TERMS AND CONDITIONS
Background: This Agreement sets forth the terms upon which the Company agrees to manage operations of vehicles owned by Vehicle Owner.
Now therefore, in consideration of the promises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Whenever used in this Agreement, the following capitalized words, and phrases, unless the context otherwise requires, shall have the following meanings:
“Approved Expenses” means those expenses as stated in Exhibit “A;”
“Certificate”means a vehicle Certificate of Title or similar document as required in one or more of the states;
“Day” meansany day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close;
“Disclosing Party” means the Party that discloses Confidential Information;
“Driver” meansan employee or independent contractor engaged by the Company to drive a Managed Vehicle.
“GAAP” means Generally Acceptable Accounting Principles;
“Initial Subscription Term” means the initial period a Managed Vehicle is provided to the Company in accordance with a Vehicle Operating Agreement;
“Lien” meanspledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever;
“Major Maintenance” meansany repairs exceeding $200. For the sake of clarity, Major Maintenance shall not include repair due to collision, accidents, vandalism, wheel or bumper rash, interior spills, windshield chips and cracks, or abuse of a Managed Vehicle;
“Managed Vehicle(s)” means those vehicles as detailed in one or more Vehicle Operating Agreements;
“Monthly MV Account” means the balance arising from the Monthly Settlement Cycles;
“MonthlyMV Profits” shall mean monthly net income, calculated as revenue less Approved Expenses and refunds;
“Net Income”means Revenue less expenses, including Approved Expenses;
“Owner” means the owner of the Vehicle;
“Platform” means one or more car share or rideshare companies;
“Receiving Party” means the Party that receives Confidential Information;
“Regular Maintenance” means routine maintenance to address ordinary wear and tear, including brake pad replacement, windshield wiper and replacement fluid, excluding Major Maintenance
“Vehicle Data” means telematics data for each Managed Vehicle, including but not limited to, odometer, GPS location, battery state of charge, miles of range remaining, tire pressure, charging status, car temperature readings, as well as speed of Managed Vehicles and other similar data pertaining to the Managed Vehicle;
“Vehicle Operating Agreement” or “VOA”means one or more attachments to this Agreement executed by the Parties from time to time, for one or more Managed Vehicles;
“Vehicle Owner” means the owner of one or more Managed Vehicles.
2. Services.
2.1. Management of Managed Vehicle. Subject to the terms and conditions of this Agreement Company agrees to manage on behalf of Vehicle Owner the Managed Vehicles identified and described in each Vehicle Operating Agreement.The Parties may, but shall not berequired to, from time to time during the Term hereof, enter into one or more additional VOAs. Any subsequent VOA shall be substantially in the form of the VOA attached hereto as Exhibit “A”incorporated into this Agreement as thoughfully stated. Each VOAshall become effective on the date specified in the VOAand continue in effect until the expiration date specified in the VOA, but not longer than the then remaining Term of this Agreement.
2.2. Vehicle Operating Agreements. Upon execution of a VOA (with the first VOA to be executed simultaneously with this Agreement), Vehicle Owner shall make available to Company, and shall deliver toCompany’s custody andcontrol, the Managed Vehicles listed on such VOA,and more specifically onone or more Schedule “A” lists, in accordance with thedates as stated therein. Each change to a Schedule of Managed Vehicle shall be recorded by the issuance of a subsequent Schedule, i.e., “Schedule A-1”, “Schedule A-2” and increasing as necessary,
2.3. Standard of Care. Upon receipt of custody and control of the Managed Vehicles, Companyshall manage and maintainthe Managed Vehicles in accordance with the terms of this Agreement and the VOAand shall not use the Managed Vehicles for any other purpose. In performing its duties hereunder, Company shall act with reasonable care using the degree of skill and attention in accordance with standard industrypractices.
3. Manged Vehicles; Use and Maintenance
3.1. Vehicle Condition. Vehicle Owner acknowledges and agrees that: (i) Vehicle Owner is obligated to determine if a specific vehicledelivered by Vehicle Owneris suitable for Company’s intended use or business purpose, and (ii) each vehicle delivered (including specified modifications) by Vehicle Owner is ofthe make and model as stated in the applicable VOA and is equipped as required and suitable for Company’s purpose.
3.2. Right to Inspect. Upon delivery of Managed Vehicles to Company, Company shall have forty-eight (48) hours to inspect the Managed Vehicles to confirm they are: (i) in satisfactory condition, operation, and appearance, and(ii) equipped with all features and options in accordance with the applicable VOA. Company shall have no obligation to accept any vehicles that do not meet the foregoing standards. If Company has not notified Vehicle Owner within forty-eight (48) hours of delivery of an objection to a Managed Vehicle, then Company shall be deemed to have accepted the Managed Vehicle as satisfactorily delivered.
3.3. Use of Managed Vehicles. Managed Vehicles shall be used as rentals, taxis, limousines and livery operations, car share or rideshare operations, shuttle services, corporate fleets, delivery or other corporate purposes (“Permitted Uses”) in the sole discretion of Company. Vehicle Owners acknowledge and agree that Company shall be solely responsible for determining the Platform, channel, or other means,by which the Managed Vehicles will be rented, including changing Platforms, channels, direct with Drivers, or other means, from time to time in its sole discretion.
3.4 Drivers. If Company is not itself the Driver, Company shall use reasonable efforts to conduct due diligence on each Driver in accordance with Company’s standard business practices, to include but not be limited to (i) the criteria set forth in Exhibit “B”, attached hereto and incorporated herein as though fully stated herein and (ii) any criteria established by any car share or rideshare platform, if applicable.
3.5. Vehicle Ownership. Vehicle Owner will be the sole legal owner of the Managed Vehicles. Managed Vehicles will be titled in the name of Vehicle Owner or its permitted assigns; or other name as Vehicle Owner may designate from time to time, in accordance with state law. Company shall not create, incur, assume or permit to exist any Lien upon any Managed Vehicle. Vehicle Owner shall obtain all Certificates, vehicle Registrations, and plates, and cause all fees related thereto be paid. Managed Vehicles will not be delivered to, and Company shall be under noobligation to accept, such vehicles until the Registration fee and applicable sales tax have been paid, except in the sole discretion of Company, Company may provide reasonable assistance requested byVehicle Owner for these purposes, at a cost to be determined by Company. Unless otherwise explicitly provided herein, Company shall not acquire any right, title or interest in or to any Managed Vehicle, except the right to use the Managed Vehicle as contemplated by this Agreement and as may be otherwise stated herein.
3.6. Managed Vehicles Data. Vehicle Ownerherebyauthorizes, enables, and permitsCompany or its agents, including any third-party service providers, to, at all times, connect to and access Vehicle Data. Vehicle Owner authorizesCompany to use, display or distribute any of the Vehicle Data to operate, provide, administer, develop and improve Company’s products andservices, including but not limited to operating and managing vehicles, for providing analyticsreporting to Company to assist in Managed Vehicles management, to provide data at the request of insurance companies in connection with a claim, to offer third-party products and services, and forCompany’s business purposes, including but not limited to internal analytics and operational reporting, troubleshooting, auditing purposes, and for creating aggregated and anonymized data that may be shared with current and future Company investors, financial or legal advisors,and for any other uses as permitted by applicable law (see Exhibit “E”, attached hereto and incorporated into this Agreement as though fully stated herein).
3.7. Personal Data. The Parties acknowledge and agree that the data collection and use described in the foregoing Sectionshall not include or be associated with information relating to an identifiable natural person, i.e.,Driver or other person(“Personally Identifiable Information” or “PII”). Unless mutuallyagreed between the Parties or as otherwise required by this Agreement (e.g.,regarding insurance information), Company will not share any PII pertaining to the Drivers. Company represents and warrants that to the extent any PII is shared with Vehicle Ownerswith respect to any Drivers, Company has provided necessary disclosures and obtained necessary authorization from Drivers for sharing of PII.
3.8. Maintenance and Operation of Managed Vehicles. Company shall maintain the Managed Vehicles as required and recommended by the manufacturer and in good working order and shall take necessary steps to not operate any Managed Vehicles in an unsafe condition. For Managed Vehicles under Agreement for more than 90 days Company shallperform all required Regular Maintenance on the Managed Vehicles directly or through a third-party appointed by the Company.
3.9. Recalls. If any governmental or regulatory authority, or the manufacturer issues a directive, order or a written request that any Managed Vehicle be recalled, Vehicle Owner shall promptly notify Company. Unless otherwise agreed between the Parties, Vehicle Owner shall be responsible for promptly transporting and returning the Managed Vehicles to the manufacturer. Companyshall provide best efforts in this event to Vehicle Owner upon request, with such assistance at Vehicle Owner’s cost. Any shipping costs associated with the transportation of such a vehicle shall be borne as per terms defined in Exhibit “F,” attached hereto and incorporated herein as though fully stated. In the event a recall is permanent, and no replacement vehicle will be provided by the manufacturer, the relevantVOAshall automatically terminate.
3.10.Warranties.Owner hereby authorizes Company to arrange for Regular and Major Maintenance under all Managed Vehicle warranties and Owner agrees to complete any documentation that may be required by a warranty providertoperform the work. For the purposes of clarity, this is not a transfer, sale or other arrangement between the Parties regarding any warranties.
4. Payments, Responsibilities, and Reporting.
4.1. Profit Sharing. Company and Vehicle Owner shall share incomegenerated from Managed Vehicles, in accordance with the Monthly MV Profits as stated in the applicable VOA.
4.2. Costs, Expenses, Charges, Fines and Taxes. Company will pay various costs, expenses, fees, charges, fines and taxes (without offset for any tax deductions or credits) incurred in connection with or attributable to any Managed Vehicles, except as may be stated elsewhere in this Agreement, including (i) the use and operation of the Managed Vehicles during the respective Agreement Terms, including but not limited to, costs related to Regular Maintenance,recalls and related notifications, garaging, replacement parts and accessories, and theincurrence of obligations for storage, parking, tolls, fines, registration or license fees and tags; (ii) all taxes and fees whatsoever by whomsoever payable (except any income tax or other tax measured by the net income of Vehicle Owner) on or relating to the Managed Vehicles; and (iii) obtaining (or ensuring that Drivers obtain) insurance for such Managed Vehicles and maintaining (or ensuring that Drivers maintain) such insurance, including by payment of any insurance premiums during the Term of this Agreement. Any such expenses paid by the Company that are not recovered from the customer or not part of Approved Expenses shall be reimbursed by the Vehicle Owner through the Monthly Settlement Cycle as defined in 4.7
4.3. Reimbursement of Approved Expenses. If a Vehicle Owner pays for any of the Approved Expenses, subject to prior written approval, Company shall reimburse the Vehicle Owner. Upon receipt of an invoice for the same, Company shall make an adjustment in the next regularly scheduled Monthly Settlement Cycle.
4.4. Major Maintenance. At all times Vehicle Owner shall be responsible for payment of Major Maintenance. Company shall make an adjustment in the next regularly scheduled Monthly Settlement Cycle
4.5. Reimbursement of Expenses other than Approved Expenses. If Company pays for any necessary expenses other than Approved Expenses, Company shall be entitled to include such expenses in the calculation of Net Income. In the event there is an amount not yet included upon termination or expiration of a VOA, Company shall issue an invoice for the amount due, and Vehicle Owner shall reimburse Company within ten (10) Days from the date of the invoice.
4.6. Shipping Expenses. The Parties acknowledge that this Agreement is subject tothe Vehicle Relocation Policy as further detailed in “Exhibit “F,” attached hereto and incorporated into this Agreement as though fully stated herein. From time to time a Managed Vehicle may be relocated for the purpose of maximizing the profit generated by the Managed Vehicle. In such an event, Vehicle Owner may be subject to a Managed Vehicle relocation expense of not greater than $500.
4.7. Monthly Settlement Cycle. Except as stated in Section 4.8 herein, all amounts due and payable in accordance with this Agreement shall be based on a calendar month (“Monthly Settlement Cycle”). Company shall provide a monthlystatement of transactions(“Monthly Transaction Statement”)to the Vehicle Owner no later thanthe 10th day of each month for the prior month’s activity and settle amounts due by the 15thof themonth. In the event of a net loss during any period, such loss shallbe carried forward to following periods until offset by positive Net Income.
4.8. Fees and Net Losses. If at any time Vehicle Owner’s account reaches a negative balance of at least $1,000, Company shall have the right to process a withdrawal from Vehicle Owner’s bank account, in accordance with Exhibit “D” attached hereto and incorporated into this Agreement as though fully stated herein. Company shall provide Vehicle Owner with same day email notice regarding a withdrawal.
4.9. Errors and Inaccuracies. Vehicle Owner shall promptly review all invoices and settlement receipts and will notify Company within five (5) Days of the date of invoice of any asserted error or inaccuracy. Company will work with Vehicle Owner in good faith to resolve any invoicing issue identified by Vehicle Owner. Vehicle Owner’s sole liability and Company’s exclusive remedy in respect of any such issue will be an appropriate adjustment to Vehicle Owner’s account as determined in the Company’s sole discretion.
5. Insurance.
5.1. Insurance and Coverages. Company shall arrange and maintain, from delivery of the Managed Vehicle until Surrender of the vehicle: (i)automobile liability insurance for the use, operation and possession of the Managed Vehicle that (A) sufficiently covers the intended or actual use of the Managed Vehicles, (B) meets state law minimum requirements with collision coverage, (C) has auto liability coverage of not less than $20,000 per person and $40,000 per occurrence for bodily injury, and not less than $25,000 per occurrence for property damage, and (D) otherwise meets Vehicle Owner’s effective as of the date of this Agreement; or (ii) ensure that each individual Driver has automobile insurance coverage meeting the foregoing requirements. If any Managed Vehicles are listed on any Platforms, Company will ensure that eachManaged Vehicle will also be covered by the insurance policies of those Platforms for so long as the Managed Vehicles are deployed on those Platforms.
5.2. Insurance Requirements. Insurance coverage shall (i) be with an insurance company acceptable to Vehicle Owner, such acceptance to not be unreasonably withheld, (ii) name Vehicle Owner and Company,and such other entities as directed by Vehicle Owner from time to time as additional insureds and loss payees, including Company; and (iii) be acknowledged by such insurance company to be the primarycoverage. All insurance policies shall providefor thirty (30) calendar days’ prior written notice to Vehicle Owner and Company of any cancellation or reduction in coverage. To the extent that any state requires electronic reporting of Company’s insurance coverage, Company’s insurer shall beresponsible for reporting such coverage.
5.3.Insurance Payments. If Vehicle Owner arranges and pays for the insurance, which shall be subject to the approval of Company, Company shall reimburse the premium as a partof the Monthly Settlement Cycle.
5.4. Insurance Policy Information. In the event Companyis paying the Managed Vehicle insurance premium, Company shall detail the required insurance coverage information in each VOA. Company shall furnish Vehicle Owner with a certificate of insurance evidencing the required insurance coverage promptly, but in no event later than as stated in theVOAand on an annual basis thereafter during the Term. In the event of a cancellation or lapse ininsurance coverage on a Managed Vehicle, Company shall, promptly but in no event later than two (2) Days following such cancellation or lapse, notify Vehicle Owner in writing of such cancellationor lapse in insurance coverage, and shall promptly obtain and maintain otheralternative coverage in accordance with Section 5.1 and 5.2 herein.
5.5. Notification of Loss; Settlement of Claims. Company shall notify Vehicle Owner by email within twenty-four (24) hours of any material damage, loss, theft, seizure or impoundment of a Managed Vehicle, and such notice must include the name, address and insurance information (if any) of the Driver.
6. Repair or Loss and Reporting to Police.
6.1. Repair or Loss. Company assumes full and sole financial responsibility for, and shall indemnify the Vehicle Ownerfor, all losses, costs, damages and expenses arising from damage to, ordestruction of, the Managed Vehicles, the theft or abandonment of, or any governmental authority taking possession of, theManaged Vehicles and any parking or traffic tickets, tow charges or other fines, taxes, penalties or fees arising from the operation of the Managed Vehicle from delivery of the Managed Vehicle into Company’s possession until Surrender. Company shall promptly notify the Vehicle Owner in writing of any damage to or loss of a Managed Vehicle. In the event a Managed Vehicle is in anaccident, or if it is subject to theft or vandalism, Company shall immediately report the accident or vandalism to local law enforcement, to the Vehicle Owner, the applicable Platform, if any, and any applicable insurer covering the Managed Vehicle. Company shall also report any other damage to the Managed Vehicle, beyond ordinary wear and tear, to the Vehicle Owner.Company is responsible for submitting all claims and securing needed repairs within a reasonable time frame and shall be solely liable for all expenses related thereto. Upon written notice and request from Vehicle Owner, Upon payment of all such sums, if requested by Vehicle Ownerthe applicable VOA shall terminate.Companyshall maintain records of all repairs and maintenance activities and provide the same to Vehicle Owner once per calendar year. Under no circumstances, and not withstanding anything to the contrary stated herein, will Company be responsible for loss of anticipated income to the Vehicle Owner due to any repair or loss.
7. Term
7.1. Term. This Agreement shall begin on the Effective Date and shall have a term of [e.g., twelve months] (the “Initial Term”) and shall automatically renew for successive periods of equal duration (each a “Renewal Term” and together with the Initial Term, the “Term”) unless terminated earlier as provided for herein.
8. Termination.
8.1Termination for Convenience.Either Party may terminate this Agreement by providing the non- terminating Party no less than [e.g., sixty (60) Days’ prior written notice to a Renewal Term, of its intent to not renew this Agreement.Either Party may terminate a VOA by providing the non- terminating Party no less than [e.g., thirty (30 Days’ prior written notice to a Renewal Term of its intent to not renew a VOA.
8.2. Termination for Cause. Either Party may terminate this Agreement, or one or more VOAs, by providing written notice to the other Parties (a “Termination Notice”) if the other Party commits a material breach and fails to cure such breach within thirty (30) calendar days (the “Cure Period”) following receipt of a Termination Notice.
8.3. Termination, Insolvency. This Agreement shall terminate, without need of written notice (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of a Party; (ii) upon the making of an assignment for the benefit of creditors by a Party; or (iii) upon the dissolution of a Party.
8.4. Consequences of Termination. Upon expiration or termination of this Agreement, Company shall reconcile the Monthly MV Account no later than thirty (30) days from the expiration or termination hereof. Upon completion of the reconciliation, Company shall pay to Vehicle Owner any amounts due, or Vehicle Owner shall be responsible for payment of a negative balance, in either case to be paid within fifteen (15) Days from the conclusion of the reconciliation.
8.5. Company Amendment. Company may amend a VOA to remove a Managed Vehicle if the Managed Vehicleis unrented for less than twenty-four days per month for two consecutive months.
8.6. Vehicle Owner Amendment. Vehicle Owner may amend a Vehicle Operating Agreement to remove a Managed Vehicle if the Managed Vehicle is unrented for less than fifteen days per month for two consecutive months. TheParties agree that this clause shall not be applicable during the first two months from the date of delivery for the particular Managed Vehicle.
8.7. Cancelled Vehicle. Any Managed Vehicle that is removed from a VOA through amendment or termination of this Agreement or a VOAshall be a “Cancelled Vehicle(see Exhibit “A,”Schedule “B”).
8.8. Cancellation Date. The date on which a Vehicle Operating Agreement is amended to remove a Cancelled Vehicle is a “Cancellation Date.”
8.9. Surrender of the Vehicle. Unless otherwise agreed to between the Parties (including if Company exercises its option to purchase, see Exhibit “C”, attached hereto and incorporated herein as though fully stated), if this Agreement is terminated for any reason or if any VOA isamended to remove one or more vehicles from the list of Managed Vehicles, Company shall returnthe relevant Managed Vehicles (which shall consist of all of the Managed Vehicles in the case of a termination of this Agreement or a VOA, respectively) to a location designated by the Vehicle Owner as stated in theVOA within three (3) days of the termination or expiration of this Agreement or the VOA, or inthe case of an amendedVOAthose Managed Vehicles as stated in the VOA. The designated location will be no more than twenty-five (25) miles from the relevant Managed Vehicle’s assigned home location in the VOA. All obligations of the Vehicle Owner under this Agreement shall survive until such time as the Managed Vehicles have been Surrendered pursuant to this Section.
(a)Company agrees to deliver the Managed Vehicle to Vehicle Owner or its agent: (i) in the same condition and appearance as when received, ordinary wear and tear excepted as noted in “Exhibit G” attached hereto and incorporated into this Agreement as though fully stated herein; (ii) free from collision or other physical damage; (iii) free from loss of parts, tires, equipment and accessories; and (iv) together with any replacement parts, changes in or improvements to the Managed Vehicles made by Company. Company covenants that a Managed Vehicle will be inan environmentally clean and safe condition and be free of any hazardous substance or residue thereof upon Surrender. Vehicle Owner will not accept and will not be responsible for the removal of any personal property, which will be considered abandoned property at the time of Surrender. Costs related to abandoned property will be the sole responsibility of Company.
(b) At the time of Surrender, or no later than twenty-four (24) hours therefrom,the Company must clearly document and identify to Vehicle Owner (via photographs and written description, emailed to Vehicle Owner at a designated email address) noting the condition of the Managed Vehicle and any and all current damages on the Managed Vehicle. If such documentation is not received by Vehicle Owner in a timely manner, then any damages to the car will be charged to Company pursuant to the terms and conditions provided herein.
(c)From Cancellation Date, until the Cancelled Vehicle is Surrendered to Vehicle OwnerCompany shall make reasonable efforts to maintain Canceled Vehicles safe and secure. If such period is more than three (3) days, Vehicle Owner agrees to reimburse Company any costs and expenses incurred towards maintaining Cancelled Vehicle. If the Vehicle Owner does not retrieve a Cancelled Vehicle for more than thirty (30) days from the Cancellation Date, Company shall not be responsible for any losses or damages incurred for Canceled Vehicle.
(d)Costs. From Surrender date, Company shall not be liable for any tolls, tickets, fines, costs, losses, or otherexpenses incurred by the Canceled Vehicle and any damages or losses to the Canceled Vehicle, which shall include without limitation any losses, costs, or expenses incurred by Company due to the failure of Vehicle Owner to collect the delivery of the Canceled Vehicles in accordance with this Agreement.
(e)As soon as practicable, but in no evert more than two (2) Days from an early termination date, Company shall remove the Managed Vehicle as available from all Platforms or other profiles used by Company to solicit rentals.
8.10. Failure to Surrender the Vehicle. If the Canceled Vehicle is returned more than three (3) days after the Cancellation Date, or within any other established deadlines provided in this Agreement, Vehicle Owner or its agents may repossess the Canceled Vehicles pursuant to Exhibit F. Company shall reimburse Vehicle Owner a daily fee of $25 per day until the Canceled Vehicle is returned.
9. Representations, Warrants and Covenants
9.1. Company Represents, Warrants, and Covenants.Company represents, warrants, and covenants for Vehicle Owner’s benefit alone that at all timesduring the Term: (i) Company has the right, power and authority to enter into and perform its obligations under this Agreement, (ii) is alimited liability company duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which itconducts its business, and (iii) the making and performance of this Agreement by Company does not violate any agreement between it and any other person or entity.
9.2. Vehicle OwnerRepresents, Warrants, and Covenants.Vehicle Ownerrepresents, warrants, and covenants for Company’s benefit alone that at all timesduring the Term: (i) Vehicle Ownerhas the right, power and authority to enter into and perform its obligations under this Agreement, (ii) if Vehicle Owner is an entity, Vehicle Owner represents andwarrants that it is duly incorporated, duly organized, validly existing, and ingood standing underthe laws of the state ofits domicile and is authorized to do business in each jurisdiction in which it conducts its business, and (iii) the making and performance of this Agreement by Company does not violate any agreement between it and any other person or entity.
9.3. Verification.Vehicle Owner agrees to provide Company all information or documentation reasonably requested by Company to verify Vehicle Owner’s identity, business history, and other information about Vehicle Owner. Vehicle Owner agree that Company or a designated agent may contact third parties to verify such information, including consumer reporting agencies, and Vehicle Owner authorizesCompany to share any information collected with third-party sources or service providers to assist Company with these verification procedures. Vehicle Owner certifies that the information provided by Vehicle Ownerat all times is true, accurate, current, and complete. Vehicle Owner agree that such information will be maintained and kept current. Vehicle Owner shall promptly notify Company if any information provided in connection with the foregoing has changed.
10. Books and Recordkeeping
10.1. Book and Records Access.Company shall maintain timely books and records for each Managed Vehicle, including titling, registration, and required insurance information, and in a format that can be produced and provided to Vehicle Owner upon five (5) days’advance written notice.
10.2. Financial and Background Information. So long as there are any Managed Vehicles under this Agreement, Company shall provide to Vehicle Owner as soon as possible, but in no event more than forty-five (45) days after the end of each fiscal year, a statement of accounts for each Managed Vehicle.
11. Subleasing, Other Matters.
11.1. Prohibition of Sublease. Company will not (i) lien, encumber or transfer any interest in any Managed Vehicle, or (ii) sublease or assign any interest in any of the Managed Vehicles or this Agreement, without the prior written consent of Vehicle Owner, which consent may be withheld for any, or no reason, in Vehicle Owner’s sole discretion.
11.2. Protective Security Interest. Without prejudice to the intention of the Parties that this Agreement is managing and operating vehicles for business purposes, Vehicle Owner grants to Company its power of attorney to act as its duly authorized agent and attorney-in-fact for and on behalf of Vehicle Owner in respect of all matters relating to a Managed.
11.3. Installation of Additional Equipment. Vehicle Ownerhereby agrees Companymay install any connected car equipment required by any Platform, or any other connected car equipment as deemed necessary by Company for managing Managed Vehicles. Vehicle Owner agrees that Companymay install or permit to be installed any aftermarket equipment or parts, including but not limited to, window tinting, alarms, spoilers, trims, stereo equipment, tow bars / hitch kits, bike racks, non-OEM tires. Companyshall make reasonable efforts to ensure that such parts are equivalent or better than those specified by the OEM. For any permitted additions, Company assumes all risk of installing such additions, including without limitation, the quality of work provided by any vendor and/or damage to the Managed Vehicle. All such items installed prior to delivery will be considered a part of the Managed Vehicle. All such items installed after delivery must be removed by Company at its sole cost and expense prior to Surrender of the Managed Vehicle, provided thatCompany is not in default under this Agreement and that such removal will not cause damage to the Managed Vehicle. If such additions are not removed prior to Surrender of the Managed Vehicle, Vehicle Owner may invoice Company for the cost of such removal, and for any repairs needed if the removal of the addition caused damage to the Managed Vehicle.
12. Confidentiality and Non-Disclosure.
12.1. “Confidential Information” under this Agreement shall mean any and all information, proprietary and/or maintained in confidence by the Disclosing Party, including without limitation, any information relating to Disclosing Party’s financial strategy, investment opportunities, fundraising tasks and strategies, financial planning, bookkeeping, accounting procedures, all communications with executives and staff of Disclosing Party, expenses and liabilities, financial performance, financial relationships, record control, concepts, processes, research and development, procurement requirements, purchasing, manufacturing, Company lists, vendor lists, prospect lists, contact lists, business forecasts, sales and merchandising, marketing plans, the existence of this Agreement and the terms thereof, and other information disclosed by Disclosing Party or obtained by Receiving Party either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of records or product demonstrations which is designated or described by Disclosing Party as “confidential”, “proprietary” or some similar designation, and/or which should reasonably be understood by Receiving Party because of the circumstances of disclosure or the nature of the information itself, to be confidential or proprietary to Disclosing Party, regardless of whether obtained before, on or after the date of this Agreement. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Receiving Party on behalf of Disclosing Party pursuant or otherwise relating to this Agreement.
12.2. Non-disclosure and Non-use. Receiving Party agrees to use the Confidential Information for the sole purpose contemplated by this Agreement. Receiving Party agrees that he will not use for Receiving Party’s own benefit or in any way disclose any Confidential Information to any person, firm or business, except for the sole purpose set forth in this Agreement or for any other purpose Disclosing Party may hereafter authorize in writing. Receiving Party shall treat all Confidential Information with the same degree of care as Receiving Party accords to Receiving Party’s own Confidential Information, but in no case less than reasonable care. Receiving Party agrees to disclose Confidential Information only to those of such Receiving Party’s employees, attorney, accountant or financial advisor (collectively the “Receiving Parties”) who need to know such information, determined in Receiving Party’s discretion, and Receiving Party certifies that such Receiving Parties have previously agreed, either as a condition of employment or engagement, in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Receiving Party under this Agreement, such agreement to be provided to Disclosing Party upon request. Receiving Party shall not make any copies of Disclosing Party’s Confidential Information without Disclosing Party’s prior written consent. Receiving Party shall not reverse engineer, disassemble or decompile any materials or objects which embody Disclosing Party’s Confidential Information. Receiving Party shall immediately give notice to Disclosing Party Company of any unauthorized use or disclosure of Confidential Information. Receiving Party agrees to assist Disclosing Party in remedying any such unauthorized use or disclosure of Confidential Information.
12.3. Exceptions. The obligations of Receiving Party with respect to any portion of the Confidential Information shall not apply to such portion that Receiving Party can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party, through no fault of Receiving Party, (b) was rightfully in Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party, or (c) is requested or legally compelled by a court (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. In the event Receiving Party is required to disclose any Confidential Information pursuant to this subsection, Receiving Party will notify Disclosing Party promptly so that Disclosing Party may seek a protective order or other appropriate remedy. In the event that no such protective order is obtained before such Confidential Information or other information is required to be disclosed, Receiving Party or its applicable representative, as the case may be, will furnish only that portion of such Confidential Information or other information which he is advised by his legal advisers is required to be disclosed. In addition, to the extent legally permissible, Receiving Party will provide Disclosing Party, in advance of any such disclosure, with copies of any such Confidential Information or other information that Receiving Party intends to disclose and will reasonably cooperate with Disclosing Party to the extent Disclosing Party may seek to limit such disclosure.
12.4. Ownership of Confidential Information. All Confidential Information of Disclosing Party shall remain the exclusive property of Disclosing Party. Nothing in this Agreement shall be deemed or construed to grant Receiving Party any license to use, sell, develop, exploit, copy, or further develop the Confidential Information for any purpose. Nothing in this Agreement is intended to grant any rights to Receiving Party under any patent, copyright or any other proprietary right of Disclosing Party nor shall this Agreement grant Receiving Party any rights in or to the Confidential Information of Disclosing Party except as expressly set forth herein.
12.5. Return of Confidential Information and Other Materials. Promptly upon request from Disclosing Party, Receiving Party shall, at Company’s option, redeliver to Disclosing Party or destroy all Confidential Information and any other materials containing, prepared on the basis of, or reflecting any information in, the Confidential Information, including without limitation, all reports, analyses, compilations, studies and other materials containing or based on the Confidential Information, and Receiving Party will not retain any copies or other reproductions of such Confidential Information and/or materials. Upon the request of Disclosing Party, any such destruction shall be certified in writing by Receiving Party. Notwithstanding the foregoing, Receiving Party may retain such of its documents as required to comply with mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation thereto.
12.6. No Warranties. All confidential information is provided “as is” and Disclosing Party Company makes no warranties, express, implied, or otherwise, regarding its accuracy, completeness, or performance or fitness for any purpose
12.7. Term of Confidentiality. Subject to subsection 12.3 herein, the obligations of Receiving Party hereunder as to any Confidential Information shall be effective during the term of this Agreement and in perpetuity thereafter, or until such information is no longer a trade secret of Disclosing Party, whichever occurs earlier in time.
12.8 Damages and Injunctive Relief. In acknowledging the unique and proprietary nature of the Confidential Information, Receiving Party acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party and that Disclosing Party may suffer great and irreparable injury as a consequence of such breach. Consequently, Disclosing Party shall be entitled to seek equitable relief, including injunction, court order, and/or specific performance, as a remedy for such breach and/or to protect the confidentiality of its Confidential Information and to halt any unauthorized disclosure thereof. Such remedies shall not be deemed to be exclusive remedies for a breach by Receiving Party but shall be in addition to any and all other remedies provided hereunder or available at law or equity to Disclosing Party.
13. Intellectual Property Rights.
13.1. Intellectual Property. “Intellectual Property” means any patent, copyright, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, industrial design, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, client or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.
13.2. Company Intellectual Property. The Parties acknowledge and agree that all Intellectual Property of Company used during the Term of this Agreement and incorporated into the Services, (the “Company Intellectual Property”) shall remain the sole and exclusive property of Company.
14. Restrictive Covenants.
14.1. Non-Solicitation. During the Term of this Agreement and for a period of twenty-four (24) months following the expiration or early termination of this Agreement, the Vehicle Owner shall, not, on its own behalf or on behalf of any person, firm or corporation, or in any capacity whatsoever, either directly or indirectly induce, suggest, persuade or recommend to any client of Company that they terminate, alter or refrain from entering into, renewing or extending their relationship with Company. Additionally, during the Term of this Agreement and for a period of twenty-four (24) months following the expiration or early termination of this Agreement Vehicle Owner shall not, on its own behalf or on behalf of any person, firm or corporation, or in any capacity whatsoever, recruit for employment, hire or induce any employee, contractor or other person engaged by Companyto terminate employment or engagement with Company.
14.2. Non-Competition. To the extent permitted by law, during and upon the expiration or earlier termination of this Agreement, and for a period of three (3) years thereafter, Vehicle Ownershall not engage, own, manage, control, operate, be employed by, participate in, or be connected with the ownership, management, operation, or control of a business substantially similar to or offering to the commercial market substantially similar services or products of Company. If a Vehicle Party breaches or threatens to breach this section, Company will be entitled to a preliminary restraining order and injunction preventing a Vehicle Party from violating its provisions. Nothing in this agreement prohibits either Party from pursuing any other available remedies for a breach or threatened breach, including the recovery of damages. Notwithstanding the forgoing, nothing herein shall prohibit a Vehicle Party from being a passive owner of not more than five percent (5%) of the equity securities of a competitor that is publicly traded, so long Vehicle Party has no active participation in the business of such competitor
14.3 Non-Circumvention. Vehicle Ownerwill not make any attempt, or use any artifice, scheme, or device, including the use of any agent, representative, associate, advisor, relative or business entity, to circumvent the purposes of the restrictive covenants contained in this Section.
15. Indemnification.
15.1. Each party (the “Indemnifying Party”) hereby agrees to defend, indemnify, and hold harmless the other party and its officers, directors, employees, representatives, assignees, and successors (collectively, the “Indemnified Party”) from any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each a “Claim”) arising from the actions of the Indemnifying Party. The Indemnified Party shall provide prompt written notice to the Indemnifying Party of a Claim within ten (10) days after becoming aware of such Claim. The Indemnifying Party shall have the sole right to handle the defense with counsel of its selection except that it shall communicate all settlement offers to the Indemnified Party and shall not settle any such claim without the consent of Indemnified Party unless a full release of the Indemnified Party is obtained from the settling third party claimant. The Indemnified Party shall have the right, but not the obligation, to participate in any lawsuit at its own expense using counsel of its own selection provided that such participation does not interfere or conflict with the Indemnifying Party’s defense of the Claim. THIS PARAGRAPH STATES EACH PARTY’S ENTIRE OBLIGATION AND LIABILITY TO THE OTHER WITH RESPECT TO ANY CLAIM AS STATED HEREIN.
16. Limitation of Liability.
16.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW A PARTY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, A PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, OR FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES RELATING TO THE SERVICES, WHETHER BASED ON TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT PAID BY A PARTY TO ANOTHER PARTY WITHIN THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE SERVICES OFFERED HEREIN WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS AS SET FORTH ABOVE, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO A PARTY. IN SUCH EVENT SUCH PARTY’S LIABILITY WILL BE LIMITED AS FAR AS LEGALLY POSSIBLE UNDER APPLICABLE LAW. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE AMOUNT OF THE COMPENSATION CONTEMPLATED UNDER THIS AGREEMENT.
17. Dispute Resolution.
17.1. Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to resolve disputes contained in this paragraph (“Dispute Resolution”), shall be determined by the rules, procedures and processes of Delaware Rapid Arbitration Act, 10 Del. C. § 5801, et seq. (the “DRAA”). The Dispute Resolution shall be conducted in accordance with the rules, procedures and processes set forth at https://delcode.delaware.gov/title10/. The Parties agree to enter into standard form of dispute resolution agreement and that judicial enforcement of any award shall be as provided in such dispute resolution agreement. This Dispute Resolution provision shall not preclude Parties from seeking provisional remedies in aid of this Dispute Resolution provision from a court of appropriate jurisdiction. The Parties shall maintain the confidential nature of the Dispute Resolution process and any decision, except as may be necessary to prepare for or conduct the arbitration process, or except as may be necessary in connection with a court application for a preliminary remedy, enforcement of the dispute resolution, or unless otherwise required by law or judicial decision.
17.2. Governing Law, Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to agreements made and to be performed in the State of Delaware. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the state or federal courts of the State of Delaware (collectively, the “Specified Courts”), and each Party irrevocably submits to the exclusive jurisdiction of such Specified Courts in any such Related Proceedings, suit, action or proceeding. Service of process, summons, notice, or document by mail to such Party’s address set forth herein shall be effective service of process for any Related Proceedings brought in any Specified Court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any Related Proceeding, suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to plead or claim in any Specified Court, or any other state or federal court, that Related Proceeding, action or other proceeding brought in any such court has been brought in an inconvenient forum. THE PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LITIGATED OR HEARD IN ANY COURT.
17.3. Attorney Fees. In the event that any dispute between the Parties should result in litigation or arbitration, the prevailing Party in such dispute shall be entitled to recover from the other Party all reasonable fees, costs and expenses of enforcing any right of the prevailing Party, including without limitation, reasonable attorneys’ fees and expenses, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorney fees and costs incurred in enforcing such judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law. For the purposes of this Section: (a) attorney fees shall include, without limitation, fees incurred in the following: (1) post judgment motions, (2) contempt proceedings, (3) garnishment, levy, and debtor and third party examinations, (4) discovery, and (5) bankruptcy litigation; and (b) “Prevailing Party” shall mean the Party who is determined in the proceeding to have prevailed or who prevails by dismissal, default or otherwise
18. General Provisions.
18.1. Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of strikes, lock-outs or other labor disputes, riots, civil disturbance, actions or inaction of governmental authorities or Contractors, epidemics, pandemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, widespread power outage, nuclear disasters or default of a common carrier (each a “Force Majeure Event”). Lack of finances or a mere failure to have adequate and suitable equipment, material, labor forces, or other facilities available to perform shall not constitute a Force Majeure Event. Any party experiencing a Force Majeure Event shall give as prompt notice as is possible under the circumstances. In the case of such Force Majeure Event, the time for performance required by a party under this Agreement will be extended by the length of any period during which performance is prevented by the Force Majeure Event. Furthermore, if such extension interferes with the other party’s ability to perform its obligations, then the time for other party’s performance will also be extended. Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds forty-five (45) Days, any party may terminate this Agreement effective upon ten (10) Days’ written notice to the other party.
18.2. Relationship of the Parties The relationship of the parties established by this Agreement is solely that of independent contractors, and nothing contained in this Agreement shall be construed to (a) give any party the power to direct and control the day to day activities of the other; or (b) constitute such parties as partners, co-owners or otherwise as participants in a joint or common undertaking; or (c) make either party an agent of the other for any purpose whatsoever. Neither party, nor their agents or employees, shall be deemed representatives of the other for any purpose, nor shall either party have the power or authority to act as agent or employee to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other. Contractor shall be solely responsible for the payment of any taxes imposed by any lawful jurisdiction as a result of the performance and payment of this Agreement
18.3. Entire Agreement. The Agreement, and any attachments thereto, constitutes the entire agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof; this Agreement supersedes any and all other agreements, either oral or in writing (including any interim agreements executed by the parties), between the parties hereto with respect to the subject matter hereof. No change or modification of this Agreement shall be valid unless the same be in writing and signed by an officer of the Parties.
18.4. Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given if personally delivered by courier service, messenger, e-mail or other electronic messaging system at, or if duly deposited in the mail, by certified or registered mail, postage prepaid, return receipt requested, to the addresses set forth below the signature line hereto, or such other addresses as may be furnished hereafter by notice in writing, to the following parties. Notice is deemed delivered on: (i) the date of actual personal service; (ii) the business day after delivery of overnight delivery; (iii) the date of delivery via registered or certified U.S. mail; or (iv) the date as verified by automatic receipt of electronic logs if sent by e-mail. To the extent not prohibited by applicable law, a Party may, at its option, use electronic communications to provide the other Party with any notice or consent hereunder.
18.5 Assignment. Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed, except that Company may assign this Agreement or an affiliate or in connection with any merger, consolidation, sale of the relevant assets or any other transaction in which substantially all of the equity or assets of the business unit of Company responsible for the performance of this Agreement are transferred.
18.6 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
18.7 Severability. If any provision of this Agreement is held by a competent court to be invalid or unenforceable under applicable law, then such provision shall be severed from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so severed and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the severed provision as determined by the Parties or as determined by court of competent jurisdiction
18.8. Conflict.In the event of a conflict between this Agreement and a VOA, the terms of this Agreement shall control, unless otherwise specifically stated in the VOA. Notwithstanding the termination of this Agreement or the end of the Agreement Term of a Managed Vehicle, the terms of this Agreement will remain in full force and effect with respect to non-terminatedManaged Vehicles.
18.9. Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either Party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the Party waiving its rights
18.10 Trade or Business Use. This Agreement is entered into primarily for business purposes and does not cover the use of vehicles for personal, family or household purposes. Company will use the Managed Vehicles primarily in its trade or business, for lawful purposes, and within the United States. In no event will a Managed Vehicle be used for transporting illegal, explosive, radioactive, flammable or hazardous materials, or for the illegal transportation of passengers. Company will not permit a Managed Vehicle to be operated in violation of law, including, but not limited to, driving under the influence of alcohol or drugs, or in breach of any rules or regulations and will not permit a Managed Vehicle to be operated by a Driver that the Company deems as unsafe. A breach of this provision shall be a material breach of this Agreement giving Vehicle Ownerthe right to immediately terminate this Agreement in accordance with Section 8.
18.11. Non-Disparagement,Non-Publicity. The Parties agree to not make public statements or communications, in any form, which disparage the other Party, its business, services or products. Each Party may not use any other Party’s name, logo, or other trademark for marketing or promotional purposes without the other Party’s prior written consent.
18.12. No Thirty-party Beneficiary Rights. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the Parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
18.13. Approvals and Similar Actions. Where agreement, approval, acceptance, consent, or similar action by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, unless specifically permitted by this Agreement.
18.14. Interpretation. The paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement for the purposes of construing or interpreting any provision hereof. Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neuter gender.
18.15. Amendment, Modification.Except as may be otherwise stated herein, this Agreement may not be amended or modified except by an instrument in writing signed by each of the Parties hereto.
18.16 Binding Effect; Survival. This Agreement shall be binding upon and inure to the benefit of each Party, and their respective successors and permitted assigns. This Agreement shall create and constitute the continuing obligations of the Parties hereto in accordance with its terms and shall remain in full force and effect until its termination. Each Party’s obligations underthis Agreement by their nature are intended to survive termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
18.17. Counterparts. This Agreement (and each amendment, modification and waiver in respect of this Agreement) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original, and all of which together constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by e-mail (PDF), any other electronic media or telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature” and words of like import in this Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the federal Electronic Signatures in Global and National Commerce Act or any other similar state laws based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
18.18. Reasonable Efforts. Each Party shall use all reasonable efforts to take all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
18.19. Effective Date. This Agreement shall become effective when both Parties have executed below. The date this Agreement is signed by the last Party (as indicated by the date associated with that signature).
