Last Updated: August 2, 2013
Your agreement to follow and be bound by this service agreement is a condition precedent to your use of the Equipment and services. By accessing, using or downloading materials from the Equipment or Service, you agree to this Agreement. If you do not agree with this Agreement, do not use the Equipment or services.
Davis and Customer are each referred to herein as a "Party" and collectively as the "Parties."
Davis has developed and manufactures and markets weather and automotive monitoring products, including its WeatherLink® product, Vantage Connect® product and its CarChip Connect® product, which are more fully described in the catalogs and product literature published by Davis from time to time. Davis Instruments' monitoring products are designed to monitor weather or automotive data and to transmit the information by way of cellular telephone connection and/or internet connection to a Davis-hosted web site for viewing and analysis.
Customer has separately contracted with Davis to purchase Equipment either for Customer's own use or for resale to and use by End Users (as defined below). Customer desires either to purchase from Davis a service plan associated with use by Customer of such Equipment for Customer's own use or to purchase from Davis one or more service plans associated with use by End Users for their use, in either case on the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual agreements and understandings herein, the Parties agree as follows:
A. Definitions. The following terms when used herein have the meanings indicated:
"Affiliate" means, with respect to a specified entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, the specified entity.
"Carrier" means the underlying wireless carrier of the Service and its subsidiaries and Affiliates.
"Catalogs" means the catalogs, manuals and product literature published by Davis from time to time and describing the Equipment and services.
"Confidential Information" means all information of or relating to the Party disclosing such information (whether of a business, technical or other nature) that the other Party knows or reasonably should know to be confidential or proprietary, including all information not generally known to the public that relates to the business, technology, customers, potential customers, finances, budgets, projections, proposals or practices of the disclosing Party, and all information relating to the disclosing Party's business plans, proposals, research and development.
"Direct Customer" means and refers to Customer, if Customer is entering into this Agreement with respect to its own use.
"End User" means a customer of Reseller that purchases Equipment or services from Reseller.
"Equipment" refers to Davis weather and automotive monitoring products designed to transmit data over wireless networks and/or internet networks to a Davis-hosted website for viewing and analysis.
"Facilities" means the GPRS or EDGE systems, or any combination thereof, including the telecommunications switching equipment, servers, cell sites, cell site/BTS transceiver equipment, connections, billing systems and other equipment utilized by Carrier to provide the Service within the Territory.
"Number" means the ten-digit telephone number assigned to the Equipment and made available to Customer to provide access to the Service.
"Reseller" means and refers to Customer, if Customer is entering into this Agreement to procure Service Plans for End Users to which Customer sells the Equipment to the End Users.
"Service" means Davis' and Carrier's data network and includes the features and services described in the Catalogs, as in effect from time to time, and as amended by Davis or Carrier at any time without prior notice, to be provided within the Territory.
"Service Plan" means the rates, terms and conditions on which Davis makes the Service available to Customer or to an End User for use with the Equipment, as described in the Catalogs in effect from time to time.
"SIM" means subscriber identity module, which is a specially programmed microchip that is inserted into a communications device that encrypts transmissions and identifies the user to the integrated mobile switching facilities, servers, cell sites, connections, billing systems and other related Facilities used by Carrier to enable Davis and Carrier to provide the Service.
"Territory" means the area that is effectively served by the Facilities of the Carrier.
B. Term of Agreement.
1. Subject to Section J, the term of this Agreement shall commence on the date hereof and continue for a period as follows:
For CarChip Connect products, the agreement shall continue for a period of two years and thereafter shall automatically renew for successive one-month terms.
For all other products, the agreement shall continue for a period of one year and thereafter shall automatically renew for successive one-year terms.
2. Davis may terminate the Service for convenience at any time. Davis will refund any pre-paid, unused fees upon such termination.
C. Provision of Service; Numbers; SIMs.
1. If Customer is the Direct Customer, Customer hereby subscribes for and purchases the Service Plan or Service Plans specified in the purchase order being delivered by Customer to Davis with this Agreement. Customer may, at any time or times while this Agreement is in effect, purchase one or more additional Service Plans by delivering to Davis one or more additional purchase orders. Customer represents and warrants that each such purchase order includes, or when delivered will include, all information requested therein and is and will be accurate and complete. On Davis' receipt and acceptance of any such purchase order, Davis shall provide to Customer the Service comprehended by the Service Plan or Service Plans specified therein, on the terms and conditions in this Agreement.
2. If Customer is the Reseller, Customer will subscribe for and purchase one or more Service Plans for each End User, as specified in a purchase order for such End User to be delivered by Customer to Davis concurrently with the purchase by such End User of the Equipment from Customer. Customer may, at any time or times while this Agreement is in effect, purchase one or more additional Service Plans for such End User by delivering to Davis one or more additional purchase orders. Each such purchase order shall also include all information that Davis requests regarding such End User and the Equipment sold by Reseller to such End User and shall be accurate and complete. On Davis' receipt and acceptance of such purchase order, Davis shall provide to the End User specified in such purchase order the Service comprehended by such Service Plan or Service Plans specified therein, on the terms and conditions in this Agreement.
3. Davis shall have the right, in its absolute discretion, to accept or reject any purchase order hereunder.
4. Davis may modify any Service Plan at any time on thirty days' notice to Customer, but any modification not adverse to Customer may be made effective immediately on notice from Davis to Customer.
5. Subject to FCC Number portability rules: Customer has no property right in any Number assigned to it or any End User; Numbers associated with the Service shall at all times be the property of Carrier; and Davis may require the return or exchange of any Number at any time or times in the conduct of its business. If Davis requests that a Number be returned, and if Customer then requests an alternate Number, Davis shall substitute an alternate number for the returned Number. Davis will use reasonable efforts to notify Customer thirty days in advance of any required return or exchange, subject to FCC number portability rules.
6. The SIM supplied with the Equipment shall be used only in such equipment and shall not be used in any other device or equipment.
D. Data and Information Collected.
1. Davis collects personal information and non-personal information in order to provide the Service, customer and technical support, and for other business related purposes such as billing and marketing.
2. Davis may remove from your data any personal information and combine such anonymous data with that of others to create aggregated information. Davis may use aggregated information as it sees fit.
3. You may have a legal obligation to preserve information on the Equipment. This information may be sought by opposing parties in a civil lawsuit or by police when investigating the cause of an accident, or we may be legally obligated to provide such information in response to a subpoena or as otherwise required by law.
4. You agree that Davis remains the sole owner of all data collected and all representations and derivatives of the data.
E. Customer's Obligations; Limitations.
1. Davis is obligated hereunder only to Customer and, other than Carrier, no person (including, if Customer is also Reseller, any End User) is intended, or will be deemed, to be a third-party beneficiary of this Agreement. Reseller is solely responsible for all risks and expenses incurred with its provision of the Service to all End Users, including credit verification, deposits, billing, collection and bad debt. Reseller shall cause any End User contract between Reseller and any End User to contain provisions obligating such End User to be subject to and bound by all applicable provisions of this Agreement.
2. Neither Customer nor any End User has any contractual relationship with Carrier or is, or is intended to be, a third-party beneficiary of any contract between Davis and Carrier. Carrier has no liability of any kind to Customer or any End User, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise. Carrier shall have no legal, equitable or other liability or obligation of any kind to Customer or any End User.
3. Customer understands that Carrier or Davis may deny or terminate Service in certain circumstances, such as degradation of service on Carrier's network, use by Customer or any End User of any application or equipment that Davis shall not have approved, or non-compliance with law, and neither Carrier nor Davis will have any liability whatsoever to Customer resulting from any such denial or termination.
4. Customer acknowledges that Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain or other natural or artificial conditions, usage concentrations, modifications, upgrades, relocation and repairs of transmission Facilities. Neither Carrier nor Davis shall be responsible for any such refusal, interruption, curtailment or limitation of Service or the inability to use the Service outside the Territory. Customer understands that neither Davis nor Carrier can or does guarantee the security of wireless transmissions or will be liable for any lack of security relating to use of the Service.
5. In no event shall Davis, the Carrier or any underlying data provider be liable for any cost, delay, failure or disruption of the Service, lost profits, or incidental, special, punitive or consequential damages.
6. Customer shall indemnify and defend Carrier and Davis and their respective officers, employees and agents, and hold each of them harmless, from and against any and all claims, causes of action, losses, liabilities, damages and expenses (including reasonable attorneys' fees and costs), including for any property damage, personal injury or death, arising in any way directly or indirectly in connection with (a) this Agreement or any agreement between Reseller and any End User, (b) use, failure to use, or inability to use the Service, unless caused by the gross negligence or willful misconduct of Davis or Carrier, or (c) the use, failure to use or inability to use any Number. This Section E.6 shall survive any termination of this Agreement.
7. Customer's or any End User's Service may be temporarily suspended or permanently terminated on little or no notice if Davis' agreement with Carrier is terminated. Customer waives any and all claims against Carrier or Davis for any such suspension or termination.
F. Rates and Payment.
1. Customer shall pay Davis for the Service at the rates set forth in each purchase order submitted by Customer and accepted by Davis for the Service Plan or Service Plans specified in such purchase order.
2. Davis will provide Customer a summary invoice for all charges on a monthly, annual, or biennial basis, normally within ten days after the cut-off date for each billing cycle. Different Service Plans may be placed on different billing cycles. Customer must notify Davis if Customer does not receive an invoice within twenty days after the bill cycle cut-off date. Payment in full for each invoice is due at the location set forth in the invoice, in U.S. currency, on the due date set forth in the invoice or within thirty days after the billing data is received, whichever is later ("Due Date"). For purposes of payment, Customer may rely only on the invoice and other billing data received from Davis, and may not rely on any other source, including information drawn from any Davis or Customer system. Depending on Customer's payment history, Davis may, in its absolute discretion, require payment by certified check, money order or wire transfer, if available. Payments are past due if not received by the Due Date. Time is of the essence with respect to payment of Davis' invoices. If a payment becomes past due, the account will accrue, and Customer shall pay, late fees and interest at the rate of one and one-half percent per month or the maximum lawful rate, whichever is less. Customer shall not place any condition or restrictive legend, such as "Paid in Full", on any check or financial instrument used to make a payment. The negotiation of any such check or instrument so inscribed shall not constitute an accord and satisfaction or a novation.
3. If Customer disputes part of a monthly invoice, Customer is required to notify Davis in writing and to submit appropriate documentation justifying such dispute to Davis as soon as Customer becomes aware of the dispute, but in no event later than the thirty days after the invoice Due Date or such dispute is waived. Notwithstanding any such dispute, Customer shall pay the full amount of any such bill pending the resolution of such dispute. Davis will respond to Customer's written dispute within thirty days of receipt of such dispute. Davis and Customer shall use their best efforts to resolve all disputes, and Davis shall promptly refund any amount due on dispute resolution. The notice requirements in this Section F.3 will not shorten the period within which actions must be filed as established by the applicable statute of limitations, but will constitute a condition precedent to any right of the aggrieved Party to contest prior invoices or payments. This condition is designed to allow each Party the opportunity to preserve important evidence in defense of a claim.
4. Davis may, in its sole discretion, change prices, terms and conditions with not less than 30 days written notice to you if such changes are material and immediately in the event of a change in Davis' cost of the Service as a result of a change in applicable law, regulation, or similar governmental action.
G. Confidential Information.
1. All Confidential Information will be considered trade secrets of the disclosing Party. Except for Customer or End User information, which shall be treated as Confidential Information, Confidential Information shall not include information that: (a) was in or entered the public domain through no fault of the receiving Party; (b) the receiving Party can show, by written evidence, was rightfully in the receiving Party's possession before its receipt from the disclosing Party; or (c) is disclosed to the receiving Party by a third party legally entitled to make such disclosure without breach of any obligation of confidentiality to the disclosing Party.
2. During the term of this Agreement and at all times thereafter, the receiving Party shall not directly or indirectly (a) use any Confidential Information received from the disclosing Party for any purpose other than that for which it is used or disclosed under this Agreement, (b) disclose to any person any of such Confidential Information or in any other way publicly or privately disseminate any of such Confidential Information, or (c) assist, authorize or encourage anyone else to use, disclose, or disseminate any of such Confidential Information. The receiving Party shall: (a) hold all Confidential Information received from the disclosing Party in confidence using the same degree of care that the receiving Party uses to protect its own confidential and proprietary information (but in no event less than reasonable care); (b) use such Confidential Information only for the purpose of performing obligations under this Agreement; (c) reproduce any of such Confidential Information only to the extent necessary to perform such obligations; and (d) restrict disclosure of and access to such Confidential Information to those employees, agents and advisers of the receiving Party who are directly concerned with, and who agree for the benefit of the disclosing Party to maintain the confidentiality of, the Confidential Information in accordance with this Section G.2. On termination of this Agreement, all Confidential Information of the disclosing Party in the possession or control of the receiving Party or its employees (including all originals and copies of all or any portion of such Confidential Information) shall be promptly returned to the disclosing Party. Any conduct violating the provisions of this Section G.2 shall constitute a material breach of this Agreement.
3. If a Party determines that Confidential Information must be disclosed by such Party to any third party for the purpose of performing obligations under this Agreement, such Party shall, prior to such disclosure, obtain the consent of the other Party, which consent shall be in the other Party's absolute discretion, and obtain from the third party a written agreement regarding confidentiality of the Confidential Information, the terms of which shall be substantially similar to those herein.
4. The covenants and agreements in this Section G shall survive any termination or expiration of this Agreement.
H. Restrictions. Davis or Carrier may restrict or cancel the Service to a Number if it has reasonable suspicion of abuse or fraudulent use. Customer shall use its best efforts, in good faith, to minimize abuse or fraudulent use, to report promptly to Davis any such abuse or fraudulent use of which Customer becomes aware, and to cooperate in any investigation or prosecution initiated by Davis or Carrier. Customer shall not, and shall not suffer or permit any End User to:
1. attempt or assist any person to access, alter or interfere with the communications or information of other data subscribers or customers of Davis, Reseller or Carrier;
2. rearrange, tamper or make an unauthorized connection with any Facilities of Carrier;
3. use or assist any other person in the use of any unethical or fraudulent scheme, or by or through any other unethical or fraudulent means or devices whatsoever, with intent to avoid payment of any charges for the Service;
4. use the Service in a manner that interferes unreasonably with the use of Service by one or more other data subscribers or customers of Davis, Reseller or Carrier;
5. use the Service to convey information of a nature or in a manner that renders such conveyance unlawful;
6. use the Service without permission on stolen or lost Equipment or on other device or equipment;
7. install any amplifiers, enhancers, repeaters or other devices that modify the radio frequencies used to provide the Service; and
8. use or alter, or attempt to use or alter, the Service for any non-data purpose, including voice related services.
I. Limitations of Warranties and Liability.
1. EXCEPT AS TO ANY WRITTEN LIMITED WARRANTY THAT DAVIS MAY PROVIDE WITH THE EQUIPMENT THAT DAVIS SELLS TO CUSTOMER, ALL SERVICE AND EQUIPMENT IS PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE OR EQUIPMENT. DAVIS DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND CUSTOMER ACKNOWLEDGES IT IS NOT RELYING ON ANY SUCH STATEMENT. ANY STATEMENTS MADE IN CATALOGS, PACKAGING OR OTHER DOCUMENTS, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY DAVIS OF ANY KIND. NEITHER DAVIS NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, DEALERS OR SUPPLIERS WARRANTS THAT THE INFORMATION, PRODUCTS, PROCESSES, OR SERVICES AVAILABLE THROUGH THE SERVICE OR EQUIPMENT WILL BE UNINTERRUPTED, ACCURATE, COMPLETE, USEFUL, FUNCTIONAL OR ERROR-FREE. CUSTOMER HAS NOT RELIED ON AND WILL NOT CLAIM THAT IT IS ENTITLED TO THE BENEFITS OF ANY REPRESENTATIONS, PROMISES, DESCRIPTION OF THE SERVICE OR OTHER STATEMENT NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT.
2. Davis shall not be liable for any deficiency or delay in performance caused as a whole or in part by any act or omission of Carrier, equipment failure, facility failure, facilities problem, lack of coverage or network capacity, equipment or facility upgrade or modification, equipment or facility shortage or relocation, event for which performance may be extended pursuant to Section P, or cause beyond Davis's reasonable control.
EVEN IF DAVIS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, DAVIS WILL NOT BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER'S EMPLOYEES, AGENTS, END USERS OR CUSTOMERS OR ANY THIRD PARTY FOR ANY DAMAGES ARISING FROM OR IN CONNECTION WITH USE OF THE SERVICE OR ANY EQUIPMENT, INCLUDING: DISCLAIMED DAMAGES OR LOSS OF PRIVACY DAMAGES; PERSONAL INJURY OR PROPERTY DAMAGES; DAMAGES RESULTING FROM INTERRUPTION OR FAILURE OF SERVICE; LOST PROFITS; LOSS OF BUSINESS; LOSS OF DATA; COST OF REPLACEMENT PRODUCTS AND SERVICES; SUSPENSION, TERMINATION OR INABILITY TO USE THE SERVICE; DAMAGES RESULTING FROM THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION OR MESSAGE TRANSMITTED TO OR RECEIVED BY ANY EQUIPMENT; OR LOSSES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO IN CONNECTION WITH THE SERVICE. THE SERVICE IS NOT GUARANTEED AGAINST EAVESDROPPERS, HACKERS, ATTACKS, VIRUSES, OR INTERCEPTORS, AND DAVIS SHALL NOT BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY LACK OF PRIVACY OR SECURITY. THE MAXIMUM AGGREGATE LIABILITY OF DAVIS TO CUSTOMER AND THE EXCLUSIVE REMEDY AVAILABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY AND ALL DAMAGES, INJURY AND LOSSES ARISING FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RELATED TO THE SERVICE OR EQUIPMENT SHALL BE TO RECOVER NO MORE THAN $25,000. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. CUSTOMER AGREES THAT INCLUSION OF THIS PARAGRAPH WAS A MATERIAL CONSIDERATION FOR DAVIS TO ENTER THIS AGREEMENT. THE LIMITATIONS SET FORTH ABOVE ARE INDEPENDENT OF EACH OTHER AND BOTH THE LIMITATION OF DAMAGES AND LIMITATION OF REMEDY SET FORTH ABOVE WILL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OR ALL PARTS OF THE LIMITED REMEDY SET FORTH ABOVE.
J. Default, Termination of Agreement, Disconnection of Service.
1. "Default" under this Agreement shall be defined as a breach by a Party of any provision herein and shall include any one or more of the following:
(a) such Party's material breach of any representation, warranty, covenant or agreement in this Agreement;
(b) such Party's failure to pay any sum when due hereunder;
(c) such Party's filing of a petition seeking relief for itself under the bankruptcy laws of any jurisdiction;
(d) entry of an order for relief against such Party under the bankruptcy laws of any jurisdiction;
(e) such Party's making of a general assignment for the benefit of its creditors;
(f) such Party's consent to the appointment of or taking possession of all or substantially all of its assets by a receiver, liquidator, assignee, trustee or custodian;
(g) such Party's insolvency or failure to pay its debts generally as they become due;
(h) such Party's action (or sufferance of any action taken by its directors or shareholders) effecting or seeking its dissolution or liquidation; and
(i) such Party's unauthorized assignment of this Agreement or any rights hereunder.
2. This Agreement may be terminated as follows:
(a) Either Party may terminate this Agreement, by notice to the other Party, which notice shall specify the effective date of termination, which shall not be earlier than the later of (i) thirty days from the date such notice is given and (ii) the date that all Service Plans purchased by Customer hereunder expire or are terminable as provided in the purchase orders with respect thereto submitted by Customer and accepted by Davis pursuant to Section C.1 or C.2, as applicable.
(b) Davis may terminate this Agreement in the event Customer fails to pay any sum to Davis when due and fails to cure such Default within fifteen days from notice from Davis to Customer.
(c) On any other Default by a Party that is not cured within thirty days from the non-Defaulting Party's notice thereof to the Defaulting Party, the non-Defaulting Party may terminate this Agreement immediately by notice to the Defaulting Party.
(d) This Agreement shall terminate automatically and without notice immediately on Default under clause (i) of Section J.1.
3. On any termination of this Agreement, Davis shall have the right, in its absolute discretion, to cease to provide the Service to Customer and all End Users or convert Customer's End Users to Direct Customers. Conversion of End Users to Direct Customers is at Davis's absolute discretion and includes, but is not limited to, continued provision of service at pricing agreed upon by Davis and End User. After termination of this Agreement, Customer is not entitled to any compensation associated with Davis' provision of service to Customer's prior End Users
4. No termination of this Agreement shall release either Party from (a) any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue with respect to any act or omission before termination, (b) any financial obligation owed to the other Party, (c) any obligation that is expressly stated herein to survive termination, or (d) any term which by its nature extends beyond expiration or termination of this Agreement. All such obligations and terms shall remain in effect until fulfilled and discharged in full. Termination, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby, subject to the other terms herein.
K. Entire Agreement. This Agreement contains the entire agreement of the Parties and supersedes all prior or contemporaneous negotiations, correspondence, understandings and agreements, whether written or oral, between the Parties, regarding the subject matter hereof.
L. Authority. Each Party hereto warrants that it has the authority to enter into this Agreement, and the signatories, by executing this Agreement, warrant that they have the authority to bind the respective Parties.
M. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall at any time or to any extent be determined to be invalid or unenforceable under applicable law, to the full extent the applicable law may be waived, it is hereby waived. To the extent such law cannot be waived, the Parties shall replace the invalid or unenforceable provision by a valid provision that comes closest to the intentions of the Parties expressed by this Agreement; provided that, whether or not the Parties agree on such replacement provision within a reasonable time, the invalidity of the provision in question shall not affect the validity of any other provision or this Agreement as a whole, unless the invalid provision is of such essential importance that it can be reasonably assumed that the Parties would not have entered into this Agreement without the invalid provision.
N. Amendment. This Agreement may not be amended or modified except by a written instrument signed by both Parties.
O. Successors and Assigns.
1. Davis may at any time assign this Agreement and its rights hereunder and, in that event, shall promptly notify Customer of any such assignment, whereupon Davis shall be fully released from any further obligation or liability under this Agreement.
2. Customer shall not assign this Agreement or any rights hereunder or delegate any duties or obligations hereunder, without Davis's prior consent, which consent shall not be unreasonably withheld, but any attempted or purported assignment or delegation by Customer without such consent shall be void and shall constitute a Default; provided that, for this purpose, Customer shall be deemed to have "assigned" this Agreement if Customer enters into an agreement for the merger, consolidation, or sale or other disposition of all or substantially all of the assets of Customer or enters into a transaction or series of related transactions resulting in a change of more than fifty percent (50%) in the ownership of the capital stock or other equity interests in Customer. Davis may, in determining whether to grant its consent to an assignment by Customer, consider any factors it deems relevant to such a determination, including the assignee's credit history, business history and reputation in the business community.
3. Subject to the foregoing provisions of this Section O, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns.
P. Force Majeure. If either Party's performance of any of its obligations hereunder is delayed by strike, labor dispute, unavailability of materials, war, act of God, governmental action, flood, fire, explosion or other matters not within its reasonable control or by the inability of either Party to procure and obtain needed government consents or approvals, then the date for performance shall be extended by the time of such delay; provided that, as to any and all such causes, the Party so affected shall pursue with reasonable diligence the avoidance or removal of such delay if reasonably feasible.
Q. Notices. Any notice, consent, demand or other communication to be given under or in connection with this Agreement shall be in writing and shall be deemed duly given and received when delivered personally, when transmitted by facsimile, one business day after being deposited for next-day delivery with a nationally recognized overnight delivery service, or three days after being mailed by first class mail, charges or postage prepaid, properly addressed, to the address or facsimile number of the Party to receive such notice set forth following the signature of such Party below. Either Party may change such Party's address or facsimile number from time to time by notice hereunder to the other.
R. Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California, without reference to the principles of conflicts of laws.
S. Dispute Resolution.
1. The Parties waive their rights to seek remedies in court, including any right to a jury trial. Subject to Section S.2, any dispute between the Parties arising out of, relating to or in connection with this Agreement shall be resolved exclusively through binding arbitration conducted under the auspices of JAMS pursuant to its Arbitration Rules and Procedures. The arbitration hearing shall be held in the City and County of San Francisco, State of California. Disputes shall not be resolved in any other forum or venue. The arbitration shall be conducted by a retired judge who is experienced in resolving disputes regarding business transactions and shall continue from day to day until completed, weekends and holidays excepted. The arbitrator shall apply the substantive law of California to all state law claims. Limited discovery shall be conducted in accordance with JAMS' Arbitration Rules and Procedures. The arbitrator may not award punitive or exemplary damages, unless (but only to the extent that) such damages are required by statute to be an available remedy for any of the specific claims asserted. In accordance with JAMS' Arbitration Rules and Procedures, the arbitrator's award shall consist of a written statement as to the disposition of each claim and the relief, if any, awarded on each claim. The award shall not include or be accompanied by any findings of fact, conclusions of law or other written explanation of the reasons for the award. The Parties understand that the right to appeal or to seek modification of any ruling or award by the arbitrator is severely limited under state and federal law. Any award rendered by the arbitrator shall be final and binding, and judgment may be entered on it as provided by law.
2. Notwithstanding anything in Section S.1 to the contrary, either Party shall have the right to seek injunctive relief before any court of competent jurisdiction in the City and County of San Francisco, State of California.
T. Construction. The headings of sections herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction or interpretation of any provision hereof. Whenever the context requires, the use in this Agreement of the singular number shall be deemed to include the plural and vice versa, and each gender shall be deemed to include each other gender. References herein to Sections refer to sections of this Agreement, except as otherwise stated. For purposes of this Agreement, (a) "person" means a natural person, a corporation, a limited liability or other company, a juridical entity, a voluntary association, a partnership, a joint venture, a trust, an estate, an unincorporated organization, a statutory body, or a government or state or any agency, instrumentality, authority or political subdivision thereof, and (b) each of the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
U. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
V. Consent to Use of Electronic Signatures. As a convenience to you, Davis provides access to Services online which may require you to enter into agreements.
1. You have read and understand the electronic copy of contracts, notices and records, including, without limitation, this Agreement and any amendments hereto.
2. You agree to, and intend to be bound by, the terms of the particular agreement, contract or transaction into which you entered.
3. You are capable of printing and storing a copy of electronic records of contracts, transactions or agreements, including, without limitation, this Agreement.
4. You agree to receive electronically information about the Services and other electronic records into which you entered including, without limitation, this Agreement.
W. Acceptance of Agreement