These ZAGENO Supplier Terms and Conditions (“Agreement”) are incorporated by reference into any listing form (“Listing Form”) validly executed by authorized representatives of ZAGENO and the supplier (“Supplier”). By executing a Listing Form, Supplier assents to this Agreement and agrees to be bound by the following:
(a) Orders. ZAGENO will set prices for sale or resale of the Products at its sole discretion. ZAGENO will process all Orders from the Buyer via the Marketplace Platform. ZAGENO will issue each Order to Supplier on behalf of Buyers and will provide the applicable Buyer’s name and contact information, the identity and number of Products ordered, the shipping location (the “Buyer Location”), and any other specific requirements for the Order. ZAGENO offers several integration protocols for ordering (“Automated Ordering System”) that include cXML, EDI, and CSV with API, SFTP, and AS2 connection options, as well as a supplier portal (“Supplier Portal”). If the volume of orders for Supplier’s Products exceeds 25 in one month (“Ordering Threshold”), Supplier agrees to integrate its ordering system to an Automated Ordering System within 60 days of reaching the Ordering Threshold (“Integration Deadline”). Alternatively, Supplier agrees to use the Supplier Portal for order management 10 days after reaching the Ordering Threshold. Supplier agrees to a 1% Service Fee increase in all Orders placed outside the Automated Ordering System or outside the Supplier Portal after the Integration Deadline. The original Service Fee will apply going forward i) if Supplier integrates to the Automated Ordering System and will apply to Orders placed in the Automated Ordering System; or ii) after Supplier places all Orders through the Supplier Portal for 30 days. Each Order issued to Supplier will be deemed accepted by Supplier if Supplier does not notify Zageno in writing that such Order is rejected within 24 hours. Supplier will promptly fulfill all accepted Orders in accordance with the Agreement and in accordance with the Product Listing, if applicable. Without limiting any obligation of Supplier hereunder, if Supplier is unable to timely fulfill any Order, it will promptly notify ZAGENO
(b)Order Fullfillment. Supplier will be responsible for fulfilling Orders, in accordance with the following:
(i) Supplier will pack, mark, and otherwise prepare all Products for shipment in packaging that is suitable to the Products and according with standards of good commercial practice, acceptable to common carriers for shipment, and adequate to ensure their safe arrival at the ultimate destination. Supplier will mark all containers with necessary lifting, handling, and shipping information, purchase order number, date of shipment, and identification of Supplier as the seller of the Products;
(ii) Supplier will ship each Product on or before its expected ship date to the applicable Buyer; and
(iii) Supplier will provide ZAGENO with information regarding fulfillment and Order status and tracking;
(c) Shipment, Delivery, and Risk of Loss. Delivery will be made in accordance with the terms on the face of the Order. If the Order is silent on delivery terms, the Products will be shipped DAP Buyer location (Incoterms 2020). Title and risk of loss in all Products will transfer to Buyer upon Supplier's delivery of such Products to the Buyer’s facility.
(d) Cancellations and Refunds. Supplier will collaborate with ZAGENO to replace, repair, or refund non-conforming Products. Supplier will have the opportunity to inspect the non-conforming Products. All cancellations and returns of non-defective Products will be done with prior Supplier authorization within 30 days of delivery. The cancellation and refund terms of the Supplier Policies supplement this subsection (d). In case of conflict between this subsection (d) and the Supplier Policies, this subsection (d) will control.
(e) Export Control. Products purchased under this Agreement, which may include technology and software, are subject to the customs and export control laws, restrictions, regulations, and orders of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the Products are manufactured and received. Each Party agrees to comply with all applicable export laws, rules, restrictions, and regulations of any relevant jurisdiction, including, without limitation, the Export Administration Act of 1979 and the Arms Export Control Act of 1976, and represents and warrants that it shall not: (i) export, or transfer for the purpose of re-export, any Product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity in violation of Applicable Law; or (ii) transfer, by electronic transmission or otherwise, any software or technology to a foreign national or a foreign destination in violation of applicable law. Each Party represents and warrants that it is not on the Denied Persons, Specially Designated Nationals, or Debarred Persons List, or any equivalent list maintained by a foreign regulatory authority and is not otherwise prohibited by law from purchasing the Products under this Agreement.
(a) Product Fees. ZAGENO will pay to Supplier the Buy Price for each Product purchased and shipped to Buyers, including the applicable taxes, and shipping fees agreed by the Parties (collectively, the “Product Fees”). Supplier will send ZAGENO a written invoice for Product Fees due and payable with all applicable taxes and shipping costs itemized separately. Unless otherwise indicated in a Listing Form, ZAGENO will transmit to Supplier all invoiced Product Fees via ACH transfer using the information provided on the Listing Form within 90 days of receipt of an invoice. All Product Fees will be paid in the currency in which the Order is placed. Payment of Product Fees will not be deemed acceptance of the Products or waive any of Zageno’s or a Buyer’s rights or remedies under the Agreement. ZAGENO reserves the right to deduct or offset any amounts owed by Supplier to Zageno under the Agreement from any amounts owed by ZAGENO to Supplier under the Agreement.
(b) Marketplace Platform Fees; Other Fees. Supplier will pay ZAGENO the Marketplace Platform Fee listed on the Listing Form for each Order placed with Supplier, and any other fees (including fees for services provided by ZAGENO for or on behalf of Supplier). The Marketplace Platform Fee is calculated by multiplying the Marketplace Platform Fee percentage in the Listing Form by the Buy Price. The Marketplace Platform Fee will be applied to the Product price for all orders processed through the ZAGENO Marketplace Platform. ZAGENO will send Supplier a written invoice (email is sufficient) for the Marketplace Platform Fees and other fees due and payable. Supplier will pay invoices for the Marketplace Platform Fees within 30 days of receipt via the agreed payment method during onboarding in the currency specified in the applicable invoice. For credit card payments, Supplier authorizes ZAGENO to automatically charge the full amount due on a recurring basis until Supplier notifies ZAGENO in writing.
(c) Dispute. In the event of a good faith dispute regarding any invoice, the invoiced Party will pay the undisputed amount, and the Parties will exercise good faith in promptly resolving any issues with respect to the disputed portion. If a Party withholds payment based upon a good faith dispute, such withholding will not be considered an event of default or breach of the Agreement.
(i) Supplier will be responsible for the reporting, charging and payment of all taxes related to the Orders.
(ii) Upon Supplier’s written request, and where applicable, ZAGENO shall provide Supplier with a reseller certificate, reseller certificate number, or other documentation so that Supplier may successfully claim exemption from tax. In such case no taxes shall be imposed.
(iii) If ZAGENO is required by Law to make any deduction or withhold from any sum payable to Supplier by ZAGENO, then ZAGENO may deduct such amount from such payment provided that (A) along with such payment, ZAGENO provide to Supplier an official tax certificate or other evidence of payment issued by the applicable tax authority and (B) to the extent that such Law provides a process for seeking an elimination, waiver or reduction of such deduction or withholdings, ZAGENO will reasonably cooperate with Supplier in (1) seeking such elimination, waiver or reduction and promptly complete and/or file any and all pertinent documents and (2) allowing Supplier to claim any tax credit in respect of any such taxes so deducted or withheld and paid to the applicable government or tax authority.
(iv) If a government authority retroactively determines that a payment made by ZAGENO to Supplier pursuant to the Agreement should have been subject to any taxes, and ZAGENO remits such withholding or similar taxes to the government authority, including any associated interest and penalties that may be imposed, ZAGENO shall have the right (A) to offset such amount against its future payment obligations under the Agreement or (B) to invoice Supplier such amount (which Supplier shall pay within 60 days of its receipt of such invoice).
6. INTELLECTUAL PROPERTY.
(a) License to Content. During the Term and for a period of 90 days thereafter, Supplier hereby grants ZAGENO an irrevocable, non-transferable, sublicensable (directly or indirectly through multiple tiers), non-exclusive, paid-up, royalty-free license to (i) copy, use and display the Content; and (ii) display and use the trademarks, logos, trade names and service marks associated with the Supplier and Products that are part of the Content (collectively, “Licensed Marks”), in each case, in connection with listing Products on the Marketplace Platform and marketing and advertising the Marketplace Platform, and advertising and promoting ZAGENO as an authorized distributor of the Products in the Territory. Notwithstanding the foregoing, ZAGENO may retain copies and elements of the Content that (A) ZAGENO is required to keep for compliance purposes under a document retention policy or as required by applicable law or (B) has been archived electronically in the ordinary course of business, back-up, security or disaster recovery systems or procedures.
(b) Products. ZAGENO acknowledges that Supplier or its licensors own the intellectual property rights relating to the Products and the Content and that this Agreement does not transfer to ZAGENO any title to such intellectual property rights. ZAGENO will not alter or remove the copyright notice, or any other notices of proprietary rights on the Products and will not authorize any third party to alter or remove such notices. Supplier is solely responsible for obtaining, maintaining, and enforcing its intellectual property rights in relation to any manufacturer of Products or any other third party, and ZAGENO will have no obligations or liability in relation to such claims.
(c) License to Buyer Data. During the Term, and subject to the terms and conditions of the Agreement, ZAGENO hereby grants Supplier a limited, non-exclusive, non-transferable, non-sublicensable license to use the transaction-related Buyer Data solely as necessary to process, fulfill, and support Orders accepted by Supplier. During and after the Term, Supplier will not use or disclose any Buyer Data for any other reason; except that such restriction will not apply to any data or information that may fall into the applicable exceptions in Section 7 (a) through (d).
(d) Reservation of Rights. Other than the limited licenses expressly set forth in this Section 5, Intellectual Property, Supplier reserves all right, title, and interest (including all intellectual property rights) in and to the Content, the Products, and Licensed Marks. Other than the limited license expressly set forth in this Section 5, ZAGENO reserves all right, title, and interest (including all intellectual property rights) in and to the Marketplace Platform and Buyer Data.
7. CONFIDENTIALITY. “Confidential Information” means, subject to the exceptions in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within 30 days of disclosure to the other Party (the “Receiving Party”); except that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, products or services, and the terms of this Agreement will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. ZAGENO’s Confidential Information includes the Buyer Data (subject to the rights granted to Supplier herein). Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently conceived, discovered, or developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. Each Party acknowledges that Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted in this Section. Each Party will use reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information and will exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and, if requested by the Receiving Party, to certify the return or destruction of all such Confidential Information.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. Supplier represents and warrants that:
(a) at the time and place of delivery and for the periods of time specified by the Supplier Policies, whichever is longer, the Products meet the specifications listed in the Supplier’s catalog;
(b) each Product is manufactured, labeled, sold, shipped, and otherwise distributed in compliance with all applicable laws including disclosure and reporting obligations of the Securities and Exchange Commission related to the use of conflict minerals;
(c) Supplier has and will have the right to grant ZAGENO the right to resell the Products as contemplated under the Agreement;
(d) Supplier authorizes ZAGENO to pass through all Product warranties to ZAGENO's Buyers.
(e) ZAGENO's use of the Content and Licensed Marks in accordance with the terms of the Agreement will not violate, misappropriate, or infringe the rights of any third party;
(f) that Products do not infringe upon any patent, trade name, trade dress, trademark, service mark, copyright, or other proprietary rights of third parties;
(g) Supplier will notify ZAGENO upon becoming aware of holds or recalls with respect to any Products, or any defect or condition (actual or alleged) which in any way may 1) alter the specifications or quality of any Products, 2) render any Products in violation of any Laws, 3) cause revocation of any regulatory approval with respect to any Products or their sale, 4) give rise to a claim against ZAGENO by any third party, or otherwise negatively affect the salability of any Products;
(h) that Supplier complies with ZAGENO's Supplier Code of Conduct (https://zageno.com/zageno-supplier-code-of-conduct/); and
(i) that any violation of the provisions of subparagraph (g) is cause for termination by ZAGENO if the breach is not cured or a plan for cure is not provided within 30 days of receiving notice. Both parties warrant that they are authorized to enter into this Agreement, and that in so doing they are not in violation of any laws or any terms or conditions of any contract or other agreement to which they may be a party.
DISCLAIMER. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR FOR ANY SERVICES THAT ZAGENO MAY PROVIDE FOR OR ON BEHALF OF SUPPLIER PURSUANT TO A LISTING FORM.
(a) By ZAGENO. ZAGENO will defend, indemnify, and hold harmless Supplier and its affiliates and each of their respective officers, directors, and employees from and against any losses, liabilities, damages, costs and expenses, including court costs and reasonable attorneys’ fees (collectively, “Losses”) arising out of any third-party allegation, dispute, claim, suit, or proceeding (a “Claim”) related to (i) ZAGENO's breach or alleged breach of its confidentiality obligations under Section 7, Confidentiality or (ii) an allegation that a Buyer’s authorized use of the Marketplace Platform infringes any intellectual property right of a third party. This Section states ZAGENO’s entire obligation and Supplier’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
(b) By Supplier. Supplier will defend, indemnify, and hold harmless ZAGENO and its affiliates and each of their respective officers, directors, and employees (“ZAGENO Indemnified Party”) from and against any Losses arising out of (i) any Claim related to Supplier’s breach or alleged breach of its confidentiality obligations under Section 7, Confidentiality, (ii) any product liability or product defect Claim related to a Product, (iii) any Claim that any Product infringes any intellectual property right of a third party, (iv) any breach by Supplier of the representations or warranties in this Agreement; (v) the use or operation of the Products, including, without limitation, any Losses involving personal injury, death or property damage based on any theory, including strict liability theories, or warranty claim, defect or nonconformity as to any Product, and (vi) the wrongful or negligent act or omission by Supplier or its officers, directors, stockholders, agents, servants, employees, representatives or subcontractors relating to the purchase and sale of Products pursuant to this Agreement, except to the extent that such liability is caused by the negligent acts or omissions or willful misconduct of a ZAGENO Indemnified Party.
(c) Procedure. The indemnified Party will promptly notify the indemnifying Party of the existence of any Claim giving rise to a claim for indemnification under the Agreement. The indemnifying Party will have a reasonable opportunity to defend the same at its own expense and with its own counsel, provided that the indemnified Party will always have the right to participate in such defense at its own expense. If, within a reasonable time after receipt of notice of a Claim the indemnifying Party fails to undertake to so defend, the indemnified Party will have the right, but not the obligation, to defend and to compromise or settle (exercising reasonable business judgment) such Claim for the account and at the risk and expense of the indemnifying Party. The indemnified Party will make available to the indemnifying Party, at the indemnifying Party’s expense, such information and assistance as the indemnifying Party will reasonably request in connection with the defense of such Claim.
10. LIMITATION OF LIABILITY. NOTHING IN THIS AGREEMENT IS PURPORTED TO LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FRAUD, FRAUDULENT MISREPRESENTATION, OR ANY OTHER MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR SUCH PARTY TO EXCLUDE OR RESTRICT LIABILITY. SUBJECT TO THIS, AND EXCEPT FOR LIABILITIES ARISING FROM (a) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, OR (b) A BREACH OF SECTION 7, CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR LOSS OF PROFITS OR REVENUE, OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT, WARRANTY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S LIABILITY FOR DAMAGES HEREUNDER, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE, WILL IN NO EVENT EXCEED THE AMOUNT PAID OR OWED TO SUPPLIER UNDER THE AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE THE CLAIM FIRST AROSE.
11. TERM; TERMINATION.
(a) Listing Form Term. The Agreement will be effective from the Effective Date on the Listing Form and continue for 36 months (the “Initial Term”). Thereafter, this Agreement will renew for additional 12-month terms (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party notifies the other Party of its intent not to renew at least 60 days before the end of the then-current Term.
(b) Termination for Breach. Either Party may terminate the Agreement or any Listing Form upon written notice to the other Party if such other Party materially breaches the Agreement or such Listing Form and such material breach is not cured within 30 calendar days after receipt of written notice of such breach.
(c) Effects of Termination or Expiration. Upon expiration or termination of the Agreement for any reason, ZAGENO will promptly delist the Products from the Marketplace Platform and all rights and obligations of the Parties under the Agreement will cease, except each Party will perform its obligations with respect to any Orders placed by Buyers prior to the expiration or termination of the Agreement; and provided that any payment obligations of either Party that have accrued prior to such expiration or termination, and Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 will survive.
(a) Insurance. During the Term and for a period of two years thereafter, Supplier will, at its own expense, maintain, and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $2,000,000 for each occurrence and $4,000,000 in the aggregate with financially sound and reputable insurers. Upon ZAGENO’s request, Supplier will provide ZAGENO with a certificate of insurance evidencing the insurance coverage required by this Section.
(b) Publicity. Each Party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship. Notwithstanding anything herein to the contrary, ZAGENO may refer to Supplier and its logo and the relationship between ZAGENO and Supplier in ZAGENO’s marketing collateral, website, and other promotional and marketing materials.
(c) No Agency. Neither Party is authorized to serve as an agent for the other Party, and neither Party will have the power, nor claim or represent to any third party that such Party has the authority to act for or bind the other Party in any manner.
(d) Amendments and Waivers. Any term of the Agreement may be amended or waived only with the written consent of both Parties. The waiver or failure of either Party to exercise in any respect any right provided in the Agreement will not be deemed a waiver of any other right or remedy to which the Party may be entitled.
(e) Sole Agreement. The Agreement, including any Listing Form, constitutes the entire agreement of the Parties with respect to the subject matter hereof. It supersedes all prior agreements, negotiations, correspondence, undertakings, promises, covenants, arrangements, communications, representations, and warranties, whether oral or written, of any of the Parties with respect to the subject matter hereof.
(f) Notices. All notices under the Agreement will be in writing and sent, as applicable, to the Party’s address in the most recent Listing Form (or a new address provided in writing to the other Party), and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
(g) Disputes and Governing Law. The Agreement, including any Listing Form, and their performance will be governed, interpreted, construed, and regulated by the laws of the State of New York, United States, without reference to its choice of law rules. All disputes arising out of the Agreement and Listing Forms will be resolved by arbitration in accordance with the International Arbitration Rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a commercial arbitrator selected from the appropriate list of JAMS arbitrators in accordance with such Arbitration Rules and Procedures. All such arbitration will be conducted in New York, New York, United States. The arbitrator will have the authority to grant specific performance as well as any other remedy authorized by law and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing Party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection with the arbitration. Notwithstanding the foregoing, each Party will have the right to institute an action for preliminary injunctive relief without first seeking recourse to arbitration to avoid immediate and irreparable harm in the state or federal courts located in New York, New York, and each Party hereby submits to the in personam jurisdiction and venue of those courts and agrees that any such dispute may be filed in those courts and no other.
(h) Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems, including strikes, lockouts, work stoppages or slowdowns, whether actual or threatened) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.
(i) Severability. If one or more provisions of the Agreement are held to be unenforceable under applicable Law, the Parties agree to renegotiate such provision in good faith. If the Parties cannot reach a mutually agreeable replacement for such provision, then (i) such provision will be excluded from the Agreement, (ii) the balance of the Agreement will be interpreted as if such provision were so excluded and (iii) the balance of the Agreement will be enforceable in accordance with its terms.
(j) Successors and Assigns. The Agreement is binding upon and enforceable by the Parties and their respective successors and permitted assigns. Neither Party may assign the Agreement without the prior written consent of the other Party; provided however, that each Party may assign the Agreement without such consent to a corporation or other business entity succeeding to all or substantially all the assets or business of such Party that relates to the Agreement, whether by merger, purchase or otherwise. Any attempted assignment, delegation or transfer by Supplier in violation of this Section will be null and void.
(k) Construction. The titles and headings in the Agreement are for ease of reference only and will not affect the meaning or construction of any of the terms of the Agreement.
(l) Advice of Counsel. Each Party acknowledges that, in executing the agreement, such Party has had the opportunity to seek the advice of independent legal counsel and has read and understood all the terms and provisions of the agreement. Neither Party will be deemed to be the drafter of the agreement and it will not be construed against either Party.