RecPro Terms & Conditions
Dealer Services Network, LLC (“DSN,” “us,” and “we”), a Florida limited liability company, provides services to each Customer executing a RecPro SaaS Service Agreement (“Service Agreement”) giving the authorized Customers (“Customer” and “you”) of such Customers access to the Service. The Customer named on the Agreement wishes to use the Service, and DSN wanting to make available Services, DSN and Customer (collectively herein the “Parties”) agree that all services rendered by DSN and used by Customer through its Users shall be governed by the following standard terms and conditions (“Standard Terms”). The Service Agreement, the Standard Terms, and Service Orders (if any), are collectively referred to as the “Agreement.”
1. DUTIES AND SERVICES
1.1. DSN agrees to render the following services:
(a) Provide Customers with access to the Service in accordance with the Agreement.
(b) Provide Customer with access to all of Customer’s data stored in the Service.
(c) DSN will provide the Customer with training during the One-Time Set-Up and thereafter Customer shall be responsible for training addition Users.
(d) Customer is responsible for inputting Customer data, and becoming knowledgeable with the Service and the Website.
(e) Customer shall be liable for any and all fees incurred due to Customer’s improper use of the Services.
2. FEES FOR SERVICE
2.1. Customer agrees to pay DSN the fees for the Services as set forth in the Agreement.
2.2. In the event Customer requires additional services not described herein, a value for said services will be negotiated by the Parties and DSN will invoice the Customer for such agreed upon charges. All such additional services shall be subject to this Agreement. Any modifications or customizations to the Service shall become part of the Service and owned by DSN.
2.3. DSN and Customer may agree in writing to have DSN perform additional services, from time to time (each a “Service Order”).
3. INCREASES IN PRICING OF SERVICE
3.1. DSN reserves the right to amend its fees and charges, from time to time, to be effective upon the first day of the month thirty (30) days after DSN gives Customer written notice of new fees and charges. The increase in price may include but will not necessarily be limited to the cost of technology, inflation or any direct or indirect cost related to the business.
4. PAYMENT
4.1. Customer shall pay DSN the fees specified in the Agreement per the billing cycle set forth in the Agreement. If payments are not made in a timely manner, DSN, at its sole discretion, may exercise all available remedies against Customer, including but not limited to, termination of this Agreement, termination of Customer’s access to the Website, the Service, and Customer’s data, and removal of all Customer’s data from the Service and the Website without notice.
4.2. DSN has the option of terminating access to the DSN systems at any time until the balance due to DSN is paid in full. After five (5) days of non-payment, Customer will be subject to: (i) a 1½% charge per bill not paid and as further compensation for costs incurred by DSN, (ii) interest equal to the greater of eighteen (18%) percent per annum or the highest interest rate permitted by applicable law calculated on all sums that are past due hereunder.
5. CUSTOMER SYSTEM REQUIREMENTS
5.1. The Service is available through a web browser on the Customer’s equipment. Customer is responsible for providing (i) high speed internet access; (ii) browser capable computer or other device; (iii) up to date versions of Chrome, Firefox, or Edge browsers; and, (iv) all other hardware, operating systems, etc. It is the sole responsibility of the Customer to obtain and/or maintain all Customer provided hardware and software.
5.2. DSN may automatically check Customer’s version of such software and may automatically download upgrades to such software to Customers computer to update, enhance and further develop the Website.
5.3. The Service is hosted on AWS. DSN may perform any additional backups but notwithstanding, Customer is solely responsible for periodically backing up Customer’s data.
6. DATA CORRECTION
6.1. In order to keep accurate, current, and up to date Customer records, DSN may periodically change or correct the Agreement and Customer information as described below:
6.2 Customer’s name.
6.3 Customer’s physical address.
6.4 Customer’s contact information including phone numbers, fax numbers, and e-mail addresses if applicable.
6.5 Name of Administrator including all pertinent information to setup account.
6.6 First and Last Names of Users and their usernames and passwords (“Credentials”).
6.7 DSN will set up Administrator on Customer’s behalf for security reasons.
6.8 Upon One-Time Set-Up, Customer’s administrator will have the capability of setting up other Customers.
6.9 It is the responsibility of the Customer to provide DSN with the most accurate and current information so the DSN can perform the duties and responsibilities outlined in this Agreement.
7. ELIGIBILITY
7.1. Use of the Service and the Website is restricted to (i) natural persons over the age of 18; and, (ii) business entities formed and operating in the United States.
7.2. Only data that is not subject to the General Data Protection Regulation (GDPR) (EU) 2016/679) may be input or stored in the Service.
7.3. If you do not satisfy the conditions in this Article 7 then you are prohibited from using the Service or the Website and you agree to indemnify DSN harmless from any losses, costs, and expenses incurred by DSN (as set forth in Article 14) as a result of your use of the Service.
8. DISCLAIMER
8.1. Due to the complexity and continuous modifications to State and Federal laws, DSN, its employees, officers and/or agencies, expressly deny any warranty of accuracy, reliability or timeliness of any information published by DSN, and DSN shall not be held liable for any damages or losses caused by reliance upon the accuracy, reliability or timeliness of such information. Information provided on the Website is intended to allow Customer immediate access to such data.
8.2. DSN is not liable for the accuracy of any data that is input by Customer or service charges and/or fees that may result from such actions.
8.3. DSN is not liable for any error in Customer data or in any reconciliation performed by Customer or its Users.
8.4. The Service is a tool to assist the User to perform the reconciliations. The Service does not perform reconciliations without User input and User operation of the Service.
9. CONFIDENTIAL INFORMATION
9.1. The Parties agree to hold in trust for each other, and shall not disclose to any non-party to the Agreement, any confidential information of the other Party. Confidential information is information of a Party’s research, development, trade secrets or business affairs, but does not include information which is generally known or easily ascertainable by non-parties of ordinary skill in computer systems, design, and programming. DSN hereby acknowledges that during the performance of this Agreement, the DSN may learn or receive confidential Customer information, and therefore DSN hereby confirms that all such information relating to the Customers’ business will be kept confidential by the DSN, except to the extent that such information is required to be divulged to the DSN’s clerical or support staff and/or associates in order to enable DSN to perform DSN’s obligation. These individuals are bound by confidentiality obligations and may be subject to discipline, including termination and criminal prosecution if they fail to meet these obligations. Customer is responsible for maintaining the confidentiality of Customer’s password and account information. In the event Customer needs its password changed, it is Customers sole obligation to notify DSN immediately of such need. Furthermore, Customer agrees that DSN may access Customer’s account including its content for maintenance and/or to respond to service or technical issues. Again, these individuals are bound by confidentiality obligations and may be subject to discipline, including termination and criminal prosecution, if they fail to meet these obligations.
9.2. Each party hereto agrees to comply with all privacy and data protection laws, rules and regulations, as applicable now or in the future. Without limiting the generality of the preceding sentence, in the course of performing this Agreement, Customer and DSN may disclose to each other or may receive information that meets the definition of “nonpublic personal information” (“Nonpublic Personal Information”) in the regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999 as amended from time to time, 15 U.S.C. 6801 to 6809, (“GLB Act Privacy Regulations”). The parties agree that they will NOT use or disclose such Nonpublic Personal Information to any nonaffiliated third party except: (1) in the ordinary course of business to carry out the purpose or purposes for which the Nonpublic Personal Information is disclosed to such party under an exception to the GLB Act Privacy Regulations; (2) to the extent necessary to carry out the purpose or purposes for which such information is disclosed; (3) as permitted by applicable law and this Agreement; or (4) as provided for elsewhere in this Agreement. The parties further agree that any affiliate of either party shall use and disclose Nonpublic Personal Information to any nonaffiliated third party only to the extent that the recipient of such information may use and disclose such information. Each party shall comply in all respects with all applicable requirements of Title V of the Gramm-Leach-Bliley Act of 1999 and its implementing regulations. The obligations under this Section 9.0 shall survive the termination of this Agreement. In the event that either party to this Agreement reasonably suspects that Nonpublic Personal Information disclosed to it by the other party has been or may have been subject to unauthorized internal or external access, or unauthorized use or disclosure, it shall immediately notify its counterpart to the agreement of the compromise and/or possible compromise and list in detail the information at issue.
10. NON-DISCLOSURE, DATA OWNERSHIP, AND PRIVACY
10.1. Any confidential information and proprietary data provided by one party, including information regarding a borrower, a guarantor, a vehicle, the amount of financing, the purchase price of a vehicle, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who are bound by confidentiality obligations. DSN reserves the right to release, and/ or disclose confidential information to respond to legal requirements.
10.2. Notwithstanding anything in this Agreement to the contrary, DSN may share Customer Confidential Information with:
(a) Our vendors that contractually assist us with our business operations and are contractually required to maintain the confidentiality of the information and are prohibited from using it for any other purpose;
(b) Members of our corporate group (i.e., entities affiliated to us by substantially common ownership) that help detect and prevent potentially illegal acts and provide joint services;
(c) Law enforcement or other governmental officials, in response to a verified request relating to a criminal investigation or alleged illegal activity;
(d) Other business entities, should we merge with, or be acquired by that business entity. Should such a combination occur, we will require that the new combined entity follow this Agreement with respect to use confidential information.
10.3. Without limiting the above, in an effort to respect confidential information and proprietary data, we will not otherwise disclose Confidential Information to law enforcement, other government officials without a subpoena, court order or substantially similar legal procedure, except when we believe in good faith that the disclosure of information is necessary to prevent imminent physical harm or financial loss or to report suspected illegal activity.
10.4. Further, neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
10.5. Customer is responsible for maintaining the confidentiality of the Credentials and disclosing only to its trusted Users. Users are deemed to be authorized agents of Customer. Customer is responsible for all actions and inactions taken on the Service using the Credentials.
11. SOFTWARE, DOCUMENTATION, AND DSN IP
11.1. Customer’s use of any software and documentation associated with the Service and the Website will be governed by the terms and conditions of the end Customer license agreement (“EULA”) accompanying such software. If Customer receives any software or documentation that is not accompanied by an EULA, then DSN grants to Customer a non-exclusive, revocable, personal, non-transferable license to use such software and documentation solely in connection with the Service and the Website and in accordance with this Agreement for the limited purpose of accessing said Website to access the Service. DSN reserves all rights to such software and documentation not expressly granted to the Customer in this Agreement. Such software and documentation is protected by copyright and other intellectual property laws and treaties. DSN solely owns the title, copyright, and other intellectual property rights in such software and documentation, and such software is licensed, not sold. Customer shall not disassemble, decompile, or reverse engineer, such software, except and only to the extent that such activity is expressly permitted by applicable law.
11.2. DSN is the sole owner of the tradename “RecPro,” “Dealer Services Network,” and “DSN,” and all related designs, artwork, and logos (collectively, “DSN IP”). No license is granted hereunder to the Customer or any User for the use of DSN IP for any purpose. Customer acknowledges that (i) DSN and its affiliates are the sole and exclusive owner of DSN IP and the goodwill associated with such DSN IP; (ii) the validity of DSN IP, and (iii) agrees that it shall not at any time challenge or contest the validity of DSN IP or DSN’s or its affiliate’s ownership of DSN IP.
12. SECURITY POLICY
12.1. DSN uses reasonable measures to protect personal/confidential information and utilizes advanced technology for Internet security to protect said sensitive information online. the Website site is protected by Secure Socket Layer (SSL) encryption technology, which protects the information by using both server authentication and data encryption, ensuring that Customer data is safe, secure, and available only to registered Customers in Customer’s organization. As a pro-active security measure, DSN strongly recommends to Customer only permanent employees of Customer have access to the online system. Temporary staff members should be limited or denied access to the system for Customers security purposes. DSN records the IP address, “Customer Name” and “Password” when Customer logs on to DSN’s website, which allows DSN to monitor operations of the system and provide reasonable security against unauthorized access. In the event that Customer has any concerns about the security of their account, they should contact DSN immediately so the proper action(s) to change, modify, and/or further secure the account can be taken immediately.
12.2. Each party shall maintain physical, electronic and procedural safeguards in compliance with applicable laws to protect the Nonpublic Personal Information received from the disclosing party to 1) ensure the security and confidentiality of such information; 2) protect against anticipated threats or hazards to the security or integrity of such information; and 3) protect against unauthorized access or use of such information that could result in material harm or inconvenience to the consumer, including, without limitation, maintaining appropriate safeguards to restrict access to Nonpublic Personal Information to those employees and/or agents of the receiving party who need such information to carry out the purpose or purposes for which such information was disclosed. Each party shall comply in all respects with all applicable requirements of Title V of the Gramm-Leach-Bliley Act of 1999 and its implementing regulations. The obligations under this section shall survive the termination of this Agreement. In the event that DSN reasonably suspects that Nonpublic Personal Information disclosed to it by Customer has been or may have been subject to unauthorized internal or external access, or unauthorized use or disclosure, it shall immediately notify Customer.
13. WARRANTIES
13.1. DSN represents and warrants that (i) it is the owner and/or valid licensee of the Service and/or rights in the Service to be provided hereunder, and in the web-based system and/or any other version of it, including all intellectual property rights therein under patent, copyright, trademark and other applicable law; and (ii) it has the full and sufficient right, power and authority to offer and sell services to Customer.
13.2. Customer and the persons signing for Customer below represent and warrant that the persons signing for Customer below have the right and power to enter into this Agreement.
13.3. EXCEPT AS SET FORTH IN THIS AGREEMENT, CUSTOMER’S USE OF THE SERVICE IS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WHETHER SUCH FAULTS ARE OBVIOUS OR LATENT, WITHOUT ANY WARRANTIES BY DSN OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
13.4. Unfortunately, computers need routine maintenance and sometimes break down; DSN cannot control the timing or volume of attempts to access the Website’s server. As a result, DSN does not guarantee that Customer or any third parties will be able to access the Website at any particular time. DSN services are provided on an “as-is”, “as-available” basis.
14. INDEMNIFICATION
14.1. The parties shall at all times indemnify and hold each other harmless from and against any and all third party liabilities, obligations, claims, damages, fines, penalties, interest, taxes, causes of action, costs and expenses, including, without limitation, reasonable fees and disbursements of counsel (collectively, “Claims”), imposed upon or asserted against or incurred by a party, arising out of or in connection with the breach of any representation, warranties or obligations set forth in this Agreement by a respective party. This Paragraph shall survive the expiration or termination of this Agreement.
14.2. Customer shall indemnify and hold DSN harmless and defend DSN and its employees, officers, directors, shareholders, contractors and agents from any and all liability, loss, damages, claims, or causes of action, including reasonable legal fees and expenses, arising out of or related to Customer’s or its User’s (i) willful misconduct; and (ii) any breach (or with regard to the defense thereof, alleged breach) of this Agreement or breach of any of the representations and warranties contained herein, including without limitation any liability, loss, damages, claims, or causes of action arising from an indemnified violation.
14.3. Customer agrees to place DSN as an additional insured on any policy issued to Customer pursuant to which there could be coverage for any of the forms of legal liability described in this Agreement.
15. LIMITATION OF LIABILITY
15.1. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES BASED UPON ANY THEORY. Any cause of action arising from or in connection with this Agreement shall be asserted within one (1) year of the date upon which cause of action accrued, or upon the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later.
15.2. IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY DSN, THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, USERS, AND ALL OF THEIR AGENTS SHALL BE RECOVERY OF DAMAGES NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES FOR THE PRECEDING TWELVE (12) MONTHS IN CONNECTION WITH WHICH THE BREACH OCCURRED. DSN SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT DSN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY AND ALL CLAIMS IN THIS RESPECT ARE EXPRESSLY WAIVED. DSN DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE.
16. CHANGES TO THE SERVICE PROVIDER'S WEB SITES; ADDITIONAL LIABILITY LIMITATION
DSN MAY CHANGE THE WEBSITE, THE SERVICE, OR DELETE/ADD FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT NOTICE TO CUSTOMER. AS CUSTOMER USES THE WEBSITE, CUSTOMER SHOULD EXPECT TO RECEIVE, ACCESS OR USE INFORMATION, MATERIALS, GRAPHICS, SOFTWARE, DATA AND CONTENT (COLLECTIVELY, “CONTENT”) ORIGINATED BY DSN AND PERSONS OTHER THAN DSN (ANY SUCH PERSON IS REFERRED TO AS A “THIRD PARTY”) CUSTOMER ACKNOWLEDGES AND AGREES THAT DSN IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTUOUS OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT TRANSMISSIONS OR DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT DSN IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT CUSTOMER ACCESS TO OR USE OF THE DSN WEBSITES ANY INCOMPATIBILITY BETWEEN THE WEBSITE AND OTHER WEB SITES, (2) ANY INCOMPATIBILITY BETWEEN THE WEBSITE AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE (3) ANY DELAYS OR FAILURES CUSTOMER MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE WEBSITE IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH CUSTOMER USE OF ANY SERVICES AVAILABLE FROM THIRD PARTIES THROUGH LINKS CONTAINED ON THE WEBSITE. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND ARE NOT INTENDED TO DEPRIVE CUSTOMER OF ANY MANDATORY PROTECTIONS PROVIDED TO CUSTOMER UNDER APPLICABLE LAW.
17. TERMINATION
17.1. In the event that the Customer chooses to cancel the Agreement, the Customer has the option to do so as provided in the Agreement. Upon termination (i) all invoices and other amounts due to DSN shall be paid in full immediately; and, (ii) the Setup Fee and other amounts due to DSN are not refundable or pro-ratable.
17.2. In the event that either of the Parties breaches any provision of this Agreement, the non-breaching Party may terminate this Agreement in its sole discretion upon three (3) business day’s written Notice to the other party.
17.3. If, after the termination of the Agreement, Customer wishes that DSN (i) continue to store Customer data, Customer will pay DSN a monthly storage fee of $250.00 per month, and/or (ii) assist with the migration of the electronic records to another platform, to the extent that DSN has the capability of so doing, at a fee to be quoted by DSN to Customer.
18. ENFORCEMENT
18.1. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties agree that exclusive jurisdiction for any disputes arising between the parties to this Agreement shall be brought exclusively in the federal and state courts located in Broward County, Florida, and both parties waive any defense of personal jurisdiction in those courts except as specified in Article 19, Arbitration in Florida.
18.2. If any action is brought at law, in equity or arbitration, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, for all arbitration, pretrial, trial or appellate levels, which may be set by the court or the arbitrator in the same action or in a separate action brought for that purpose, including costs and fees for investigation and collection of any amount awarded in such action, in addition to any other relief to which the party may be entitled.
19. ARBITRATION IN FLORIDA
19.1. Any disputes that the Parties cannot resolve informally shall be subject to Binding Arbitration as follows:
(a) CUSTOMER AND DSN ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT CUSTOMER WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
(b) ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(c) The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Article (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
(d) The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(e) If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.
(f) You agree to an arbitration on an individual basis. In any dispute, NEITHER CUSTOMER NOR DSN WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
(g) If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
20. WAIVER OF JURY TRIAL
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY, IRREVOCABLY, UNCONDITIONALLY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON OR PARTY AND RELATED TO THIS AGREEMENT; THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING FROM ANY SOURCE, INCLUDING BUT NOT LIMITED TO THE CONSTITUTION OF THE UNITED STATES, THE CONSTITUTION OF ANY STATE, COMMON LAW OR ANY APPLICABLE STATUTE OR REGULATION. THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT.
21. SURVIVAL
Provisions of this Agreement which, by their terms or their nature, should survive termination or expiration of this Agreement shall survive, including, without limitation Article 6, Article 7, Article 8, Article 9, Article 10, Article 11, Article 12, Article 15, Article 16, Article 18, Article 19, Article 20, Article 21, and Article 22.
22. RULES OF CONSTRUCTION
22.1. The preparation of this Agreement has been a joint effort of the parties, and each of the parties has participated fully in the negotiation and preparation hereof. Therefore, any rule of judicial construction that an agreement is to be construed more strictly against one of the parties than the other shall not apply and has no effect.
22.2. This Agreement shall not be valid until signed and accepted by a signatory duly authorized to legally bind the respective parties hereto. No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of the respective parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
22.3. Either party’s failure to require the other party’s performance of any term or condition of this Agreement shall not constitute a waiver and shall not affect the right of such party to later enforce such provision unless such waiver is made expressly in writing signed by an authorized representative of the waiving party.
22.4. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and on waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
22.5. Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, acts of God, war, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the affected party’s reasonable control. The party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance.
22.6. Neither party to this Agreement shall disclose the terms and conditions of this Agreement to any third party, nor will either party issue a press release and/or otherwise disclose the existence of this Agreement to the media or the general public, without the express written consent of the other.
22.7. All parties agree to act in good faith at all times and to abide by all terms and conditions set forth herein in such a manner.
22.8. This Agreement does not constitute an offer by either party and it shall not be effective until signed by both parties. Upon execution by both parties, this Agreement and all exhibits and attachments shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall be deemed to merge all prior and contemporaneous agreements, communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.
22.9. In the event of any inconsistency between the terms of a Service Order and the Agreement or these Standard Terms, the terms of these Standard Terms shall prevail. The laws of the State of Florida shall govern this Agreement. No modification of this Agreement shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. Any provision of this instrument prohibited by law in any state shall, as to such state, be ineffective to the extent of such prohibition, without invalidating the remaining provisions of this instrument.
22.10. All notices, requests, demands, and other communications to Hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice). If to Customer, at the address set forth in the Agreement. If to DSN, notice must be made to the attention of both the CEO and the CFO, 3155 SW 10th St. Ste. D, Deerfield Beach, Florida 33442.
22.11. Customer shall not assign this Agreement and any rights or obligations hereunder without the express written approval of DSN, which approval shall not be unreasonably withheld. In addition, any transfer of control of substantially all of the assets or business of Customer to a third party by any means, including without limitation, stock acquisition or merger, shall be deemed to be an assignment for purposes of this section. DSN shall be entitled to assign this Agreement without limitation.
22.12. DSN and Customer may enter into additional Service Orders by the authorized representatives of both parties hereto signing such Service Orders, which shall automatically be subject to the Standard Terms hereof and become part of this Agreement.
22.13. Survival: Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
23. AUTHORIZED REPRESENTATIVES
Either party’s authorized representative, agent, or employee for execution of this Agreement or to any amendment hereto, shall have the requisite authority to bind the respective party to this Agreement and warrants that they have the requisite authority to do so.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement to be effective as of the Effective Date of the Agreement.