THOR ODIN™ CONTACTOR MANAGEMENT SOFTWARE AS A SERVICE AGREEMENT (V.1.1)
This Software as a Service Agreement (“Agreement”) is entered into between Customer and Thor Technologies, Inc. a California corporation (“Thor”), with its principal place of business at 1161 Mission Street, San Francisco, CA 94103. Thor and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
It is important that you read and understand these Terms as they govern your use of the Thor SaaS Services. By accessing or using the Thor SaaS Services, you accept and agree to be bound by these Terms. If you do not agree to these Terms, you must immediately stop using the Thor SaaS Services.
We may amend these Terms at any time by posting a revised version on Thor.com or any other website we maintain for purposes of providing the Thor SaaS Services. Amended Terms are effective at the time we post them and your continued use of the Thor SaaS Services constitutes your acceptance of any amended Terms. We may provide you with notice regarding upcoming Terms changes by email.
“Administrator User” means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf. Each Administrator User must complete training and qualification requirements reasonably required by Thor.
“Customer Content” means all data and materials provided by Customer to Thor for use in connection with the SaaS Services, including, without limitation, customer applications, data files, and graphics.
“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Thor to Customer regarding the use or operation of the SaaS Services.
“Host” means the computer equipment on which the Software is installed, which is owned and operated by Thor or its subcontractors.
“Maintenance Services” means the support and maintenance services provided by Thor to Customer pursuant to this SaaS Agreement and Exhibit B.
“Other Services” means all technical and non-technical services performed or delivered by Thor under this SaaS Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SaaS Services and the Maintenance Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in a Schedule and mutually agreed to by the parties. All Other Services will be provided on a non-work for hire basis.
“Schedule" is a written document attached to this SaaS Agreement under Exhibit A or executed separately by Thor and Customer for the purpose of purchasing SaaS Services under the terms and conditions of this SaaS Agreement
“Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.
“SaaS Services” refer to the specific Thor’s internet-accessible service identified in a Schedule that provides use of Thor’s contractor management Software that is hosted by Thor or its services provider and made available to Customer over a network on a term-use basis.
“Subscription Term” shall mean that period specified in a Schedule during which Customer will have on-line access and use of the Software through Thor’s SaaS Services. The Subscription Term shall renew for successive 12- month periods unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.
“You” or “your” or "Customer" means you or any person or entity using the Thor SaaS Services
2. SAAS SERVICES
2.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for your internal business operations subject to the terms of this Agreement.
2.2 Customer acknowledges that this Agreement is a services agreement and Thor will not be delivering copies of the Software to Customer as part of the SaaS Services.
Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Thor shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Thor.
4. CUSTOMER RESPONSIBILITIES
4.1 Assistance. Customer shall provide commercially reasonable information and assistance to Thor to enable Thor to deliver the SaaS Services. Upon request from Thor, Customer shall promptly deliver Customer Content to Thor in an electronic file format specified and accessible by Thor. Customer acknowledges that Thor’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Thor exercises no control over the content of the information transmitted by Customer or its users through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.3 Unauthorized Use; False Information. Customer shall: (a) notify Thor immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Thor immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any user, and (c) not provide false identity information to gain access to or use the SaaS Services.
4.4 Administrator Access. Customer shall be solely responsible for the acts and omissions of its Administrator Users. Thor shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.
4.5 Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Thor immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Thor immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any user, and (iii) not provide false identity information to gain access to or use the Service.
4.6 License from Customer. Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to Thor a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
4.7 Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Thor or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Thor programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third party technology license agreement specified by Thor and not under the Agreement.
4.8 Suggestions. Thor shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services.
5. ORDERS AND PAYMENT
5.1 Orders. Customer shall order SaaS Services pursuant to a Schedule. All services acquired by Customer shall be governed exclusively by this SaaS Agreement and the applicable Schedule. In the event of a conflict between the terms of a Schedule and this SaaS Agreement, the terms of the Schedule shall take precedence.
5.2 Invoicing and Payment. Unless otherwise provided in the Schedule, Thor shall invoice Customer for all fees on the Schedule effective date. Customer shall pay all undisputed invoices within 30 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable. All fees are stated in United States Dollars.
5.3 THOR Credits. Customers with a valid, active account may participate in our “THOR Credits” service offering, which is a redeemable credit system that operates like virtual currency. THOR Credits can be purchased online through the Thor website and are subject to the Thor Mobile and Web Terms and Conditions (https://www.gothor.com/mobile-and-website-terms-and-conditions). Customer may use THOR Credits to purchase and access certain Services on the Thor Platform.
You understand that THOR Credits are only a digital representation for participation in the Thor SaaS Services and offer no other rights of any form with respect to Thor or its corporate affiliates, including, but not limited to, any voting, distribution, redemption, liquidation, proprietary (including all forms of intellectual property), or other financial or legal rights.
You are purchasing THOR Credits solely for the purpose of participating in the Thor SaaS Services, including the participation in the Odin™ Contractor Management Platform, accessing and using the Thor Mobile and Web Platform and other Thor Services, and supporting the development, testing, deployment and operation of the Thor Platform, being aware of the commercial risks associated with Thor and the Thor Platform. You are not purchasing THOR Credits for any other purposes, including, but not limited to, any investment, speculative or other financial purposes.
Customer is solely responsible for paying any applicable taxes related to acquiring, using, or accessing THOR Credits. THOR Credits are sold or issued in bundles and the price may vary depending on the amount you purchase. In Thor’s sole and absolute discretion, Thor may limit the total amount of THOR Credits that may be purchased at any one time, or that may be held in Customer’s Hosted Digital Currency Wallet (as defined in the Thor Mobile and Web Terms and Conditions) in the aggregate. Additionally, price and availability of THOR Credits are subject to change without notice.
Customer is solely responsible for verifying that the proper amount of THOR Credits has been added to or deducted from your Hosted Digital Currency Wallet during any given transaction. Customer must notify Thor immediately if Customer believes that a mistake has been made with respect to your THOR Credit balance. Thor will investigate your claim, and in doing so, may request some additional info to verify it.
ANY APPLICABLE FEES AND OTHER CHARGES FOR THE PURCHASE OF THOR CREDITS ARE PAYABLE IN ADVANCE AND ARE NOTE REFUNDABLE IN WHOLE OR IN PART.
5.4 Expenses. Customer will reimburse Thor for its reasonable, out-of-pocket travel and related expenses incurred in performing the Other Services. Thor shall notify Customer prior to incurring any such expense. Thor shall comply with Customer’s travel and expense policy if made available to Thor prior to the required travel.
5.5 Taxes. Thor shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services. Customer shall not be liable for taxes based on Thor’s net income, capital or corporate franchise.
6. TERM AND TERMINATION
6.1 Term of SaaS Agreement. The term of this SaaS Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Section.
6.2 Termination. Either party may terminate this SaaS Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
6.3 Suspension for Non-Payment. Thor reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to Thor under this SaaS Agreement, but only after Thor notifies Customer of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services shall not release Customer of its payment obligations under this SaaS Agreement. Customer agrees that Thor shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.
6.4 Suspension for Ongoing Harm. Thor reserves the right to suspend delivery of the SaaS Services if Thor reasonably concludes that Customer or a user’s use of the SaaS Services is causing immediate and ongoing harm to Thor or others. In the extraordinary case that Thor must suspend delivery of the SaaS Services, Thor shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Thor shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.4. Nothing in this Section 6.4 will limit Thor’s rights under Section 6.5 below.
6.5 Effect of Termination. (a) Upon termination of this SaaS Agreement or expiration of the Subscription Term, Thor shall immediately cease providing the SaaS Services and all usage rights granted under this SaaS Agreement shall terminate. (b) If Thor terminates this SaaS Agreement due to a breach by Customer, then Customer shall immediately pay to Thor all amounts then due under this SaaS Agreement and to become due during the remaining term of this SaaS Agreement, but for such termination. If Customer terminates this SaaS Agreement due to a breach by Thor, then Thor shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date. (c) Upon termination of this SaaS Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
7. SERVICE LEVEL AGREEMENT
The Service Level SaaS Agreement (“SLA”) for the SaaS Services may be set forth in a seperate Exhibit . The SLA sets forth Customer’s sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in the SLA.
8.1 Warranty. Thor represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any beach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and Termination.
8.2 THE THOR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. USE OF THE THOR SAAS SERVICES IS AT YOUR OWN RISK. THOR, OUR PARTNERS, AND OUR AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER THOR NOR OUR PARTNERS HAVE CONTROL OF, OR LIABILITY FOR, ANY PRODUCTS OR SERVICES THAT ARE PAID FOR USING THE THOR SAAS SERVICES AND CANNOT ENSURE THAT ANY THIRD PARTY YOU TRANSACT WITH WILL COMPLETE THE TRANSACTION. NEITHER THOR NOR OUR PARTNERS REPRESENTS OR WARRANTS THAT THE THOR SAAS SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THOR OR THROUGH THE THOR SAAS SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. NEITHER THOR NOR OUR PARTNERS SHALL BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS OR SYSTEM FAILURES THAT MAY AFFECT THE PROCESSING, COMPLETION, OR SETTLEMENT OF THOR SAAS SERVICES TRANSACTIONS. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
9. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL THOR, OUR PARTNERS, OR OUR OR ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (i) THESE TERMS, (ii) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SAAS SERVICES, OR (iii) ANY GOODS OR SERVICES PURCHASED, RECEIVED, OR PAID FOR USING THE SAAS SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, REGARDLESS OF WHETHER THOR OR OUR PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THOR OR OUR PARTNER’S’ LIABILITY AND THE LIABILITY OF OUR AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AND SUPPLIERS EXCEED THE FEES THOR HAS RECEIVED FROM YOU THROUGH YOUR USE OF THE THOR SAAS SERVICES. THOR AND OUR PARTNERS SHALL NOT BE JOINTLY LIABLE FOR ANY MATTERS HEREUNDER. THIS LIMITATION OF LIABILITY SECTION SHALL APPLY TO FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this SaaS Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this SaaS Agreement, Customer Content is deemed Confidential Information of Customer. Thor software and Documentation are deemed Confidential Information of Thor.
10.2 Confidentiality. During the term of this SaaS Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this SaaS Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
10.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this SaaS Agreement and the relationship of the parties, but agrees that the specific terms of this SaaS Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this SaaS Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.
11. GENERAL PROVISIONS
11.1 Non-Exclusive Service. Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Thor’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
11.4 Assignment. Neither party may assign this SaaS Agreement or any right under this SaaS Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this SaaS Agreement to an acquirer of all or substantially all of the business of such party to which this SaaS Agreement relates, whether by merger, asset sale or otherwise. This SaaS Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this SaaS Agreement, provided, however, that such party shall not be relieved of any obligation under this SaaS Agreement.
11.5 Notices. Except as otherwise permitted in this SaaS Agreement, notices under this SaaS Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service. All notices shall be sent to the other party at the address set forth on the cover page of this SaaS Agreement.
11.6 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
11.7 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this SaaS Agreement shall not constitute a waiver of any other or subsequent breach.
11.8 Severability. If any term of this SaaS Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this SaaS Agreement shall remain in full force.
11.10 Survival. Sections 3, 6, and 8 through 12 of this SaaS Agreement shall survive the expiration or termination of this SaaS Agreement for any reason.
11.11 Publicity. Thor may include Customer’s name and logo in its customer lists and on its website. Upon signing, Thor may issue a high-level press release announcing the relationship and the manner in which Customer will use the Thor solution. Thor shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.
11.12 Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services. Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
11.13 No Third Party Beneficiaries. This SaaS Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
11.14 Independent Contractor. The parties have the status of independent contractors, and nothing in this SaaS Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
11.15 Statistical Information. Thor may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.
11.16 Governing Law. This SaaS Agreement shall be governed by the laws of the State of California, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
11.17 Compliance with Laws. Thor shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
11.18 Dispute Resolution. Customer’s satisfaction is an important objective to Thor in performing its obligations under this SaaS Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this SaaS Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.