Master Services Agreement

Updated 3.20.24

1. Definitions

The below definitions, and any other defined terms within this Agreement, shall apply:

“Company Default” means (i) Company fails to perform a material obligation under this Agreement after receiving sixty (60) calendar days advance written notice from Customer of such failure, (ii) Company’s bankruptcy, reorganization, or failure to discharge an involuntary bankruptcy petition, insolvency, or liquidation as a result of which Company ceases to do business, or (iii) the material breach of any representation or warranty made by Company in this Agreement, except when such breach is susceptible to cure, in which case there shall be no Company Default if the breach is cured by Company within sixty (60) days after receiving written notice from Customer of such breach.
“Confidential Information” means any information, whether oral, written, electronic, or in any other format, and whether technical or business in nature, regarding a party’s products, services, marks, software, intellectual property, composition, packaging, distribution methods, manufacturing processes, equipment, pricing, customer lists, marketing and business plans, other information not generally known to the public. The obligations herein regarding Confidential Information shall not apply to any of such information which: (i) was publicly available at the time of disclosure by the disclosing party; (ii) became publicly available after disclosure through no fault of the receiving party; (iii) was known to the receiving party prior to disclosure by the disclosing party; or (iv) was rightfully acquired by the receiving party after disclosure by the disclosing party from a third-party who was lawfully in possession of and was under no legal duty to the disclosing party to maintain the confidentiality of the information. The parties acknowledge that notwithstanding anything herein to the contrary, the following will be deemed to be Confidential Information: all information regarding this Agreement or any Statement of Work, Company’s products or business, and Company’s System configuration designs.
“Customer Default” means (i) Customer fails to pay, when due, any fees or charges owed to Company under this Agreement; (ii) the material breach of any representation, warranty, or covenant made by Customer in this Agreement, a Statement of Work or its exhibits, except to the extent such breach is susceptible to cure, in which case there shall be no Customer Default if the breach is cured by Customer within twenty (20) days after receiving written notice from Company of such breach; (iii) Customer’s bankruptcy, reorganization, or failure to discharge an involuntary bankruptcy petition, insolvency, or liquidation as a result of which Company ceases to do business or if Company has a reasonably held belief that Customer may be unable to pay its debts as they become due; or (iv) Customer breaches, and fails to timely cure, its agreement with a Third-Party Solutions provider, rendering Company unable to perform a material obligation. A Customer Default under one Statement of Work shall constitute a Customer Default under all outstanding Statements of Work.
“Default” means either a Company Default or a Customer Default as required by the context.
“Implementation Date” means the date on which the applicable Service is ready for Customer’s use, regardless of whether Customer has commenced use of the Services, procured the necessary services from third-party vendors required to operate the Services, or is otherwise prepared to operate the Services. In the event the Services include multiple types of Services, each Service shall have its own Implementation Date. The Implementation Date will not be later than the date of Customer sign-off of job completion for the applicable Service.
“Privacy Policy” means the Company’s privacy policy found at https://allbridge.com/privacy-policy, as updated from time to time.
“Property” means one or more real properties owned or managed by Customer and described in a Statement of Work.
“Statement of Work” or “SOW” means any agreement or document that itemizes the Services and/or System, and charges for such, purchased by Customer, and duly executed by the parties subject to this Agreement.
“System” means all hardware, software, configuration, and installation to deliver the Services to the Customer.
“System Limited Warranty Period” means with respect to a System described in a SOW, the period of time between the Implementation Date for such System or portion of System and the date ninety (90) days after the Implementation Date of such System or portion of System.
“Term” means, collectively, the Initial Term and each Renewal Term of this Agreement.
“Units” means, unless otherwise defined in a SOW, the sum of the quantity of resident or guest equipment locations, plus the equivalent devices/items (if any) in common areas served by the Systems and/or Service.

2. SERVICES

Services. Company is a solution provider in the business of providing technology solutions and related products and services to the Customer and its guests, residents, customers, and other invitees. Company agrees to provide to Customer (i) those services described in each applicable SOW and (ii) if applicable, access to the System described in an applicable SOW (together, the “Services”).
Dissemination in Units. The Services provided shall be quantified in Units, with quantities specified in a SOW. Unless otherwise noted, all Units located at a Property shall receive all of the Services contracted for those Units and any request for changes to the number of Units or Services to the Units by the Customer shall be promptly communicated in writing to the Company. Customer may request increases or decreases in the number of Units, and upon approval by Company, corresponding changes to fees will apply.
Third-Party Solutions as Part of Systems and Services. As part of the Systems and Services, Customer acknowledges that it may (i) use certain software and related documentation by Company’s third-party software licensors, (ii) lease or purchase Systems manufactured or supplied by third parties, or (iii) otherwise utilize the products or services of third parties, including internet service providers or digital or television content providers (“Third-Party Solutions”). While Company does not provide any warranties with respect to the Third-Party Solutions, the Company will pass through any warranties to Customer it is permitted to with respect to Third-Party Solutions. To the extent a Third-Party Solutions provider requires a written or online agreement between Customer and the Third-Party Solutions provider, Customer agrees to enter into such agreement and comply with such terms. Company reserves the right to increase the charges for Services, at any time, to the extent the cost to Company of Third-Party Solutions used by Customer is increased.

3. Fees and Billing

Commencement of Billing. Customer’s payment obligations for Services that reoccur on a monthly, quarterly, or similar intervals shall begin on the Implementation Date, unless otherwise specified in a Statement of Work. Customer shall remit payment for non-recurring Services as set forth in the Statement of Work, or if not specified, at Implementation Date. Unless otherwise provided in a SOW, travel and expense costs incurred by Company will be billed to and payable by Customer. Expense costs include items such as freight/shipping fees, fuel surcharges, equipment offloading fees (if Customer location does not have appropriate equipment offloading infrastructure), etc. Any such travel and expense reimbursements will be due as billed.
Charges. All fees and charges for the Services are exclusive of any sales, use or excise taxes and other federal, state, municipal, or other governmental taxes or levies applicable to the sale or use of Services hereunder (exclusive of any taxes based on the Company’s income or assets) (“Taxes”), now in force or enacted in the future, all of which Customer will be responsible for and shall pay in full. All fees described in a SOW are based on the product costs in effect as of the date of the SOW. Company has the right to increase the fees to reflect any product price increases prior to (i) any payment(s) made for the SOW project, or (ii) installation, to the extent that those products could not be ordered at the first payment date for the SOW project. Unless otherwise set forth in the applicable SOW, billing and payment terms for Services shall be as set forth in this Section 3. Additionally, unless otherwise set forth in the applicable SOW, for orders where Services components are stored at an Allbridge facility, monthly storage fees will be assessed per pallet after 30 days of holding Customer’s Services components. All undisputed amounts due under this Agreement shall be made without setoff or counterclaim and without deduction. If Customer requests changes after SOW execution, any Services components which are returned as a result of the change are subject to a restocking fee (fee will vary depending on the equipment type).
Billing and Payment Terms. Customer shall pay all undisputed fees owed within thirty (30) calendar days after the date of each invoice. Customer payment shall be by ACH, check, or credit card (a surcharge will be added to credit card payments). Any payment that is not timely paid in accordance with this Section 3 will accrue interest at the greater of the rate of one and one-half percent (1.5%) or a fee of up to $39.00 per month.
Disputed Invoices. All invoice dispute claims must be delivered in writing to Company within thirty (30) calendar days after the invoice date. Customer waives the right to dispute any invoices not disputed within the time frame set forth herein. Amounts not in dispute are due and payable according to Paragraph 3(c) above.

4. Rights and Obligations

Restrictions on Use. Customer shall not and shall not permit others, including its employees and agents, to reproduce, reverse engineer, de-compile, disassemble, alter, translate, modify, adapt, market, resell, or sublease any Services or Systems, unless expressly permitted by this Agreement or an applicable SOW. Other than as specified in this Agreement, no license, title, or right is granted or transferred to Customer in or to any service marks, trademarks, copyrights, patents, trade secrets, or any other intellectual property rights of Company or Third-Party Solutions providers, and Customer shall not have any right to use any of such intellectual property.
Title. Title and associated ownership rights for the System shall be as designated in a SOW. If not specified in a SOW and for non-leased System(s), Customer and its heirs and/or assigns shall be the owner of and have title to the System upon receipt of shipment of System(s) at Customer-designated location.
Risk of Loss. Customer assumes all risks of loss and liability related to the System upon receipt of shipment of System(s) at Customer-designated location.
Ownership Rights to Customized Services. Unless otherwise set forth in a SOW, Customer acknowledges and agrees that all customized services, including any design or feature enhancement services, provided by the Company shall be and remain the sole and exclusive property of the Company and shall not be deemed to be “works for hire” as that term is defined in 17 U.S.C. § 101 et seq. Except for the rights granted in a specific SOW to Customer, Customer shall acquire no ownership or other rights whatsoever in such Customized Services.
Solicitation of Company’s Employees. During the Term and thereafter for a period of one (1) year, unless otherwise prohibited by law, Customer agrees to not (i) target or solicit Company’s employees or those of its subsidiaries, affiliates, and joint ventures, as such, on behalf of itself or any third-party or (ii) commit any other act or assist others to commit any other act which might injure the business of Company. This provision applies to personnel who work directly on the business relationship and dealings of the Parties.
Cooperation. Customer shall reasonably, timely, and in good faith cooperate with Company and Company’s designees and agents to facilitate Company’s performance of Services. This includes the performance of more specific Customer obligations set forth in the SOW.
System Acceptance. It shall be presumed that the System was delivered in good repair and has been satisfactorily installed for its intended use and acceptable to Customer, unless within ten (10) days after the Implementation Date, Customer provides Company a written notice of each defect or other objection to the Systems.
Customer’s Failure to Comply. After System Acceptance, Company shall be excused from compliance with its obligations associated with the Services under this Agreement or in an applicable SOW to the extent that Customer behavior results in a degradation of the Systems or Services.

5. Confidentiality

Protection of Confidential Information. Each party shall: (i) maintain the confidentiality of the Confidential Information of the other party; (ii) use the same care to prevent disclosure of the Confidential Information of the other party to third-parties as it employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care; and (iii) use the Confidential Information of the other party solely for the purpose of performing its obligations under this Agreement or any Statement of Work.
Disclosure of Confidential Information. Each party may disclose Confidential Information of the other party to its employees, officers, agents, subcontractors, and independent contractors who have: (i) a need to know such Confidential Information in order to perform their duties; and (ii) a legal duty to protect the Confidential Information. A party receiving Confidential Information (“Recipient”) of the other party (“Disclosing Party”) assumes full responsibility for the acts and omissions of its employees, officers, agents, subcontractors, and independent contractors with respect to such Confidential Information.
Required Disclosures. Either party may disclose Confidential Information to the extent required by law or by order of a court or governmental agency.
Notification. Recipient shall promptly notify Disclosing Party in the event of any loss, unauthorized use, or inappropriate disclosure of Disclosing Party’s Confidential Information and shall take all reasonable steps to mitigate such loss, unauthorized use, or inappropriate disclosure, and to recover such Confidential Information at their sole expense.
Injunctive Relief. Each party acknowledges that any breach of any provision of this Section 5 (Confidentiality) by either party, or its employees, officers, agents, subcontractors, or independent contractors, may cause immediate and irreparable injury to the other party, and in the event of such breach, the injured party shall be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
Return of Confidential Information. Recipient shall, upon request by Disclosing Party, promptly return all of Disclosing Parties’ Confidential Information, including, without limitation, summaries, extracts, and any copies thereof. A copy may be retained to comply with applicable law or regulation or retention policies, provided that such retained copy shall continue to be subject to the terms of this Agreement.
Duration. The obligations of confidentiality set forth herein shall take effect as of the Effective Date and continue in full force and effect throughout the Term and indefinitely or for so long as permitted under applicable law.
Privacy Policy. This Agreement is subject to and incorporates by reference herein the Privacy Policy, and Customer agrees to be bound by and comply with such Privacy Policy.

6. Warranties

Customer Warranties. Customer represents, warrants and covenants that (i) Customer is a duly organized entity having the authority to enter into this Agreement and to perform its obligations hereunder, (ii) the person signing this Agreement, any SOW, and any other documents on behalf of Customer is authorized to legally bind Customer, (iii) Customer’s and Customer’s end users’ use of the Services and Systems does not, as of the Implementation Date, and will not during the Term, violate applicable laws or regulations or infringe the rights of any third-parties.
Company Warranties. Company represents, warrants and covenants that (i) Company has the legal right and authority to provide the Services, (ii) Company is duly organized and has the authority to enter into this Agreement and to perform its obligations hereunder, (iii) the person signing the SOW and other documents that comprise this Agreement on behalf of Company is authorized to do so, (iv) the Services supplied to Customer under this Agreement do not, as of the Implementation Date, and will not during the Term, violate applicable laws or regulations, (v) the Company will perform the Services in a professional and workmanlike manner in accordance with general industry standards, and (vi) during the System Limited Warranty Period, the Company provides the System free from material defects in materials and workmanship.
Limited Service and Systems Remedies. Notwithstanding anything to the contrary in this Agreement, the Customer’s remedies for the breach by the Company of (i) its Service warranty in Section 6(b)(v) will be for the Company, at the Company’s discretion, either (A) to re-perform the applicable Services to the extent capable of being re-performed or (B) to credit or refund the price of the affected Services at the pro rata contract rate, and (ii) its System Limited Warranty in Section 6(b)(vi) during the System Limited Warranty Period will be for the Company to repair the System with new or refurbished components and hardware similar to the System; provided that Customer return the defective components to Company. Warranties specific to the type of Service, as selected by Customer, are provided in an applicable SOW.
Warranty Disclaimer. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY AND USE OF THE SERVICES THAT COULD RESULT IN THE LOSS OF CUSTOMER PRIVACY, CONFIDENTIAL INFORMATION, DATA AND PROPERTY. COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM COMPANY’S NETWORK AND OTHER PORTIONS OF THE INTERNET. COMPANY HAS NO OBLIGATION TO PROVIDE SECURITY OR PROTECTION FOR CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, OR DATA OTHER THAN AS SPECIFICALLY STATED IN THIS AGREEMENT OR IN THE ALLBRIDGE PRIVACY POLICY. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN SECTION 6(b) (COMPANY WARRANTIES), THE SYSTEM AND SERVICES ARE PROVIDED ON AN “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS” BASIS, AND CUSTOMER’S USE OF THE SYSTEM AND SERVICES IS AT ITS OWN RISK. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT APPLICATIONS OR FUNCTIONS CONTAINED IN THE SOFTWARE EMBEDDED OR STORED ON THE SYSTEM SHALL MEET COMPANY’S OR ITS GUESTS’, RESIDENTS’, EMPLOYEES’, OR INVITEES’ NEEDS, REQUIREMENTS, OR EXPECTATIONS. Customer is solely responsible for the suitability of the Services chosen. Neither party shall make any representations or warranties on the other party’s behalf. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, A STATEMENT OF WORK, OR ANY EXHIBIT THERETO, COMPANY MAKES NO WARRANTY CONCERNING COMPATIBILITY OF SOFTWARE OR SYSTEMS OR ANY RESULTS TO BE ACHIEVED THEREFROM.

7. Limitation of Liability

Disclaimer of Consequential Damages. EXCEPT AS SET FORTH IN SECTION 8(b), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR SPECIAL DAMAGES OR COSTS (INCLUDING LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF SECURITY, LOSS OF PRIVACY, COSTS OF RECREATING LOST DATA, COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, OR LOSS OF USE) RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, EVEN IF EITHER OR BOTH PARTIES KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
Cap on Damages. EXCEPT AS SET FORTH IN SECTION 8(b), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES DUE AND PAYABLE BY CUSTOMER TO COMPANY FOR THE AFFECTED SERVICES THAT GIVES RISE TO THE CLAIM IN THE SIX (6) FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
Liability Limitations for Acts of Others. COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY UNAUTHORIZED OR IMPROPER ACCESS OR USE, CORRUPTION, DELETION, DESTRUCTION, OR LOSS OF ANY DATA OR APPLICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DEFECTS, FAILURES OR DAMAGES TO THE SYSTEMS OR SERVICES RESULTING FROM (I) MISHANDLING, ABUSE, MISUSE, ALTERATIONS, THEFT, NEGLECT, OR ACCIDENT, (II) FORCE MAJEURE, (III) CUSTOMER’S USE OR PROVISIONING OF EQUIPMENT ELECTRICALLY OR MECHANICALLY INCOMPATIBLE WITH SYSTEMS OR SERVICES OR OF INFERIOR QUALITY, (IV) CUSTOMER’S FAILURE TO PROVIDE A SECURE AND APPROPRIATE ENVIRONMENT FOR THE SYSTEM (INCLUDING FAILURE TO PROVIDE PROPER VENTILATION AND TEMPERATURE), (V) WATER OR ELECTRICAL DAMAGE TO THE SYSTEM, OR (VI) THIRD-PARTY EQUIPMENT OR THIRD-PARTY SOFTWARE OR DAMAGES THAT ARISE AS A RESULT OF DEFECTS OR ISSUES RELATED TO THE THIRD-PARTY EQUIPMENT OR SOFTWARE.
Statute of Limitations. No claim may be asserted by either party against the other party with respect to any event, act, or omission for which a claim accrued more than one (1) year prior to such claim being asserted.

8. Indemnification

General Indemnification. Each party (the “Indemnifying Party”) shall indemnify and hold the other party and each party’s affiliates, directors, shareholders, officers, agents, third-party vendors, licensors, lenders, independent contractors, employees, successors and assigns (each, an “Indemnified Party”) harmless from and against any and all claims, damages, costs, liabilities, losses and expenses (including reasonable attorneys’ fees and out-of-pocket expenses) (“Losses”) resulting from any claim, suit, action, demand, or proceeding (each, an “Action”) brought by any third-party against the Indemnified Party (i) alleging or arising from the gross negligence or willful misconduct of the Indemnifying Party or its employees, agents, contractors, or invitees, in the performance or non-performance of its obligations hereunder, or (ii) arising from any failure by the Indemnifying Party or its employees, agents, contractors, or invitees, to comply with applicable law.
Obligations. If any Action covered by this Section 8 (Indemnification) is commenced against either party (i) the Indemnified Party seeking indemnification shall provide prompt written notice to the Indemnifying Party upon receipt of written notice of an Action for which the Indemnified Party seeks to be indemnified, (ii) the Indemnified Party shall permit the Indemnifying Party to participate in the defense of such Action and any related settlement discussions, and (iii) the Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s request and expense. No settlement of a claim that involves a remedy other than the payment of money from the Indemnifying Party shall be entered into without the consent of the Indemnified Party, whose consent shall not be unreasonably withheld or delayed.

9. Term and Termination

This Agreement is effective as of the date of execution and shall remain in effect for a term of two (2) years (the “Term”). The Agreement may be terminated by either party, for convenience, upon thirty (30) days written notice. The Term shall automatically renew for subsequent periods of the same length as the initial Term unless either party gives written notice of termination at least thirty (30) days prior to the expiration of the current Term. In the event this Agreement is terminated, the provisions of this Agreement remain in full force and effect and are applicable to any outstanding Statements of Work for so long as any SOW is in effect.

10. Default and Remedies.

If a party is in Default, the non-defaulting party will be entitled to exercise any one or more of the following remedies, as applicable: (a) to exercise any remedy for such Default set forth elsewhere in this Agreement; and (b) to immediately terminate this Agreement or any Statements of Work. In the event of a Customer Default, in addition to and without waiving any other remedies for Default available to Company hereunder, Company may, without liability and without notice beyond the initial notice required for the Customer Default (i) suspend or discontinue Services or Company’s performance under this Agreement (with a minimum $250 reconnect fee), and (ii) require Customer to pay all expenses incurred by the Company (including reasonable administration and attorney fees) in connection with enforcement by Company of its remedies hereunder. In the event of suspension or discontinuance of Services due to a Customer Default, Customer shall continue to be liable for all fees and charges for any Services that are still in use by Customer and, in addition to all other fees due and payable, agrees to pay Company’s then-current reinstallation fee. Notwithstanding the foregoing, all of Customer’s rights with respect to the Services shall be terminated during any period of suspension or upon contract termination following a Customer Default. Each remedy of the non-defaulting party as provided for in this Section 10 (Default and Remedies), or now or hereafter existing at law or in equity, or by statute or otherwise, shall be cumulative and concurrent and shall be in addition to every other remedy (A) provided for in this Agreement, and (B) except as otherwise limited in this Agreement, now or hereafter existing at law or in equity, or by statute or otherwise, and the exercise or beginning of the exercise by the non-defaulting party of any one or more of such remedies shall not preclude the simultaneous or later exercise by the non-defaulting party of any or all such other remedies.

11. Insurance

During the Term, the Company shall maintain the following types and amounts of insurance coverage from an insurer rated no lower than A- by AM Best: (a) commercial general liability with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate; (b) worker’s compensation in an amount required by applicable law; and (c) commercial automobile liability with limits no less than $1,000,000, combined single limit for each occurrence involving personal injuries and/or property damage. Company shall ensure that all insurance policies provide that such insurance carriers give Customer at least 30 days’ prior written notice of cancellation or non-renewal of policy coverage and name Customer as an additional insured.

12. Additional Provisions

Assignment. Customer shall not assign this Agreement, in whole or in part, without Company’s written consent, which will not be unreasonably withheld. This Agreement will be binding upon, and inure to the benefit of, the parties hereto and their respective, permitted successors and assigns.
Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto, and except as expressly provided herein, nothing in this Agreement shall be construed to give rights to any other party.
Independent Contractors. Each party enters this Agreement as an independent contractor and not as an agent, partner, or joint venturer of the other party. Except as may be expressly permitted hereunder, neither party has any right or authority, nor shall such party hold itself out as having any right or authority, to assume, create, or enter into any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon, the other party.
Waiver. Failure of either party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights.
Severability. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be severed from this Agreement and the entire Agreement shall otherwise remain in full force and effect.
Force Majeure. Either party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its control, including acts of God, natural disaster, labor disputes and strikes, any services, equipment, networks, software or facilities owned, maintained by third parties, any modifications made by Customer or another third party to the System or Services, and events of a magnitude or type for which precautions are not generally taken in the industry.
Governing Law and Jurisdiction. This Agreement and all claims related to it, its execution, or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the State of North Carolina, without regard to its choice or conflict of law Company and Customer hereby consent that venue will be in the state and federal courts in Wake County, North Carolina.
Statement of Works and Attachments Incorporated; Order of Priority. Any Statement of Works, exhibits referenced in any Statement of Work, and/or any executed addendum or modification to this Agreement is incorporated by reference and made a part hereof as if fully set forth herein. In the event of any conflict or inconsistency between this Agreement, a Statement of Work, and/or any exhibit or attachment to this Agreement, the documents will govern in the following order and priority: (i) Statement of Work; (ii) attachments referenced in the Statement of Work; (iii) any addendum to this Agreement; and (iv) this Agreement.
Notices. All notices required or permitted hereunder shall be in writing, delivered personally by certified or registered mail, or by nationally recognized overnight courier (e.g., FedEx) at the parties’ respective addresses set forth in a SOW or if required, upon a registered agent. All notices shall be deemed effective upon personal delivery or when received if sent by certified or registered mail or by overnight courier.
Survival. The rights, duties, and obligations of the parties and the provisions of this Agreement which by their nature are intended to survive the Term, termination, cancellation, completion, or expiration of this Agreement shall survive and continue as valid and enforceable rights, duties, and obligations.
Entire Agreement. This Agreement and any applicable SOW are the complete and final understanding of the parties and supersede all prior communications between the parties, whether written or oral, with respect to the subject matter hereof.
Amendment. This Agreement may be amended in a writing signed by authorized representatives of both parties.
Publicity. Customer agrees that Company may publicly disclose that Company is providing Services to Customer and may include Customer’s name in promotional materials, including press releases.
Construction. The Section headings herein are for convenience only and have no effect to the construction or interpretation of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. Words “include” and “including” and variations thereof are not terms of limitation, and will be deemed to be followed by “without limitation.”
Remedy; Prevailing Party. Except as provided otherwise herein, the rights and remedies of the parties will be cumulative (and not alternative). In the event of any litigation or other proceeding between the parties relating to this Agreement, in addition to all other remedies to which the prevailing party may be entitled, the prevailing party will be entitled to recover from the other party the costs incurred by such party in conducting such litigation or proceeding, including reasonable attorneys’ fees, expert witness fees, and court costs.
Counterparts; Electronic Signatures. This Agreement, a Statement of Work, addendum, or amendments thereto may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. Electronic signatures shall have the same effect as originals.