Terms and Conditions of Service
These Terms and Conditions of Service are incorporated into the Service Order (defined below) (collectively, the "Agreement") entered into between Account-Able, Inc., a California corporation ("we", "us", "our", "Company" or "Account-Able") and the counterparty to the Service Order ("you", "your" or "Customer") (which are sometimes referred to hereunder, individually, as a "Party" and, collectively, as the "Parties").
1. Definitions
As used in this Agreement:
1.1. "Account" means a third party for which Customer creates a project or plan within the Services purchased by Customer.
1.2. "Customer Data" means data in electronic form input or collected through the System by or from Customer.
1.3. "Documentation" means Company's documentation (regardless of form) about the System or Services, including (without limitation) documentation and audio and video training aides.
1.4. "Service Order" means the Company's Service Order executed by Company and Customer to which these Terms and Conditions of Services are incorporated by reference.
1.5. "Privacy Policy" means Company's privacy policy at [www.account-able.io/privacy].
1.6. "Basic Service" means Services limited to a maximum of [1,000] Users and XX Accounts.
1.7. "Premium Service" means Services limited to a maximum of [5,000] Users and XX Accounts.
1.8. "Enterprise Service" means Services limited to a maximum of [10,000] Users and XX Accounts. Enterprise Services include Customization Services at no additional charge.
1.9. "Trial Services" means Basic Services made available to Customer without charge in exchange for Customer's Feedback.
1.10. "Service" or "Services" means the availability to Customer of the System and its features and functions to create and manage marketing plans and projects, including the resources and support identified in a Service Order or these Terms and Conditions of Service, and Customer's access to the System as necessary to use and obtain such Services.
1.11. "Service Level Terms" means Company's service level commitments at [www.account-able.io/slt].
1.12. "System" means Company's dashboard software in object code operating on Company's hardware platform as an integrated system that may be accessible via the internet during the Term, including all modifications, updates, translations, enhancements and other Derivative Works (defined by 17 U.S.C. §101) thereof, together the Documentation. The term "System" excludes Customer Data.
1.13. "Term" means the period from the Start Date to the End Date stated in a Service Order, except for Trial Period Service which is 14 days from Start Date.
1.14. "User" means each employee and Account representative Customer permits to access the System and Services available to Customer, whether or not authorized by Customer.
2. The Services
2.1. Provision of Services. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Agreement and make the System available to Customer on the Internet 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Company will give at least 8 hours' notice via e-mail and which Company will schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time on Friday to 3:00 a.m. Pacific time on Monday), or (b) any unavailability caused by circumstances beyond Company's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor disputes (whether or not involving the workforce of Company), or Internet service provider failures or delays.
2.2. Modifications. Company may modify the System, Services, or Documentation to maintain or enhance: (a) the quality or delivery of Company's services to its customers, (b) the competitive strength of or market for Company's services, (c) the System's cost efficiency or performance, or (d) the System's compliance with applicable law. Company will use commercially reasonable efforts to avoid modifications that adversely affect the functionality available to Customer.
2.3. Revisions. Company may revise System or Service features and functions. If any such revision materially reduces features or functionality provided pursuant to a Service Order, Customer may within 30 days of notice of the revision terminate such Service Order, without cause, unless Company and Customer mutually agree otherwise and in writing. If any revision of a Service materially reduces service levels provided pursuant to an outstanding Service Order, the revisions will not go into effect with respect to such Service during the Term of the effected Service Order.
3. Technical Support
3.1. Technical Support. Company will provide Customer with technical support ("Technical Support") via email during Support Hours for the Services at no additional charge. "Support Hours" means 9:00 a.m. through 5:00 p.m., Pacific time, Monday through Friday, excluding Company holidays ("Business Days").
3.2. Exclusions. Technical Support excludes assistance regarding: (a) general training on the use of the System (other than in connection with a problem or Error); (b) Customer's operating system, computer hardware, or Internet connection; and (c) third-Party software. ("Error" means a failure of the System to materially conform to the Documentation.)
3.3. Remedies. If Customer reports an Error and Company determines that the System contains an Error, Company will use commercially reasonable efforts to provide Customer with a procedure to avoid the practical adverse effects of the Error, or to correct the Error through an update or release of the System that Company makes generally available to its customers. Company has no obligation to correct Errors caused by: (a) Customer Data, (b) the negligence or willful misconduct of Customer or Users, (c) Customer's failure to install System updates made available by Company, (d) any third Party software, (e) Customer's use of the System in a manner not contemplated by the Documentation, or (f) any cause other than Company's breach of its obligations under this Agreement.
3.4. Critical Issues. Company will use commercially reasonable efforts to acknowledge "Critical Issues" within 4 hours during Support Hours. "Critical Issues" means complete inaccessibility of the System or any Error that renders the System substantially unusable, in each case as experienced by all or substantially all Users.
3.5. Support Limitations. Company's obligation to provide Technical Support may be conditioned upon: (a) Customer making reasonable efforts to resolve the issue prior to contacting Company; and (b) Customer providing Company with sufficient information regarding the Error and access to Customer personnel, as reasonably requested by Company.
3.6. Company may suspend the provision of Technical Support if Customer is unwilling or unable to assist in troubleshooting the claimed problem or Error by providing information about the problem or Error and surrounding circumstances as and when requested and otherwise cooperating with Company's support personnel to troubleshoot and resolve it. Customer shall indicate the severity of the problem (indicating whether it is a "Critical Issue") when requesting the initiation of a trouble ticket.
4. Customer Data & Privacy
4.1. Use of Customer Data. Unless it receives Customer's prior written consent, Company will not use Customer Data other than as necessary to provide the Services, subject to our Privacy Policy. Notwithstanding the foregoing, Company may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Company will give Customer prompt notice of any such legal or governmental demand for any protected information and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest required disclosure of Customer Data which is protected by our Privacy Policy, at Customer's expense.
4.2. Privacy Policy. Our Privacy Policy applies only to Customer Data and does not apply to any third-Party website or service linked to the System or recommended or referred to through the System or by Company's staff.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and, in accessing and using the Services, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through Errors or the actions of third Parties.
4.4. Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including (without limitation) Customer Data and any other data uploaded by Users.
4.5. Customer Data. Company takes seriously the security of Customer Data and, thus, has taken measures Company deems reasonable and necessary to safeguard the Customer Data in the System against loss or unauthorized exposure. Company will return all Customer Data and destroy all other whole or partials copies thereof in its possession promptly following the 30th day after termination of the Services.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and will not upload or transmit to Company's computers or other media, any data or material that is illegal or for an illegal purpose or otherwise is deemed objectionable as reasonably determined by Company.
5. Customer's Responsibilities & Restrictions
5.1. Acceptable Use. Customer agrees that it will not: (a) use the Services for the direct benefit of any person other than Customer or in any way allow third Parties (other than Customer's Users) to use or exploit the Services; (b) provide System passwords or other log-in information to any third Party without consent of Company; (c) share non-public System or Service features or content with any third Party without consent of Company; (d) access the System or Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System or Services, or to copy any ideas, features, functions or graphics of the System; (e) discover or attempt to discover, or assist or permit any person to discover or attempt to discover, by any means whatsoever the source code (the human-readable form) of any element of Company's software included in the System or Service; or (f) prepare any derivate works based on the System's software.
5.2. Unauthorized Access. Both Parties will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Either Party will notify the other Party immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System and Services, each Party will comply with all applicable laws, including (without limitation) laws governing the protection of personally identifiable information and other laws applicable to the protection of such information and any other information which is proprietary to Customer and included in Customer Data. Customer agrees not to use the Services, directly or indirectly, for any illegal purpose or activity or for the transmission of material the Company deems is harmful, fraudulent, deceptive, infringing on rights of others, hateful or otherwise objectionable.
5.4. Users & System Access. Customer is responsible and liable for: (a) Users' use of the Services, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement; and (b) any use of the System through Customer's account, whether authorized or unauthorized.
6. IP & Feedback
6.1. Intellectual Property Rights to the System. Company retains all right, title, and interest in and to the Services, including without limitation all software used to access the System and provide the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Services or used by Company. This Agreement does not grant Customer any intellectual property license or rights in or to the System or Services or any of its components or any logos, trademarks, service marks or other designations (whether or not registered) used by Company. Customer recognizes that the System, Services and its components are protected by copyright and other laws.
6.2. Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Company, and nothing in this Agreement or in the Parties' dealings arising out of or related to this Agreement will restrict Company's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Section 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying the System or Services.)
7. Confidentiality
7.1. Confidential Information. Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Confidential Information" of the Disclosing Party).
7.2. Exclusions. Confidential Information shall not include any information that: (a) is known to the Receiving Party at the time of disclosure; (b) is or becomes publicly known through no breach of this Agreement by the Receiving Party; (c) is received from a third Party without breach of any confidentiality obligation; or (d) is independently developed by the Receiving Party without use of the Confidential Information.
7.3. Obligations. The Receiving Party agrees: (a) to hold and maintain the Confidential Information in confidence; (b) not to disclose the Confidential Information to any third Parties without the Disclosing Party's prior written consent; and (c) not to use the Confidential Information for any purpose other than evaluating and engaging in discussions concerning a potential business relationship between the Parties.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information if compelled to do so by law, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and assists the Disclosing Party in seeking a protective order.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), both Parties acknowledge that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. Representations & Warranties
8.1. Mutual Representations. Each Party represents and warrants that: (a) it has the corporate power and authority to enter into this Agreement; (b) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; (c) when executed and delivered by both Parties, this Agreement will constitute the valid and binding obligation of the Party; and (d) the consummation of the transactions contemplated hereby will not violate any provision of its bylaws or articles of incorporation.
8.2. Company Representations. Company represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner by qualified personnel; and (b) the Services will materially conform to the Documentation.
8.3. Customer Representations. Customer represents and warrants that: (a) Customer has validly entered into this Agreement and has the legal power to do so; and (b) Customer will use the Services only in accordance with Company's standard published policies then in effect (the "Policy") and all applicable laws and regulations.
8.4. In addition, each Party represents and warrants to and agrees with the other Party that:
(a) neither the Company nor, to Customer's knowledge, any of its subsidiaries, officers, directors, employees or agents, is in violation of any applicable laws relating to anti-corruption, anti-bribery, terrorism, money laundering or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Action of 2001, Public Law 107-56, as amended, and Executive Order No. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the "Executive Order") (collectively, the "Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws");
(b) neither the Company nor, to Customer's knowledge, any of its subsidiaries, officers, directors, employees or agents, is named on any Government List (as defined below);
(c) neither the Company nor, to Customer's knowledge, any Person with a direct equity interest in Customer, is named on a Government List, or is acting for or on behalf of any country or territory subject to comprehensive economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ("OFAC"), the U.S. Department of State, or any other applicable economic sanctions authority (collectively, "Sanctions") as of the Effective Date including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine (each a "Sanctioned Country"); and
(d) neither the Company nor any Person controlling or controlled by Customer, is the target of Sanctions. As used herein, the term "Person" shall mean a natural person, partnership, limited partnership, limited liability company, corporation, trust, estate, association, unincorporated association or other entity.
8.5. In addition, Customer further represents and warrants to and agrees with Company that: (i) Customer is solely responsible for all Customer Data that Customer makes available through the System, (ii) Customer is the sole and exclusive owner of all such Customer Data or has all rights, licenses, consents and releases that are necessary to use such data with the Services, and (iii) neither the Customer Data nor Customer's using it will infringe, misappropriate or violate a third-Party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, including, but not limited to, the Data Protection Act 1998, and any other applicable federal or state privacy laws. You retain the sole responsibility of your individual compliance with such laws and any other laws to which Customer or the Customer Data is subject.
8.6. Warranty Disclaimers. Except to the extent set forth under Section 3, CUSTOMER ACCEPTS THE SERVICES AND SYSTEM "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9. Limitation of Liability
9.1. Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST PROFITS OR LOST DATA ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER'S USE OF THE SYSTEM OR SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. Indemnification
10.1. Customer Indemnification. Customer will defend, indemnify, and hold harmless Company from and against any claims, damages, losses, and expenses (including attorney's fees) arising from or relating to: (a) Customer's or any User's use of the Services; (b) Customer Data; (c) Customer's breach of this Agreement; or (d) Customer's violation of applicable law.
10.2. Company Indemnification. Company will defend, indemnify, and hold harmless Customer from and against any claims, damages, losses, and expenses (including attorney's fees) arising from Company's gross negligence or willful misconduct in providing the Services.
11. Term & Termination
11.1. Term. The Agreement shall remain in effect for the Term, and, unless expressly provided otherwise in the Service Order, automatically renews for successive periods equal to the Term until the End Date next-following 15 days' advanced written notice of Party to terminate the Agreement.
11.2. Termination for Cause. Notwithstanding Section 11.1, either Party may terminate the Agreement for the other's material breach of the Agreement by written notice, which specifies in reasonable detail the nature of the breach and the steps required to cures it, effective 30 days after the date such notice is delivered (or more if specified in the notice) unless the other Party cures the breach within such time.
11.3. Effect of Termination. Upon termination of this Agreement: (a) Customer's right to use the Services will immediately cease; (b) Company will make Customer Data available for download for a period of 30 days; and (c) each Party will return or destroy all Confidential Information of the other Party.
12. General Provisions
12.1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
12.2. Amendment. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted.
12.3. Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement which is due to an earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott.
(a) The Party claiming Force Majeure Event ("Claiming Party") shall give Notice as soon as reasonably practicable to the other Party stating the period of time the occurrence is expected to continue. The Claiming Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
(b) The suspension of the Claiming Party's performance shall be no greater in scope and no longer than is required by the Force Majeure Event.
(c) The Claiming Party shall continually use commercially reasonable efforts to mitigate the cause and effect of the Force Majeure Event and resolve the Force Majeure Event as soon as practicable, and upon resolution thereof give Notice thereof to the other Party.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company's express written consent which shall not be unreasonably withheld. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the Parties' respective successors and permitted assigns.
12.5. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.
12.8. Conflicts. In the event of any conflict between these Terms and Conditions of Service and any Company policy posted online, including without limitation the Privacy Policy, the terms of these Terms and Conditions of Service will control. The terms of the Service Order will control over any directly conflicting term of such policies and these Terms and Conditions of Service.
12.9. Construction. The Parties agree that the terms of the Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either Party by reason of authorship. The term "Section" or "Section" means, with respect to a numbered paragraph, the terms of the paragraph so numbered and any subparagraphs thereof.
12.10. Compliance with U.S. Export Laws. Exports of any products, materials and data exchanged under the Agreement (if any) may be subject to the export laws of the United States including the United States International Traffic in Arms Regulations (the "ITAR" as defined in 22 CFR 120-130), the Export Administration Regulations (as defined in 15 CFR 730-774), the Export Administration Act, the Trading with the Enemy Act, and the International Emergency Economic Powers Act. Customer agrees to not export, re-export, disclose or transfer any such materials or data directly or indirectly without compliance with these and any other applicable laws and regulations. Customer recognizes that providing, in any manner, information constituting "technology" and/or "technical data" (as defined at 15 CFR 772; 22 CFR 120.10) to a foreign person, as defined in the ITAR at 22 CFR 120.16, is an "export" that may require prior authorization and licensing from the United States Government. Customer agrees and warrants that no regulated product, materials or technical data exchanged between the Parties (if any) shall be accessed or provided, in any manner, to foreign persons in the United States or abroad without prior, written authorization as required by the United States Government.
12.11. Digital Signatures. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) to this Agreement or to any other certificate, agreement or document related to this Agreement, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforce-ability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, and the Parties hereby waive any objection to the contrary.
12.12. Counterparts. The Service Order may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or in PDF shall be as effective as delivery of a manually executed counterpart of the Service Order.
13. Dispute Resolution
13.1. Negotiation; Mediation.
(a) In the event of any dispute or disagreement between the Parties as to the interpretation of any provision of this Agreement (or the performance of obligations under this Agreement), the matter, on written request of either Party, will be referred to each Party's Chief Financial Officer (or officer serving in a similar capacity if it does not have an officer with such title) or his or her designee (the "Representatives"). The Representatives will promptly meet in a good faith effort to resolve the dispute. If the Representatives do not agree upon a decision within fifteen (15) calendar days after reference of the matter to them, each Party is free to exercise the remedies available to it under Section 13.2.
(b) The Representatives may, if they desire, agree to undertake mediation and may, if they choose, do so in accordance with the commercial mediation rules of the American Arbitration Association ("AAA"), either as written or as modified by mutual agreement. A written agreement to undertake mediation may be made at any time. If arbitration proceeds have been instituted, they will be stayed until the mediation process is terminated.
13.2. Arbitration.
(a) Any controversy, dispute or claim arising out of or relating in any way to this Agreement or the transactions contemplated by this Agreement that cannot be resolved by negotiation or mediation pursuant to Section 14.1 will be settled exclusively by final and binding arbitration in Los Angeles County, California. Such arbitration will apply the laws of the State of California and the commercial arbitration rules of AAA to resolve the dispute.
(b) Such arbitration will be conducted by one independent and impartial arbitrator to be selected by mutual agreement of the Parties, if possible. If the Parties fail to reach agreement regarding appointment of an arbitrator within thirty (30) days following receipt by one Party of the other Party's notice of arbitration, the arbitrator will be selected from a list or lists of proposed arbitrators submitted by AAA. Unless the Parties agree otherwise, the arbitrator will be a former or retired judge of the California Superior Court or any higher court in California. The selection process will be that which is set forth in the AAA commercial arbitration rules then prevailing, except that (A) the number of preemptory strikes will not be limited and (B) if the Parties fail to select an arbitrator from one or more lists, AAA will not have the power to make an appointment but will continue to submit additional lists until an arbitrator has been selected. Initially, however, promptly following its receipt of a request to submit a list of proposed arbitrators, AAA will convene the Parties in person or by telephone and attempt to facilitate their selection of an arbitrator by agreement. If the arbitrator should die, withdraw or otherwise become incapable of serving, a replacement will be selected and appointed in a like manner.
(c) The arbitrator will render an opinion setting forth findings of fact and conclusions of law with the reasons therefor stated. A transcript of the evidence adduced at the hearing will be made and will, upon request, be made available to either Party. The fees and expenses of the arbitrator will be shared equally by the Parties and advanced by them from time to time as required; provided that at the conclusion of the arbitration, the arbitrator will award costs and expenses to the prevailing Party in the arbitration (including the costs of the arbitration previously advanced and the fees and expenses of attorneys, accountants and other experts as detailed below). The arbitrator will render his or her award within ninety (90) days of the conclusion of the arbitration hearing. The arbitrator will not be empowered to award to either Party any damages not constituting Damages hereunder in connection with any dispute between them arising out of or relating in any way to this Agreement or the other agreements contemplated hereby or the transactions arising hereunder or thereunder, and each Party hereby irrevocably waives any right to recover such damages. The prevailing Party will be awarded reasonable attorneys' fees, expert and non-expert witness costs and expenses, and other costs and expenses incurred in connection with the arbitration. Costs and fees of the arbitrator (including the cost of the record of transcripts of the arbitration) will be borne by the non-prevailing Party. The arbitration hearings and award will be maintained in confidence.
(d) Notwithstanding anything to the contrary provided in this Section 13 and without prejudice to the above procedures, either Party may apply to any court of competent jurisdiction for temporary injunctive or other provisional judicial relief or to specifically enforce the terms of this Agreement if such action is necessary to avoid irreparable damage or to preserve the status quo until such time as the arbitrator is selected and available to hear such Party's request for temporary relief. The award rendered by the arbitrator will be final and not subject to judicial review and judgment thereon may be entered in any court of competent jurisdiction.
