These Applicable Terms and Conditions supplement the Commercial Terms executed between Reseller and SAFETY HOLDINGS, INC. and its wholly owned subsidiaries, including SAMBA HOLDINGS, INC. (“SAMBASAFETY”) and AMERICAN DRIVING RECORDS, INC. (“SAMBASAFETY/ADR”) (collectively hereinafter referred to as “SAMBASAFETY/ADR”), and form an integral part of the Agreement between SAMBASAFETY/ADR and the Reseller identified on the Commercial Terms.
1. Definitions. The following terms, when capitalized, will have the meaning set forth in this section. All other capitalized terms when used shall have the meaning ascribed to them as set forth elsewhere in this Agreement.
“SAMBASAFETY/ADR System” means the proprietary system developed and operated by SAMBASAFETY/ADR for facilitating requests for, and retrieval and distribution of Information Services from Data Providers with which SAMBASAFETY/ADR maintains license arrangements, and which comprises a gateway server or servers, and other equipment, SAMBASAFETY/ADR proprietary software, and telecommunication lines.
“Data Provider” means any Federal or State agencies, private service providers, and other service bureaus that provide SAMBASAFETY/ADR with Information Services.
“Information Services” means any data, reports, indicators, products and/or services, including but not limited to Motor Vehicle Reports (“MVRs”), vehicle, title and registration histories, driver monitoring, database records, and analytic services provided by SAMBASAFETY/ADR to Reseller.
“Personal Information” means (i) any information about an identifiable individual and (ii) information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual. Personal Information includes, without limitation, names, email addresses, postal addresses, telephone numbers, government identification numbers, financial account numbers, payment card information, credit report information, biometric information, IP addresses, network and hardware identifiers, and geolocation information.
“User” means any person or entity who or that access the SAMBASAFETY/ADR System (i) on behalf of Reseller or clients or Resellers of Reseller or (ii) using any password or access code of Reseller or clients or Reseller of Reseller and the employees and agents thereof.
2. License Grant; Restrictions.
2.1 License Grant. Subject to the terms and conditions of this Agreement, during the Contract Term, SAMBASAFETY/ADR hereby grants to Reseller a limited, worldwide, enterprise-wide, royalty-free, non-exclusive, non-transferable license and right to access and use the SAMBASAFETY/ADR System and any Information Services provided by SAMBASAFETY/ADR solely for its internal business purposes.
2.2 Restrictions on Use. Reseller shall not, nor allow or authorize any third party to: (a) alter, enhance or otherwise modify or create derivative works of or from the SAMBASAFETY/ADR System; (b) disassemble, decompile, reverse engineer or otherwise attempt to derive the source code of the SAMBASAFETY/ADR System; (c) merge the SAMBASAFETY/ADR System with other software; (d) remove or destroy any proprietary markings, confidential legends or any trademarks or trade names of SAMBASAFETY/ADR or its licensors placed upon or contained within the SAMBASAFETY/ADR System, its documentation or the Information Services; (e) upload, post or transmit into the SAMBASAFETY/ADR System any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any Applicable Law, including violations of the intellectual property rights or any other rights of a third party; or (f) post or transmit into the SAMBASAFETY/ADR System any information, content or software which is subject to any open source or freeware license or contains a virus, cancelbot, Trojan horse, worm or other harmful component. Use, duplication or disclosure by the U.S. Government or any of its agencies is subject to restrictions set forth in the Commercial Computer Software and Commercial Computer Software Documentation clause at DFARS 227.7202 and/or the Commercial Computer Software Restricted Rights clause at FAR 52.227.19(c). Reseller further acknowledges and agrees that each individual accessing the SAMBASAFETY/ADR System may be required to agree and consent to SAMBASAFETY/ADR’s then-current online end user license terms and conditions prior to accessing or utilizing the functionality of the SAMBASAFETY/ADR System.
2.3 Public Record Indicators. Reseller elects to receive public record indicators. Due to the limited nature of public record indicators, Reseller acknowledges that these public record indicators shall only be used as pointers of possible records. Reseller represents and warrants that (a) it will not knowingly use public record indicators to deny insurance coverage or to take an adverse action against any individual; and (b) prior to making any decisions to deny insurance coverage or take an adverse action against any individual, Reseller will verify the activity on a public record indicator directly with a current, up-to-date MVR.
3. Confidentiality and Treatment of Information.
3.1 Personal Information. Reseller acknowledges that in connection with this Agreement, it may receive Personal Information from SAMBASAFETY/ADR and/or Data Providers. Reseller agrees to treat as confidential all Personal Information received from or through SAMBASAFETY/ADR and to use such information only as permitted under the Agreement and all Applicable Laws and to disclose Personal Information only to those authorized and who have a need to know such information to accomplish their duties in accordance with the Agreement and all Applicable Laws. Reseller shall not use Personal Information for any purpose except the purpose permitted by this Agreement.
3.2 Confidential Information. “Confidential Information” means information that one party, or a party’s affiliate, discloses to the other party or its affiliate(s) under this Agreement, and that is marked as confidential or a reasonable person would believe to be considered confidential information given the nature of the information and the circumstances under which such information is disclosed; provided, however, neither party shall have any obligation to maintain the confidentiality of any Confidential Information which is not Personal Information to the extent it: (a) is or becomes publicly available by other than unauthorized disclosure by the recipient; (b) is independently developed by the recipient; or (c) is received from a third party who has lawfully obtained such Confidential Information without a confidentiality restriction.
3.3 Reciprocal Obligations. Without limiting Reseller’s obligations with regards to Personal Information, the recipient will not disclose Confidential Information of the discloser, except to recipient’s affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities to whom and which it transfers any Confidential Information of the discloser shall only use such information as permitted under the Agreement and that such individuals and entities shall keep it confidential in accordance with this Agreement. Notwithstanding the foregoing, if required by any court of competent jurisdiction or other governmental authority, the recipient may disclose to such authority, data, information or materials involving or pertaining to Confidential Information to the extent required by such order or authority; provided that the recipient shall have given reasonable notice to the discloser prior to such disclosure.
3.4 No Rights. Except for the limited use rights under this Agreement, neither party acquires any right, title, or interest in the other party’s Confidential Information.
3.5 Change in Reseller’s Business. Reseller shall immediately notify the other party of any of the following events: change in ownership of that party (over 50%); a merger, change in name or change in the nature of Reseller’s business that in any way affects that party’s rights to request and receive consumer reports.
4. SAMBASAFETY/ADR System and Information Services Availability.
4.1 No Availability Guarantee. SAMBASAFETY/ADR will use commercially reasonable efforts to deliver the Information Services. Reseller acknowledges that SAMBASAFETY/ADR relies totally on the information contained in the records and/or information provided by various Data Providers for its Information Services and response times for fulfillment of Information Services. Requests through the SAMBASAFETY/ADR System may be subject to delays occasioned by numerous technical factors which cannot be fully anticipated. SAMBASAFETY/ADR does not guarantee availability of the SAMBASAFETY/ADR System, any Information Services from any particular Data Provider. SAMBASAFETY/ADR makes no representation or warranty whatsoever regarding anticipated response times for retrieval or delivery of Information Services.
4.2 Records Not Available. Data Providers may offer multiple types of records, including records that are not available to SAMBASAFETY/ADR and/or not provided by SAMBASAFETY/ADR as part of the Information Services. Reseller is responsible for accessing and using the appropriate record type for Reseller’s particular use. If Reseller requires Information Services not provided by SAMBASAFETY/ADR (such as a certified copy of a driving record), Reseller is responsible for contacting the appropriate Data Provider directly.
5. Term and Termination.
5.1 Termination. SAMBASAFETY/ADR or Customer each may terminate this Agreement without cause upon 30 days prior written notice to the other party may immediately terminate the Agreement upon the occurrence of the following events: (a) Reseller files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors or makes an assignment for the benefit of creditors; (b) Any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against Reseller and is not staid, enjoined or discharged within sixty days; (c) Reseller adopts a resolution for discontinuance of its business; (d) Default in payment of any fees or other related amounts for the Information Services; (e) Misuse of Information Services; (f) Uncured (after 30 days written notice by SAMBASAFETY/ADR to Reseller) material breach of this Agreement; or (g) Unauthorized release or use of any information contained or related to the Information Services.
5.2 Survival. Termination or expiration of the Agreement shall not impair either party’s then accrued rights, obligations, liabilities or remedies. The terms and conditions of Sections 1, 2.2, 2.3, 3.1, 3.2, 3.3, 3.4 this Section 5.2. Sections 6, 7 and 8, and any other provision which by its nature is intended to survive, shall survive the termination or expiration of the Agreement.
6. Disclaimer of Warranty; Limitation of Liability; Indemnity.
6.1 Disclaimer of Warranty. EXCEPT AS SET FORTH HEREIN, SAMBASAFETY/ADR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND ABOUT THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE SAMBASAFETY/ADR SYSTEM, ANY INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, OR ANY INFORMATION CONTAINED THEREIN, OR ABOUT ANY RESULTS TO BE OBTAINED FROM USING THE SAMBASAFETY/ADR SYSTEM, ANY INFORMATION SERVICES, OR ANY DATA PROVIDER’S DATABASE, USE OF ANY OF WHICH IS AT RESELLER’S OWN RISK. THE SAMBASAFETY/ADR SYSTEM, ANY INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, AND ANY INFORMATION CONTAINED THEREIN IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. WHERE PERMITTED, PUBLIC RECORD INDICATORS USED FOR DRIVING MONITORING SERVICES MAY BE SUPPLIED FROM DATABASE FILES OF VARIOUS PRIVATE DATA PROVIDERS. THESE PUBLIC RECORD INDICATORS MAY PRODUCE DATA NOT CONTAINED IN A MOTOR VEHICLE REPORT PROVIDED BY A STATE AGENCY DATABASE. EXCEPT AS SET FORTH HEREIN, SAMBASAFETY/ADR AND ITS DATA PROVIDERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SAMBASAFETY/ADR SYSTEM, ANY INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTIBILITY OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SAMBASAFETY/ADR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE. SAMBASAFETY/ADR FURTHERMORE EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY THIRD PARTY WITH RESPECT TO THE SAMBASAFETY/ADR SYSTEM, INFORMATION SERVICES, ANY DATA PROVIDER’S DATABASE, OR ANY PART THEREOF.
6.2 Limitation of Liability. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, WHETHER IN CONTRACT, TORT, STATUTORY, WARRANTY OR OTHERWISE, IN NO EVENT SHALL SAMBASAFETY/ADR BE LIABLE OR RESPONSIBLE FOR: (a) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, MULTIPLE OR EXEMPLARY DAMAGES, REGARDLESS OF ITS AWARENESS OF THESE RISKS; AND/OR (b) LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES, OR BENEFIT OF THE BARGAIN DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL SAMBASAFETY/ADR’S AGGREGATE LIABILITY FOR DAMAGES BE IN EXCESS OF THE AMOUNTS ACTUALLY PAID BY RESELLER FOR THE SERVICE IN THE PREVIOUS 60-DAY PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE INITIAL CLAIM FOR DAMAGES.
6.3 Reliance on Information. In providing the Information Services, SAMBASAFETY/ADR shall be entitled to rely upon and act in accordance with any instructions, guidelines, data or information provided by Reseller, and shall incur no liability in doing so. Reseller shall indemnify and hold harmless, SAMBASAFETY/ADR and its affiliates and its and their third party vendors, shareholders, directors, officers and employees (“SAMBASAFETY/ADR Indemnitees”) from any and all claims, losses, actions, suits, proceedings or judgments, including, without limitation, costs and reasonable attorneys’ fees, incurred by or assessed against such parties resulting, in whole or in part from (a) any action or failure to act by a SAMBASAFETY/ADR Indemnitee in reliance on any instruction, approval, election, decision, action, inaction, omission or nonperformance by Reseller, its officers, directors, shareholders, employees and agents relating to the Information Services, (b) any information or data provided to SAMBASAFETY/ADR by any Reseller personnel in connection with the Information Services, (c) any decision made by Reseller or any third party based upon the Information Services requested or provided by or on behalf of Reseller, or (d) any breach of any term or condition of the Agreement by Reseller.
7. State-Mandated DMV Restrictions.
7.1 Required Documents. Reseller agrees to promptly execute and return to SAMBASAFETY/ADR all documentation required, now or in the future, by any Data Provider or SAMBASAFETY/ADR to permit release of information or to ensure compliance with any Applicable Laws or as part of SAMBASAFETY/ADR’s routine and specific audit requests in order to verify that requests are being sought for permissible purposes. The failure to return such documentation will result in Reseller being blocked from receiving the information related to the documentation, and may result in all Information Services being suspended or terminated.
7.2 Compliance with Laws. Reseller represents, warrants, covenants and certifies that it shall order, receive, disseminate and otherwise use the Information Services in compliance with all applicable federal, state and local statutes, rules, codes and regulations, including but not limited to, the Fair Credit Reporting Act (“FCRA”), the Driver’s Privacy Protection Act, 18 U.S.C. §2721 et seq. (“DPPA”), and their state equivalents, including any changes, supplements or amendments to such statutes, rules, codes and regulations (collectively, “Applicable Laws”). Reseller further represents, warrants, covenants and certifies that before ordering Information Services, it will comply with any applicable consumer disclosure-authorization and adverse action requirements under the FCRA and will not use any information contained in the Information Services in violation of any applicable federal or state equal opportunity law or regulation. Reseller understands that violators of the FCRA, the DPPA, and other federal and state laws governing protection of Personal Information are potentially subject to civil actions and penalties, including fines. Reseller shall be responsible for understanding and for staying current with all of Applicable Laws.
7.3 Credentialing. Credentialing is the process for verifying that entities are legitimate and their purpose for the use of Information Services is authorized. Reseller agrees to cooperate fully with continued monitoring of Reseller credentials. Monitoring includes the recertification of credentials (i.e., business license) and update of this Agreement. SAMBASAFETY/ADR reserves the right to make credentialing requests as it deems necessary.
7.4 Information Security. Reseller shall: (a) implement reasonable data security procedures that meet or exceed current industry standards to protect Information Services provided by SAMBASAFETY/ADR under the Agreement from unauthorized disclosure. Such reasonable procedures shall include, but are not limited to, user name and password access policies, firewalls, background investigations of employees or any other individuals authorized to access Information Services; (b) physically secure and tightly control all Reseller information technology assets that store, house or process Information Services in order to prevent unauthorized access; (c) employ adequate measures to insure that unauthorized users cannot successfully attack Reseller information technology assets in a manner that allows the SAMBASAFETY/ADR System or the Information Services to be comprised; (d) periodically scan Reseller information technology hosts and networks that hold or process Information Services for known vulnerabilities to search for exploits; (e) have a formal process in place to install vendor-recommended security patches in a timely manner for all information technology assets, hosts and networks that process Information Services or connect with the SAMBASAFETY/ADR System; (f) provide periodic, but minimally annual, security training to employees on best security practices and the practices of the Reseller; (g) ensure that each Reseller employee or other individuals who will have access from Reseller to Information Services execute an SAMBASAFETY/ADR User Statement of Confidentiality in a form directed by SAMBASAFETY/ADR from time-to-time; (h) have a reasonable computer incident policy and procedure program in place; and (i) not disseminate any unsecured or unencrypted Information Services over the Internet.
7.5 Account Information. Reseller: (a) shall remain fully responsible for any use of its and its Users’ SAMBASAFETY/ADR account number, User IDs, and passwords granted in connection with the Agreement and to prevent the disclosure or distribution thereof; (b) shall not provide any such information to any third party; (c) agrees to limit access to Information Services only to its current employees whose responsibilities require such access and only to the extent necessary for its proper use in accordance with Applicable Law and as authorized by this Agreement; (d) agrees to immediately terminate the User ID and password granted in connection with the Agreement for any employee that leaves Reseller’s organization or violates any terms or conditions of the Agreement or in the event there is reason to believe such User ID or password might be compromised; (e) shall remain fully responsible and liable for any unauthorized use of account number, User IDs or passwords granted in connection with this Agreement; (f) agrees that Reseller’s employees shall be forbidden to attempt to obtain Information Services on themselves, associates, or any other persons, except in the exercise of their official duties for Reseller; and (g) shall ensure each User of the SAMBASAFETY/ADR System by or on behalf of Reseller is assigned a unique user ID and password.
7.6 Audits. Beginning on the Effective Date of this Agreement, Reseller must maintain all records related to its ordering and using Information Services, for a period of five (5) years from the date each Information Services report is ordered. The information retained pursuant to this section must include without limitation the: request date, requested individual, requestor, and permissible purpose for each Information Services report, a signed release from the prospective or current employee each time a request is made for employment purposes, and any other information sufficient to verify that the ordering and use of the Information Services complies with the terms of the Agreement and Applicable Laws. Upon receipt of written SAMBASAFETY/ADR audit requests, Reseller agrees to respond with all documentation as requested within the time period specified in the audit notice or request for information. Access privileges to the Information Services may be suspended upon failure to comply with such requests.
7.7 Notification in Event of Breach or Misuse of Information. Reseller will promptly (but in any event within 72 hours of any inadvertent or unauthorized release) notify SAMBASAFETY/ADR of any inadvertent or unauthorized release of any Information Service or other security breach of Personal Information contained in any Information Service. To the extent required by Applicable Law, Reseller agrees to notify all affected consumers in writing that their Personal Information has been potentially compromised in the event of the Reseller’s or its Users’, inadvertent or unauthorized release, misuse, or other security breach of Personal Information contained in the Information Services supplied to Reseller. Reseller shall retain documentation of such notification and provide it to SAMBASAFETY/ADR and any governmental representatives immediately upon request.
7.8 Archiving. Reseller and any of its Users shall not use Information Services supplied by or through SAMBASAFETY/ADR, or data derived from them, including any MVR data, to directly or indirectly compile, store, or maintain the Information Services or derivative data to develop its own source or database of such services or data. Reseller agrees that use of Information Services is restricted to use, one time, for the permissible purpose referenced in the Account Information Sheet completed by the Reseller. Reseller shall accurately complete the Account Information Sheet upon request of SAMBASAFETY/ADR and prior to accessing the Information Services.
7.9 Retention of Information Services. Reseller shall promptly and adequately destroy any Information Services in its possession when the Information Services are no longer required for the purpose authorized in this Agreement, or sooner, if required by any Applicable Law.
7.10 No Solicitations. Reseller shall not, and shall not permit others to, use any Information Services for any solicitations, direct mail advertising, or any other mailings or communications.
7.11 Use of Information Services. Reseller will not disclose, distribute, resell and/or transfer any Information Services to any third party, nor permit any third party direct access to the SAMBASAFETY/ADR System except as expressly permitted by this Agreement.
7.12 Interpretation. If at any time Reseller and SAMBASAFETY/ADR disagree regarding the intent, effect, necessity to comply with, or the interpretation of any Applicable Laws, Reseller will conform to SAMBASAFETY/ADR’s interpretation thereof.
7.13 Failure to Comply. Failure of Reseller to fully comply with the requirements of all of this Section 4 shall be a material breach of the Agreement and shall permit SAMBASAFETY/ADR to immediately terminate the Agreement and the delivery of any Information Services to Reseller without notice or delay.
7.14 Other Restrictions. SAMBASAFETY/ADR shall have the right to amend upon written notice any term or condition of the Agreement as necessary or recommended to comply with any statute, rule, regulation, interpretation or contract, or in the event any modification or termination of any license for Information Services with any Data Provider, as determined by SAMBASAFETY/ADR in its reasonable discretion. In the event of such notification from SAMBASAFETY/ADR, (a) Reseller may elect to terminate the Agreement by providing written notice of such termination to SAMBASAFETY/ADR; provided, however, if Reseller requests, uses or accepts any Information Services after such notification or fails to promptly provide notice of termination pursuant to this section, then such terms and conditions shall take effect and become a part of the Agreement as specified in SAMBASAFETY/ADR’s notice to Reseller.
8. General Provisions.
8.1 Notice. All notices and demands pursuant to the Agreement must be in writing. Notices to Reseller shall be effective upon receipt thereof and may be delivered via the SAMBASAFETY/ADR System, an email address of one of the Reseller’s designated SAMBASAFETY/ADR administrator(s) or any email or mailing address specified on the Commercial Terms. Notice to SAMBASAFETY/ADR shall be provided by a reputable overnight courier with required signed receipt, or via certified mail of the U.S. postal system, and shall be deemed effective solely upon receipt if delivered to, SAMBASAFETY/ADR, 8814 Horizon Blvd., Suite 100, Albuquerque, NM 87113, ATTN: Compliance Officer.
8.2 Intellectual Property Rights. Notwithstanding anything in the Agreement to the contrary, the SAMBASAFETY/ADR System and its documentation and all intellectual property rights therein are proprietary to SAMBASAFETY/ADR and its third party suppliers or licensors, and SAMBASAFETY/ADR and its third party suppliers and licensors as applicable retain ownership of all rights whatsoever in the SAMBASAFETY/ADR System and all intellectual property rights therein.
8.3 Electronic Signature. If Reseller elects to obtain a signed release, authorization or consent in the form of an electronic signature, the electronic signature shall meet the standards defined under ESIGN and UETA. SAMBASAFETY/ADR shall have the right to audit and request any documentation regarding the Reseller’s compliance with the requirements regulating electronic signatures. Furthermore, upon written notice SAMBASAFETY/ADR may require Reseller to cease using electronic signatures for a particular Data Provider. Reseller shall assume full responsibility for obtaining signatures in electronic format and shall hold harmless SAMBASAFETY/ADR from any damages, losses or claims related to the validity of an electronic signature.
8.4 Entire Agreement; Modification; Counterparts. This Agreement, including the Commercial Terms, constitutes the entire agreement and understanding between the parties concerning its subject matter, and supersedes in full all prior and contemporaneous written and oral agreements, understandings, proposals, promises and representations of the parties concerning its subject matter and its terms; provided, however, nothing herein shall effect or terminate ongoing rights from non-disclosure agreements entered into by the parties prior to the Effective Date; provided, further, any new Confidential Information exchanged between the parties shall be governed by the confidentiality obligations set forth herein. Except as otherwise provided herein regarding SAMBASAFETY/ADR’s rights to modify or amend, the Agreement may not be modified or amended except in writing signed by duly authorized representatives of SAMBASAFETY/ADR and Reseller.
8.5 Independent Contractor. SAMBASAFETY/ADR and Reseller are independent contractors with respect to all activities under this Agreement, and nothing in the Agreement may be construed to create any employment, joint venture, agency, partnership or other relationship other than independent contractors. Neither SAMBASAFETY/ADR nor Reseller, or any of their respective employees, consultants, contractors or agents has any authority to bind the other party. Each party is responsible for its own costs and expenses in executing, implementing and performing under this Agreement, unless otherwise explicitly stated, in this Agreement.
8.6 Non-Exclusivity. Nothing in the Agreement is intended to, or may be construed to prevent SAMBASAFETY/ADR from entering into similar agreements with other persons or entities to provide Information Services or other services through the SAMBASAFETY/ADR System or otherwise, even if such persons or entities are or may become competitors of Reseller.
8.7 Assignment. The Agreement may not be assigned, in whole or in part, by either party without the prior written consent of the other party, except that SAMBASAFETY/ADR may (a) subcontract any of its obligations under this Agreement, and (b) assign this Agreement, and Reseller hereby consents to any successor entity in any merger or corporate reorganization, or to the purchaser of all or substantially all of the assets related to the SAMBASAFETY/ADR System. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, the Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.
8.8 Publicity Rights. SAMBASAFETY/ADR may develop Reseller reference materials and media relations documents regarding the Agreement and/or Reseller’s usage and experience with SAMBASAFETY/ADR, and SAMBASAFETY/ADR may use Reseller’s name and its trademark as a reference both publicly and privately, without limitations, in SAMBASAFETY/ADR’s marketing and promotional materials, including but not limited to, press releases, newsletter articles, web site references, and e-mail.
8.9 Invalid Provision. If any part of this Agreement, for any reason, is declared by a court of competent Jurisdiction to be invalid or unenforceable, then: (a) the validity and enforceability of all provisions of the Agreement not ruled to be invalid or unenforceable, will be unaffected; (b) the effect of the ruling will be limited to the jurisdiction of the court making the ruling; (c) the provision(s) held wholly or partly invalid or unenforceable will be deemed amended, and the court is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (d) if the ruling, or the controlling principal of law or equity leading to the ruling is subsequently overruled, modified, or amended by legislative, judicial, or administrative action, then the provision(s) in question as originally set forth in the Agreement will be deemed valid and enforceable to the maximum extent permitted by the new controlling principal of law or equity.
8.10 No Waiver. The failure of SAMBASAFETY/ADR at any time to require performance of any provision of this Agreement, in no way affects the right of SAMBASAFETY/ADR to require performance of that provision at any time. Any waiver by either party of any breach of any provision of the Agreement is not a waiver of any continuing or succeeding breach of that provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
8.11 Force Majeure. Neither party shall not be liable for any failure or delay in performance directly or indirectly caused by any act or omissions beyond its reasonable control.
8.12 Governing Law. The Agreement is made under and will be construed in accordance with the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado. Except as permitted under Section 9.13, any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the state courts of the State of Colorado and the federal courts of the United States, located in Denver, Colorado. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum.
8.13 Injunctive Relief. The parties agree that any violation or breach of the Agreement by Reseller may cause SAMBASAFETY/ADR irreparable harm. Accordingly, in addition to any other remedies available at law or equity, SAMBASAFETY/ADR shall be entitled to an injunction or other decree of specific performance with respect to any violation or explicit threat thereof in any court of competent jurisdiction, without any bond or other security being required and without the necessity of demonstrating actual damages.
8.14 Construction; Counterparts. The captions and headings contained herein are for purposes of convenience only and are not a part of this Agreement; all references to the Agreement and the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to the Agreement as a whole and not to any particular section, or other subdivision unless expressly specified otherwise; and the words “including,” “included” and “includes” mean inclusion without limitation. In the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party.
8.15 Signatures; Counterparts. The Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. A document signed and transmitted by .pdf or electronic copy shall have the same binding effect as an original signature.