Company, and therefore, that upon any such breach or any threat thereof, Company shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law.
8. Customer Data; Usage Data. For purposes of this Agreement, “Customer Data” shall mean any data, information, audio or other material provided, uploaded, or submitted by Customer or any of Customer’s end customers to the Services in the course of using the Services. Customer or its end customers (as applicable) shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Company is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Company’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Customer acknowledges and agrees that Company may (a) use, modify, reproduce, display, distribute, disclose and create derivative works of Customer Data as necessary to (i) provide, maintain, develop and/or improve the Services and (ii) generate Aggregated Anonymous Data (as defined below), and (b) freely use and make available Aggregated Anonymous Data for Company’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Company’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Company in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. Notwithstanding anything to the contrary, Customer further expressly grants Company and its sub-processors permission to use Customer Data to train Company’s and its sub-processors’ artificial intelligence and machine learning models. Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (“Usage Data”), and Company will be free to use such Usage Data for Company’s business purposes (including without limitation, for purposes of improving or enhancing the Services and for any other development, diagnostic and corrective purposes in connection with Company’s business). Customer represents and warrants that it has all rights, consents and permissions necessary to provide the Customer Data to Company as contemplated in this Agreement and to grant the licenses herein, and that Company’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or violate any intellectual property rights of any third party, including any of Customer’s end customers.
9. Third Party Products. Company may from time to time make Third Party Products available to Customer or Company may allow for certain Third Party Products to be integrated with the Services to allow for the transmission of Customer Data from such Third Party Products into the Services. For purposes of this Agreement, such Third Party Products are subject to their own terms and conditions. Company is not responsible for the operation of any Third Party Products and makes no representations or warranties of any kind with respect to Third Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third Party Products, then Customer should not install or use such Third Party Products. By authorizing Company to transmit Customer Data from Third Party Products into the Services, Customer represents and warrants to Company that it has all right, power, and authority to provide such authorization. Customer will return any physical Third Party Products to Company within ten (10) days of the date of termination or expiration of this Agreement. If any such Third Party Products are not returned in accordance with the foregoing sentence or if any such Third Party Products are returned damaged (as determined by Company in its sole discretion), Customer will be responsible for, and Company may charge Customer for, the full cost of any such unreturned or damaged Third Party Products. “Third Party Products” means any third-party products provided with, integrated with, or incorporated into the Services, including without limitation, any tablets provided to Customer by Company.
10. Third Party Services. Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Company and all necessary computer hardware, software, services, modems, connections to the internet and other similar equipment operated or provided by third parties that are required for Customer’s access and use of the Services, which Customer will be responsible for obtaining and maintaining at its expense. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Customer further acknowledges and agrees that Company may use certain Third Party Services that involve the use of artificial intelligence or machine learning algorithms, programs or other models, including large language models, that are developed or operated by a third party (“Third Party AI Tools”) in the course of providing the Services to Customer, and such use may involve the disclosure and processing of Customer Data to such Third Party AI Tools, including the disclosure and processing of audio recordings and transcripts of such audio recordings gathered by the Services. Company does not make any representations or warranties with respect to Third Party Services, including without limitation any Third Party AI Tools, or any third party providers. Company does not control or influence the training or hosting of Third Party AI Tools, and is unable to guarantee the suitability, accuracy, quality, security, legality and reliability of Third Party AI Tools. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
11. Term; Termination.
a. Term. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable.
b. Termination. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Company may suspend or limit Customer’s access to or right to use the Services if (i) Customer’s account is more than five (5) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Company’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (x) Company shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (y) prior to any such suspension or limitation, Company shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (z) Company shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
c. Effect of Termination; Survival. Upon any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (ii) Customer shall cease using, destroy and remove from all computers, hard drivers, networks and other storage media all copies of the Services (if Customer continues to use the Services, then Company reserves the right to continue to charge Customer), and, where applicable, return all Third Party Products to Company; and (iii) all provisions of this Agreement which by their nature should survive termination shall survive termination or expiration, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnities and limitations of liability.
12. Confidentiality. For purposes of this Agreement, “Confidential Information” shall mean to the extent previously, presently or subsequently disclosed by or for either party (the “Disclosing Party”) to the other party (the “Receiving Party”) all financial, business, legal and technical information of the Disclosing Party or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that (a) was rightfully known to the Receiving Party without restriction before receipt from the Disclosing Party, (b) is rightfully disclosed to the Receiving Party without restriction by a third party, (c) is or becomes generally known to the public without violation of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party or its employees without access to or reliance on such information. The pricing information set forth in an applicable Order Form, Documentation and Feedback are Company’s Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and shall not disclose such Confidential Information to any third party except as expressly permitted herein without the Disclosing Party’s written consent. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Receiving Party shall promptly notify the Disclosing Party of any disclosure requirement and provide reasonable assistance to the Disclosing Party in the Disclosing Party’s efforts to prevent and/or limit the disclosure.
13. Indemnification. Customer shall defend, indemnify, and hold harmless Company, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) that arise from or relate to (i) Customer’s or any of its end customers’ use of the Services, (ii) Customer Data, (iii) Customer’s violation of any other party’s rights, including without limitation any intellectual property or proprietary rights or any rights of privacy (including, without limitation, any such claim relating to Customer’s or any of its end users’ use or receipt of the Services).
14. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
15. Limitation of Liability. IN NO EVENT SHALL COMPANY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO Company HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
16. Service-Specific Terms.
a. Audio Recordings. Customer acknowledges that certain Services may record audio of slideshow presentations that are presented using the Services. Customer is solely responsible and liable for providing any notices or obtaining any necessary waivers or consents in connection with such audio recording from its employees, contractors, customers or any other third parties who may be recorded during such presentations, including without limitation any notices, waivers or consents required by applicable law, and Company shall have no liability with respect thereto. While Company may provide Sample Policies containing a waiver for audio recordings, Company does not make any representations or warranties that such Sample Policies are sufficient or meet any requirements under applicable law. Customer shall defend, indemnify, and hold harmless Company, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees) that arise from or relate to the foregoing.
b. Marketplace Rewards for Salespeople. Certain Services may allow Customer to offer certain gift card rewards to its salespeople based on such salespeople meeting specified sales criteria. If Customer chooses to use this reward system, Customer will be solely responsible for funding the reward account and shall be solely liable for any actions or omissions with respect to such reward system, including without limitation, for determining whether such gift card rewards may be considered employee compensation, and Company shall have no liability with respect thereto. Customer shall defend, indemnify, and hold harmless Company, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses that arise from or relate to the foregoing.
c. Company AI Tools. Customer acknowledges and agrees that third-party models integrated into certain of the Services for use by Customer and its end customers (“Company AI Tools”) have been developed using Third Party AI Tools that are not developed or controlled by Company, and Company is unable to guarantee that suitability, accuracy, quality, security, legality and reliability of any outputs of the Company AI Tools (“AI Outputs”). Customer acknowledges that AI Outputs may contain errors and misstatements and may be incomplete or inaccurate. Before leveraging any AI Outputs, Customer and its applicable end customers are responsible for making their own determination that the AI Outputs are suitable, and Customer is solely responsible for any reliance on the accuracy, completeness, or usefulness of any AI Outputs. Customer acknowledges that certain Company AI Tools may record audio of, and transcribe, phone calls placed by its end customers using the Services. Customer is solely responsible and liable for providing any notices or obtaining any necessary waivers or consents in connection with such audio recording and transcriptions from its end customers or any other third parties who may be recorded during such phone calls, including without limitation any notices, waivers or consents required by applicable law, and Company shall have no liability with respect thereto. Customer agrees that Company will not be liable for any loss or damages arising from or related to the Company AI Tools or AI Outputs and shall defend, indemnify and hold harmless Company, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses that arise from or relate to the foregoing.
17. Miscellaneous. This Agreement represents the entire agreement between Customer and Company with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Company with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the New York County. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notice must be sent to the address for Customer set forth herein or in an Order Form; notice for Company must be sent to 281 6th Avenue, New York, NY 10014 or notices@rinsed.co. Either party may update its address set forth herein by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (a) Company may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a merger, consolidation or sale of all or substantially all of its assets relating to this Agreement, and (b) Company may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.