Version Date: 6/16/2023

PAGO SERVICES AGREEMENT

1. Definitions.

1. “Aggregated Data” means data and information related to Licensee’s use of the Services that is used by Pago in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.  Aggregated Data does not include any personally identifiable information of an Authorized User.

1. “Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Services under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

1. “Licensee Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Services.

1. “Documentation” means Pago’s user manuals, handbooks, and guides relating to the Services provided by Pago to Licensee either electronically or in hard copy form and any end user documentation relating to the Services available at https://help.pago.ag.

1. “Pago IP” means the Services, the Documentation, and any and all intellectual property provided to Licensee or any Authorized User in connection with the foregoing. For the avoidance of doubt, Pago IP includes Aggregated Data and any information, data, or other content derived from Pago’s monitoring of Licensee’s access to or use of the Services, but does not include Licensee Data.

1. “Services” means the software-as-a-service, mobile software, applications and any associated hardware offering described in an applicable Sales Order.

1. Access and Use.

1. Provision of Access. Subject to and conditioned on Licensee’s payment of Fees and compliance with all other terms and conditions of this Agreement, Pago hereby grants Licensee a revocable, non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Licensee’s internal use. Pago shall provide to Licensee the necessary passwords and network links or connections to allow Licensee to access the Services.

1. Documentation License. Subject to the terms and conditions contained in this Agreement, Pago hereby grants to Licensee a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Licensee’s internal business purposes in connection with its use of the Services.

1. Use Restrictions. Licensee shall not use the Services, and shall ensure that all Authorized Users do not, for any purposes beyond the scope of the access granted in this Agreement. Licensee shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

1. Reservation of Rights. Pago reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Pago IP.

1. Suspension. Notwithstanding anything to the contrary in this Agreement, Pago may temporarily suspend Licensee’s and any Authorized User’s access to any portion or all of the Services if: (i) Pago reasonably determines that (A) there is a threat or attack on any of the Pago IP; (B) Licensee’s or any Authorized User’s use of the Pago IP disrupts or poses a security risk to the Pago IP or to any other customer or vendor of Pago; (C) Licensee, or any Authorized User, is using the Pago IP for fraudulent or illegal activities; (D) subject to applicable law, Licensee has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) (i) Pago’s provision of the Services to Licensee or any Authorized User is prohibited by applicable law; (ii) any vendor of Pago has suspended or terminated Pago’s access to or use of any third-party services or products required to enable Licensee to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Pago shall use reasonable efforts to provide written notice of any Service Suspension to Licensee and to provide updates regarding resumption of access to the Services following any Service Suspension. Pago shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Pago will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User may incur as a result of a Service Suspension.

1.  Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Pago may monitor Licensee’s use of the Services and collect and compile Aggregated Data. As between Pago and Licensee, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Pago. Licensee acknowledges that Pago may compile Aggregated Data based on Licensee Data input into the Services. Licensee agrees that Pago may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law.

1. Licensee Responsibilities.

1. General. Licensee is responsible and liable for all uses of the Services and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

1. Third-Party Products. Pago may from time to time make Third-Party Products available to Licensee. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions. If Licensee does not agree to abide by the applicable terms for any such Third-Party Products, then Licensee should not install or use such Third-Party Products.
2. Services Error. Licensee will promptly notify Pago’s helpdesk if it identifies a likely or possible error in the Services.

1. Support.

1. Support. The access rights granted hereunder entitle Licensee to the support services described on the applicable Sales Order during the Term of this Agreement.

1. Fees and Payment.

1. Fees. Licensee shall pay Pago the fees (“Fees”) as set forth in the applicable Sales Order without offset or deduction. Licensee shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Sales Order. If Licensee fails to make any payment when due, without limiting Pago’s other rights and remedies: (i) Pago may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Licensee shall reimburse Pago for all reasonable costs incurred by Pago in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days or more, Pago may suspend Licensee’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

1. Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Pago’s income.

1. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, accountants and attorneys who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law (the Party making the disclosure pursuant to the order shall give prompt written notice to the other Party); or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

1. Intellectual Property Ownership; Feedback.

1. Pago IP. Licensee acknowledges that, as between Licensee and Pago, Pago owns all right, title, and interest, including all intellectual property rights, in and to the Pago IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

1. Licensee Data. Pago acknowledges that, as between Pago and Licensee, Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Licensee Data. Licensee hereby grants to Pago a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Licensee Data and perform all acts with respect to the Licensee Data as may be necessary for Pago to provide the Services to Licensee, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Licensee Data incorporated within the Aggregated Data.

1. Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Pago by mail, email, telephone, or otherwise, suggesting or recommending changes to the Pago IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Pago is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Pago on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Pago is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Pago is not required to use any Feedback.
2. During the Term Licensee grants Company a limited, non-exclusive, non-transferable, non-assignable (without any right to sublicense), world-wide license to use the Licensee name, trademarks and/or service marks in connection with marketing its products and services.

1. Warranty Disclaimer.

1. THE PAGO IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PAGO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PAGO IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. AS CLARIFICATION AND NOT LIMITATION, PROVIDER MAKES NO WARRANTY REGARDING THE ACCURACY OF ANY TRACKING OR REPORTING FUNCTIONALITY OF THE PAGO IP.

1. Indemnification.

1. Pago Indemnification.

1. Pago shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Licensee promptly notifies Pago in writing of such Third-Party Claim, cooperates with Pago, and allows Pago sole authority to control the defense and settlement of such Third-Party Claim.

1. If a Third Party-Claim is made or appears possible, Licensee agrees to permit Pago, at Pago’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Pago determines that neither alternative is reasonably available, Pago may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.

1. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Pago or authorized by Pago in writing; (B) modifications to the Services not made by Pago; (C) Licensee Data; or (D) Third-Party Products.

1. Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Pago’s option, defend Pago from and against any Losses resulting from any Third-Party Claim that the Licensee Data, or any use of the Licensee Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Licensee’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Pago or authorized by Pago in writing; or (iv) modifications to the Services not made by Pago, provided that Licensee may not settle any Third-Party Claim against Pago unless Pago consents to such settlement, and further provided that Pago will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

1. Sole Remedy. THIS 9 SETS FORTH LICENSEE’S SOLE REMEDIES AND PAGO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PAGO’S LIABILITY UNDER THIS SECTION 9 EXCEED THE FEES ACTUALLY PAID BY CUSTOMER DURING THE PRECEDING ONE (1) YEAR PERIOD.

1. Limitations of Liability. IN NO EVENT WILL PAGO BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PAGO WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PAGO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO PAGO UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

1. Term and Termination.

1. Term. The term of this Agreement begins on the Service Start Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the Initial Term. Subject to earlier termination as set forth herein, the Agreement and each Exhibit hereto shall automatically renew for successive terms of one (1) year (the “Term”), unless either party shall give notice of non-renewal at least thirty (30) days prior to the end of the then current Term.

1. Termination. In addition to any other express termination right set forth in this Agreement:

1. Pago may terminate this Agreement, effective on written notice to Licensee, if Licensee: (A) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Pago’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or  6;

1. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or

1. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

1. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Licensee shall immediately discontinue use of the Pago IP and, without limiting Licensee’s obligations under 6, Licensee shall delete, destroy, or return all copies of the Pago IP and certify in writing to the Pago that the Pago IP has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Licensee to any refund.

1. Survival. This Section 11(d) and 1, 5, 6, 7, 8(a), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

1. Miscellaneous.

1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in this Service Agreement, the related Sales Order, related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Service Agreement, excluding its Sales Order; (ii) second, the Sales Order related to this Agreement as of the Effective Date; and (iii) third, any other Agreement Exhibits or documents incorporated herein by reference.

1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

1. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, explosion, cyberattack, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

1. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

1. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

1. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of Fresno and County of Fresno, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

1. Assignment. Licensee may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Pago. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

1. Export Regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Licensee Data outside the United States.

1. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

1. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Licensee, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
2. Attorney’s Fees.  Under any event of litigation or arbitration, including but not limited to any action to compel, enforce award or seek injunctive relief pursuant to this Agreement, the prevailing Party shall be entitled to an award of their reasonable attorney's fees and costs for such proceeding, including any related trial or levels of appeal.  Licensee understands and agrees that it will pay all costs of collection for past due amounts owing and Fees.