Terms and Conditions

  1. Definitions. As used in this Agreement, the following terms have the following meanings:
    1. “Base Financial Wellness Services” means written content covering relevant financial wellness information, links to articles, calculators, tools and resources involving various aspects of financial wellness, and personal budgeting tools accessible via various BMM Platforms.
    2. “BMM” means Best Money Moves LLC, an Illinois limited liability company.
    3. “BMM Platform” means the website that provides the BMM Content and Base Financial Wellness Services to Users.
    4. “BMM Content” means all “Content” (as defined below in this Section) included in the Program which BMM owns, develops or obtains, and all Content which describes BMM and/or its products, services, pricing structures, business plans or the Program;
    5. “BMM Material” means the Program and design thereof, the Dashboard, all software, toolkits, interfaces, object codes and source codes included within or constituting part of any BMM Platforms and/or the Dashboard, the “look and feel” thereof, all associated documentation, the BMM Content, and the BMM “Marks” (as defined below in this Section), all as modified, updated, or enhanced from time to time;
    6. “Content” means all works of authorship in any form or media (whether now or subsequently existing), including but not limited to video, slides, text, scripts, photographs, art, illustrations, animation, graphics, interface designs, images, music, sound effects, lyrics, narration, advertising and other audio, visual, audiovisual and streaming media works;
    7. “Dashboard” means the online location provided by BMM to the Subscriber to view aggregated data on Subscribers Users and their interactions with the BMM Platform;
    8. “Launch Date” means the date the Program becomes active for use by the Subscriber;
    9. “Order Agreement” means the physical or electronic agreement whereby the Subscriber elects to order the use of the BMM Platform on the specific financial terms set forth in the Order Agreement and for the length of time set forth in the Order Agreement;
    10. “Subscriber” means the company or entity that enters into an agreement with BMM for the use of the Base Financial Wellness Services through the BMM Platform;
    11. “Marks” means the trademarks, tradenames, services marks, designs, characters, logos and other brand identifiers or indicia of origin of Subscriber or BMM respectively, whether or not registered; and
    12. “User” means the end user of the BMM Platform that is either employed or otherwise authorized to use the BMM Platform under the Order Agreement with the Subscriber.
  2. Program License. Subject to the conditions set forth in this Agreement, BMM grants to Subscriber a non-exclusive, non-sublicensable, revocable license (the “Program License”) to use such BMM Material as is incident to Subscriber and Users engaging in the “Program-Based Permitted Uses” as further defined in this Agreement, and for no other purposes. All goodwill associated with Subscriber’s or any User’s use of any BMM Marks pursuant to the aforesaid license inures to the sole benefit of BMM, and neither Subscriber nor any User obtains any interest therein, whether pursuant to this Agreement, via use or otherwise. Nothing in this Agreement will be construed as creating any implied license of any BMM Material. BMM at all times retains the sole right to determine which BMM Material BMM will make available under the Program License. The Program License will terminate immediately upon the termination of this Agreement for any reason.
    1. Program-Based Permitted Uses. The term “Program-Based Permitted Uses” means solely the following: (i) Users accessing and utilizing the BMM Program as permitted hereunder during the Term; (ii) Subscriber using BMM Marks to promote the Program to Users, subject in all cases to BMM’s prior approval of marketing materials; and (iii) Subscriber accessing the company-wide “Aggregate Metrics” through the Subscriber Dashboard. All derivative works or other products or marks resulting from any editing Subscriber performs pursuant to the authority granted in the preceding sentence, constitute “works-for-hire” (as that phrase is used in U.S. Copyright Law practice) created by Subscriber for the sole benefit and ownership of BMM. Subscriber therefore assigns to BMM all proprietary rights therein Subscriber may be entitled to claim under the laws of any “Governmental Authority” (as that term is defined in the Terms and Conditions to this Agreement), including but not limited to all copyrights, trademarks, trade names, service marks or other intellectual property rights. Subscriber shall keep all BMM Material free of any liens, claims or encumbrances of any type. The limited Program License granted above authorizes Subscriber to use the BMM Material solely in accordance with the Program-Based Permitted Uses. Subscriber shall obtain BMM’s prior, written permission before using any BMM Material for any purpose not specifically authorized as a Program-Based Permitted Use. Subscriber shall not incorporate any BMM Mark, any derivative of any BMM Mark or any commercial symbol which is similar to any BMM Mark into Subscriber’s name or any other name which Subscriber utilizes to identify itself, any other individual or entity, or any product, program or service. Subscriber will not create any unitary or composite marks which use all or any portion of any BMM Marks or derivatives of any BMM Marks. All uses which Subscriber makes of BMM Marks or other BMM Material will comply with all applicable laws and regulations. Subscriber will utilize solely accurate reproductions of any BMM Marks licensed to Subscriber under this Agreement and will use BMM Marks solely in formats BMM expressly approves, in writing. Subscriber agrees that BMM has the sole right and discretion to bring proceedings alleging infringement of BMM Marks or other BMM Material, and/or proceedings concerning unfair competition related thereto.
    2. Promotional and Objectionable Material. The term “Material” means BMM Material and the term “Use” will mean either a Program-Based Permitted Use or a Subscriber-Related Material Use, as the case may be. Before using any advertising, promotional, sales or other materials which involve the Material, Subscriber first shall submit such materials to BMM for its review and written approval.
    3. Exclusive BMM Material Rights. Subscriber specifically agrees that BMM exclusively owns, for and throughout the world and in any and all languages (human, computer, mobile, cloud-based or other platform) and media, whether now existing or subsequently developed, all rights, titles and interests (legal, industrial, commercial, equitable, use, as an author, moral and otherwise) in and to any and all: (i) copyrights, patents and/or trademarks of any type or nature in the BMM Material, whether or not registered, all applications for registering the same and the right to file and register the same in BMM’s or in any other name, in, with or under the United States Copyright Office or in or with any other public office of any Governmental Authority; (ii) rights to prepare derivative works or marks based upon the BMM Material; and (iii) rights to sue for, collect and retain damages predicated on past, present or future infringements of the preceding.
    4. Title Protection. Subscriber shall not obtain or attempt to obtain any copyright, patent, trademark or any other registered right in any BMM Material. Subscriber warrants and covenants that it shall not attack, compromise, file suit against or in any manner vitiate, attempt to vitiate or commit or fail to take any action which could vitiate or abrogate any of BMM’s rights, titles or interests in the BMM Material, including but not limited to BMM’s copyrights.
    5. Credits. Subscriber agrees to identify BMM as the owner of the BMM Material prominently whenever Subscriber utilizes BMM Material. Each time Subscriber publishes in any media, any BMM Materials under the Program License, Subscriber shall cause to appear a label, mark, by-line, credit or other evidence, reasonably acceptable to BMM, which clearly identifies BMM as the author, owner, trademark holder, patent holder and copyright holder (as applicable) of the underlying BMM Material. Each such identification shall be conspicuous, shall use BMM’s full name, full copyright notice and/or trademark notice, and is subject to BMM’s prior, written approval. If BMM provides Subscriber with any form of copyright, patent or trademark notice, Subscriber shall utilize such notice to the extent commercially practicable, until such time as BMM transmits a written instruction to Subscriber to stop utilizing the same, and/or to commence utilizing new notices. In no event will Subscriber attribute to BMM any text, copy, written, printed or electronically stored or created materials which BMM did not create or provide under this Agreement. If Subscriber provides BMM with any form of copyright or trademark notice, BMM will use such notice to the extent commercially practicable, until such time as Subscriber transmits a written instruction to stop utilizing the same, and/or to commence utilizing new notices. In no event will BMM attribute to Subscriber any text, copy, written, printed or electronically stored or created materials which Subscriber did not create or provide under this Agreement.
    6. Survival. Sections d, e and f of this section shall survive termination of this Agreement for any reason, with or without cause.
  3. USER INFORMATION
    1. Base Restrictions on Access to User Information. Subscriber agrees that it shall not have nor attempt to gain access through the BMM Program to any information concerning any specific User (“User Information”) who utilizes the Program, nor any aggregation thereof that would permit the Subscriber to determine the individual identity or personal information (financial, family or otherwise) of any particular User.
    2. Aggregate Metrics. Subject to the restrictions identified in Section 3(a) of this Agreement, BMM will make available to Subscriber the Dashboard with aggregate metrics for Subscriber’s users as uploaded by Subscriber to the Program, provided such Users are actively using the Program Users.
    3. User Roster. Subscriber shall have the obligation to upload the roster of users to enable Subscriber’s Users to access the BMM Program. Subscriber may upload the user roster through an API and Subscriber will be responsible for updating and maintaining the user roster current. Subscriber agrees that only current employees or Users authorized under this Agreement and the Work Order are entitled to have access to the BMM Program.
  4. Contests. Subscriber may elect to offer “sweepstakes” styled contests to Users based on such metrics as Subscriber, in its reasonable discretion, may establish (“Subscriber Contests”). Subscriber shall ensure any Subscriber Contest fully comports with all requisites BMM may establish therefor. Moreover, Subscriber has the sole obligation to ensure that any and all Subscriber Contests comport with all laws, rules, and regulations of any Governmental Authority, and shall indemnify BMM from any and all claims associated with any Subscriber Contest, as provided in the General Terms and Conditions of this Agreement.
  5. Litigation Notices. Each of Subscriber and BMM shall provide written notice to the other party of any complaint filed with any Governmental Authority relating to this Agreement, whether against BMM or Subscriber, within seven (7) business days of receiving notice thereof (or such shorter period as may be necessary to respond adequately thereto). The parties shall provide each other with copies of all documentation relating to any such complaint, including but not limited to, a written summary of all facts relevant to such complaint. The parties will work together to respond promptly and adequately to any such complaint.
  6. Terms:
    1. Fees for the Program are as set forth in the Order Agreement. Pricing for the Program may increase upon thirty days’ notice to Subscriber after the initial term of the Agreement. BMM may terminate this Agreement for cause, immediately upon written notice to Subscriber, unless BMM provides a longer period of time—in its sole discretion—until which such termination shall become effective. For purposes of the preceding, BMM will have cause to terminate this Agreement if: (i) Subscriber, or its parent or any affiliated corporation becomes insolvent, institutes or acquiesces in the institution of any bankruptcy, financial reorganization, or liquidation proceeding or any such proceeding is instituted against Subscriber or its parent corporation and remains undismissed for thirty (30) days (Subscriber shall immediately notify BMM of same); or (ii) Subscriber fails to pay Fees due to BMM on a timely basis or accesses any User Information.
  7. General Terms and Conditions
    1. Injunctive and Other Relief. Each party to this Agreement acknowledges that if it breaches or threatens to breach any of its obligations arising under the Agreement and the confidentiality provision set forth below, it will cause damage of an irreparable and continuing nature to the other party, for which money damages alone will not provide adequate relief. Therefore, in addition to any money damages which the non-breaching party then may establish, the non-breaching party is entitled to obtain immediate equitable relief in the form of specific performance and/or an injunction (including but not limited to a temporary restraining order) to prohibit the continuing breach or threatened breach of the applicable covenant in, and/or to compel the breaching party to take affirmative actions to comply with its obligations under, this Agreement. The non-breaching party has the right to obtain such relief without having to prove any damages or post any bond, and the breaching party agrees that the non-breaching party showing that the breaching party breached any terms of Section 1 of the Agreement and the confidentiality provision set forth below shall constitute proof of all elements necessary to entitle the non-breaching party to interim and/or permanent injunctive relief against the breaching party for all judicial determinations concerning the issuance of equitable relief. The remedies set forth in this Section are cumulative and not exclusive and are in addition to any other remedies available under this Agreement, at law or in equity. This paragraph shall survive the termination of the Agreement.
    2. Confidentiality. Each party acknowledges that: (i) all information, know-how and data which it acquires from the other during this Agreement (other than those which are in the public domain) are highly confidential and constitute trade secrets of the provider within the meaning of the Illinois Trade Secrets Act (the “Trade Secrets”); (ii) said providing party has a proprietary interest in, has invested substantial amounts of money to develop and will continue to invest substantial amounts of money to maintain its Trade Secrets; (iii) said providing party has implemented procedures to maintain the confidentiality of its Trade Secrets; (iv) said providing party’s competitors would obtain unfair economic and competitive advantages if its Trade Secrets were divulged; (v) said providing party would suffer irreparable and continuing injury if the Trade Secrets were disclosed; and (vi) such providing party’s Trade Secrets form an integral part of their business. Each party agrees that during the Term and following the termination of this Agreement for any reason, that the recipient of confidential information shall: (i) hold the Trade Secrets of the grantor in trust solely for the benefit and use of the granting party; (ii) not directly or indirectly sell, alienate, transfer, assign, disclose or divulge Trade Secrets of the granting party to any person or entity, nor permit any third party to do so, without said granting party’s prior, written permission; (iii) not permit any individual who is not in its employment to operate, maintain or have access to the Material of the granting party so that such individual could receive access to its Trade Secrets of the granting party; (iv) keep all documents and information which it receives from the granting party concerning said granting party’s Trade Secrets segregated in a retention area designated solely for such confidential materials and restricted in access to those of said recipient’s employees with a specific need to know or use the Trade Secrets of the granting party; and (v) not directly or indirectly use Trade Secrets of the granting party or any information relating to such Trade Secrets in or for the benefit of any individual, business, profession, association, partnership, corporation, limited liability company, joint venture or other endeavor, other than as the granting party specifically authorizes in writing. This paragraph shall survive the termination of the Agreement.
    3. Secure Environment. Each party shall be responsible to use its best efforts to avoid introducing any virus, worm, or other harmful agent into any platforms (computer, cloud-based, internet, mobile or otherwise).
    4. Independent Contractor Relationship. The parties are independent contractors of each other, and nothing contained in this Agreement shall be deemed as creating any other relationship between BMM and Subscriber. The parties agree that this Agreement does not constitute either party as the agent, legal representative, partner or joint venturer of the other for any purposes whatsoever. Neither party has any right to create any obligation or responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner or concerning any matter. The parties shall conduct themselves and their respective businesses under this Agreement solely as independent contractors for all purposes, including but not limited to payment of any federal, state, or local: payroll, withholding, income, occupational, or other taxes.
    5. Compliance Responsibilities. Subscriber shall comply with all written instructions provided to Subscriber from time to time by BMM concerning the confidentiality and protection of User Information, and the use and implementation of the Program. BMM shall maintain and protect all User Information as confidential in the same manner as BMM would protect its own confidential information.
    6. General Representations and Warranties. Each party covenants, represents and warrants to the other that it has the authority, right and power to enter into this Agreement and perform its obligations under this Agreement in accordance with their terms.
    7. Warranty Limits and Disclaimers. THE WARRANTIES SET FORTH HEREUNDER ARE THE SOLE WARRANTIES OF THE PARTIES UNDER THIS AGREEMENT. EACH PARTY SPECIFICALLY DISCLAIMS AND WAIVES ALL WARRANTIES WHICH ARE NOT CONTAINED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN OR ARISING BY TRADE USAGE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO EXPRESS OR IMPLIED WARRANTIES: OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; THAT ANY MATERIAL WILL OPERATE ERROR OR BUG FREE; THAT ANY PERCEIVED DEFECTS IN MATERIAL WILL BE CORRECTED; THAT THE USE OF ANY MATERIAL WILL NOT BE INTERRUPTED; OR THAT THE PROGRAM WILL SATISFY SUBSCRIBER’S OR ANY INDIVIDUAL USER’S SPECIFIC NEEDS, DESIRES, OR INTENDED REQUIREMENTS.
    8. Subscriber’s Obligations. At all times hereafter, Subscriber shall defend, indemnify, and hold harmless BMM, on demand, from and against all damages, costs, expenses, demands, claims, actions, causes of action, suits or proceedings and liabilities or losses, (including but not limited to judgments, verdicts, awards, settlement amounts, punitive damages to the extent legally permissible, fines, penalties and/or reasonable attorneys’ fees), which directly or indirectly arise or result from, any negligent or willful acts, errors, or omissions of Subscriber, or the servants or employees of Subscriber. This paragraph shall survive termination of this Agreement.
    9. BMM’s Obligations. At all times hereafter, BMM shall defend, indemnify, and hold harmless Subscriber, on demand, from and against all damages, costs, expenses, demands, claims, actions, causes of action, suits or proceedings and liabilities or losses, (including but not limited to judgments, verdicts, awards, settlement amounts, punitive damages to the extent legally permissible, fines, penalties and/or reasonable attorneys’ fees), which directly or indirectly arise or result from, any negligent or willful acts, errors, or omissions of BMM, or the servants or employees of BMM. This paragraph shall survive termination of this Agreement.
    10. Notice of Indemnification. Upon the assertion by any third party of any claim against a party indemnified under this Agreement (the “Indemnitee”) that may give rise to liability of a party providing indemnification under this Agreement (the “Indemnitor”), the Indemnitee shall promptly notify the Indemnitor in writing, of the existence of such claim and the indemnity claimed; provided, however, that failure to give timely notice thereof shall not be deemed to be a waiver of the claim to the extent that Indemnitor has not been materially prejudiced by such failure to give timely notice. If the Indemnitor believes in good faith that there is a valid defense to such claim and a reasonable chance of succeeding thereon and notifies the Indemnitee to that effect, the Indemnitee shall give the Indemnitor a reasonable opportunity to defend and/or settle such claim at its own expense and with counsel mutually selected by the Indemnitor and the Indemnitee, or if counsel cannot be mutually selected, then selected by the Indemnitor; provided, however, that if any such settlement would have a substantial adverse effect on the Indemnitee, the Indemnitor shall not settle such claim without the prior written consent of the Indemnitee, which shall not be unreasonably withheld. The Indemnitee shall at all times have the full right to participate in any such defense at its own expense. If the Indemnitor, within a reasonable time after receiving notice of a claim from the Indemnitee, fails to defend, the Indemnitee shall have the right, but not the obligation, to undertake the defense, compromise or settlement of such claim on behalf of, for the account of and at the risk of the Indemnitor. If the claim is one that cannot by its nature be solely defended by one party, the other party shall make available all such information regarding itself and all assistance as may reasonably be requested by the defending party. This paragraph shall survive termination of this Agreement.
    11. Notices. All notices which concern this Agreement shall be given in writing, as follows: (i) by actual delivery of the notice into the hands of the party entitled to receive it or by facsimile to such party, in which case the notice shall be deemed given on the date it is sent; (ii) by Federal Express or any other overnight carrier, in which case the notice shall be deemed given on the day following the date it is deposited with such carrier; or (iii) by mailing such notice by registered or certified mail, return receipt requested, in which case the notice shall be deemed given four days following the date it is deposited in the mail. All notices provided under this Agreement shall be to the last known address of the party entitled to receive it. Any party to this Agreement may change its address for notice purposes, by providing written notice of the change of address to each of the other parties. All notices under this Agreement shall be addressed as set forth in the body of the Agreement.
    12. Applicable Law. The laws of the State of Illinois (other than those pertaining to conflicts of law) shall govern the interpretation of this Agreement, irrespective of the fact that the one of the parties now is or may become a resident of a different state. The parties shall submit all disputes which arise under this Agreement to state or federal courts located in Chicago, Illinois for resolution. The parties acknowledge that they are sophisticated commercial parties and intentionally have selected the aforesaid, neutral courts to have exclusive jurisdiction over this Agreement, and specifically waive any claims they may have which involve jurisdiction or venue, including but not limited to forum non conveniens. Service of process for any claim which arises under this Agreement shall be valid if made in accordance with the notice provisions set forth in this Agreement. If service of process is made as aforesaid, the party served agrees that such service shall constitute valid service, and specifically waives any objections the party served may have under any state or federal law or rule concerning service of process. Service of process in accordance with this Section shall be in addition to and not to the exclusion of any other service of process method legally available.
    13. Disclaimer. BMM DISCLAIMS AND SHALL NOT BE LIABLE FOR, AND SUBSCRIBER WAIVES ANY CLAIMS OR REMEDIES SUBSCRIBER MAY HAVE AGAINST BMM FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF SUBSCRIBER, USERS, OR ANY OTHER INDIVIDUAL OR ENTITY, INCLUDING BUT NOT LIMITED TO DAMAGE ARISING FROM LOST PROFITS, CUSTOMER CLAIMS, LOSS OF USE OF ANY OR ALL MATERIAL OR ANY EQUIPMENT, SOFTWARE, SYSTEM OR FACILITY, LOSS OF DATA, COST OF SUBSTITUTE EQUIPMENT, SOFTWARE, SYSTEMS OR SERVICES, OR DOWNTIME COSTS WHICH ARISE OUT OF ANY BREACH OF THIS AGREEMENT BY BMM OR ANY OBLIGATIONS BMM OWED TO SUBSCRIBER OR BMM’S BREACH OF WARRANTY, OR WHICH ARISE PURSUANT TO ANY TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY, BUT EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR OTHER CLAIM, OR FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF BMM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM IN ADVANCE. BMM SHALL NOT BE LIABLE FOR AND SUBSCRIBER WAIVES ANY DAMAGES CAUSED BY DELAY IN DELIVERY, INSTALLATION OR FURNISHING OF BMM MATERIAL OR PROGRAM SERVICES UNDER THIS AGREEMENT. BMM’S TOTAL LIABILITY AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR LOSS OR DAMAGES RELATING TO OR ARISING OUT OF THE PERFORMANCE OF BMM UNDER THIS AGREEMENT AND/OR ARISING UNDER ANY THEORY AT LAW OR EQUITY (WHETHER TORT, NEGLIGENCE OR OTHERWISE) IS LIMITED TO AND SHALL NOT EXCEED THE AMOUNT SUBSCRIBER PAID TO BMM UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS WHICH IMMEDIATELY PRECEDE THE DATE THE APPLICABLE CLAIM ACCRUES. EXCEPT AS THIS PARAGRAPH AGREEMENT EXPLICITLY PROVIDES, SUBSCRIBER SPECIFICALLY WAIVES ALL OTHER REMEDIES AVAILABLE TO IT AT LAW, IN EQUITY OR OTHERWISE, WHETHER FOR BREACH OF CONTRACT, TORT, OR OTHERWISE.
    14. Complete Understanding. This Agreement constitutes the complete understanding between the parties, and supersedes any prior understandings, written agreements, or oral arrangements between the parties respecting the subject matter which this Agreement addresses. The terms of this Agreement shall govern if there is any conflict between this Agreement and any other written instrument which concerns or affects the subject matter of this Agreement. No alteration or modification of any of this Agreement’s provisions shall be valid unless made in a written instrument signed by the Subscriber and BMM. No attempted waiver or any provision of this Agreement by either party will be effective unless made in writing and signed by the duly authorized officer of the party attempting such waiver. This Agreement shall be binding upon and inure to the benefit of BMM and Subscriber as well as their respective successors and assigns.
    15. Descriptive Headings. All section headings, titles and subtitles are in this Agreement for convenience of reference only and are to be ignored in any construction of this Agreement’s provisions.
    16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner and to such extent as to be effective and valid under applicable law. If a court of competent jurisdiction rules that any one or more of this Agreement’s provisions are invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any of this Agreement’s other provisions, and this Agreement shall be construed as if it had never contained such invalid, illegal or unenforceable provision. Without limiting other provisions of this Agreement, the parties expressly intend and agree that each and every limitation of liability, disclaimer of warranties or exclusion of damages in this Agreement be severable and independent of any other provision and be enforced as such. Further, the parties expressly intend and agree that if any remedy in this Agreement is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth in this Agreement shall continue to remain in effect.
    17. Currency. All amounts due under this Agreement shall be payable in lawful currency of the United States of America.
    18. Prevailing Party. If there is any litigation commenced concerning this Agreement, the “Prevailing Party” (as defined below in this section) in such litigation will be fully reimbursed, on demand, for all attorneys’ fees, court costs, investigation costs, paralegals’ fees and other costs or expenses associated with such litigation. The term “Prevailing Party” means the party awarded the greater relief in any such litigation, claim or proceeding. The provisions of this Section are of the essence of this Agreement, are specifically enforceable and will survive the termination of this Agreement for any reason or for no reason.
    19. Waiver. A party’s attempted waiver, consent, or authorization of any kind whatsoever, whether required under this Agreement, or granted pursuant to any breach or default of any term of this Agreement, shall not be effective or binding upon such party unless the same is in writing and signed by such party. Any such waiver, consent or authorization shall be valid only to the extent specifically set forth in such writing. No failure or delay on the part of either party to this Agreement to exercise any right, remedy, power or privilege in connection with this Agreement shall preclude or limit any other or further exercise of such right or the exercise of any other right, remedy, power or privilege.