TERMS OF USE AGREEMENT

 

This Terms of Service Agreement (this “Agreement”) is a legal agreement between You (as defined below) and IQBoxy, Inc. (“IQBoxy”) and governs your use of the IQBoxy expense tracking and management mobile application. 

IQBoxy, Inc., ("IQBoxy") has developed certain technology, including a web-based and mobile application based software product called IQBoxy, to provide a service for expense tracking and management via a mobile device. You desire to subscribe to the IQBoxy Service (defined below) and IQBoxy desires to provide access to the IQBoxy Service to You on the terms and conditions set forth herein.

Each party represents and warrants that the person signing below on its behalf is a representative or agent of the company and has the authority to bind the company to the terms and conditions of this Agreement. For purposes of this Agreement the term "You" means such company and all of its directors, subsidiaries, managers, officers, employees and agents.

IQBoxy is willing to provide access to the IQBoxy Service and related Documentation (defined below) to You only on the condition that You accept all of the terms and conditions set forth in this Agreement. By signing this Agreement, You acknowledge that You have read this Agreement, understand it, and agree to be bound by it.

1. Definitions.
In addition to those terms defined elsewhere in this Agreement, the following words and phrases in initial capital letters shall have the meanings set forth below:

1.1 "IQBoxy Service" or "Service" means the mobile software as a service expense tracking and management service delivered by IQBoxy to You using the IQBoxy System.
1.2 "IQBoxy System" means the technology, including the hardware and software, used by IQBoxy to deliver the IQBoxy Service to You in accordance with this Agreement.
1.3 "Content" means all content located on or contained in the IQBoxy website or any other website owned or controlled by IQBoxy.
1.4 "Data" means all data, materials or information provided by You, Your Users, employees, or any third party on Your behalf in connection with Your use of the IQBoxy Service.
1.5 "Documentation" means the online materials, specifications or forms provided by IQBoxy that describe the features, functionality or operation of the IQBoxy Service and/or IQBoxy System.
1.6 "Password" means the unique password assigned to each User for access to the IQBoxy Service and the IQBoxy System.
1.7 "Users" means You and/or Your employees, representatives, consultants, contractors or agents who are authorized to use the IQBoxy Service on Your behalf pursuant to Your acceptance of this Agreement and Your payment of the appropriate license fees covering each User's access.

2. Grant of License.
During the Term of this Agreement and subject to the terms of this Agreement, IQBoxy hereby grants to You (and any authorized Users) a non-sublicensable, non-transferable, non-exclusive right and license to access and use the IQBoxy Service, in accordance with the Documentation and solely for Your internal business operations.

3. Your Use of the IQBoxy Service
3.1 Access and Security Guidelines. You will choose or be provided with Passwords for each of its licensed User(s) on the IQBoxy system. You will be responsible for ensuring the security and confidentiality of its Passwords. Each Password may be assigned to and used by only one individual User. You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the IQBoxy Service, and will notify IQBoxy promptly of any such unauthorized use. You shall not knowingly interfere with or disrupt the integrity or performance of the IQBoxy Service or the data contained therein. You shall, at all times, comply with all applicable laws in its use of the IQBoxy Service.
3.2 Your Data. You is solely responsible for its Data and shall not knowingly provide, post or transmit any Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. IQBoxy may take remedial action if Your Data violates this Section 3.2; however, IQBoxy is under no obligation to review Your Data for accuracy or potential liability.
3.3 Restrictions on Use.
3.3 (a) You are responsible for all activities that occur under its User accounts. You will not, and will not attempt to (directly or indirectly): (a) reverse engineer, disassemble or decompile any component of the IQBoxy System or IQBoxy Service or otherwise attempt to discover any source code, underlying ideas or algorithms contained in the IQBoxy System or IQBoxy Service; (b) interfere in any manner with the operation of the IQBoxy Service or the IQBoxy System; (c) allow a third party to access the IQBoxy Service or IQBoxy System using Your User Accounts; (d), distribute, sell, resell, sublicense, assign or otherwise transfer to a third party any of its rights under this Agreement; (e) use the IQBoxy Service or IQBoxy System for the benefit of a third party, for timesharing or to operate a service bureau; (f) copy, modify, translate or make derivative works based on any part of the IQBoxy System, IQBoxy Service or Documentation; (g) create Internet "links" to or from the IQBoxy Service or IQBoxy System, or "frame" or "mirror" any of IQBoxy's content which forms part of the IQBoxy Service (other than on Your own internal intranets); (h) remove, cover, alter or obfuscate any logos, trademarks, internet links, confidentiality or proprietary rights notices, or any other notices or markings placed on or displayed by the IQBoxy System, IQBoxy Service or the Documentation; (i) publish or disclose to third parties the results of any evaluation or benchmark test run on the IQBoxy System or IQBoxy Service without IQBoxy's prior written consent; or (i) otherwise use the IQBoxy Service or IQBoxy System in any manner that exceeds the scope of use permitted under this Agreement.
3.3 (b) You shall not and shall not allow any Users to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan on the IQBoxy Service or IQBoxy System without IQBoxy's prior written consent, or (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the IQBoxy Service or IQBoxy System. 
3.3 (c) You may not use the IQBoxy Service or IQBoxy System for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list. You agree not to transmit, or permit Users to transmit, through the IQBoxy Service or IQBoxy System, any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. You agree to only use the IQBoxy Service and IQBoxy System for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include, but are not limited to, storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm.
3.4 System Availability
IQBoxy does not warrant that the Service will be uninterrupted, timely or error free. IQBoxy has established internal system availability targets of 99.5% uptime or greater. 

4. Ownership.
4.1 IQBoxy Technology. You acknowledge and agree that IQBoxy or its suppliers retain all right, title and interest in and to (i) the IQBoxy System, IQBoxy Service, Documentation and all other software, materials, formats, interfaces, information, content and proprietary information and technology used by IQBoxy or provided to You in connection with the IQBoxy Service, (ii) all modifications and/or enhancements to the IQBoxy System or IQBoxy Service, (iii) the System Content, (iv) all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or learned as a result of Your use of the IQBoxy Service, (v) all transactional and performance data related to the use of the IQBoxy System and the IQBoxy Service which IQBoxy may collect, use and disclose for its business purposes (including for purposes of software use optimization and product marketing) provided that such use does not reveal Your or any User's identity, any of Your Confidential Information, or any other personally identifiable information that belongs to You; (vi) all custom developed documents, designs, computer programs, computer documentation and other tangible materials created or prepared by IQBoxy at Your request pursuant to a separate, written statement of work; and (vii) the IQBoxy logo, and the product and service names associated with the IQBoxy Service or otherwise contained on the IQBoxy website, all of which are trademarks of IQBoxy (all of the foregoing being referred to herein collectively as, the "IQBoxy Technology"). You acknowledge and agree that the IQBoxy Technology is comprised of intellectual property rights owned by or licensed to IQBoxy all of which are protected by intellectual property laws.
4.2 Your Data. You retain all right, title and interest in and to your Data. You grants to IQBoxy all necessary licenses in and to such Data solely as necessary for IQBoxy to provide the IQBoxy Service to You or as required by law. You will be solely responsible for providing all Data required for the proper operation of the IQBoxy Service. Except as described in Section 4.1 above, IQBoxy will not knowingly use or access any of Your Data unless authorized to do so by You and, in such circumstances, IQBoxy will access and use Your Data only as required to perform services on Your behalf. On occasion, IQBoxy may query data across all customers in aggregate to derive average spend amounts and metrics for benchmark reporting purposes. In all such cases, IQBoxy will anonymize Your Data and in no event will Your Data be identifiable. When such benchmarking reports are derived, You will receive access to this data for its internal use.

5. Term and Termination.
5.1 Term. This Agreement will commence upon execution of this Agreement and will continue in effect in perpetuity unless and until terminated with thirty (30) days' advance written notice to the non-terminating party, or otherwise pursuant to these terms (the "Term").
5.2 Termination. Either party may terminate this Agreement and Your subscription to the IQBoxy Service at any time and for any reason or no reason at all, in accordance with this Section 5.2 and/or Section 5.1; provided that if Your subscription is for a fixed period of time and You terminate the IQBoxy Service without cause, you will be responsible for the payment of the fee for the full Term. You may terminate this Agreement and its subscription by providing written notice to IQBoxy. The only circumstances in which You will be entitled to any refund of fees paid for its subscription to the IQBoxy Service upon termination of this Agreement are as follows: (a) in accordance with Section 7.1(b) below; or (b) IQBoxy will refund to You any unearned fees in the event IQBoxy unilaterally terminates this Agreement and Your subscription to the IQBoxy Service without cause. As used in the previous sentence, "unearned fees" means all license fees actually paid by You for access to the IQBoxy Service for the period in which this Agreement is terminated other than by You without cause, prorated to the number of days, or the number of unused prepaid expense reports remaining in such month after termination.
5.3 Obligations After Termination. Upon termination of this Agreement for any reason: (a) any amounts owed to IQBoxy under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other, or destroy, all Confidential Information and other property of the other party in its possession or under its control. IQBoxy agrees that upon any termination of this Agreement, IQBoxy will allow You to access, without the right to modify, enhance or add to, Your Data for ninety (90) days after termination. Any such termination shall not limit any other rights or remedies which IQBoxy may hold, all of which are hereby reserved. 

6. Payment.
6.1 You shall pay all invoices from IQBoxy within 30 days from the date of Invoice. You shall pay all fees or charges to its account in accordance with the fees, charges, and billing terms as defined in this Agreement. Except as otherwise specifically provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable. You may add IQBoxy Services by executing an additional written Sales Order Form. All pricing terms are confidential, and You agree not to disclose them to any third party.
6.2 IQBoxy charges and collects in advance for the total IQBoxy cost for a subscription to the IQBoxy Service, as detailed in this Agreement. IQBoxy will invoice You for its monthly or annual service charges. Fees for other services will be charged on an as-quoted basis. If You received a free month for subscribing to the Service for a fixed term, the free month shall be the last month of the term.  IQBoxy collects Sales tax for all locations within the United States that require such tax based upon State and Local Sales tax laws. Outside of the United States, IQBoxy's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and to the extent not exempt, You will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on IQBoxy's income. You agree to provide IQBoxy with complete and accurate billing and contact information. 
6.3 In addition to any other rights IQBoxy may have, IQBoxy reserves the right to suspend or terminate this Agreement and Your access to the IQBoxy Service if payment for undisputed fees is not paid to IQBoxy within the time periods provided for herein. If You or IQBoxy initiates termination of this Agreement, You will be obligated to pay the balance due on its account. You agree and acknowledge that IQBoxy has no obligation to retain Your Data and that such Data may be irretrievably deleted if Your account is ninety (90) days or more delinquent.
6.4 The IQBoxy Pricing as described in this Agreement shall be maintained for period of Your subscription. 

7. Warranty; Disclaimer of Warranties; Limitation of Liability.
7.1 IQBoxy Warranty. IQBoxy warrants that the IQBoxy Service will perform substantially in accordance with the Documentation during the Term of this Agreement (the "Limited Warranty"). In the event of a breach of the Limited Warranty, IQBoxy's entire liability and Your exclusive remedy shall be, at IQBoxy's option, either (a) correction of the IQBoxy Service so that it performs substantially in accordance with the Documentation, or (b) return to You the Fees actually paid by it for the prior twelve (12) months immediately preceding Your written notice to IQBoxy specifying the breach of the Limited Warranty in detail, and cancellation of its subscription and this Agreement.
7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE, THE IQBOXY SERVICE, THE IQBOXY SYSTEM AND ALL OTHER DATA, MATERIALS AND DOCUMENTATION PROVIDED OR MADE AVAILABLE BY IQBOXY IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. IQBOXY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. IQBOXY DOES NOT WARRANT THAT THE IQBOXY SERVICE WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE IQBOXY SERVICE IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE IQBOXY SERVICE.
7.3 Limitation of Liability. EXCEPT AS PROVIDED FOR HEREIN TO THE CONTRARY, EITHER PARTY'S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, THE IQBOXY SYSTEM OR THE SERVICE UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE STRICTLY LIMITED TO THE FEES ACTUALLY PAID BY YOUTO IQBOXY FOR THE IQBOXY SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. ALL CLAIMS BY EITHER PARTY WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. EXCEPT AS PROVIDED FOR HEREIN TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST OR INACCURATE DATA, OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, OR LOSS OF USE OF ANY INFORMATION OR DATA OF THE IQBOXY SYSTEM OR IQBOXY SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIMITATIONS ON AMOUNT AND/OR TYPES OF DAMAGES SHALL NOT APPLY TO CAUSES OF ACTION OR DAMAGES CAUSED OR CREATED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY, OR, THE LOSS OR MISUSE OF CONFIDENTIAL INFORMATION BYEITHER PARTY OR, BREACH OF IQBOXY'S INDEMNITY OBLIGATIONS UNDER SECTION 8.

8. Indemnity.
8.1.1 Indemnity by IQBoxy. IQBoxy will defend, indemnify and hold You harmless from all claims, losses, demands, liabilities, damages or judgments awarded by a court of appropriate and final jurisdiction, or any settlements, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees), arising out of (i) any third party claims that the IQBoxy Service or the IQBoxy System infringes or misappropriates any presently existing United States patent, copyright, trademark or trade secret held by such third party; (ii) a breach by IQBoxy of any of its obligations, representations, warranties or covenants contained in this Agreement; provided that and so long as: (a) You use the IQBoxy Service and the IQBoxy System in accordance with the Documentation; (b) You have adhered to its obligations under this Agreement; and (c) You promptly notify IQBoxy in writing of any such claim, suit or proceeding and permit IQBoxy to control the defense or settlement thereof and cooperate in the defense or settlement thereof.
8.1.2 IQBoxy will have the option, at its expense, to employ counsel of its choosing to defend against such claim and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon You may be affected without Your prior written consent. You shall have the option to be represented by counsel at Your own expense.
8.1.3 You, at IQBoxy's expense, shall cooperate fully in such actions, making available employees, books and records reasonably necessary for the defense of such claim. If IQBoxy refuses to defend or does not make known to You IQBoxy’s willingness to defend against such claim within thirty (30) days after it receives notice thereof, then You shall be free to investigate, defend, compromise, settle or otherwise dispose of such claim in Your best interest and incur other costs in connection therewith, all at the expense of IQBoxy.
8.1.4 Should You be permanently enjoined by a court of competent jurisdiction from continued use of the IQBoxy Service because it infringes or misappropriates a third party's presently existing United States copyright, patent, trademark or trade secret, IQBoxy will (at IQBoxy's discretion): (i) obtain the appropriate licenses for You to continue to use the IQBoxy Service; (ii) provide You with a non-infringing service equivalent to the IQBoxy Service in terms of functionality and performance; or (iii) terminate this Agreement and refund to You the amount of the Fees actually paid by You for the prior twelve (12) months of access to the IQBoxy Service.
8.1.5 IQBoxy will have no obligation under this Section 8.1 with respect to any claim of infringement or misappropriation of a third party's proprietary rights to the extent such claim arises as a direct or indirect result of (a) any use of the IQBoxy Service or IQBoxy System in a manner other than as authorized in this Agreement; (b) any use of the IQBoxy Service or IQBoxy System in combination with other products, equipment, devices, software, systems or data not supplied by IQBoxy to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the IQBoxy Service or IQBoxy System made by any party other than IQBoxy if such infringement or misappropriation would not have occurred without such alteration, modification or customization. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF IQBOXY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.
8.2 Indemnity by You. You shall indemnify, defend and hold IQBoxy harmless from all claims, losses, demands, liabilities, judgments, or damages awarded by a court of appropriate and final jurisdiction, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees) arising from or relating to (a) use of the IQBoxy Service or IQBoxy System (including claims by any of Your customers or business partners) by You or any third party using a Password assigned to You; (b) a breach by You of any of Your obligations, representations, warranties or covenants contained in this Agreement; or (c) any claim alleging that Your Data, or the use of Your Data pursuant to this Agreement, infringes, misappropriates or violates the intellectual property or any other rights of a third party or otherwise causes harm to a third party.

9. Confidentiality.
9.1 Confidential Information. During the Term of this Agreement, each party will have access to certain information and materials concerning the other party's technology, business plans, employees, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). Confidential Information of IQBoxy shall include, without limitation, information specifically designated as confidential, the features and functions of the IQBoxy Service and IQBoxy System that are not available to the general public (including screen shots of the same), future product plans, the Documentation, performance and security test results (whether conducted by IQBoxy or You), and any other proprietary, financial or business information supplied to You by IQBoxy or learned by You in connection with this Agreement or Your subscription to the IQBoxy Service. Your Confidential Information shall include, without limitation, Your Data, Your Personal Information, information specifically designated as confidential, business plans, and any other proprietary, financial, or business information supplied by You to IQBoxy or learned by IQBoxy in connection with this Agreement or Your subscription to the IQBoxy Service. Except as otherwise expressly authorized under this Agreement, the receiving party hereunder: (i) shall not use any Confidential Information of the other party except as required to fulfill its responsibilities hereunder; (ii) shall not disclose the other party's Confidential Information to any third party; (iii) shall not be given any right, title, interest or license in or to any Confidential Information of the other party; and (iv) shall use all reasonable means to protect and maintain the secrecy of the other party's Confidential Information. Notwithstanding the foregoing, "Confidential Information" shall not include either party's information which is: (a) generally available to the public; (b) already in the receiving party's possession as of the commencement of this Agreement without restriction; (c) except as it relates to third party service providers of You, received by the receiving party from a third party not in violation of an obligation of confidentiality; (d) developed independently by either party without reference to the other party's Confidential Information; (e) the subject of the disclosing party's written consent authorizing disclosure; or (f) required to be disclosed by the receiving party by applicable law or legal process, provided that the receiving party immediately notifies the disclosing party so that the disclosing party may take steps to limit or prevent its disclosure. In the event of a breach of this Section, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party will be impossible to calculate and would therefore be an inadequate remedy. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary, preliminary and permanent injunctive relief against the breaching party, its officers, managers, directors, employees and agents, in addition to such other rights and remedies to which it may be entitled at law or in equity.

10. Miscellaneous.
10.1 Notification of Changes. IQBoxy reserves the right to modify the terms and conditions of this Agreement or its policies relating to the IQBoxy Service at any time, effective upon posting of an updated version of this Agreement or the applicable policy on the IQBoxy website or IQBoxy Service. You are responsible for regularly reviewing this Agreement and any applicable policies. Continued use of the IQBoxy Service after any such changes will constitute Your consent to such changes. If there are any changes in how IQBoxy uses Your personally identifiable information, it will notify You by email. 
10.2 Force Majeure. Neither party shall be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, acts of God or of the public enemy, domestic or foreign governmental acts, labor, fire, flood, epidemic, strikes, and/or freight embargoes. 
10.3 General. This Agreement is governed by the laws of the State of California, without reference to its conflicts of laws principles. This Agreement sets forth the entire understanding and agreement between the parties and supersedes any prior or contemporaneous discussions, understandings, orders, requests or statements regarding the subject matter hereof, except for any additional payment terms which may be contained on a related Sales Order Form. No provision of this Agreement shall be modified, supplemented or waived without the express written authorization of both parties. Either party may assign not less than all of its rights and obligations under this Agreement in connection with a change of control to such party's successor. This Agreement shall be binding upon and inure to the benefit of IQBoxy's and Your successors and permitted assigns. You agree that IQBoxy is providing these Services as an independent contractor and nothing herein shall be deemed to constitute a partnership, joint venture or other business collaboration. In the event of a dispute between IQBoxy and You where the parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to a court of competent jurisdiction in order to protect its rights and interests. Payment of expenses, including attorneys' fees, shall be assessed by the court based on the extent to which each party prevails. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing. 
10.4 Survival. Sections 1, 3, 4, 5.3, 7.2, 7.3, 8, 9 and 10 of this Agreement and all of Your payment obligations under this Agreement shall survive the termination or expiration of this Agreement for any reason.