Fast Seller Terms of Service
Last updated: September 2, 2021
These Fast Seller Terms of Service (the “Terms”) govern the use of any Services (as defined herein) offered by Fast AF, Inc., a Delaware corporation (“Fast”), by any online merchant (“Seller”). The Terms may be supplemented by any Fast Seller Order Form executed by Seller (each, an “Order Form” and incorporated by reference). The Terms, Order Form, and any attachments or exhibits incorporated thereto, together constitute the entire “Agreement” between Seller and Fast. By using the Services, Seller agrees to the terms of the Agreement and the Fast Acceptable Use Policy, available at https://fast.co/terms/aup (“AUP”),
- Fast Services
A. Services. Fast will enable one-click checkout and a buyer dashboard for online shoppers (“Shopper(s)”) who purchase items from Seller over the Internet (“Fast Checkout”). Each Shopper’s ship-to address and email address are sent to Seller’s order system. As between Seller and Fast, Fast and its licensors exclusively own all rights, title, and interest in the software, products, works, copyrights (including rights in derivative works), patents, moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in: Fast Checkout; application programming interface materials and related information and documentation Fast may provide (the “API(s)”); the Fast Seller dashboard (“sDash”); and Fast’s applicable official user documentation (“Documentation”) (collectively, “Services”), or any copies or derivatives thereof. All rights in Services not expressly granted to Seller in the Terms are reserved.
B. License to Services. Subject to Seller’s full compliance with the terms and conditions of the Agreement, Fast hereby grants Seller a limited, personal, non-sublicensable, non-transferable, non-exclusive, revocable license to access and use Fast Checkout and sDash during the applicable Order Form Term for Seller’s business purposes, and, if applicable: (i) to build software applications (each an “App”) that communicate with the Services and (ii) to use the App(s) to provide Shoppers with Fast Checkout or for other purposes as authorized by Fast in writing. All use of the Services must be only as provided herein and only in accordance with the Documentation. From time to time, Fast may expand the Services available to Sellers subject to these Terms.
- Fees; Payment
A. Fees. Seller shall pay Fast “Fees” for the Services in the amounts posted on Fast’s pricing page available at https://fast.co/pricing (“Pricing Page”) unless set forth differently in an Order Form. Fees comprise:
i. “Checkout Transaction Fee(s)”, charged for each sum paid by Shoppers using Fast Checkout (each, a “Checkout Transaction”). Checkout Transaction Fees are assessed per funding instrument, and a Shopper’s use of multiple payment methods during one Checkout Transaction will result in multiple Checkout Transaction Fees.
ii. “Setup Fees”, charged if Seller elects a custom Implementation in order to enable Fast Checkout. Setups Fees will be set forth on Order Forms.
iii. “Fraud-Related Fee(s)”, charged when a Shopper makes a purchase with Seller to which an allegation of unauthorized credit card use is later connected (for example, because there is no cardholder authorization, or the credit card used is counterfeit, or the processing of the credit card is otherwise fraudulent).
iv. “ZFG Fee(s)”, charged to participate in Fast’s Zero Fraud Guarantee Program (“ZFG”). When a Shopper initiates a chargeback on basis of fraud, Fast investigates the alleged fraud with the card networks; if Fast determines in its sole discretion that the transaction was fraudulent and a Seller is participating in ZFG, then Fast will cover (and Seller shall not be obligated to pay) the associated Fraud-Related Fees. Fast will not cover any Fraud-Related Fee if Seller changes an order after Fast has determined whether the charge was fraudulent or not, or for orders that Seller fails to fulfill. ZFG Fees may be charged asynchronously from Checkout Transactions.
v. “Service Chargeback Fee(s)”, charged in the event of a disagreement between a Shopper and Seller that pertains to an issue with any orders placed using the Services (for example, if an order appears to be defective, appears to be materially different from what was marketed, is purchased but arrives late, or is purchased but does not arrive) that results in a chargeback. Any chargeback coded as anything other than “fraud” by the applicable card network is considered a Service Chargeback.
vi. “Currency Fees” are charged for Checkout Transactions conducted outside of Seller’s designated currency.
Seller will receive amounts from all Checkout Transactions, less all applicable Fees. In some instances, it may take longer for Seller to receive such amounts, such as if there are high dispute rates on orders that Seller processes. Fast reserves the rights to initiate a refund to any Shopper(s) at any time in order to avoid a chargeback, as well as to change the Checkout Transaction Fee for Checkout Transactions upon providing thirty (30) calendar days’ written notice prior to the expiration of any Order Form Term. If Seller or Fast refunds a payment to a Shopper, then Fast will still charge Seller all relevant Fees, as if Shopper’s payment had not been refunded.
B. Taxes. Seller shall be responsible for all Seller taxes associated with the Services (excluding taxes based on Fast’s net income). For the avoidance of doubt, all amounts payable or other consideration to be provided for a supply under or in connection with the Order Form are exclusive of goods and services tax (“GST”) and of value added tax (“VAT”), unless specifically described in the Order Form as “GST inclusive” or “VAT inclusive”, respectively. All Fees paid are non-refundable and are not subject to set-off.
C. Direct Debit Authorization. If Seller has a connected bank account, then by accepting the Agreement, Seller irrevocably and unconditionally authorizes Fast, during the Order Form Term, to arrange for direct debit of Seller’s connected bank account, without prior or advanced notice, whenever Seller has allowed its operational connect account balance to become negative. Each debit amount will be equal to the indebtedness amount at the time of the debit initiation.
- Term and Termination
The Agreement will commence on Seller’s acceptance of the Terms or, if applicable, on the date set forth on the applicable Order Form (each, “Effective Date”). Unless earlier terminated as set forth herein, or unless set forth differently in any Order Form, the “Order Form Term” shall begin as of the Effective Date and: (i) shall continue for a one-year period (the “Initial Term”), and (ii) following the Initial Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Term”), unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) calendar days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. In the event of termination of the Agreement, any remaining outstanding Order Forms will also immediately terminate unless otherwise agreed by the parties. If in Fast’s sole judgment Seller or Seller’s Shopper(s) have engaged in illegal activity, or breached or are suspected of breaching any term or provision of the AUP or Agreement, including the applicable Stripe Connect terms as set forth in Section 13 herein, Fast may suspend Seller’s and/or any individual Shopper’s access to or use of the Services or any part thereof at any time without notice. Upon termination or expiration of the Agreement or any Order Form, all licenses granted from Fast to Seller thereunder will be terminated immediately. Notwithstanding the foregoing, Sections 6-12 and 14-16 of the Agreement will survive termination or expiration.
Fast reserves the right to modify or terminate all or part of the Services for any reason, without notice, at any time. If Fast provides Seller with any upgrades, patches, enhancements, or fixes for the Services (“Updates”), then all such Updates will become part of the Services and subject to the Agreement; provided that Fast shall have no obligation under the Agreement or otherwise to provide any such Updates. Seller understands that Fast may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Fast shall use commercially reasonable efforts to give Seller sixty (60) calendar days’ prior notice of major changes.
Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose information that the Disclosing Party reasonably considers to be Confidential (hereinafter referred to as “Confidential Information”). The Receiving Party agrees: (a) not to use Confidential Information other than as necessary to fulfill its obligations or exercise its rights under the Agreement; (b) not to divulge to any third party any Confidential Information; (c) to give access to Confidential Information solely to those employees or representatives with a need to have access thereto for purposes of the Agreement; (d) to take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that Receiving Party takes with its own Confidential Information, and in no event less than reasonable care; and (e) upon written request by Disclosing Party, to return or destroy all documents and other tangible materials representing Disclosing Party’s Confidential Information and all copies thereof. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in the Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding the foregoing, the Services are and will be solely the Confidential Information of Fast.
- Data Protection; Seller Data
B. Seller Data. For purposes of the Agreement, “Seller Data” shall mean any data, information or other material provided, uploaded, or otherwise submitted by Seller to the Services in the course of using the Services, including without limitation transaction history of Shoppers. Seller shall retain all right, title, and interest in and to any Seller Data, provided that Seller acknowledges and agrees that Fast may use and modify Seller Data for the purposes of: (i) providing the Services, including operating, improving, testing, debugging, and otherwise running the Services; (ii) providing any support or consultation services to Seller; (iii) customizing or improving Shopper experiences; and/or (iv) generating Aggregated Anonymous Data (as defined below) to use and make available for Fast’s business purposes, including without limitation sales, promotion, and marketing. “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Fast in connection with Seller’s use of the Services, but only in aggregate, anonymized form which cannot be linked specifically to Seller or any individual. Fast shall retain all right, title, and interest in and to any information Fast derives or creates through the operation of its platform, including information derived or created from Seller Data. Seller, not Fast, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Seller Data. Fast shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Seller Data. Fast is not responsible to Seller for unauthorized access to Seller Data or the unauthorized use of the Services unless such access is due to Fast’s gross negligence or willful misconduct. Seller agrees and acknowledges that Seller Data may be irretrievably deleted if Seller’s account is ninety (90) calendar days or more delinquent.
- Seller Responsibilities and Permissions
A. Usage and Compliance. Seller represents and warrants that it (i) shall comply with all marketing and electronic communications laws, including the CAN-SPAM Act, Canada’s Anti-Spam Legislation, national laws implemented under the EU ePrivacy Directive, Australia’s Spam Act 2003 (Cth), New Zealand’s Unsolicited Electronic Messages Act 2007, and similar laws (collectively, “Marketing Laws”) in connection with Seller’s use of the Services; (ii) shall not use the Services in any manner that infringes, violates, or misappropriates any third-party intellectual property, contractual, or other proprietary rights; and (iii) shall comply with all other applicable laws and regulations in connection with Seller’s use of the Services, including those related to export controls, intellectual property, consumer protection, and data privacy.
B. Non-Reliance. Seller acknowledges and agrees (i) that Fast does not provide legal advice to Seller; (ii) that Seller remains solely responsible for compliance with applicable laws governing Seller’s activities; and (iii) to waive any claims against Fast arising from or related to Seller’s failure to comply with applicable laws arising from or related to Seller’s use of the Services.
C. Access. Seller agrees not to disclose or allow access to the Services or any information derived therefrom to any third party, and, if developing App(s), will limit access to the Services and any information derived therefrom to Seller’s employees who are developing the App(s). In support of this obligation, Seller will apply at least the same security used to protect its own Confidential Information (as defined below). Seller is solely responsible for (i) all of Seller’s activity in connection with the Services, including but not limited to uploading Seller Data onto the Services; (ii) ensuring that only authorized persons have access to Seller’s Services account, including any Dashboard or similar information provided as part of the Services; and (iii) use of the Services by any person to whom Seller has given access to the Services, even if Seller did not authorize such use.
D. Additional Restrictions. Except as expressly set forth in the Agreement, Seller shall not (and shall not permit any third party to), directly or indirectly: (i) clone or use the Services to build an application programming interface, application, or product that is competitive with any Fast product or service; (ii) remove or alter any proprietary notices from the Services (or any portion thereof); (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discover or derive the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (iv) modify, translate, or create derivative works based on the Services; (v) copy, rent, lease, loan, sell, sublicense, distribute, pledge, assign, or otherwise transfer or encumber any rights in or to the Services; (vi) use the Services for the benefit of a third party unless otherwise agreed to in writing by the parties; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Fast may use to prevent or restrict access to the Services (or other accounts, computer systems, or networks connected to the Services).
E. Security. Seller’s access or use of the Services is subject to Seller passing Fast’s security and compliance reviews (“Reviews”) as determined in Fast’s sole discretion. Reviews may include, without limitation, automated verifications, questionnaires, and requests for information. Seller represents and warrants that all information provided for Reviews will be accurate and complete, with the ongoing responsibility to supplement or correct obsolete or inaccurate information. If Seller’s failure of Reviews remains uncured for seven (7) calendar days after notice from Fast, Fast may suspend, revoke, or terminate Seller’s access to the Services without additional notice or any liability to Seller.
F. Compatibility of App(s). Each App must (i) maintain 100% compatibility with the Services (including changes provided to Seller by Fast, which shall be implemented in each App promptly thereafter); and (ii) maintain industry standard network security policies and practices. If any App uses or implements an outdated version of the Services, Seller acknowledges and agrees that such App may not be able to communicate with the Services. Seller agrees not to modify, extend, subset or superset the Services to any extent. Seller understands that Fast may cease support of old versions or releases of the Services.
G. Patent License. Seller hereby grants Fast a non-exclusive, sublicensable, fully-paid, worldwide license, only as necessary to perform or promote the Services, to fully exercise and exploit all patent rights with respect to improvements or extensions created by or for Seller that are relevant to the Services or otherwise result from or are enabled by access to the Services. For clarity, Seller is not required to disclose any such patent or patent rights to Fast.
H. Fast Trademarks and Publicity. Seller will not use any Fast trademarks, logos, service marks, trade names, and/or legal notices pertaining thereto (collectively, “Fast Marks”), including use in any advertising, press releases, blog posts, publicity matters, seller lists, or other promotional materials, without prior written consent from Fast, which may be withheld in Fast’s sole discretion; provided, however, in the event use of any Fast Mark is required to perform the Services, the parties agree as follows: subject to Seller’s strict compliance with the Agreement and Fast’s brand guidelines, which are available upon request, Fast grants Seller a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license, for the applicable Order Form Term, to use the designated Fast Marks in the form delivered by Fast, only for the territory in which Services will be delivered, and only as necessary to perform Services. All rights, title, and interests in the Fast Marks and the goodwill inuring thereto are the exclusive property of Fast. If applicable, Fast reserves the right to perform quality assurance inspections of each App and to withhold and/or suspend rights to use Fast Marks if the quality is not satisfactory to Fast in its sole discretion. Fast is permitted to disclose, including through display of Seller’s logo, that Seller is one of its clients (including in its publicity and marketing materials).
I. Seller Trademarks and Publicity. Seller hereby grants Fast a non-exclusive, non-assignable, non-transferable, sublicensable, fully-paid, perpetual, worldwide license to use the Seller’s trademarks, logos, service marks, trade names, copyrighted images or material, and/or legal notices pertaining thereto (collectively, “Seller IP”), to perform or promote the Services. All rights, title, and interests in the Seller IP and the goodwill inuring thereto are and remain the exclusive property of Seller.
J. Ownership; Feedback. Seller may from time to time provide suggestions, comments, or other feedback to Fast with respect to the Services (“Feedback”). Seller hereby grants to Fast a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Nothing in the Agreement will impair Fast’s right to develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with, any products, software, or technologies that Seller may develop, produce, market, or distribute.
- Representation and Warranties
Each of Fast and Seller represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform the Agreement; (b) the person signing the Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute the Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
A. By Seller. Seller agrees to indemnify, defend, and hold harmless Fast, its affiliates, and each of its and its affiliates’ employees, agents and service providers (each, a “Fast Entity”) from any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) that arises from or relates to: (i) Seller’s breach of any provision of the Agreement; (ii) gross negligence or willful misconduct of Seller’s owners, employees, contractors, or agents; (iii) any Claim that Seller Data infringes, violates, or misappropriates any third-party intellectual property rights; (iv) contractual or other disputes between Seller and its Shoppers; (v) Seller’s products and services, including without limitation product liability or recall Claims; and/or (vi) third-party indemnity obligations a Fast Entity incurs as a direct or indirect result of Seller’s acts or omissions.
B. By Fast. Fast agrees to indemnify, defend, and hold harmless Seller from any Claim that the Services infringe, violate, or misappropriate any third-party intellectual property rights. The foregoing obligation does not apply to any Services, content, data, or other information (or any portions or components of the foregoing): (i) to the extent it is: (a) not created or provided by Fast (including any Seller Data), (b) made in whole or in part in accordance to Seller specifications; (c) modified after delivery by Fast; or (d) combined with other products, processes, or materials not provided by Fast (where the alleged Claims arise from or relate to such combination); (ii) where Seller continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (iii) where Seller’s use of the Services was not strictly in accordance with the Agreement.
C. Procedure. Each party’s indemnification obligations hereunder shall be conditioned upon the indemnified party providing the indemnifying party with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall relieve the indemnifying party of its indemnity obligations only to the extent it is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim, provided that (x) the indemnified party may participate in such defense and settlement at its own expense, and (y) the indemnifying party will not agree to any settlement that imposes any obligation or liability on the indemnified party without such indemnified party’s prior express written consent, not to be unreasonably withheld; and (iii) reasonable information and assistance in connection with such defense and settlement (at the indemnifying party’s expense).
- WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
To the extent that Seller acquires goods or services from Fast as a “consumer” within the meaning of Australia’s Competition and Consumer Act 2010 (Cth) or the New Zealand Consumer Guarantees Act 1993, as either may be amended, replaced, or superseded from time to time (together, the “ANZ Consumer Laws”), Seller has certain rights and remedies (including consumer guarantee rights) that may not be excluded, restricted, or modified by agreement. Nothing in the Agreement operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under ANZ Consumer Laws or any other statute where to do so would: (a) contravene that statute; or (b) cause any term of the Agreement to be void.
- LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) IN NO EVENT SHALL FAST, OR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, REGARDLESS OF WHETHER THE OTHER PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE; AND (B) FAST’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THE AGREEMENT SHALL BE LIMITED TO THE GREATER OF (I) FEES PAID BY SELLER TO FAST DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY; OR (II) ONE HUNDRED DOLLARS (USD$100.00). THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 12 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
To the extent that ANZ Consumer Laws permit Fast to limit its liability, Fast’s liability shall be limited to: (a) in the case of services, supplying the services again or payment of the cost of having the services supplied again; and (b) in the case of goods, replacing the goods, supplying equivalent goods, or repairing the goods, or payment of the cost of replacing the goods, supplying equivalent goods, or having the goods repaired. Because Fast does not exclude or limit the operation of any other statutory guarantees under any other provision of the Agreement or in any other manner, the parties agree it is fair and reasonable in all the circumstances for Fast’s liability to be so limited.
- Stripe Connect Terms
- Applicable Law; Claims
The Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. Seller agrees that any claim it may have arising out of or related to the Agreement must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred.
- Changes to Terms
Seller agrees that Fast may amend the Terms with prospective effect at any time, by posting updated Terms on Fast’s website. Seller assumes responsibility to check the Terms periodically for changes. Fast will provide notice of any changes to the Terms via a notification in the Services, via email, or through other reasonable means. If you are an existing Fast user, the changes will come into effect fourteen (14) calendar days after we post the changes to Fast’s website, and your continued use of the Services more than fourteen (14) calendar days after we publish any such changes constitutes your acceptance of the terms. Except as expressly permitted in this Section 15, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
All notices under the Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form, and either party may update its address set forth above by giving notice in accordance with this Section 16, provided that any and all notices to Fast must also include a copy sent by email to [email protected]. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from a force majeure event beyond such party’s reasonable control. The Agreement is personal to Seller and may not be assigned or transferred without Fast’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Fast expressly reserves the right to assign the Agreement and to delegate any of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of the Agreement is held to be unenforceable for any reason, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of the Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. The Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them with respect thereto.