TERMS AND CONDITIONS
These Terms and Conditions (these “Terms”) govern the provision of services by Dealer Inspire Inc. (“Dealer Inspire”) to the client (“Client”) stated on the accompanying order confirmation (“Order Confirmation”).
The accompanying order confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. To the extent a term of the Order Confirmation conflicts with these Terms, the Order Confirmation shall control.
These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
Article 1 – Scope of Services.
Dealer Inspire will provide the services and deliverables to Client as described in the Order Confirmation (the “Services and Deliverables”) in accordance with these Terms.
Article 2 – Fees.
Client agrees to pay Dealer Inspire the fees stated on the Order Confirmation. Dealer Inspire will provide Client with an invoice for any monthly fees, which must be paid within thirty (30) days from issuance. Any one-time setup fee is due upon Client’s execution of the Order Confirmation. All payments will be made in U.S. Dollars. All late payments will be subject to a 1.5% late fee or $25.00, whichever is greater, per month on all outstanding balances not paid within 30 days of the invoice date. Furthermore, Client agrees that interest will be charged on the unpaid amount in the amount of 9% per annum or the maximum rate allowed under applicable law, whichever is greater.
In the event an invoice is not timely paid, Dealer Inspire may, at its option and in addition to any other remedies it may have at law or otherwise, suspend or terminate any or all Services and Deliverables and support under this Agreement until all past due balances are paid.
Article 3 – Term and Termination.
3.1 Term. This Agreement will begin on the date the Order Confirmation is executed by Client and accepted by Dealer Inspire (the “Effective Date”) and will last for the period of time stated on such Order Confirmation (the “Initial Term”). After the Initial Term, this Agreement shall renew automatically on a month to month basis until terminated by either party with thirty (30) days’ prior written notice. Dealer Inspire shall have the right to terminate this Agreement at any time with or without cause upon thirty (30) days’ written notice to Client.
3.2 Termination. Upon termination of this Agreement for any reason, all access by Client to the technology, applications, and websites related to the Services and Deliverables shall end immediately and without further notice.
3.3 Termination for Bankruptcy. Dealer Inspire may terminate this Agreement, without notice, (i) in the event that Client commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (ii) anyone commences an involuntary case against Client under title 11 of the United States Code or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case; (iii) a court of competent jurisdiction appoints, or the Client makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor laws) for the Client or all or substantially all of its assets; and the Client fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.
3.4 Survival. The obligations of the parties under this Agreement that by their nature would continue beyond expiration, termination or cancellation of this Agreement (including, without limitation, the warranties, indemnification obligations, confidentiality requirements and ownership and property rights) shall survive any such expiration, termination or cancellation, including but not limited to Articles 3, 4, 5, 6, 7, 8, 9, 10 (Sections 10.1, 10.4 10.7, 10.8, 10.9 and 10.10, 10.11, 10.12).
Article 4 – Warranties.
4.1 Dealer Inspire Warranties. Dealer Inspire warrants: (i) that Dealer Inspire has the right and authority to enter into and perform its obligations under this Agreement; (ii) that nothing in the Services and Deliverables developed by Dealer Inspire infringes or violates any right of any third party; (iii) that Dealer Inspire will take reasonable measures to protect the Services and Deliverables from viruses, trojans, worms, or other malicious code; and (iv) that Dealer Inspire will comply with applicable law relating to or arising from the safeguarding and maintaining the confidentiality of all customer information.
4.2 Deliverables are AS IS. Neither Dealer Inspire nor any of its information providers, employers, or agents warrant that the Services or Deliverables provided hereunder will be uninterrupted or error free. Nor does Dealer Inspire or any of its information providers, employees, or agents make any warranty as to the results to be obtained from the use of the Services and Deliverables or any other Services provided hereunder. Except as otherwise provided within this Agreement, the Services and Deliverables are to be performed and delivered on an “AS IS” basis, without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose.
4.3 Third Party Products. DEALER INSPIRE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESSED OR IMPLIED RELATED TO THIRD-PARTY VENDOR PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY.
4.4 Notice of Default and Right to Cure. If Dealer Inspire defaults under the terms of this Agreement, the Client will give to Dealer Inspire a written notice of the default. Dealer Inspire has thirty (30) days after receipt of this notice to cure the default. Upon Dealer Inspire’s notice to Client that the breach has been cured, Client has three (3) business days to dispute the cure in writing. In the event that Client does not dispute the cure within the three (3) business days, the breach will be deemed cured.
4.5 Client Warranties. Client represents and warrants that: (i) it is authorized by all required authorities to grant the licenses as set forth in Article 5 and that neither the Client Content, Client Marks nor Dealer Inspire’s exercise of the licenses granted in Article 5 hereof infringes upon any copyright, patent, trademark, or other proprietary rights of third parties or any other applicable laws, regulations and non-proprietary third-party rights; (ii) Client warrants that the Client Content contains no material that is unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable laws or regulations; and (iii) that the materials provided to Dealer Inspire including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, are true and accurate.
Article 5 – Client Marks and Client Content.
5.1 Client Content. Client shall provide Dealer Inspire, upon reasonable notice, all photographs, images, video, animation, film, illustrations, drawings, charts, maps, indexes and other graphical and visual materials, as well as all music, sound, narration and other audio materials or other works owned or controlled by Client that are necessary to completion of the Services and Deliverables (collectively “Client Content”). Client acknowledges and agrees that the term “Client Content” shall not refer to or include any text or other content created in whole or in part by Dealer Inspire; any such content shall be Dealer Inspire Intellectual Property (as defined below).
The Client Content shall be suitable for reproduction and shall be timely delivered to Dealer Inspire in the form specified by Dealer Inspire. Client represents and warrants that it has obtained all necessary and appropriate releases, licenses, consents, and the like for use of the Client Marks and Client Content on and in connection with the Services and Deliverables. Client further represents and warrants that the use of Client Marks and Client Content on and in connection with the Services and Deliverables will not misappropriate, infringe or otherwise violate any intellectual property or any other proprietary rights of any third party and the use thereof will not constitute false advertising, any other unfair business practice, or defame, disparage or violate the rights of publicity or privacy of any person.
Dealer Inspire reserves the right to refuse to include Client Content in the Services and Deliverables that Dealer Inspire deems offensive or otherwise inappropriate; provided, however that Dealer Inspire’s right to refuse to include any Client Content shall not be deemed to diminish, eliminate or otherwise modify Client’s obligations in respect of the Client Content.
Client grants Dealer Inspire a limited, non-exclusive, worldwide, royalty-free license to reproduce, modify, display, perform, adapt, transmit, distribute, improve, and otherwise use the Client Content in connection with Dealer Inspire’s performance under this Agreement, including its provision of the Services and Deliverables.
5.2 Client Marks. Client shall provide to Dealer Inspire the trademarks, service marks, trade names, logos, and symbols (“Client Marks”) for Dealer Inspire’s incorporation into or use on or in connection with the Services and Deliverables in a form approved by Client (and, if applicable, the licensors of such Client Marks). Client may provide other reasonable, written instructions for use of the Client Marks to Dealer Inspire. Dealer Inspire agrees that it will use the Client Marks in the form provided by Client and in a manner that otherwise complies in all material respects with any such instructions. In the event Client wishes to modify the form of any Client Mark or instructions for use thereof, Client may provide written notice to Dealer Inspire of such modifications, and Dealer Inspire shall thereafter use commercially reasonable efforts to implement such modifications within a commercially reasonable time. Client hereby grants to Dealer Inspire a non-exclusive license to use the Client Marks in connection with its provision of the Services and Deliverables.
5.3 Suggestions for Improvement. Client hereby grants and agrees to grant to Dealer Inspire the transferrable, sublicensable right and license to use any ideas, suggestions or anything else about the Services and Deliverables, or any other Dealer Inspire services or products, suggested or provided by Client for any purpose, without payment or other compensation to Customer or any end user, forever and throughout the world.
Article 6 – Indemnification.
If either Client or Dealer Inspire breaches this Agreement and subsequently the other (non-breaching) party becomes subject to a third-party claim as a result of the breach, each party agrees to indemnify, defend, and hold harmless the non-breaching party (and all directors, officers, employees, agents, and subcontractors) against such claims and all liabilities, costs, and reasonable attorneys’ fees (collectively, “Losses”) related to same. Additionally, Client shall indemnify, defend, and hold harmless Dealer Inspire and its directors and officers against any and all Losses incurred by Dealer Inspire or any of its directors or officers arising out of or related to Client’s use or operation of the Services and Deliverables, including without limitation, (i) the Client Content; (ii) any offer, advertisement, document, form, content, data, visual, or information provided or uploaded by Client or (iii) any communication between Client and a customer or potential customer.
An indemnified party will (i) promptly notify the indemnifying party when it learns of a right to indemnification and (ii) cooperate with the indemnifying party in the defense of the claim (at the indemnifying party’s expense); provided that the indemnified party may select its own legal counsel to represent its interests and the indemnifying party will reimburse the indemnified party for its costs and attorneys’ fees and remain responsible to indemnify Losses. The indemnifying party will give prompt written notice to the indemnified party of any proposed settlement of a claim that is indemnifiable under this Section 6. The indemnifying party may not, without the indemnified party’s prior written consent, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder.
Article 7 – Dealer Inspire Intellectual Property.
7.1 Ownership. As between the parties under this Agreement, Dealer Inspire or its licensors or successors (as the case may be) shall own the entire, right, title and interest in any technology developed by it, whether under this Agreement or otherwise, or that it uses to provide the Services and Deliverables, including any software (including all routines and algorithms therein and documentation therefor), code, formulas, website platforms, website pages, page design and layout and associated techniques, CGI or PERL scripting, other works of expression (including literary works, audio works and visual works), inventions, discoveries, processes, methods, compositions, and techniques, and any and all intellectual property rights therein or thereto (the “Dealer Inspire Intellectual Property”). For the avoidance of doubt, the foregoing shall not be deemed to apply to any Client Marks or Client Content.
7.2 Licenses. Upon Dealer Inspire’s timely receipt of any and all fees payable by Client, Dealer Inspire grants to Client, for the term of this Agreement, a limited, non‑exclusive, non-sub-licensable, non-transferrable, worldwide, license to use the Dealer Inspire Intellectual Property included in, embodied by or otherwise used to provide the Services and Deliverables (the “Licensed Dealer Intellectual Property”) solely for Client’s own business use in operating the Services and Deliverables in a manner that complies with this Agreement (the “Licensed Purposes”). As to any software included in the Licensed Dealer Intellectual Property, Client’s license thereto shall be limited to the executable form of such software; as to any tangible work of expression included in the Dealer Intellectual Property, Client, in its exercise of its license thereto, may reproduce, transmit, and distribute such Licensed Dealer Intellectual Property by electronic means, but solely to the extent such reproduction, transmission or distribution is reasonably necessary for the Licensed Purposes. This license shall continue for the term of this Agreement, after which it shall cease in its entirety. This license shall be irrevocable during the term of this Agreement, except as otherwise provided for within this Agreement and provided in Section 7.4 below.
7.3 Prohibited Activities. There are no implied rights to use or access any of the Services or Deliverables or any Dealer Intellectual Property. Without limiting the foregoing, except to the extent expressly permitted in this Agreement, Client shall not (i) create derivative works based on the Licensed Dealer Intellectual Property, (ii) modify the Licensed Dealer Intellectual Property except to update certain modules identified by Dealer Inspire; (iii) operate or attempt to operate any of the Services and Deliverables on a “service bureau” or “timeshare” or “software as a service” basis, providing services on behalf of or as a service to third parties or otherwise provide copies of any of the Services and Deliverables or make any of the Services and Deliverables available to any third parties, (iv) rent, lease, market, or sublicense the Licensed Dealer Intellectual Property to third parties, except pursuant to a separate, written distribution agreement with Dealer Inspire, (v) disassemble, decompile or otherwise reverse engineer any of the Services and Deliverables for any purpose, including to gain access to the source code of any such software or accessing any component of software included in the Dealer Inspire Intellectual Property that is not licensed to Client under this Agreement, or (iv) otherwise use, access, manipulate or modify any of the Services and Deliverables for any purpose not expressly permitted under this Agreement. Client consents to the use of technological security devices to regulate use of the any of the Services and Deliverables and agrees not to attempt to circumvent, reverse-engineer, or duplicate such devices.
7.4 Revocation for Unlicensed Use. Client’s use of the Services and Deliverables shall be limited to the usage rights granted herein and subject to the limitations set forth herein. In the event that Client uses any of the Services and Deliverables or any derivative works thereof at any other time or location, for another person, or otherwise uses any of the Services and Deliverables, or any Dealer Intellectual Property, outside the scope of the rights expressly granted herein, or in the event that Client owes Dealer Inspire outstanding fees, Dealer Inspire may revoke any and all licenses granted herein and shall be entitled to pursue all remedies under law and equity. Any such revocation shall be effective immediately upon Dealer Inspire’s notice to Client.
Article 8 – Confidentiality.
The parties agree that any information which is clearly identified either orally or in writing as being confidential, such as a trade secret, or information which by its nature or the nature of the circumstances surrounding disclosure should reasonably be understood to be confidential is to be kept confidential and free from disclosure to third parties, except as where is required to perform the terms of this Agreement. The receiving party’s obligation of confidentiality shall survive this Agreement and shall continue in effect for a total period of three (3) years from the date of its termination and thereafter shall terminate and be of no further force or effect, except in the case where the information acquired/disclosed is a trade secret, in which case this Article 8 will survive perpetually or until such time as the information is no longer deemed a trade secret through no fault of Client or its affiliates. The obligation of a party to keep confidential the other party’s confidential information will not apply with respect to information that is independently developed by a party without the use of the other party’s confidential information, lawfully becomes a part of the public domain, or of which the parties gained possession free of any confidentiality obligation. Nothing herein shall prohibit a party from complying with a lawful and binding order of any court, administrative agency or other governmental entity relating to Confidential Information; provided that it gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its confidential information.
Article 9- Development Credit.
Client shall acknowledge Dealer Inspire as the developer of the Services and Deliverables through the use of a footer on each website page created by Dealer Inspire, which will read “Advanced Automotive Dealer Websites by Dealer Inspire” and will also include a hyperlink to Dealer Inspire’s site on the World Wide Web. It shall be the sole responsibility of Dealer Inspire to provide Client with sufficient information to create and update such hyperlink. Such development credit will remain until the termination of this Agreement.
Article 10 – General Provisions.
10.1 Limitation of Liability. NO PARTY OR THEIR PARENTS, AFFILIATES, AND SUBSIDIARIES, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, AND OWNERS SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, FOR ANY:
- INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT FROM ANY CAUSE OR CAUSES INCLUDING BUT NOT LIMITED TO DIRECT DAMAGES, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHER CAUSE OR CAUSES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID TO DEALER INSPIRE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM;
- INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, AND/OR PUNITIVE DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
- LOST PROFITS, LOST REVENUES, LOSS OF PRODUCT, LOSS OF REPLACEMENT POWER, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES AND/OR BENEFIT OF THE BARGAIN DAMAGES.
DEALER INSPIRE SHALL NOT BE LIABLE FOR ANY CLAIMS OR DEMAND AGAINST CLIENT BY ANY THIRD PARTY EXCEPT IF OTHERWISE PROVIDED HEREIN. DEALER INSPIRE SHALL NOT BE LIABLE FOR THE ACTIONS OF ANY SUB-CONTRACTOR OR AGENT OF DEALER INSPIRE.
CLIENT EXPRESSLY WAIVES ANY CLAIM THAT IT MAY HAVE AGAINST DEALER INSPIRE BASED ON ANY THIRD-PARTY VENDOR PRODUCT LIABILITY OR INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO ANY THIRD-PARTY VENDOR PRODUCT AND ALSO WAIVES ANY RIGHT TO INDEMNIFICATION FROM DEALER INSPIRE AGAINST ANY SUCH CLAIM MADE AGAINST CLIENT BY ANOTHER PARTY.
THESE LIMITATIONS IN LIABILITY SHALL APPLY TO ALL CLAIMS AGAINST A PARTY IN THE AGGREGATE (NOT PER INCIDENT) AND TOGETHER WITH THE DISCLAIMER OF WARRANTIES ABOVE.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN SECTIONS 10.1(a)-(c) SHALL NOT APPLY TO (I) CLIENT’S OBLIGATION TO PAY FEES FOR THE SERVICES AND DELIVERABLES; (II) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (III) CLIENT’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; AND/OR (IV) CLIENT’S INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF DEALER INSPIRE’S INTELLECTUAL PROPERTY RIGHTS.
CLIENT AGREES THAT NO ACTION AGAINST DEALER INSPIRE MAY BE BROUGHT UNLESS THE ACTION IS BROUGHT WITHIN THE LESSER OF: (I) ONE (1) YEAR OF THE DATE OF THE EVENT THAT RESULTED IN THE LOSS, INJURY, DAMAGE, OR LIABILITY AND (II) THE SHORTEST LIMIT OF TIME PERMITTED UNDER APPLICABLE LAW.
If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
THE FOREGOING CALIFORNIA WAIVER DOES NOT AFFECT ANY LIABILITY OR LIMITATION OF DAMAGES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, SUCH AS TORTIOUS ACT WHICH IS INTENTIONAL OR THE RESULT OF GROSS NEGLIGENCE.
10.2 Maintenance and Support. During the term of this Agreement, Dealer Inspire agrees that at no extra cost to Client, Dealer Inspire shall promptly deliver to Client all software containing bug fixes or error corrections to any software or other Deliverable provided hereunder to Client. In connection with such maintenance, Client shall provide Dealer Inspire with such information as Dealer Inspire reasonably requires in a reasonable time to allow Dealer Inspire to provide such maintenance. Dealer Inspire shall have no responsibility for the maintenance of any third party software or hardware, other than as provided for herein or pursuant to any agreement entered into by Dealer Inspire pursuant to the terms of this Agreement.
10.3 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
10.4 Assignment. Neither party may assign this Agreement or any right, interest, or benefit under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign its rights and responsibilities under this agreement to a parent or commonly controlled entity or to any person or entity which acquires or succeeds to all or substantially all of such party’s business assets without the prior written consent of the other party. This Agreement shall be binding on any assignees.
10.5 Expenses. Except as otherwise specifically provided herein, each party shall be responsible for its own expenses incurred in performing its obligations hereunder.
10.6 Force Majeure. Neither Party will be liable for any delays in delivery and/or non-delivery of the Services to be provided hereunder by the other due to an act of God, action by any governmental or quasi-governmental agency, fire, flood, earthquake, strike, outside network difficulties (including, but not limited to, communication line failure) or other acts beyond the control of such Party, in such an event, the other Party, shall be released of its obligation to pay for any services not performed as a result of such event. Either party may terminate this Agreement upon written notice to the other party in the event such failure to perform continues un-remedied for a period of thirty (30) days.
10.7 Notices. Any and all notices required to be given hereunder shall be made in writing and delivered by e-mail, or overnight courier to the following:
10.8 Governing Law. It is the intent of the parties that any dispute be resolved informally and promptly through good faith negotiation between Dealer Inspire and Client. Either party may initiate negotiation proceedings by written notice to the other party setting forth the particulars of the dispute. The parties agree to meet in good faith to jointly define the scope and a method to remedy the dispute.
Should any dispute remain unresolved after completion of the above described resolution process, such dispute will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Illinois. The arbitration will be held in Cook County, IL. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
10.9 Legal Fees. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees and costs.
10.10 Amendment. Any amendments to this Agreement shall be in writing and signed by all parties.
10.11 Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
10.12 Severability; Blue Pencil. No provision of this Agreement shall be deemed unenforceable if it is subject to an interpretation that would render it enforceable. If a court of competent jurisdiction finds that any provision of this Agreement is unenforceable, in whole or in part, (a) such a finding will not disturb the validity and enforceability of the remaining provisions of this Agreement, and (b) the court shall have the authority to modify and/or “blue pencil” this Agreement in order to render it enforceable and to effect the original intent of the Parties to the fullest extent permitted by law.