Dealer's Dispatch

Terms of Service

Dealer’s Dispatch User Agreement

 

This Agreement, the Dealer’s Dispatch Privacy Policy, and all policies posted on our dealersdispatch.com domain, sub-domains, other Dealer’s Dispatch sites, the Dealer’s Dispatch mobile application and all other related services, applications and tools (collectively “Services”) describe the terms and conditions with which Dealer’s Dispatch offers You, a registered user, (also referred to as “member”, or “Dealer’s Dispatch member”) access to and use of our Services. When You accept the terms and conditions of this Agreement, You hereby agree and acknowledge that at anytime and at our sole discretion, we may effectively modify the terms and conditions of this Agreement by posting the modified Agreement with its new terms and conditions on the Dealer’s Dispatch website. Dealer’s Dispatch will make a good faith effort to notify all active, registered users of material changes made to this Agreement and the date in which such changes take effect. All modified terms and conditions shall take effect immediately after posting to the Dealer’s Dispatch website, or upon the stated date included within the announcement. You agree and consent to any and all modified terms and conditions hereunder. This Agreement may not be modified, amended, and/or changed by You in any manner. Furthermore, You agree that we may modify this Agreement or discontinue our Services at anytime and without notice and without any liability or responsibility to You. This Agreement is effective on March 1st, 2015 for all users. The legal entity You are entering into this Agreement with is Dealer’s Dispatch, Inc.

 

  1. License and Acceptable Use

The Dealer’s Dispatch website contains copyrighted material, inventions, know how, potential patentable business method material, design logos, phrases, names, logos or applications and code (“Intellectual Property Content”) all of which, unless otherwise indicated and/or provided pursuant to a third party license, are our sole property and we retain all appurtenant rights, interests and title thereto. We also claim ownership rights under the copyright and trademark laws with regard to the “look”, “feel”, “appearance” and “graphic function” of our Services including but not limited to its color combinations, sounds, layouts and designs. You agree and acknowledge that your use of the Dealer’s Dispatch Services does not confer upon You any license or permission to use our (or any third party’s) Intellectual Property Content. You shall not reproduce, modify, display, sell, or distribute the Intellectual Property Content, or use it in any other way for public or commercial purpose. Their rightful owners hold all other trademarks, service marks and copyrights. Dealer’s Dispatch grants to you a non-exclusive, non-transferable, worldwide, limited license to make use of the Dealer’s Dispatch Services to which You utilize. This license does not include any resale of Dealer’s Dispatch Services, descriptions, or prices; any derivative use of any Dealer’s Dispatch Service or its contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to You in this User Agreement are reserved and retained by Dealer’s Dispatch or its licensors, suppliers, users, rights holders, or other content providers. No Dealer’s Dispatch Service, nor any part of any Dealer’s Dispatch Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Dealer’s Dispatch. You may not misuse the Dealer’s Dispatch Services. You may use the Dealer’s Dispatch Services only as permitted by law.

 

  1. Definitions.

Shipper: A dealer or dealership that arranges to have goods shipped on their own behalf by any type of conveyance. The dealer might be the consignee (recipient of the shipment) or the consignor (sender of the shipment), or a 3rd party that is neither. At Dealer’s Dispatch, dealers may be referred to as the “Shipping Customer” or “Customer”.

 

Transportation Service Provider (TSP): Any party, person, agent or carrier that provides freight transportation and related services to a shipper. This includes carriers, freight forwarders, and third party logistics providers.

 

Carrier: A person or company who provides transportation for compensation.

 

  1. Dealer’s Dispatch is a Neutral Venue and Digital Clearinghouse.

Dealer’s Dispatch is not a Transportation Service Provider or Shipper. All users of the Dealer’s Dispatch platform make their own decisions. We are not involved in the actual transaction between dealers and TSP’s. We cannot ensure the TSP will actually complete a shipment. You acknowledge and agree that any and all communications, correspondence, verbal or written or by electronic means, or any warranties or representations, made with the TSP outside of our knowledge are specifically and solely between You and the TSP.

 

  1. Membership.You agree that You can form legally binding contracts under applicable law. You acknowledge that You are at least 18 years of age. Minors may only use our Services in conjunction with their parents or guardians. Your Dealer’s Dispatch membership may not be transferred or sold to another party. If You are registering as a business entity, you represent that You have the authority to bind the entity to this agreement.

 

Chargebacks and Reversed Payments: In the event that a dealer successfully charges back a credit or debit card payment or reverses any other payment type, then Dealer’s Dispatch will reverse the payment within the dealers account and the shipment would then be treated as unpaid. If Dealer’s Dispatch has already withdrawn funds then this may result in an overdrawn account and will be subject to collections.

Unwarranted chargebacks or payment reversals initiated by Dealer’s Dispatch members are prohibited and will result in the suspension of your Dealer’s Dispatch account, and may result in Dealer’s Dispatch pursuing any and all options at its disposal to collect the withdrawn funds including, but not limited to, sending your unpaid account to a 3rd party collections agency.

 

There are situations where a chargeback may be warranted, such as when a member feels that their card or payment method has been charged fraudulently. Prior to any chargeback initiation, the cardholder must notify Dealer’s Dispatch so that Dealer’s Dispatch may investigate the claim to determine if a chargeback is appropriate. A chargeback may not be filed as a replacement, or an addition to, a cancellation of a Dealer’s Dispatch transaction.

 

If an unwarranted chargeback of the shipper’s payment is initiated and accepted by the payment processor or other entity, Dealer’s Dispatch reserves the right to charge the TSP for any costs associated with the chargeback. If a chargeback is accepted, the TSP becomes responsible for that invoiced amount.

 

  1. Pricing and Price Changes.Dealer’s Dispatch does not set or control prices offered by TSP’s. Quotes and offers from Dealer’s Dispatch are all-inclusive based on the information TSP’s provide; however if the actual shipment characteristics are materially different than specified by the shipper and result in changes such as but not limited to equipment required, accessorial services required, all duties, customs assessments, governmental penalties and fines, taxes, and legal costs allocable to shipments, then TSP’s may invoice a different amount than the original quote. Shippers will be notified of any price changes or new fees that are requested through Dealer’s Dispatch and Dealer’s Dispatch will notify the shipper of the updated quote within 48 hours.

 

  1. Fees.You are solely responsible for paying all fees incurred by any users of your account as well as all applicable taxes. Some features on Dealer’s Dispatch require a payment method to be on file with Dealer’s Dispatch. You authorize Dealer’s Dispatch to charge any applicable fees to the payment method(s) You provide to us. Dealer’s Dispatch reserves the right to waive or change our fees, penalties, or interest at any time. We may temporarily change or suspend our fees as a promotion and such changes are effective for the promotional period described on the Dealer’s Dispatch website.

 

As a user of Dealer’s Dispatch you are subject to a subscription fee and a transaction fee (if applicable) that may be discounted from time to time for special promotional programs. The features and functionality of each version or service level may be changed from time to time at Dealer’s Dispatch’s discretion. If you subscribe to use Dealer’s Dispatch service on a free-trial basis and you do not cancel the trial before the expiration then, upon the expiration of the trial period, your account will be automatically converted to a paid account and your primary payment method will be billed. Unless stated to the contrary, all charges for the Dealer’s Dispatch service are non-refundable, even if your use of Dealer’s Dispatch Service is cancelled before the end of your current billing period.

 

  1. Authorization to Credit and Debit Accounts.As a member, You irrevocably and expressly authorize Dealer’s Dispatch to credit any monies to the account that You have identified for Dealer’s Dispatch. You agree that it is your responsibility to maintain a valid, credit card or bank account on file with us while engaging in activity with the Dealer’s Dispatch Service. You agree that if You do not maintain a valid, credit card or bank account on file with us during any billing attempt, You may be subject to interest and penalties. You expressly authorize Dealer’s Dispatch to withhold any monies and/or debit any monies from any account that You have identified to Dealer’s Dispatch for any chargebacks, fees, costs, deductions, adjustments and any other amounts owed to Dealer’s Dispatch. We reserve our rights to all actions and remedies in connection with any monies owed to Dealer’s Dispatch.

 

  1. Mobile Application Usage.When using the Services on a mobile device and/or the Dealer’s Dispatch mobile application, you shall: (i) observe all traffic laws and otherwise drive safely; (ii) use your good personal judgment while driving, (iii) not interact with the app, unless your vehicle is stationary and legally parked; (iv) not use the Services for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes.

 

Dealer’s Dispatch does not warrant that the mobile application will be compatible or interoperable with your mobile device or any other piece of hardware, software or equipment. Furthermore you acknowledge that compatibility and interpretability problems can cause the performance of your mobile device to diminish or fail completely, and may result in permanent damage to your mobile device, and corruption of the software of and files located on your mobile device, and Dealer’s Dispatch shall have no liability should these problems arise. You assume all responsibility and risk for the use of the Dealer’s Dispatch Services and mobile applications.

 

You may only access the Service using authorized means. It is your responsibility to check to ensure you download the correct application for your device. Dealer’s Dispatch is not liable if you do not have a compatible mobile device or if you download the wrong version of the application for your mobile device. Dealer’s Dispatch reserves the right to terminate the Service and the use of the application should you be using the Service or application with an incompatible or unauthorized device. You will comply with all applicable law from your home nation, the country, state and/or city in which you are present while using the application or Service.

 

  1. Carrier Cargo Claims and Carrier Limitations of Liability.As a neutral venue, Dealer’s Dispatch does not set terms specific to carrier cargo liability. Except where otherwise provided by the carrier via the Dealer’s Dispatch platform, the carrier liability for any cargo damage, loss, or theft from any cause shall be determined under the presiding, applicable law. Any and All claims made by the shipper should be submitted immediately to the TSP to help ensure timely resolution. Dealer’s Dispatch shall have no liability or responsibility for shipper claims or damaged cargo. The shipper may not offset freight or other charges against claims for any loss, damage, mis-delivery, or non-delivery. Where provided by the carrier through Dealer’s Dispatch, the liability for cargo loss offered will be determined by individual carrier’s governing General Rules Tariff or terms and conditions in effect at the time of shipment. If a shipment contains freight with a pre-determined exception value, as determined by the carrier, the maximum exception liability will override the otherwise standard liability for cargo loss. The maximum amount that a shipper may recover on a cargo claim will be that which is recoverable under the carrier’s published liability limits and/or tariffs. The shipper agrees that by booking a shipment on Dealer’s Dispatch they have been afforded a choice of reasonable liability rates for the protection of all freight shipped and has voluntarily chosen the released rates and limits.

 

  1. Information You Submit.You solely are responsible for any information You provide to us or other users in the registration, shipping, transportation process, or any other use of our Services. Your personal information and any shipment information must be true, legal, accurate, and non-fraudulent. You authorize Dealer’s Dispatch to use the information You supply to us in connection with our Services and in accordance with this Agreement. You acknowledge and agree that our Services act as a passive conduit for any and all communication and/or distribution of information. We have no control, editorial or otherwise, over any communication, information, and specifically, over the content of such communication or information. We do not and will not ensure the accuracy or reliability of such communication or information nor will we act as a monitor over the content of such communication for information. However, we do reserve the absolute right to remove or restrict any communication or information that You may post to the Dealer’s Dispatch Services that is in violation of this Agreement, illegal, threatening, or lewd. You assume legal responsibility for all damages incurred as a result of any of your online communication or distribution of information.

 

Furthermore, You expressly represent and warrant the following: (1) You are the owner, with all appurtenant rights thereto, of any and all communication, content and/or information that You post on the Dealer’s Dispatch Services, or; (2) You are the legitimate and rightful grantee of a worldwide, royalty free, perpetual, irrevocable, sub-licensable, non-exclusive license to use, distribute, reproduce and distribute such communication, content and/or information. To only that extent to allow us to use your communication, content and/or information and not violate your rights in the same, You grant to us a royalty free, transferable, worldwide, perpetual, irrevocable, sub-licensable, non-exclusive license to exercise the copyright, publicity and database rights that You have in your communication, content and/or information. You further represent and warrant that any and all of your online communication, content and/or information:

 

  • Will not violate any international, federal or state law, regulation, rule, or statute;
  • Will not violate the terms of this Agreement;
  • Will not infringe any third party’s intellectual property rights including but not limited to copyright, patent or trademark rights;
  • Will not contain obscene, lewd, or suggestive content and under no circumstances will it contain pornography;
  • Will not be libelous, threatening, harassing or defamatory. This specifically includes making legal claims of any sort about Dealer’s Dispatch employees, agents, other members, or any of the Dealer’s Dispatch Services;
  • Will not knowingly contain any computer hardware or software, viruses, trojan horses, worms, or any other computer programming that may interfere with the operation of our Services, operation of any of our systems, and/or create or impose a large burden or load on our Services;
  • Will not scan or test the vulnerability or security of our Services or the system within which our Services operate;
  • Will not be used for commercial or public purposes outside of the requirements of this Agreement;
  • Will not knowingly create liability for Dealer’s Dispatch through your use of Dealer’s Dispatch’s Services;
  • Will not frame or link to our Services without our written permission; and
  • Will not knowingly involve the upload, or insertion of, any programming language or code into or onto our Services.

 

Information Posted Publicly. Unless otherwise indicated, shipping transaction activity on Dealer’s Dispatch is intended to be made public, and You are authorizing Dealer’s Dispatch to use or repurpose this information within the scope of the Dealer’s Dispatch Services and this Agreement, including in a user identifiable manner. In order to maintain the safety, security and integrity of the Dealer’s Dispatch Service, You may not provide contact information to other members prior to booking.

Information Posted Privately. For any information You provide that is expressly not intended to be made public, You grant Dealer’s Dispatch a right to use the information in aggregate or in a non-user identifiable manner pursuant to our Privacy Policy.

 

  1. Prohibited Activities.Dealer’s Dispatch may suspend or remove your account if we suspect that You have engaged in prohibited activities in connection with our Services. Dealer’s Dispatch reserves the rights to edit, amend, or delete any prohibited or malicious content that members submit on our Services. Members may not manipulate or attempt to manipulate other member’s Dealer’s Dispatch accounts.

 

  1. Right to Suspend or Remove Members and Reinstatement.We reserve the absolute right to reject or suspend your participation, or remove You from your current participation, with the Dealer’s Dispatch Services at any time and for any reason or for no reason and without notice to You. An event that may result in the suspension or removal of your participation can include but is not limited to: any circumvention of the Dealer’s Dispatch Services by You or by others at your direction; your circumvention or non-payment in full of our fees; You harass, or cause another to harass, or commit inappropriate communications with one of employees, agents, or partners.

 

Upon your removal or suspension from the Dealer’s Dispatch Services You may petition for reinstatement. Your petition for reinstatement must include a written statement as to why You should be reinstated and an acknowledgement and understanding of previous violations. Your petition will be reviewed at our discretion and any determination as to your reinstatement will be based on our sole judgment. Your submission of a petition does not, in any manner, guarantee that You will be reinstated and we specifically disclaim any and all representations with respect to such guarantee. We will contact You as to our decision to reinstate You. We are not obligated to give You any reason or basis as to our decision. You understand that any decision as to reinstatement may be a simple, yes or no. All decisions are final.

 

  1. Dispute Resolution.Disputes between You and Dealer’s Dispatch regarding our Services should be reported to Dealer’s Dispatch Member Support. We will attempt to resolve any disputes You have with us. Because we are a neutral venue, we are not responsible for resolving any disputes between You and TSP’s. If You report a dispute to Dealer’s Dispatch, we will make reasonable efforts to help both parties communicate; however, all disputes must be resolved directly between You and the other party. Therefore, if we are contacted by a member who claims to have a dispute with You regarding transactions completed on Dealer’s Dispatch and they request your contact information (including but not limited to any of your provided phone numbers and/or addresses) to settle the dispute, You expressly authorize us to release your provided contact information to the Dealer’s Dispatch member and You agree to release us from any and all liability associated therewith. We encourage You to report all member-to-member disputes to law enforcement officials, or a certified mediation or arbitration entity. When appropriate, we also encourage you to report disputes involving fraud, theft, or other criminal activity to the appropriate law enforcement agencies.

 

  1. Prohibited and Restricted Items.You may not book any shipment on our site that violates any applicable law, statute, ordinance, regulation or prohibited items. Prohibited items are hazardous or dangerous goods that may pose a danger to health, safety, or property while being transported (such as explosives, radioactive materials, flammable gases and solids, and toxic substances). Hazardous goods that cannot be shipped through the mail or commercial carrier are not allowed on Dealer’s Dispatch.

 

  1. Release.Should you have a dispute with one or more Dealer’s Dispatch users, You release Dealer’s Dispatch, Inc., its officers, directors, agents, and employees from all claims, demands and damages (actual and consequential) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

 

  1. Confidentiality/Non-Disclosure.As a result of the performance of this Agreement and whether due to any intentional or negligent act or omission, we may disclose to You or You may otherwise learn of or discover, our documents, business practices, object code, source code, management styles, day-to-day business operations, capabilities, systems, current and future strategies, marketing information, financial information, software, technologies, processes, procedures, methods and applications, or other aspects of our business (“Our Information”). You hereby agree and acknowledge that any and all of our information is confidential and shall be our sole and exclusive intellectual property and proprietary information. You agree to use Our Information only for the specific purposes as allowed by the performance of this Agreement. Any disclosure of Our Information to a third party specifically including a direct competitor is strictly prohibited and will be vigorously challenged in a court of law. All obligations contained herein shall survive the termination of this Agreement. Furthermore, You acknowledge that our information is proprietary, confidential and extremely valuable to us, and that we would be materially damaged by your disclosure of Our Information. You acknowledge and agree that monetary damages provide an insufficient remedy for the breach of this confidentiality obligation, and that we shall be entitled to injunctive relief.

 

  1. Taxes.You are solely responsible for any and all taxes, levies, charges and fees incurred or that may be payable to any taxing authority in connection with the transactions hereunder, other than any income tax incurred by Dealer’s Dispatch. All fees stated for use of our Services are net of any applicable taxes.

 

  1. Record Keeping/Audit.Dealer’s Dispatch reserves the right to keep all records of any and all transactions and communications with You and other members for administration purposes in accordance with all applicable laws and regulations.

 

  1. Non-solicitation.During the term of this Agreement You shall not solicit to hire nor hire our employees of whom You become aware of through the performance of this Agreement. Furthermore, You shall not otherwise interfere with any of our other business relationships including those with our members

 

  1. Unsolicited Idea Submission.We always want to receive messages and feedback from Dealer’s Dispatch members and welcome any comments regarding the Dealer’s Dispatch services. However, Dealer’s Dispatch policy does not allow us to accept or consider ideas, suggestions, or proposals other than those we specifically request. The intent of this policy is to avoid the possibility of future misunderstandings when new functionality and features developed internally by Dealer’s Dispatch might be similar or even identical to your idea.

 

If You do send Dealer’s Dispatch an unsolicited suggestion, idea, or proposal, or if You send, at the request of Dealer’s Dispatch, a comment or suggestion to improve the Dealer’s Dispatch service (for example, through discussion boards or via email) (collectively, the “Submission”), Dealer’s Dispatch will consider the Submission to be non-confidential and non-proprietary. Dealer’s Dispatch shall have no obligations concerning the Submission, contractual or otherwise (including but not limited to an obligation to keep the Submission confidential), and shall not be liable for any use or disclosure of any Submission. Dealer’s Dispatch shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to you.

 

  1. Remedies.Remedies for use of our Services that violate this agreement include, but are not limited to, the immediate removal your profile, notifying our members of your actions, issuing a warning, temporarily suspending your membership, terminating your membership, and refusing to provide our Services to You.
  1. Limited Liability and No Warranty.You acknowledge that we cannot guarantee the continuous operation of, or access to our sites, Services, or tools including those of 3rd party solution providers. You further acknowledge that operation of and access to our sites, Services, or tools including those of 3rd party solution providers may be interfered with as a result of technical issues or numerous factors outside of our control. You agree that You are making use of our sites, Services, and tools including those of 3rd party solution providers at your own risk, and that they are being provided to You on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, warranties of title, fitness for a particular purpose. In addition, to the extent permitted by applicable law, we are not liable, and You agree not to hold Dealer’s Dispatch responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting indirectly from:

 

  • Viruses or other malicious software obtained by accessing our Services, or tools linked to our Services including those of 3rd party solution providers;
  • Glitches, bugs, errors, or inaccuracies of any kind including information and graphics obtained from or in our Services;
  • The content, actions, or inactions of third parties, including items listed using our Services;
  • Your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this Agreement or our policies.
  • Changes to the Service availability, planned or unplanned service downtime.
  • Changes to any Dealer’s Dispatch products, features and Services

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to You.

 

  1. Indemnity.You agree to indemnify and hold Dealer’s Dispatch and our officers, directors, agents, and employees harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your negligence, breach of this Agreement, or violation of any law or the rights of a third party.

 

  1. Legal Compliance.You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Dealer’s Dispatch Service and your listing, shipping, transporting, and solicitation of offers to ship and transport items.

 

  1. Arbitration.Any legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by Dealer’s Dispatch to collect our fees and/or recover damages for, or obtain an injunction relating to, the Dealer’s Dispatch operations, intellectual property, and our Services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall be conducted in Bensalem, PA and judgment on the arbitration award may be entered into any court having jurisdiction thereof.
  1. Trademark and Domain Name Protection.The Dealer’s Dispatch Services contain trademarks, trade names, trade dress, service marks, domain names or other indicia of ownership (collectively the “Marks”) owned or licensed for use by Dealer’s Dispatch. Unless otherwise agreed to in an Addendum to this Agreement, You agree that no right, property, license, permission or interest of any kind in or to the Marks is or is intended to be given or transferred to or acquired by You pursuant to the execution, performance or non-performance of this Agreement or any part thereof. You shall in no way contest or deny the validity of, our right of title to or license of use for, the Marks, and You shall not encourage or assist others directly or indirectly to do so, during the lifetime of this Agreement and thereafter. You shall not utilize the Marks in any manner that would diminish their value or harm their reputation. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Dealer’s Dispatch Services without express written consent. You may not use any meta tags or any other “hidden text” utilizing Dealer’s Dispatch’s name or trademarks without the express written consent of Dealer’s Dispatch. You shall not use or register any domain name that is identical to or similar to any of the Marks.

 

  1. Security.Dealer’s Dispatch uses industry standard practices to safeguard your personal information, including firewalls and Secure Socket Layers (SSL). We utilize several different security techniques to protect data from unauthorized access, but we cannot guarantee the security of our system. We also do not guarantee uninterrupted or secure access to our system, as the operation of our Services can be interrupted by numerous factors outside of our control.

 

  1. Governing Law.THIS AGREEMENT AND YOUR USE OF THE SERVICES SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.

 

  1. Other Terms and Conditions.You acknowledge and agree that we have the sole discretion to set forth and post additional terms and conditions for your use of the Dealer’s Dispatch Services at various places throughout the all of Dealer’s Dispatch’s Services. You agree that those additional terms and conditions shall be considered an effective amendment to this Agreement and said terms and conditions shall be incorporated herein. Furthermore, You expressly agree that if there is any conflict between those additional terms and conditions and the specific terms and conditions set forth herein, the terms and conditions set forth in those additional terms shall govern.

 

  1. General.This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import.