Master Service Agreement
ARTICLE 1 – GENERAL PROVISIONS
1.1 Term and Termination. This Agreement shall commence on the Effective Date and continue for X years (“Service Term”). This Agreement shall automatically convert to a month-to-month basis after the Service Term.
1.2 Independent Contractor Status. Notwithstanding any provision hereof, the Parties understand that in providing the Services, Consultant is serving as an independent contractor, and is neither an employee nor a partner, joint venturer, or agent of the Company. Neither party shall bind or attempt to bind the other to any contract, and any such contracts entered in violation of this provision shall be void and unenforceable. Company will not provide fringe benefits of any kind to Consultant or its members, employees, agents and other affiliates, including health insurance, retirement, paid vacation, or any other employee benefits. As an independent contractor, Consultant is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any kind, including but not limited to workers’ compensation insurance.
As an Independent Contractor, unless this Agreement, Service Schedule, or Service Order specifically states otherwise, the manner in which the Services are to be performed, including but not limited to the scheduling of individual tasks and the specific hours to be worked by Consultant or its employees, contractors and affiliates, shall be determined by Consultant.
It is further understood that as an independent contractor, Consultant may have other clients and may provide any services to any third party during the term of this Agreement.
ARTICLE 2 – SERVICES AND SERVICE ORDERS
2.1 Services. Consultant shall provide the network, information technology (“IT”), security, and compliance services according to the terms and conditions of this MSA and any service schedules (“Service Schedule(s)”), service orders (“Service Order(s)”) and addenda (“Addenda”) to this MSA that the Parties may execute from time to time (collectively “Services”). The Services shall initially be those items described in Service Schedule No. 1, which is attached to this Agreement as Appendix 1.
2.2 Service Termination. Unless otherwise specified in this Agreement, Service Schedule No. 1, or a subsequently executed Service Schedule, Service Order, or other contract addenda, if the Company terminates the Services without good cause, Company shall pay Consultant (i) an amount equal to one-quarter of the average MRC amount for the six months prior to the termination date times the number of months remaining in the Service Term, plus (ii) any non-recurring charges and reimbursable costs, authorized and incurred but unpaid prior to the termination date.
2.3 Assignment and Outside Contractors. Consultant may, with the prior consent of the Company, engage such persons, corporations or other entities as it reasonably deems necessary for the purpose of performing the Services; provided, however, that Consultant shall remain responsible for the performance of all such Services and shall be considered to engage with any third party persons, corporations or other entities on its own behalf.
2.4 Third Party Software Price Increases. If a third party from whom Consultant licenses software that Consultant provides to Customer as part of the Services increases Consultant’s cost for the software, Consultant shall pass through that cost increase to Company without markup. If a cost increase occurs, Consultant shall provide Company with the documentation substantiating the cost increase. Consultant may provide that documentation by allowing Company to physically inspect original invoices, billing, contracts, or notifications of price increases from the software provider. Consultant may require that Company conduct such inspection in Consultant’s presence and return the inspected documents after the inspection. Company shall not, without Consultant’s express permission, copy, photograph, or otherwise duplicate the documents.
2.6 Exclusions. While Consultant will always make the best possible efforts to provide support and troubleshoot issues as requested, this Agreement only applies to the systems and services listed in Service Schedules and Service Orders. In addition, this Agreement does not cover a) issues caused by using equipment, software or Service(s) in a way that is inconsistent with Consultant’s recommendations; b) issues resulting from the Company installing, adding, removing, changing, configuring, or setting up, equipment or software without Consultant’s prior approval; c) issues caused by Company’s actions that prevent or hinder Consultant’s performance of required and recommended maintenance upgrades; and d) issues resulting from work performed by Company or any third party, other than Consultant, on the systems, software and equipment to which this Agreement applies.
2.7 Company Responsibilities. Company will use the software, equipment, and Services in a manner consistent with Consultant’s instructions. Company will a) notify Consultant of any issues or problems with equipment, software, or the Services in a timely manner; b) provide Consultant with remote and physical access to the software, equipment, and Services for all purposes reasonably necessary for Consultant to perform its obligations under this Agreement; c) give Consultant reasonable advance notice about potential, or needed changes to the Company’s IT system; d)immediately notify Consultant about any changes Company discovers were made to its IT system without Consultant’s prior approval; and d) maintain good communication with Consultant at all times.
ARTICLE 3 – BILLING AND PAYMENTS
3.1 Charges and Billing. Company shall pay all monthly recurring charges (“MRC”) in advance and all other Charges monthly in arrears. All Charges shall be payable in U.S. Dollars, no later than thirty (30) days from the invoice date (“Due Date”). Charges are exclusive of applicable taxes, which shall be added to the amount due according to the tax rate applicable at the time the MRC or other Charge becomes due. Consultant shall use its best efforts to accurately calculate and state taxes on invoices. If Consultant’s invoice overstates applicable taxes, Consultant shall refund Company any overstated amount Company remitted to Consultant. If Consultant’s invoice understates applicable taxes, Company shall remit to Consultant the difference between the actual tax and amount the Company remitted to Consultant. If Consultant remits to the applicable government entity an overstated tax amount before the error is discovered, it shall cooperate with Company is obtaining a tax refund from the government entity.
“Charges” means and includes all nongovernment fees, rates, and charges for the Services, work performed according to a Company authorized Service Order, and other costs Consultant incurred with Company’s prior authorization.
3.2 Late Payments. If Company is late in making payment, it shall pay simple interest on the late payment calculated at 18% APR. If Consultant uses a collection agency or attorney to collect a late payment or returned payment, Company agrees to pay all reasonable costs of collection or other action. These remedies are in addition to and not in limitation of any other rights and remedies available to Consultant under the Agreement, at law, or in equity.
3.3 Taxes and Other Fees. All Charges for the Services are exclusive of government implemented taxes, fees, and surcharges. Company shall be responsible for payment of all government implemented applicable taxes, fees, and surcharges of any kind (“Taxes”).
3.4 Invoice Disputes. If Company disputes any portion of an invoice in good faith, it shall notify Consultant in writing and provide detailed documentation supporting its dispute, within thirty (30) days where the dispute is for items billed as subscription services and sixty (60) days for items billed as professional service, of discovering information giving rise to the dispute or the Company’s right to a billing adjustment for the disputed amount shall be waived. In the event of a billing dispute, Company shall timely pay all undisputed amounts. If the dispute is resolved against Company, Company shall pay such amounts due interest—at an 12% APR—from the disputed amount’s original due date. While a dispute is pending, Company may not offset disputed amounts from one invoice against payments due on the same or another invoice.
3.5 Refunds and Cancellations. Charges are non-refundable, except for disputed amounts Company paid then later established were billed in error. Start-up or set-up costs are non-refundable once Consultant commences work pursuant to this Agreement or subsequent Service Order or addenda authorizing the costs. Third-party service costs Consultant incurs with Company’s prior approval are not refundable once Consultant incurs them. Equipment or software acquisition costs are not refundable to the extent Consultant is unable to obtain refunds.
ARTICLE 4 – LIMITED WARRANTY
Each Party represents and warrants as follows with respect to this Agreement and each Addenda and Schedule: (i) it has the right and authority to enter into such agreements and to perform its obligations as described therein; (ii) its execution and the performance of its obligations thereunder, does not and will not violate any law, court order or other agreement or obligation to which it is a party or by which it is otherwise bound; and (iii) its execution has been duly authorized by all necessary corporate action of such party and they constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, in each case except to the extent that enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights in general.
In addition, Consultant represents and warrants: (i) the Services will conform to their respective functional and technical specifications. Such specifications are subject to amendment, from time to time, in which case the Services will conform to their modified respective functional and technical specifications. This warranty shall not extend to equipment, software, or other Services that Company has altered, changed, or modified in any way not permitted by this Agreement; and (ii) good title to equipment purchased through Consultant or by Consultant and charged to Company shall be transferred to Company free and clear of all liens, claims, encumbrances and security interests whatsoever.
In addition, Company represents and warrants (i) Client owns, and will continue to own throughout the term of this Agreement, either directly or through subsidiaries that it controls, the business operations at each and every site where the Services are used; (ii) It is not, nor will it be, on the U.S. Treasury Department’s OFAC (Office of Foreign Asset Control) list of entities with which U.S. companies are forbidden to conduct business; and (iii) It will not use nor permit the use of the Services to knowingly violate any law, statute, ordinance, or regulation.
THIS SECTION IS A LIMITED WARRANTY, AND SETS FORTH THE ONLY WARRANTIES MADE BY CONSULTANT. CONSULTANT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER WRITTEN OR ORAL, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY GOODS AND/OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THOSE ARISING FROM THE COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, OR ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY CONSULTANT. COMPANY MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD.
Consultant will pass along to the Company any third-party warranties relating to any goods purchased and/or installed by Consultant on Client’s premises and/or equipment.
ARTICLE 5 – LIMITATION OF LIABILITY
5.1 MUTUAL LIABILITY LIMIT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
5.2 CONSULTANT’S LIABILITY LIMIT. CONSULTANT SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WHICH MAY OCCUR AS A RESULT OF THE USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE COMPANY INSTALLS OR USES IN ITS IT ENVIRONMENT WITHOUT CONSULTANT’S PRIOR APPROVAL. IN NO EVENT SHALL THE AGGREGATE AMOUNT COMPANY MAY RECOVER FROM CONSULTANT UNDER THIS AGREEMENT FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES AND/OR THIS AGREEMENT, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO CONSULTANT’S NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY EXCEED THE AMOUNT COMPANY PAID CONSULTANT UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING BUT NOT INCLUDING THE MONTH IN WHICH THE DAMAGE OR INJURY IS ALLEGED TO HAVE OCCURRED, EXCEPT WHERE THE DAMAGE OR INJURY ARISES DURING THE FIRST SIX MONTHS OF THIS AGREEMENT THE AMOUNT SHALL BE SIX TIMES THE AMOUNT COMPANY PAID CONSULTANT THE SECOND MONTH OF THIS AGREEMENT. THE FOREGOING SUM REPRESENTS THE CONSULTANT’S TOTAL LIABILITY FOR ALL OF COMPANY’S CLAIMS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CONSULTANT.
5.3 COMPANY’S LIABILITY LIMIT. IN NO EVENT SHALL THE AGGREGATE AMOUNT CONSULTANT MAY RECOVER FROM COMPANY UNDER THIS AGREEMENT FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, EXPENSES OR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, FROM ANY CAUSE OR CAUSES, INCLUDING BUT NOT LIMITED TO COMPANY’S NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY (“CONSULTANT’S CLAIMS”) EXCEED AN AMOUNT EQUAL TO THE GREATER OF: (I) THE AMOUNT COMPANY PAID CONSULTANT UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING BUT NOT INCLUDING THE MONTH IN WHICH THE DAMAGE OR INJURY IS ALLEGED TO HAVE OCCURRED, OR: (II) ONE-QUARTER THE MRC AMOUNT ON THE DATE THE DAMAGE OR INJURY IS ALLEGED TO HAVE OCCURRED TIMES THE NUMBER OF MONTHS REMAINING IN THE SERVICE TERM AFTER SAID DATE, PLUS ANY INCURRED BUT UNPAID NON-RECURRING CHARGES AND REIMBURSABLE COSTS.
ARTICLE 6 – INDEMNITY
6.1 Release and Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party (the “Indemnified Party”), its affiliates, and its respective officers, directors, employees, agents, and representatives from and against any and all claims, damages, losses, liabilities, judgments, settlements, costs and expenses (including reasonable attorney’s fees) arising from or in connection with any breach of this agreement by the Indemnifying Party or its representatives, except to the extent that such claims, damages, losses, liabilities, judgments, settlements, costs and expenses are caused by the Indemnified Party’s misuse of the Services, breach of this Agreement, negligence, or intentional misconduct. Neither party shall be obligated to indemnify the other in any manner whatsoever for claims, losses, expenses, or damages resulting from the other party’s own breach, negligence, or intentional misconduct. Neither Party’s duty to indemnify or defend shall be subject to the liability limits set forth in Article 5.
6.2 Indemnification Procedures. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such suit or claim, and shall take such action as may be necessary to avoid default or other adverse consequences in connection with such claim. The Indemnifying Party shall have the right to select counsel and to control the defense and settlement of such claim; provided, however, that the Indemnified Party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in handling the claim, and provided further, that the Indemnifying Party shall not take any action in defense or settlement of the claim that would negatively impact the Indemnified Party. The Indemnified Party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the Indemnifying Party.
ARTICLE 7 – CONFIDENTIALITY AND DATA PROTECTION
7.1 Confidentiality. Each Party acknowledges that, in connection with this Agreement, it may be furnished with, or given access to, “Confidential Information” of the other Party, and that, subject to the provisions of his section, such information shall not be disclosed by the Party receiving the information to any third party, and shall not be used by either Party for purposes other than those contemplated by this Agreement.
7.2 Information Subject to Confidentiality. Confidential Information is any information that the Party who owns the information does not regularly make available to the general public, including but not limited to, the following:
- Any materials regardless of form furnished by either Party to the other for use in the performance of this Agreement.
- Any information furnished by any Party that is stamped “confidential,” “proprietary,” or with a similar legend, or any information that any Party makes similar reasonable efforts to maintain secret.
- Any business or marketing plans, strategies, customer lists, operating procedures, design formulas, know-how, processes, programs, software, inventories, discoveries, improvements of any kind, sales projections, strategies, pricing information; and other confidential trade secrets, data and knowledge of either Party.
- Any information belonging to employees, agents, members, shareholders, owners, customers, suppliers, vendors, contractors, business partners and affiliates of either Party.
- Any non-public inventions the rights to which have not been assigned to the Party receiving the information.
- Any non-public and proprietary technical information belonging to either Party, the rights to which have not been assigned to the party receiving the information.
- Any list of software solutions used by Consultant to provide necessary security and management services for Company.
- Any other proprietary information owned by either Party that is valuable, special, or unique to that Party.
- Templates, schematics, processes, or technical documentation Consultant provides Customer as part of the performance of this Agreement.
Information falling within the above described categories is Confidential Information and shall be treated as such regardless of whether the Party stamps, labels, or specially designates it as Confidential.
7.3 Non-Disclosure. Neither Company nor Consultant will disclose or use, either during or after the term of this Agreement, in any manner, directly or indirectly, any such Confidential Information of the other Party, except: a) if the Party that owns the Confidential Information provides written permission; b) the Confidential information is required to be disclosed by court order or governmental law or regulation, provided that the Party gives the other Party prompt notice of any such requirement and cooperates with that Party in attempting to limit such disclosure; c) disclosure is required in order for a Party to comply with its obligations under this Agreement, provided that prior to disclosure, that Party gives the other Party prompt notice of any such requirement and cooperates in attempting to limit such disclosure; or d) the disclosure is expressly allowed under the terms of this Agreement.
7.4 Employees and Agents. The Parties further agree to disclose the Confidential Information to their officers, directors, employees, contractors and agents (collectively, the “Agents”) solely on a need-to-know basis and represent that such Agents have signed appropriate non-disclosure agreements and/or that the Party receiving Confidential Information has taken appropriate measures imposing on such Agents a duty to (1) hold any Confidential Information received by such Agents in the strictest confidence, (2) not to disclose such Confidential Information to any third party, and (3) not to use such Confidential Information for the benefit of anyone other than the party to whom it belongs, without the prior express written authorization of the party disclosing same.
7.5 Unauthorized Disclosure of Confidential Information. If either party to this Agreement discloses or threatens to disclose the other party’s Confidential Information to another party or to the Disclosing Party’s detriment or damage, in violation of this Agreement, the party whose information is at issue will suffer irreparable damage and shall be entitled to an award by any court of competent jurisdiction of a temporary restraining order and/or preliminary injunction to restrain the other party from such unauthorized use or disclosure, in whole or in part, of such Confidential Information, without the need to post a bond, and/or from providing services to any party to whom such information has been disclosed or may be disclosed.
The infringing party shall reimburse the Disclosing Party for any loss or expense incurred as a result of the infringement, including but not limited to court costs and reasonable attorney fees incurred by the Disclosing Party in enforcing the provisions of this Agreement, in addition to any other damages which may be proven.
A violation of this paragraph shall be a material violation of this Agreement.
7.6 Survival of Duty Against Disclosing Confidential Information. Each Party’s duty to not disclose Confidential Information shall continue throughout this Agreement’s term and for so long as the Party that owns the Confidential Information declines to authorize its disclosure, even if such information has purportedly lost its confidential nature for any reason.
7.7 Data Protection. The Parties acknowledge that Consultant may have access to certain of Company’s computer and communications systems and networks for the purposes set forth in this Agreement. If any data is made available or accessible to Consultant, its employees, agents or contractors, pertaining to Company’s business or financial affairs, or to Company’s projects, transactions, clients, customers, partners, vendors or any other person or entity, Consultant will not store, copy, analyze, monitor or otherwise use that data except for the purposes set forth in this Agreement and any valid Service Schedule or Service Order. Consultant will comply fully with all applicable laws, regulations, and government orders relating to personally identifiable information (“PII”) and data privacy with respect to any such data that Consultant receives or has access to under this Agreement or in connection with the performance of any Services for Company. Consultant will otherwise protect PII and will not use, disclose, or transfer such PII except as necessary to perform under this Agreement or as specifically authorized by the data subject or in accordance with applicable law. To the extent that Consultant receives PII related to the performance of this Agreement, Consultant will protect the privacy and legal rights of Company’s personnel, clients, customers and contractors.
ARTICLE 8 – DEFAULT
8.1 Default by Company. Company is in default of this Agreement if it (a) fails to cure any monetary breach within fifteen (15) days of receiving notice of the breach from Consultant; (b) fails to cure any non-monetary breach of any terms of the agreement within thirty (30) days of receiving notice of the breach from Consultant; or (c) files or initiates proceedings or has proceedings filed or initiated against it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or such other official) under any bankruptcy, insolvency or other similar law (each such event shall be a “Company Default”).
In the event of a Company Default, Consultant may suspend Services to Company until Company remedies the Company Default, or Consultant may terminate this Agreement and/or any or all of the Services being provided hereunder. Consultant may at its sole option, but without any obligation, cure a non-monetary breach at Company’s expense at any point and invoice Company for the same. These remedies are in addition to and not a substitute for all other remedies contained in this MSA or available to Consultant at law or in equity.
8.2 Default by Consultant. Consultant is in default of this Agreement if it fails to cure any non-monetary breach of any material term of this Agreement within thirty (30) days of receiving written notice of the breach from Company (“Consultant Default”); provided, however, that Company expressly acknowledges that Service related failure or degradation in performance is not subject to a claim of a Consultant Default. Company’s sole and exclusive remedy for any failure of Service is limited to the remedies set forth in under the Limited Warranty and Limitation of Liability sections of this Agreement. In the event of a Consultant Default, Company may terminate the Services and this Agreement upon written notice to Consultant. Any termination shall not relieve Company of its obligations to pay all charges incurred hereunder prior to such termination.
ARTICLE 9 – MISCELLANEOUS
9.1 Notices. All notices and other communications required or permitted under this Agreement shall be in writing, and shall be deemed delivered when personally delivered, forty-eight hours after being deposited in the United States mail as certified or registered U.S. mail with postage prepaid, addressed to the address of the Party to be noticed as set forth on the signature page of this Agreement, or, if sent by e-mail, upon the recipient’s reply e-mail confirming receipt of the notification e-mail.
9.2 Entire Agreement. This Agreement, together with all attachments, schedules, exhibits and other documents that are incorporated by reference herein, constitute the entire agreement between the Parties, represent the final expression of the Parties’ intent and agreement relating to the subject matter hereof, contain all the terms and conditions that the Parties agreed to relating to the subject matter, and replaces and supersedes all prior discussions, understandings, agreements, negotiations, e-mail exchanges, and any and all prior written agreements between the Parties. Any subsequent changes to the terms of this Agreement may be amended or waived only with the written consent of both Parties, and shall be effective upon being signed by both Parties.
9.3 Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void, unenforceable or invalid for any reason under applicable law, the remaining parts of this Agreement shall remain in full force and effect, and shall continue to be valid and enforceable. If a court finds that an unenforceable portion of this Agreement may be made enforceable by limiting such provision, then such provision shall be deemed written, construed and enforced as so limited.
9.4 Successors and Assigns. Company shall not transfer or assign, voluntarily or by operation of law, its obligations under this Agreement without the prior written consent of Consultant. This Agreement may be assigned by Consultant (i) pursuant to a merger or change of control of Consultant, or (ii) to an assignee of all or substantially all of Consultant’s assets. Any purported assignment in violation of this section shall be void.
9.5 Survival. All provisions that logically ought to survive termination of this Agreement, including but not limited to applicable Warranties, Limitation of Liability, Indemnity, Choice of Law, Forum Selection, and Confidentiality provisions, shall survive the expiration or termination of this Agreement.
9.6 No Waiver. The failure of any Party to insist upon strict compliance with any of the terms, covenants, duties, agreements or conditions set forth in this Agreement, or to exercise any right or remedy arising from a breach thereof, shall not be deemed to constitute waiver of any such terms, covenants, duties, agreements or conditions, or any breach thereof.
9.7 Force Majeure. Either Party who fails to timely perform their obligations under this Agreement (“Nonperforming Party”) shall be excused from any delay or failure of performance required hereunder if caused by reason of a Force Majeure Event as defined herein, as long as the Nonperforming Party complies with its obligations as set forth below.
For purposes of this Agreement, “Force Majeure Event” means any event, circumstance, occurrence or contingency, regardless of whether it was foreseeable, which is a) not caused by, and is not within the reasonable control of, the nonperforming Party, and b) prevents the Nonperforming Party from its obligations under this Agreement. Such events may include, but are not limited to: acts of war; insurrections; fire; laws, proclamations, edicts, ordinances or regulations; strikes, lock-outs or other labor disputes; riots; explosions; and hurricanes, earthquakes, floods, and other acts of nature.
The obligations and rights of the Nonperforming Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations under this Agreement shall resume. In the event that the interruption of the Nonperforming Party’s obligations continues for a period in excess of thirty (30) days, either Party shall have the right to terminate this agreement upon fifteen (15) days’ prior written notice to the other Party.
Upon occurrence of a Force Majeure Event, the Nonperforming Party shall do all of the following: a) immediately make all reasonable efforts to comply with its obligations under this Agreement; b) promptly notify the other Party of the Force Majeure Event; c) advise the other Party of the effect on its performance; d) advise the other Party of the estimated duration of the delay; e) provide the other Party with reasonable updates; and f) use reasonable efforts to limit damages to the other Party and to resume its performance under this Agreement.
9.8 Mediation and Arbitration. If a dispute arises under this Agreement, the Parties hereby agree to first attempt to resolve said dispute by submitting the matter to a mutually agreed-upon mediator in the State of Idaho. The Parties agree to share any mediation costs and fees, other than their respective attorney fees, equally.
9.9 Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Idaho, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Idaho, excluding that State’s choice-of-law principles.
9.10 Choice of Forum. The Parties hereby agree that all demands, claims, actions, causes of action, suits, proceedings, including any arbitration, mediation and/or litigation between the parties, to the extent permitted under this Agreement and arising out of same, shall be filed, initiated, and conducted in the State of Idaho. Unless the provisions of this Agreement exclude litigation as a remedy in a dispute by the Parties, it is hereby agreed that any litigation arising out of this Agreement must be filed and litigated in a state or federal court located in the State of Idaho. In connection with the foregoing, to the extent that litigation is a permissible method of dispute resolution under this Agreement, each Party hereby consents and submits to the exclusive jurisdiction of those courts for purposes of any such proceeding, and waive any claims or defenses of lack of jurisdiction of, or proper venue by, such court.
9.11 Attorney Fees. In the event that any arbitration, suit or action is instituted to resolve a dispute pertaining to matters covered under this Agreement, or enforce any provision thereof, the prevailing Party in any such dispute or proceeding shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, all reasonable fees and expenses of attorneys and accountants, court costs, and expenses of any appeals.
9.12 Headings Not Controlling. Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.
9.13 Counterparts. The Parties agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall be deemed one and the same Agreement. The Parties further agree that e-signatures carry the same weight and effect as traditional paper documents and handwritten signatures; therefore, this Agreement may be electronically signed via any e-signature service compliant with the Electronic Signatures in Global and National Commerce (ESIGN) Act and the Uniform Electronic Transactions Act (UETA) as of the Effective Date of this Agreement.