These Terms of Service (“Terms”) between, on the one hand, BizPsych Labs DBA Reflekt and you (“your,” “your” or “User”), and governs your access to and use of:
(1) BizPsych Labs’ (the “Platform”), including without limitation, any Content Materials (defined below);
(2) any User Documentation (defined below).
Notwithstanding the preceding paragraph, additional terms may accompany certain Content Materials, in which case, such additional terms shall supplement and/or substitute the terms and conditions of this Terms, to the extent set forth in such additional terms. This is a legal document between you and BizPsych Labs. It IS IMPORTANT that you read this document. By accessing, downloading, implementing or using The Platform and any content or products in The Platform (THE “CONTENT MATERIALS,” AS FURTHER DEFINED BELOW), you:
(1) SIGNIFY THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS IN THIS AGREEMENT;
(2) expressly agree to the terms set forth below.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS, DOWNLOAD, IMPLEMENT OR USE THE PLATFORM OR ANY CONTENT MATERIALS. If you agree to the terms of this Terms, you have the following rights, obligations and responsibilities:
“Access Rights” means the specific rights granted to you herein with respect to the access and/ or use of the Platform and/or any Content Materials.
“Content Materials” means all questionnaires, reports, content, materials and other information made available to end users in and/or through the Platform.
“Third Party Content/Services” means all content, materials, services and other information supplied by a third party to BizPsych Labs and which BizPsych Labs makes available to end users in and/or through the Platform.
"Loaded Content” means all content, questionnaire answers, contact information, materials and other information that you upload, transmit or distribute to end users in and/or through the Platform or otherwise made available to end users .
“User Documentation” means all user documentation and similar materials regarding the use of the Platform that is provided by BizPsych Labs to you hereunder, regardless of whether in print, online or electronic format.
During the term and subject to the terms and conditions of this Terms, including without limitation, your Access Rights, BizPsych Labs hereby grants to you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicenseable right and license to:
(1) access and use the Platform, solely for your internal purposes only;
(2) use, reproduce and copy (but only to the extent set forth in), internally display, and internally distribute the Content Materials and User Documentation accessed through the Platform, solely for your internal purposes.
The Platform may permit users to download and/or print certain Content Materials and/or User Documentation. You may print and/or make a reasonable number of copies of such Content Materials and User Documentation, solely as necessary to exercise the license rights granted in this Section 2.
All such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in such Content Materials and/or User Documentation. Except as otherwise expressly set forth herein, you may not use, copy or distribute the Content Materials or User Documentation without the prior written authorization of BizPsych Labs.
You may only access and/or use the Platform and the Content Materials within the scope of your Access Rights.
BizPsych Labs shall use commercially reasonable efforts to ensure that the Platform is available for use and/or access by end users on an uninterrupted basis. However, you acknowledge and agree that the Platform will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generality, and other causes. In the event the Platform becomes unavailable for access and/or use by end users (other than as a result of scheduled maintenance and/or system downtime), BizPsych Labs shall use reasonable commercial efforts to restore such availability. You acknowledge and agree that except as otherwise set forth herein, BizPsych Labs shall have no liability to you with respect to any such unavailability.
BizPsych Labs further reserves the right to modify, alter and/or change the Platform at any time, including without limitation, by modifying, altering and/or changing the Content Materials or by removing certain Content Materials altogether. You acknowledge and agree that BizPsych Labs shall have no liability to you with respect to any such modifications, alterations or changes, or with respect to any Content Materials that have been removed from the Platform altogether.
In order to access and use the Platform, you must register for a user account (“Your Account”). In registering for Your Account, you must provide accurate, current and complete information as may be prompted by any registration forms or as otherwise requested by BizPsych Labs (collectively, “Registration Data”).
By submitting the Registration Data, you represent and warrant that the Registration Data is accurate, current and complete. If you are registering on behalf of an entity or organization, you further represent and warrant that you are:
(1) an employee or representative of that entity or organization;
(2) authorized to accept and agree to this Terms on behalf of the entity or organization and to otherwise bind the entity or organization to the terms and conditions hereof. You are fully responsible for all usage and activity on the Platform under Your Account and shall be liable for all such use and activity.
You shall be solely responsible for maintaining the confidentiality and security of your login and password(s), and shall immediately notify BizPsych Labs of any known or suspected unauthorized use(s) of Your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your login and password(s).
You further agree to:
(1) take reasonable efforts to resolve any unauthorized access to the Platform;
(2) reasonably cooperate with BizPsych Labs in resolving the unauthorized access. Notwithstanding anything else herein, BizPsych Labs reserves the right to pursue any and all claims against you under Your Account.
Except as otherwise authorized in writing by BizPsych Labs and/or as permitted by your Access Rights, the license rights granted in this Terms are limited solely for your internal use in accessing and/or using the Platform and/or the Content Materials.
Except as otherwise authorized in writing by BizPsych Labs and/or as permitted by your Access Rights, you agree that under no circumstances will you permit any other person or entity to use Your Account for the purpose of accessing the Platform, nor may you access and/or use the Platform and/or the Content Materials using the account information of any other person, entity or organization.
This Terms will commence as of the date you first click “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT“ on the registration page (the “Effective Date”) and will continue until terminated as set forth in this Terms. This Terms will terminate as follows:
(1) if you commit a breach of this Terms and fail to cure such breach within ten (10) days after notice from BizPsych Labs;
(2) if you cease to conduct business in the ordinary course or otherwise become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination of this Terms, you must cease all use of the Platform, destroy all copies of any Content Materials and/or User Documentation then in your possession or control, and take such other actions as BizPsych Labs may reasonably request to ensure that no copies of the Content Materials and/or User Documentation remain in your possession or control.
Use that is not blocked by BizPsych Labs following expiration or termination of this Terms does not constitute a renewal or extension of this Terms, and must be paid for at BizPsych Labs’ then current prices. The following provisions shall survive the termination or expiration of this Terms: Section 1, 5, 6 (to the extent set forth therein), and 7 - 19.
You acknowledge and agree that the Platform, the Content Materials, and the User Documentation are licensed and not sold. The Platform, the Content Materials and the User Documentation are owned by BizPsych Labs and/or its licensors, and are protected by United States trademark and copyright laws and international treaty provisions. BizPsych Labs and/or its licensors own and retain all right, title and interest in and to the Platform, the Content Materials and the User Documentation, including any and all patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. Your possession, installation, or use of the Platform, the Content Materials, and the User Documentation does not transfer to you any right, title or interest in any of the foregoing and you will not acquire any such right, title or interest, except as expressly set forth in this Terms and/or your Access Rights.
A. Transfer of Rights
Except as otherwise expressly authorized herein, you may not rent, distribute, sublicense, lease, give, loan, allow the use of, or otherwise transfer the Platform, the Content Materials or the User Documentation, or any part thereof, including any accompanying software and documentation, to any third party. You may not permit third parties to benefit from the use or functionality of the Platform via a timesharing, service bureau or other arrangement except to the extent such use is expressly permitted by this Terms.
B. Reverse Engineering and Modification
You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Platform, or any part thereof, directly or indirectly, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon the Platform, the Content Materials, or the User Documentation, or any part or portion thereof.
C. User Conduct
You further agree not to:
(1) Use the Platform and/or the Content Materials in any unlawful manner or in any manner that could damage, disable, overburden or impair the Platform or any network or server owned or controlled by BizPsych Labs or otherwise associated with the Platform;
(2) Use any robot, spider, crawler, scraper or other automated means or interface not provided by BizPsych Labs to access the Platform, or to extract data;
(3) Use automated scripts to collect information from or otherwise interact with the Platform;
(4) Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; v. Violate any local, state, national or international law;
(5) Use or attempt to use another user’s account without prior written authorization from BizPsych Labs;
(6) Circumvent or attempt to circumvent any content filtering techniques or use limitation or protection device that BizPsych Labs may employ;
(7) Attempt to access any service or area of the Platform that you are not authorized to access;
(8) Access, disclose, use, disseminate, store, reproduce, sell, lease, license, or publish any portion of the Platform, the Content Materials, or User Documentation in any manner except as expressly authorized herein;
(9) Probe, scan or test the vulnerability of any system or network owned or controlled by BizPsych Labs or otherwise associated with the Platform;
(10) Use the Platform to execute denial of service attacks; xii. Use the Platform or Content Materials to create products or perform services which compete or interfere with those of BizPsych Labs or its licensors;
(11) Upload, transmit, or otherwise publish any Loaded Content to or through the Platform that:
a) advertises or solicits the sale of goods or services;
b) is obscene, indecent, or otherwise sexually explicit or abusive;
c) defames any person or entity or otherwise invades anyone’s rights or causes any form of injury to any other person or entity;
d) contains software viruses or any other malicious code;
(12) Use the Platform and/or the Content Materials in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party;
(13) Download all or parts of the Platform and/or the Content Materials in a systematic or regular manner or so as to create a collection of materials comprising all or a material subset of the Platform, in any form;
(14) Use the Platform and/or Content Materials in excess of your Access Rights;
(15) Interfere with service to any other user, host or network owned or controlled by BizPsych Labs or otherwise associated with the Platform.
The Platform permits end users to upload and/or transmit content, materials and other information owned and/or controlled by such end users. All such Loaded Content is and shall at all times remain your sole and exclusive property, provided that, you hereby grant to BizPsych Labs a non-exclusive, non-transferrable, non-sublicensable license to load, transmit, distribute and/or make available such Loaded Content in and through the “My Content” section of the Platform. You represent and warrant to BizPsych Labs:
(1) that you own such Loaded Content or otherwise have sufficient rights in the Loaded Content to grant the license rights granted to BizPsych Labs in this Section;
(2) that such Loaded Content does not, and its use by BizPsych Labs as contemplated in this Section will not, violate, infringe, or misappropriate the intellectual property rights or other proprietary rights of any third party;
(3) that there are no claims currently pending or threatened as to your ownership of or rights in the Loaded Content, or as to your violation, infringement or misappropriation of any third party intellectual property rights or other proprietary rights with respect to the Loaded Content, and to your knowledge, you have not engaged in any acts or omissions likely to result in any such claims.
In the event that BizPsych Labs discovers that the Loaded Content is in violation of this Section 9, BizPsych Labs may, without limiting its rights or creating any liability therefor, immediately remove the Loaded Content from the Platform, and may further block and/or restrict your access thereto pending resolution of any such violation. BizPsych Labs has no obligation to back up or maintain your Loaded Content, and BizPsych Labs takes no responsibility and assumes no liability for your Loaded Content, including without limitation any loss or damage thereto.
A. Limited Warranty
BIZPSYCH LABS REPRESENTS AND WARRANTS TO YOU THAT FOR A PERIOD OF NINETY (90) DAYS FROM THE EFFECTIVE DATE, THE PLATFORM WILL SUBSTANTIALLY CONFORM TO THE DESCRIPTION THEREOF IN THE USER DOCUMENTATION.
Notwithstanding the preceding sentence, this limited warranty is void if the failure of the Platform has resulted from accident, misuse, unauthorized use, abuse or misapplication of the Platform, including without limitation, any alteration or modification to the Platform, from the operating environment in which the Platform is being used, from any defect in or failure of any third party software or hardware, from failures of the Internet generally, or other causes outside of BizPsych Labs’ reasonable control.
In the event of any breach of the foregoing representation and warranty, you acknowledge and agree that your sole and exclusive remedy, and BizPsych Labs’ sole obligation and responsibility, shall be, at BizPsych Labs’ option, to repair the Platform such that it substantially conforms to the description thereof provided in the User Documentation, or refund to you the pro rata amounts paid for access to and use of the Platform based on the degree to which your use of and access to the Platform has been materially affected by the alleged breach.
BIZPSYCH LABS SHALL HAVE NO OTHER RESPONSIBILITY, OBLIGATION OR LIABILITY WITH RESPECT TO ANY BREACH BY BIZPSYCH LABS OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION. BIZPSYCH LABS MAKES NO WARRANTY THAT THE PLATFORM WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE.
EXCEPT AS OTHERWISE SET FORTH IN SECTION 10.a ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BIZPSYCH LABS HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH RESPECT TO THE PLATFORM, THE CONTENT MATERIALS, AND/OR THE USER DOCUMENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY AND/OR NONINFRINGEMENT.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS, INCLUDING WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE OR THE INTERNET. BIZPSYCH LABS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY OR PERFORMANCE.
(3) No Reliance.
THE PLATFORM AND/OR THE CONTENT MATERIALS ARE INFORMATIONAL IN NATURE AND ARE FOR YOUR USE AS EXAMPLE MATERIALS ONLY. ACCORDINGLY, THE PLATFORM AND/OR THE CONTENT MATERIALS MUST BE CUSTOMIZED TO YOUR OPERATIONS BASED ON YOUR OWN ORGANIZATIONAL AND OPERATIONAL HAZARD ASSESSMENTS, CONTRACTUAL AGREEMENTS, EXPOSURES, ETC. USE OF ANY CONTENT, PROGRAM OR APPLICATION CANNOT AND DOES NOT DIMINISH ANY OBLIGATIONS ESTABLISHED BY ANY FEDERAL, STATE, OR LOCAL STATUTE, CODE, REGULATION, RULE, OR STANDARD. RATHER, YOU ARE RESPONSIBLE FOR USING YOUR OWN PROFESSIONAL SKILL, JUDGMENT AND EXPERIENCE IN ACCESSING AND/OR USING THE PLATFORM AND/OR THE CONTENT MATERIALS. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PLATFORM AND/OR THE CONTENT MATERIALS DOES NOT GUARANTEE THAT THE PLATFORM AND/OR THE CONTENT MATERIALS WILL PREVENT LOSSES, CLAIMS, LIABILITY, LAWSUITS, OR ACCIDENTS OR SATISFY APPLICABLE FEDERAL, STATE OR LOCAL STATUTES, CODES, REGULATIONS, RULES OR STANDARDS. BIZPSYCH LABS ASSUMES NO RESPONSIBILITY FOR THE MANAGEMENT AND/OR CONTROL OF YOUR ACTIVITIES, OR FOR THE CORRECTION OF CONDITIONS OF YOUR OPERATIONS. YOU AGREE NOT TO RELY ON, OR TO INSTRUCT, ADVISE OR AUTHORIZE ANY OTHER INDIVIDUAL OR ORGANIZATION TO RELY ON, THE PLATFORM AND/OR THE CONTENT MATERIALS. ALL RISKS ASSOCIATED WITH THE ACCESS TO AND/ OR USE OF THE PLATFORM AND/OR THE CONTENT MATERIALS IS SOLELY WITH YOU.
(4) Loaded Content.
THE CONTENT MATERIALS ARE CHECKED TO BE VIRUS FREE. HOWEVER, ANY LOADED CONTENT IS NOT GUARANTEED BY BIZPSYCH LABS TO BE FREE OF VIRUSES OR MACROS WHICH MAY PREVENT USE OF SUCH LOADED CONTENT. YOU, AND NOT BIZPSYCH LABS, ARE RESPONSIBLE TO ASSURE THAT ALL LOADED CONTENT IS FREE OF VIRUSES, OR COMPLIANT WITH ANY APPLICABLE FEDERAL, STATE OR LOCAL STATUTE, CODE, REGULATION, RULE OR STANDARD.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL BIZPSYCH LABS, OR ITS SUPPLIERS, LICENSORS, SUCCESSORS OR ASSIGNS, BE LIABLE TO YOU OR TO ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE OR OTHER PECUNIARY LOSS), ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM AND/OR THE CONTENT MATERIALS, EVEN IF BIZPSYCH LABS HAS BEEN ADVISED OF OR OTHERWISE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BIZPSYCH LABS'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The Platform is a “commercial item,” as that term is defined at 48 CFR 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 CFR 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government users acquire the Platform with only those rights set forth herein.
You may not download, export or re-export any software received hereunder, regardless of the manner in which received:
(1) into, or to a national or resident of, any country to which the United States has embargoed goods;
(2) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. Accordingly, you hereby represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that BizPsych Labs has no further responsibility with respect thereto.
You and your users shall defend, indemnify and hold harmless BizPsych Labs, the parents, subsidiaries and affiliates of BizPsych Labs, and each of their respective officers, directors, agents, and employees (the “BizPsych Labs Indemnitees”), for, from, and against any and all claims, demands, loss, damage, liability, or expense (including, but not limited to, attorneys' fees at trial, on appeal, and on any petition for review), arising out of or related to the breach of this Terms by you or your users, or otherwise arising from the use of the Platform and/or the Content Materials by you or your users, including without limitation, any actual or threatened suit, demand or claim made against the BizPsych Labs Indemnitees arising out of or relating to your conduct, your violation of this Terms, your violation of the rights of any third party, or the Loaded Content.
BizPsych Labs may retain administrative access to Your Account through the Platform for purposes of auditing your compliance with the terms of this Terms, including without limitation, your usage of the Platform and/or the Content Materials. BizPsych Labs and/or its designees shall further have the right, upon reasonable prior notice to you, to audit and inspect your systems, devices, and/or records for purposes of determining your compliance with this Terms, which audit right, may include the right to access and inspect your facilities and copy any documents or records in connection with such audit. You agree to cooperate with BizPsych Labs in connection with any such audit.
Without limiting the above, BizPsych Labs may suspend delivery of the Platform if it reasonably determines that you are not in compliance with this Terms, including without limitation, by exceeding your Access Rights. If delivery is suspended, BizPsych Labs will restore your access as soon as you come back into compliance with the terms of this Terms. BizPsych Labs’ suspension of the Platform is without prejudice to any right, claim or remedy of BizPsych Labs under this Terms, including without limitation, BizPsych Labs’ rights under Section 6 above.
You hereby acknowledge and agree that, in the event of any breach or threatened breach of your obligations or responsibilities under Sections 2 and 8 above or any other provision affecting BizPsych Labs’ and/or its licensors’ intellectual property rights in the Platform and/ or the Content Materials, BizPsych Labs may suffer irreparable injury for which damages at law may not be an adequate remedy. Accordingly, without prejudice to any other rights and remedies otherwise available to BizPsych Labs at law or equity, BizPsych Labs shall be entitled to seek equitable relief, including injunctive relief and specific performance, for any such breach or threatened breach of this Terms by you.
BizPsych Labs may update or modify this Terms and any policies affecting the Platform immediately upon notice to you posted to the Platform or distributed via electronic mail. You will be required to click “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT” upon any subsequent use of the Platform following such an update or modification. Your clicking “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT” and your subsequent use of the Platform shall be conclusively deemed an acceptance of all such updates or modifications. If you do not wish to be bound by such update or modification and so notify us prior to your clicking “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT,” BizPsych Labs will refund any unearned fees that you have paid. Any updates or modifications to this Terms shall be deemed to supersede and/or replace the Terms in its prior form, to the extent set forth in such updates or modifications.
A) This Terms is governed by the laws of the United States and the State of New York, without reference to conflict of laws principles. Except where prohibited, you agree that all disputes, claims and legal proceedings in any way arising out of or relating to the Platform, the Content Materials, or this Terms shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in New York County, New York. You waive all defenses of lack of personal jurisdiction, improper venue, “forum non conveniens” and the like with respect to such courts. TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
B) This Terms and any Master Services Agreement that you have entered into with BizPsych Labs are the entire agreements between you and BizPsych Labs and supersede any other communications or advertising with respect to Platform. If any provision of this Terms is held invalid, the remainder of this Terms will continue in full force and effect. In the event of any conflict between this Terms and the Master Services Agreement, if applicable, the conflicting terms in the Master Services Agreement will prevail unless expressly stated otherwise in this Terms.
C) No provision hereof shall be deemed waived or modified except in a written addendum signed by an authorized representative of BizPsych Labs.
D) In the event that any legal action, including arbitration, is required in order to enforce or interpret any of the provisions of this Terms, the prevailing party in such action will recover all reasonable costs and expenses, including attorneys’ fees, incurred in connection therewith and on any appeal.