SYNCONSET™ SUBSCRIPTION AGREEMENT

Version: May 2018

Welcome to SyncOnSet!

This SyncOnSet Subscription Agreement (the “Agreement”) is a legally binding agreement that governs your access to and use of our web and mobile solution for film and television crew services available through www.synconset.com (or its subdomains), and any related subdomains or third party portals through which our services are made available (collectively, the “Services”). This Agreement is made and entered into by and between SyncOnSet Technologies, Inc. (hereinafter, “SyncOnSet”, “We”, “Us”, or “Our”) and the business or other entity agreeing to these terms (hereinafter, “Customer”, “You” or “Your”, which shall refer to the aforementioned legal entity, and its officers, directors, agents and employees; or you, as individual, only in the case of a non-legal entity). This Agreement is effective as of the date You first accept it, or the date you complete a registration form detailing the scope and fees associated with Your subscription for the Services (a “Registration Form”), whichever occurs first (the “Effective Date”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, IN ANY FORM OR MEDIA, OR BY CLICKING “REGISTER” BELOW, YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE OR DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT, YOU SHOULD NOT ACCESS OR USE THE SERVICES, AND DO NOT CLICK “REGISTER”. If You are entering into this Agreement on behalf of a legal entity, You represent and warrant that: (i) You have full legal authority to bind such entity to the terms of this Agreement; (ii) You have read and understand this Agreement; and (iii) You agree, on behalf of such legal entity, to this Agreement.

We may revise this Agreement (and any linked documents referenced herein) from time to time and at our sole discretion; provided that such changes will not materially impact this Agreement or its scope, or reduce Our obligations to You. Any such changes will be published on Our website. Your continued use of the Services will be deemed acceptance by You of any such revisions. Any conflict between the terms and conditions set forth in this Agreement and any Registration Form shall be resolved in favor of this Agreement. Any terms or conditions appearing on any purchase order or other order document that are different from, or in addition to, the terms of this Agreement will not be binding on Us, even if payment is accepted. You agree that purchases hereunder are not contingent on the delivery of any future functionality or features.

  1. Use and Access Rights.

Subject to Your compliance with the terms of this Agreement, SyncOnSet hereby grants to You a non-transferable, non-sublicensable, non-exclusive right to access and use the Services solely for Your own internal business purposes (which business purposes include interaction with Your clients for your own benefit, but specifically excludes licensing or sublicensing the Services to such clients), through login credentials to be provided by SyncOnSet, for a specified number of productions (“Projects”), as set forth in the Registration Form. Your access rights and limitations will be set forth in the Registration Form. You are responsible for all employees, consultants, or others (“Users”) who access and use the Services using Your login credentials. Users may not use the Services for any third party, or for any purpose other than Your benefit.  Users must be unique individuals, with one set of user credentials assigned to a single User.  Users may not share login credentials to create a “concurrent” user license.  You are expressly prohibited from circumventing any User license metrics by engaging in tactics such as sharing an account, or creating a username “alias” for a group of individuals (such as “production office”). Users may not impersonate any other individual or User.  You shall not provide any output of the Services (the “Services Output”) to any third party in a form that is modified or which removes any of the proprietary marks. You will use the Services in accordance with all applicable laws and regulations. You are responsible for all activities conducted under Your User logins and for Your Users’ compliance with this Agreement. You are responsible for obtaining any equipment and Internet service necessary to access and use the Services.

  1. Fees; Payment Terms. 

You agree to pay Us for Services provided and expenses incurred on the basis and at the rates specified in the applicable Registration Form. Unless otherwise set forth on the Registration Form, payment shall be due within thirty (30) days after receipt of Our invoice and shall be made in US Dollars. You agree to pay a late charge of one percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not subject to a good faith dispute and not paid when due. In addition to paying the applicable fees, You shall also pay all pre-approved reasonable travel and out-of-pocket expenses incurred by Us in connection with any Services rendered. Fees are exclusive of taxes. You are responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to Our net income and any taxes or obligations imposed upon Us under federal, state and local wage laws. If You decline to pay any undisputed fees invoiced by Us, then We may suspend your access to the Services, provided that We will provide you with five (5) business days notice of any such suspension, and no such suspension shall occur if payment is made within the five (5) business day period.

Pricing and fees are set forth in the applicable Registration Form. SyncOnSet reserves the right to modify fees and applicable charges at any time, and to introduce new charges, provided that any such modifications shall only be applicable to (a) future Renewal Subscription(s) Periods (as defined in Section 5(a) below), where SyncOnSet will provide at least 30 days notice of any such modifications, and (b) any new Registration Forms.

  1. Training and Support

SyncOnSet may make available user training to You or Your Users via online or in-person training sessions, but is not obligated to do so. Fees may apply to any such training, as may be agreed by the parties and set forth in the applicable Registration Form. During the Subscription Period, SyncOnSet will also use commercially reasonable efforts to make available help desk support to You and Your Users between the hours of 7am to 6pm Pacific Time.  SyncOnSet aims for at least 99% monthly availability of the Services. SyncOnSet monitors the Services and performs preventative service maintenance tasks to ensure high service availability, performance and quality.  

  1. Confidentiality. 

During the term of this Agreement, each party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”).  Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. SyncOnSet’s Confidential Information includes the Services and the Services Output, and all pricing and subscription plans for the Services. Your Confidential Information includes all content you submit regarding the applicable Project (“Your Data”). The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement.  The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for purposes other than as set forth in this Agreement.  Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care. Customer agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without Our prior written approval.

Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

  1. Term and Termination.

 

  1. Term and Termination. This Agreement shall be in effect for one (1) year from the Effective Date, thereafter the Agreement shall automatically renew for successive one (1) year periods unless terminated by either party by delivery of written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. The initial subscription period (“Initial Subscription Period”) for the Services for the applicable Project(s) shall be set forth in the Registration Form. After that Initial Subscription Period, the parties may agree on a successive renewal subscription periods for the applicable Project(s) (each a “Renewal Subscription Period,” and together with the Initial Subscription Period, the “Subscription Period”). Either party may terminate this Agreement or any Registration Form (i) immediately in the event of a material breach of this Agreement or any Registration Form by the other party that is not cured within thirty (30) days of written notice thereof, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Either party may also terminate this Agreement upon thirty (30) days’ prior written notice for any reason, if at such time there are no outstanding Registration Forms or Subscription Periods then currently in effect. Termination of a Registration Form shall not be deemed a termination of this Agreement.  All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement.

  1. Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Registration Form, We shall no longer provide the applicable Services to You and You and Your Users shall cease using the Services. You will pay Us for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. Upon termination, You will no longer be able to use, access or modify Your Data for the particular Project through the Services. We will enable You to retrieve Your Data from the Services in accordance with established and reasonable system access procedures for a period of 180 days after termination. Following such 180 day period, We will have no further obligation to store and/or make available Your Data and may delete the same, pursuant to its then-current data deletion policies. For the avoidance of doubt, termination of the Subscription Period or Registration Form for a Project will not impact Your Data that may be stored in the Services for any other Project, or your access or use thereof.

 

  1. Intellectual Property Rights; Restrictions.

 

  1. Ownership. You acknowledge that as between You and SyncOnSet, the structure, organization, and code used in conjunction with the Services are proprietary to SyncOnSet and that SyncOnSet and/or its licensors retain exclusive ownership of the Services, including all modifications, enhancements, derivatives, and other software, documentation and materials relating to the Services (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other proprietary rights embodied therein or associated therewith), and all copies thereof.   Except as expressly set forth in this Agreement, no license or other right in or to the Services are granted to You, by implication, estoppel, or otherwise, and all such licenses and rights are hereby reserved. You retain all rights and ownership of Your Data. We do not claim any ownership rights to Your Data.

  1. Restrictions. Unauthorized use, resale or commercial exploitation of the Services in any way is expressly prohibited.  You shall not, and shall not permit any person or entity to: (i) resell or use the Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, modify, or make derivative works of the Services; (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Services or any software component of the Services or access the Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Services; (iv) use, or allow the use of, the Services for any unfair or deceptive practices or in violation of any applicable law, or regulation; and (v) act in a fraudulent, tortious, malicious, or negligent manner when using the Services. Except as expressly permitted in this Agreement, You will not copy, license, sell, transfer, make available, lease, time-share, or distribute the Services to any third-party. You shall be liable for any breach of this Agreement by Your Users. In addition to Our other remedies hereunder, We reserve the right upon notice to You to terminate any User’s right to access the Services if such User has violated any restrictions contained herein. You and Your Users will not use the Services to: (a) send, upload or otherwise transmit any data or content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any data or content that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (d) interfere with or disrupt the Services or networks connected to the Services.  

  1. Suggestions. If You provide any ideas, proposals, feedback, improvements or other suggestions (collectively, “Suggestions”) to Us for improvements to the Services or related services, You hereby grant Us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license that is sub-licensable and transferable to such Suggestions and all intellectual property rights therein to fully exploit and distribute the Suggestions in connection with the Services or any related services. 

  1. Use of Data.

 

  1. Your Data. In the course of Your use of the Services You will submit Your Data. You represent and warrant that You have the right to provide Your Data to Us. During the term of this Agreement, You hereby grant to Us a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11(b)), royalty-free right to use, display, transmit, and distribute Your Data solely as necessary to provide the Services to You and to help operate, support, secure and improve the Services, and to develop new services or functionality. For instance, this may include identifying and fixing problems in the Services, enhancing the Services to better protect against attacks and abuse, and making suggestions aimed at improving performance or reducing cost. You acknowledge and agree that We shall have the right to use any information, analysis, statistics and other data generated by the Services (or derived from Your use of the Services) in order to compile generalized, aggregated statistics about the Services and how our customers use for our own internal purposes and for online marketing. For example, We may publicly share data such as “the average television show uploads 500 photos per episode, which may save up to $250 in printing costs”.  Such aggregated data statistics may be used during the term of this Agreement and thereafter, and We shall have no obligation to delete or remove any such data statistics upon termination of this Agreement or thereafter. We will not publicly disclose any data that is not in an aggregated form or that would permit a third party to identify the data is associated with You or any of Your Users.

  1. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.  To the extent that We process any Personal Data (as defined in the DPA, as defined below) contained in Your Data, on Your behalf in the provision of the Services, and to the extent that such Personal Data is subject to the Data Protection Laws (as defined in the DPA) the terms of the data processing addendum available here ("DPA") (if you are unable to access the URL, please request a copy by sending an email to privacy@synconset.com), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. You also acknowledge and agree that you have reviewed and agree to Our privacy policy available here (“Privacy Policy”), and that such Privacy Policy is hereby incorporated into this Agreement.

  1. Limited Warranty.

 

  1. We warrant that, during the Subscription Period of a Project, the Services will perform substantially in accordance with the documentation provided by SyncOnSet to You. For any breach of this warranty, We will, at no additional cost to You, provide remedial services necessary to enable the Services to conform to the warranty. You will provide Us with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedy set out in this section is Your sole remedy for breach of the above warranty. This warranty shall only apply if the Services has been utilized by You in accordance with the applicable Registration Form and this Agreement.

  1. WE DO NOT REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 8(a) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY US. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT THE SERVICES ARE ONE TOOL TO BE UTILIZED IN CONNECTION WITH A PRODUCTION AND YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES AND THE SERVICES OUTPUT ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.

 

  1. Indemnification.

 

  1. Indemnification By Us. We will indemnify, defend and hold You harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) incurred arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against You alleging that the use of the Services as permitted hereunder infringes any United States patent, copyright or trademark, or constitutes a misappropriation of a trade secret of a third party. Excluded from the above indemnification obligations are claims to the extent arising from: (a) use of the Services in violation of this Agreement or applicable law, (b) any claim relating to Your Data, (c) modifications to the Services made other than by Us (where the claim would not have arisen but for such modification), or (d) the combination, operation, or use of the Services with software or equipment which was not provided by Us, to the extent that Your liability for such claim would have been avoided in the absence of such combination, operation, or use. If the Services are held to infringe, We will, at Our own expense and in Our sole discretion, use commercially reasonable efforts either (a) to procure a license that will protect You against such claim without cost to You; (b) to replace the Services with non-infringing Services without material loss of functionality; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Registration Form and refund to You any prepaid unused fees paid to Us for the infringing Services. This Section 9(a) states Our entire liability, and Your exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

  1. Indemnification By You. You shall indemnify, defend, and hold Us harmless from and against any and all Losses resulting from a claim, suit, action, or proceeding brought by any third party against Us that arises out of or results from a claim (i) alleging that Your Data, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (ii) arising out of Your breach of Section 6 above or violation of any applicable law.

  1. Indemnification Procedure.  The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed).  The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost). No indemnified party shall enter into any settlement agreement for which it will seek indemnification under this Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.

 

  1. Limitation of Liability.

EXCEPT AS MAY ARISE OUT OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4 OR EITHER PARTY’S WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS AND COSTS, IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES, OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF IT IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.  EXCEPT AS MAY ARISE OUT OF OUR BREACH OF SECTION 4 OR OUR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9(A), THE TOTAL CUMULATIVE LIABILITY OF US TO YOU FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE SERVICES FEES PAID BY YOU TO US UNDER THE APPLICABLE REGISTRATION FORM FOR THE SERVICES WHICH FORM THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM..

  1. Mobile Application License

SyncOnSet grants You a limited, non-transferable, non-exclusive license to download, install and use the SyncOnSet mobile application on a mobile device that You own or control, subject to the terms of this Agreement and any additional terms and conditions governing the use of the mobile application imposed by Your mobile service provider.  If there is a conflict between the terms of this Agreement and the terms imposed by Your mobile service provider, the more restrictive provisions control.

  1. Miscellaneous.

  1. Publicity. We may include Your name, logo, movie or television show name and/or movie or television show poster in a list of Our customers, online or in promotional, sales or advertising materials. We may also verbally reference You as a customer of Our Services.

  1. Assignment. This Agreement shall be binding upon and for the benefit of SynOnSet, Customer and their permitted successors and assigns. Either party may assign this Agreement and all Registration Forms as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. We may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that We shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their compensation.

  1. Governing Law. This Agreement shall be governed by the laws of the State of California without regard to its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction.

  1. Relationship of the Parties.  SynOnSet and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, or principal and agent between them, for any purpose whatsoever.  Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.

  1. Force Majeure.  Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.

  1. Modifications to Services.  We may make modifications to the Services or particular components of the Services from time to time provided that such modifications do not materially degrade any functionality or features of the Services.

  1. Notices.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party set forth on the applicable Registration Form.  Either party may change its address by giving written notice of such change to the other party.

  1. No Third Party Beneficiaries.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.

  1. Waiver and Severability.  Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

  1. Equitable Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that breach of the other party’s Intellectual Property Rights, or any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non-breaching party irreparable and immediate damage for which remedies other than equitable or injunctive relief may be inadequate.  Therefore, both parties agree that, in addition to any other remedy to which the non-breaching party may be entitled hereunder, at law or equity, the non-breaching party shall be entitled to seek an injunction or injunctions to restrain such use in addition to other appropriate remedies available under applicable law.

  1. Entire Agreement.  This Agreement, including all linked documents referenced herein and all Registration Forms, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.