PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is entered into this ____day of______, 20___, the (“Effective Date”), by and between ______________, (“Client”), with offices at __________, and Conscious Networks, Inc., a Virginia corporation, (“Contractor”), with offices at 1934 Old Gallows Road, Vienna, Virginia 22182. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Definitions. In this Agreement, the words “including,” “include” and “includes” shall each be deemed to be followed by the term “without limitation.” Any agreement, schedule, attachment, or exhibit referred to herein shall mean such agreement, schedule, attachment or exhibit as amended, restated, supplemented or modified from time to time to the extent permitted by the applicable provisions of this Agreement. Reference to any statute or regulation means such statute or regulation as amended at the time and from time to time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules, and exhibits shall be references to recitals, articles, sections, paragraphs, schedules, and exhibits of this Agreement.
- Performance of Services.
- Scope. This Agreement shall govern the provision by Contractor of certain consulting, technical, monitoring, programming, or other technology-related and ancillary services from time to time as requested by Client.
- Implementation. This Agreement shall be implemented through one or more statements of work (each, a “Statement of Work” or “SOW”) executed and delivered from time to time by Client and Contractor. Each Statement of Work shall be in the form of Exhibit A attached hereto. Each Statement of Work shall specify the services to be performed by Contractor (the “Services”), the location of where and the time frame in which such Services are to be performed and whether the Services shall be performed on a fixed price or a time and materials basis. Each Statement of Work shall also specify any and all documents, written materials, software, code, products, equipment, charts, system architecture, designs and other tangible or intangible media or materials produced by or on behalf of Contractor pursuant to or in connection with this Agreement and the applicable Statement of Work (the “Deliverables”) and all functional or technical specifications, design documents, product descriptions, performance criteria, manuals, schematics, drawings, listings, standards and all other written or electronically stored material related in any way to the performance, capabilities or other attributes of any of the Services or any Deliverable (the “Specifications”). For purposes of this Agreement, the Services shall be deemed to include the delivery by Contractor of the Deliverables. Contractor shall perform all Services and deliver all Deliverables specified in each Statement of Work, in accordance with the terms of this Agreement and the applicable Statement of Work. Contractor or Client, as applicable, shall have no obligation to commence work in connection with any Statement of Work until such Statement of Work is executed and delivered by both parties. Upon execution and delivery, each Statement of Work shall be subject to, and shall be deemed to be a part of, this Agreement. Each Statement of Work shall be incorporated into and subject to the terms of this Agreement. A Statement of Work may contain terms and conditions in addition to those in this Agreement. However, if a Statement of Work contains terms or conditions that directly conflict with this Agreement, the provisions of this Agreement shall control, unless the Statement of Work expressly provides that such conflicting term or condition supersedes this Agreement. Such additional or different terms or conditions shall be applicable only to the Statement of Work in which they are contained.
- Parties to Statements of Work. Services and Deliverables purchased under this Agreement may be used by Client on behalf of itself and for the benefit of all Client Affiliates. For purposes of this Agreement, “Affiliate” means with respect to a party, any entity that is “controlled by or under common control with” a party. For purposes of this Agreement, an Affiliate includes any entity now or hereafter directly or indirectly controlled by or under common control with a party and, except as set forth herein, only for so long as such entity continues to be controlled by or under common control with such party, and shall not include any successor Client resulting from future mergers, acquisitions or a change of control of such party. As used in this definition, “controlled by or under common control with” shall mean in the case of an entity that has voting securities, the direct or indirect ownership of at least fifty percent (50%) or more of the outstanding voting securities of such entity, and in the case of an entity that does not issue voting securities, the direct or indirect right to fifty percent (50%) or more of the profits of such entity or fifty percent (50%) or more of the assets of such entity upon dissolution. Any Client Affiliate may purchase Services and Deliverables directly by executing its own Statement of Work. In such case, the Client Affiliate that signs the Statement of Work shall be solely responsible for payment with respect to such Services, and shall be entitled to all rights and responsible for all obligations of Client under this Agreement, with respect to the particular Services purchased by such Client Affiliate.
- Change in Scope. Prior to acceptance by Client of any of the Services or Deliverables, either party may request a change (including a modification, addition, or reduction) be made to such Statement of Work (a “Change Request”). All Change Requests must be in writing and shall be in the form of Exhibit B attached hereto. Promptly after receipt of a Change Request, the parties shall discuss in good faith the availability of personnel and resources to fulfill such Change Request and the resulting adjustments to the applicable Statement of Work. Contractor or Client, as applicable, shall have no obligation to commence work in connection with any Change Request until it is executed and delivered by both parties. Each Change Request executed and delivered by the parties shall be incorporated into and constitute an amendment to the applicable Statement of Work. The terms of any executed Change Request shall control over any inconsistent provisions set forth in the applicable Statement of Work or this Agreement.
- Project Managers.
- Appointment. Each party shall designate one of its employees to be its project manager with respect to each Statement of Work (a “Project Manager”). Each Project Manager’s responsibilities shall include: (A) having direct responsibility for the overall performance of its party under such Statement of Work; (B) interacting with the other party’s Project Manager; and (C) supervising the performance of such party’s obligations under such Statement of Work. Unless specified in a Statement of Work, Project Managers of each party shall meet weekly, or as otherwise mutually agreed, to review progress and to resolve any issues relating to the Statement of Work.
- Withdrawal. Either party may, in its reasonable judgment, withdraw its approval of the other party’s Project Manager. If either party withdraws its approval of the other party’s Project Manager, the other party shall appoint a successor Project Manager, subject to the prior written approval of the other party, which approval shall not be unreasonably withheld or delayed. In addition, if either party’s Project Manager is unable to continue to serve due to physical disability, termination of employment or otherwise, such party shall appoint a successor Project Manager, subject to the other party’s prior written approval, which approval shall not be unreasonably withheld or delayed.
- Personnel; Devotion.
- Devotion. Contractor shall devote all necessary time, effort, and resources to the provision of the Services and the delivery of the Deliverables. Contractor shall provide the Services and deliver the Deliverables in a diligent, careful, thorough, workmanlike, and professional manner. Contractor shall cause all individuals performing Services to at all times comply with all rules, regulations and policies established or issued by Client that have been posted or provided to Contractor. Contractor shall cause all personnel performing Services to exercise due care and diligence to protect Client’s property.
- Identification of Personnel. If required by Client, each Statement of Work shall specify the Contractor personnel identified in such Statement of Work to devote their necessary time and attention to the provision of the Services and the delivery of the Deliverables. Client may interview any of the individuals to be assigned to it under a Statement of Work prior to their appointment. Client may accept or reject a potential candidate for any reason whatsoever, including acceptance or rejection based upon skills required, background, and experience. Client may, in its reasonable judgment, withdraw its approval of any such personnel. If Client withdraws its approval of any individual performing Services, Contractor shall replace such individual and shall cause such replacement individual to devote their necessary time and attention to the provision of the Services and the delivery of the Deliverables, subject to Client’s prior written approval, which approval shall not be unreasonably withheld or delayed. Any such replacement shall be subject to the procedures set forth in this Agreement. In addition, if an individual performing Services is unable to perform the Services or deliver the Deliverables due to physical disability or termination of employment or engagement, Contractor shall replace such individual and shall cause such replacement individual to devote their necessary time and attention to the same, subject to Client’s prior written approval.
- Personnel Performance. Client may judge an individual’s performance capability. At any time that Client determines an individual is not performing Services in accordance with the obligations set forth herein or is unable to perform the duties set forth in the applicable Statement of Work, Client may request that such individual be replaced and Contractor shall promptly do so.
- No Removal of Personnel. Except for disability, death, resignation, or termination of employment, Contractor shall not remove any individual that is providing Services pursuant to a Statement of Work during the time period for which such individual is contracted to provide Services in such Statement of Work without Client’s prior written approval, which shall not be unreasonably withheld or delayed. If any individual is removed with Client’s approval before completion or termination of the Statement of Work, Contractor shall supply an acceptable replacement to Client as soon as possible. If Contractor is unable to provide a suitable replacement (as defined by Client) in a reasonable period of time, or Contractor removes an individual without Client’s approval, in addition to any remedies that Client may have, Client may terminate the applicable Statement of Work. In addition to any remedies Client may have, Client may withhold up to forty (40) hours (or the equivalent thereof) from the final invoice for the individual removed by Contractor without Client’s approval.
- No Prohibition. Individuals assigned to Client or any Client Affiliate under this Agreement shall not be prohibited from providing services to Client or any Client Affiliate through an alternate third party after the earlier of thirty (30) days from the termination of their employment or engagement with Contractor or thirty (30) days after completion of the Services performed by them in the applicable Statement of Work.
- Compliance with Client Policies. Contractor shall comply with, and shall ensure that its employees, agents, representatives and subcontractors comply with, Client’s (and, if applicable, Client Affiliates’) guidelines and policies applicable to providers of goods and/or services to Client (and, if applicable, Client Affiliates), including, without limitation, Client’s code of ethics and Client’s safety and security policies applicable to providers, as such policies may be communicated to Contractor from time to time by Client. These policies may include, without limitation, data security requirements.
- Status Reports. In connection with each Statement of Work, upon the written request or Client, Contractor’s Project Manager shall provide time sheets for all Contractor personnel and written status reports to Client, which status reports shall detail the progress of the Services and the Deliverables under each Statement of Work, and Contractor shall promptly provide any other information or data concerning the Services and/or the Deliverables that may be reasonably requested by Client from time to time.
- Divestiture of Client Affiliates. If Client, any Client Affiliate or other Client operation is divested during the term of this Agreement (each, a “Divested Business”) but Client desires Contractor to continue to provide some or all of the Services to or for the benefit of such Divested Business, Contractor shall continue to provide such Services if such Divested Business (i) used or benefited from the Services prior to being divested, (ii) after being divested uses or benefits from either essentially the same Services as before being divested, or otherwise does not require Contractor to modify its systems or processes used to perform and provide the Services in any material way, and (iii) agrees to be the subject to the provisions of the applicable Statement of Work and this Agreement. Contractor shall charge, at Client’s option, Client or the Divested Business for such Services based on the existing charging methodologies for the Services. Contractor shall not be required to provide the Services to any Divested Business for more than one (1) year following the date of divestiture. Upon mutual agreement between the parties, the Services may be extended if required by Client to meet its obligations.
- Time of the Essence. Time is of the essence in the performance of each Statement of Work.
- Compensation and Payment.
- Fees. In consideration of the performance of the Services, the delivery of the Deliverables and the performance of Contractor’s other duties and obligations hereunder, Client shall pay to Contractor the fees (the “Fees”) set forth on each Statement of Work.
- Fee Type. As set forth in a Statement of Work, each project shall be billed on a fixed fee basis or a time and materials basis as mutually agreed upon between the parties. Contractor may increase such price during the term or any renewal of the Statement of Work not more than annually. Additional work by Contractor outside the original scope of work in the Statement of Work shall not be charged unless specifically agreed in a writing signed by the parties. For projects billed on a time and materials basis, hourly rates for each skill set shall be set forth in each Statement of Work and each Statement of Work shall assign specific hourly rates for each of Contractor’s personnel. Overtime and/or holiday premiums shall not apply.
- Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Client will be responsible for payment of all such taxes (other than taxes based on Contractor’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Client will make all payments required hereunder to Contractor free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to Contractor will be Client’s sole responsibility, and Client will, upon Contractor’s request, provide Contractor with official receipts issued by the appropriate taxing authority, or such other evidence as Contractor may reasonably request, to establish that such taxes have been paid.
- Expenses. Client shall reimburse Contractor for reasonable travel and other expenses (over and above normal daily working and commuting expenses) incurred in connection with performing Services under this Agreement. Reimbursement shall be in accordance Client’s applicable expense policies. Reimbursement shall be at reasonable and actual cost. All travel and material expense requests must be approved in writing by the applicable Client Project Manager prior to the expenditure. Expense reimbursement forms and receipt documentation shall be subject to the approval of the applicable Client Project Manager. Contractor shall invoice Client for expenses in its normal billing cycle with a copy of the approved expense report. Contractor shall directly reimburse its personnel. Notwithstanding the foregoing or the payment requirements set forth in Section 3(e), Client shall not be required to reimburse Contractor for any expenses incurred more than ninety (90) days prior to the date Contractor invoices Client for such expenses.
- Invoices and Payments. In connection with each fixed-price Statement of Work, Contractor shall invoice Client in accordance with the payment schedule set forth in the applicable Statement of Work. All invoices will be stated in United States currency, and shall be payable in United States currency. In connection with each time and materials Statement of Work, Contractor shall invoice Client on a monthly basis for all Services performed by Contractor pursuant to such Statement of Work during the immediately preceding calendar month. Contractor shall issue separate invoices for each Statement of Work. Each invoice shall specify the applicable Statement of Work with specificity and shall at a minimum set forth in detail the Services performed, the personnel performing the Services and the dates and times of the performance of the Services. In addition, Contractor shall promptly provide any other information or data concerning the Services that may be reasonably requested by Client. Each undisputed invoice shall be due and payable thirty (30) days after Client’s receipt of a correct invoice. Contractor shall submit invoices to Client as set forth below. Client reserves the right to change its invoicing instructions from time to time upon notice to Contractor, including, without limitation, requiring Contractor to submit all invoices via reasonable electronic delivery method specified by Client:
- No Presumption of Acceptance. No payment made under any Statement of Work shall be evidence of the performance by Contractor of its obligations set forth in this Agreement, either wholly or in part. No payment shall be construed to be an acceptance of, or to relieve Contractor of liability for, Contractor’s failure to perform its duties and obligations under this Agreement in accordance with the terms of this Agreement.
- Compliance and Security; Audit Rights.
- Each party shall comply with all laws and regulations applicable to the provision (in the case of Contractor) and use (in the case of Client) of the Services provided hereunder. Contractor has adopted and implemented, and shall maintain throughout the Term, a corporate information security program designed to comply with applicable laws and protect Client information, materials and data (“Client Data”) from loss, misuse and unauthorized access or disclosure. Such program includes annual employee security awareness training and formal information security policies and/or procedures. Client will ensure that all Client data stored or transmitted via the Service complies with all applicable laws and reasonable information security practices, including without limitation those relating to the encryption of data. In addition, as of the Effective Date, Contractor has completed a SAS70 Type II audit in certain data centers and intends to continue to conduct such audits under SSAE 16, ISAE 3402 or a similar standard. Client will be entitled to receive a copy of the then-available SAS70 report, which is Contractor Confidential Information. The Contractor information security program is subject to reasonable changes by Contractor from time to time.
- Client and its authorized auditors, contractors or agents, at Client’s own expense, shall have the right on no less than five (5) business days written notice to monitor, inspect, interview and audit the staff, facilities, documentation, systems, records, internal policies and controls, materials (“Audit Information”) of Contractor applicable to the Services and activities relating to this Agreement for the purpose of reviewing Contractor’s compliance and ability to comply with this Agreement, (including to audit any breaches or suspected breaches, compliance with confidentiality and applicable law and regulations, security and business continuity and disaster recovery and fraud or suspected fraud) to the extent such Audit Information is made available to Contractor Clients. Client’s authorized auditors, contractors or agents are required to enter into a mutually agreeable non-disclosure agreement and agree to comply with rules for any accessed Contractor facility. Contractor shall co-operate with Client and give all information and explanations to Client in relation to the Services and activities in connection with this Agreement as Client or any such person shall reasonably request. For the purposes of clarification, no access will be given to areas of the data center to which Contractor does not generally allow access to its Clients (e.g., areas which house equipment used to support services for multiple Clients). Client shall make reasonable efforts to exercise its rights in a manner that does not cause material disruption to Contractor’s business.
- Term and Termination.
- Term. This Agreement shall commence as of the Effective Date and shall remain in effect for an initial term of three (3) years from the Effective Date, with automatic renewals for successive one (1) year terms, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
- Early Termination of Agreement. Either party may terminate this Agreement immediately if the other party breaches or is in default of any material obligation hereunder which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of such default (or such additional cure period as the non-defaulting party may authorize). Either party may terminate this Agreement immediately upon written notice after the other party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other party, which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days
- Termination of Statements of Work. In addition to any termination rights specified elsewhere in the Agreement or the applicable Statement of Work, either party may terminate a Statement of Work immediately if the other party breaches or is in default of any material obligation hereunder or under the applicable Statement of Work which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of notice of such default (or such additional cure period as the non-defaulting party may authorize).
- Consequences of Termination.
- Upon the termination of any Statement of Work, Contractor shall promptly provide to Client all work in progress or portions thereof in connection with the terminated Statement of Work, including all incomplete Work Product. Client may provide or prepare or have a third party provide or prepare, as applicable, any such Services or Deliverables. In addition, Contractor shall, upon Client’s request, return promptly to Client all Confidential Information in its and its personnel’s possession obtained in connection with such Statement of Work, and shall certify in writing to Client its compliance with this Section 4(c)(i).
- Termination of any one or more Statements of Work shall not constitute a termination of this Agreement or any remaining Statements of Work not so terminated. If this Agreement is terminated or expires prior to the termination or expiration of the then-current term of any Statement of Work and such Statement of Work is not also expressly terminated or has not expired, then such Statement of Work shall continue for the then-current term and this Agreement shall continue in effect with respect to such Statement of Work until the termination or expiration of the then-current term of such Statement of Work. Termination of this Agreement or any Statement of Work shall not limit either party from pursuing any other remedies available to it pursuant to this Agreement.
- Upon termination of this Agreement, Contractor shall, upon Client’s request, return promptly to Client all Confidential Information in its and its personnel’s possession, and shall certify in writing to Client its compliance with this Section 4(c)(iii).
- Upon termination of any Statement of Work, Contractor shall refund to Client any pre-payments made by Client on account of Services that were intended to be performed beyond the termination date. Upon termination or expiration of any SOW, as relates to such expired or terminated SOW, Contractor shall, at no additional cost, (i) provide Client or its designee a written report on the status of the Services in a form and level of detail reasonably satisfactory to Client, (ii) make Contractor’s personnel reasonably available to meet with Client or its designee, (iii) provide such further information as Client or its designee may reasonably request, and (iv) cooperate with and assist Client to wind-down the Services and transfer the Services to Client or its designee. Upon Client’s written request, Contractor also shall continue to perform the Services at the then-current rates set forth in the Statement of Work for a period not to exceed six (6) months and the SOW and this Agreement shall continue in effect throughout such period
- The following provisions shall survive any termination of this Agreement: Sections 3(c), 3(f), 3(g), 4(c), 5, 6, 7, 8(b), 9, 10 and 11.
- Ownership. All materials developed, generated or produced by or on behalf of Contractor in connection with this Agreement, including Deliverables, and all intellectual property related thereto (collectively, “Work Product”), shall be Client’s sole and exclusive property. If Contractor may be entitled to claim any ownership interest in any of the Work Product, Contractor hereby transfers, grants, conveys, assigns, and relinquishes exclusively to Client all of Contractor’s worldwide right, title, and interest in and to such Work Product in perpetuity or for the longest period otherwise permitted by law. Unless otherwise agreed to by the parties, all materials owned by Contractor and in existence on the Effective Date, and all materials created or acquired by Contractor after the Effective Date completely separate and independent of Contractor’s engagement under this Agreement shall remain the exclusive property of Contractor.
- Improvements to Pre-Existing Materials. Any modifications, improvements or amendments to any pre-existing Contractor’s or its suppliers’ Materials (as defined below) shall be solely owned by Contractor or its suppliers only if such improvements, amendments or modifications are not included or incorporated in any way in any Work Product, and such Materials shall not be created using Client resources nor shall Client be charged for the creation of such Materials. “Materials” means all intellectual property rights, including without limitation all patents, patent applications, patent rights, trademarks, trademark applications, trade names, trade dress, service marks, service mark applications, domain names, copyrights, copyright applications, computer programs and other computer software (including, without limitation, all source and object code, algorithms, architecture, structure, display screens, layouts and development tools), inventions, designs, samples, specifications, schematics, know-how, trade secrets, processes, formulae, development tools, discoveries, improvements, ideas, techniques, materials, flow charts, outlines, lists, compilations, manuscripts, writings and pictorial materials, and all documentation and media constituting, describing or relating to the foregoing, including without limitation, manuals, memoranda and records.
- License to Pre-existing Materials. Contractor shall notify Client of all pre-existing Contractor’s or its suppliers’ Materials incorporated into or otherwise necessary to use, modify or maintain any Work Product and Contractor hereby grants to Client and Client Affiliates a non-exclusive, perpetual, irrevocable, royalty free, worldwide, limited-transferable (as set forth below) right and license to use, make, have made, sell, practice, copy, display, distribute, maintain, modify and create derivative works from, in any and all media, pre-existing Contractor or its suppliers’ Materials incorporated into or otherwise necessary to use, modify or maintain any Work Product (i) for internal use within Client and Client Affiliates, or (ii) otherwise in commerce in the normal course of Client’s or Client Affiliates’ businesses; provided, that Client’s and Client Affiliates’ rights to such shall be solely in connection with the Work Product. Such license to Contractor’s or its suppliers’ Materials may be transferred, assigned or sublicensed to any third party in connection with the sale, merger or disposition of the Work Product or the Client or Client Affiliate business or assets to which the Work Product relates. To the extent permitted by Client or a Client Affiliate, the agents, brokers, customers, third party administrators, consultants and contractors of Client and Client Affiliates shall also have the right to use the Contractor’s or its suppliers’ Materials under the license granted hereunder in connection with the business of Client or Client Affiliates.
- Cooperation. Without any additional compensation, Contractor shall execute any documents requested by Client and shall perform any and all further acts deemed necessary or desirable by Client to confirm, exploit or enforce the ownership by Client of the Work Product. If Contractor fails to do so, Contractor hereby authorizes Client and its agents and/or representatives to execute all such documents in Contractor’s name and on Contractor’s behalf, including filing and/or recording such documents in appropriate governmental or administrative offices anywhere throughout the world.
- “Confidential Information” means non-public information of the parties hereto relating to their business activities, financial affairs, technology, marketing or sales plans that is exchanged by the parties in the formation and implementation of the Agreement. Confidential Information includes the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information. All Confidential Information furnished by a party in tangible form to the other in the course of performing under this Agreement shall remain the property of and be deemed proprietary to the disclosing party. Each party agrees: (i) to receive such Confidential Information in strict confidence and not disclose it to any third party without the prior written consent of the disclosing party; (ii) to accord such Confidential Information at least the same level of protection against unauthorized use or disclosure that the receiving party customarily accords to its own confidential, proprietary or trade secret information of a like nature, but in no event less than reasonable care; and (iii) to use such Confidential Information solely and exclusively for the purposes of and in accordance with the terms of this Agreement. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the disclosing party, the receiving party shall notify the disclosing party promptly upon becoming aware thereof. The provisions of this Section 6 shall survive the termination or expiration of this Agreement for any reason. Promptly following the termination or expiration of this Agreement for any reason, and as the disclosing party elects, the receiving party shall either destroy or deliver to the disclosing party all Confidential Information of the disclosing party in the receiving party’s possession, custody or control in whatever form held (including without limitation all documents or media containing any of the foregoing and all copies, extracts or embodiments thereof). Except for Contractor’s gross negligence or willful misconduct, Contractor is not responsible for unauthorized access to, or alteration, theft, or destruction of, Client Confidential Information or Client Data, programs or other information through accident, wrongful means or any other cause while such information is stored on or transmitted across Contractor-provided network or data center facilities.
- Contractor shall promptly deliver up, or provide access to, or destroy Client Data, at the request of Client. In event Client purchases back-up services from Contractor, Contractor shall back-up Client Data in the possession or control of Contractor hosted on Contractor systems in accordance with Contractor’s product-specific Service guide, which Contractor may modify from time to time, effective upon posting on Contractor’s website.
- Representations and Warranties; Covenants.
- Mutual Representations and Warranties. Each party hereby represents and warrants to the other party as follows:
- Existence. It is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation, and has the requisite power and authority to enter into and perform its obligations under this Agreement in accordance with its terms without the consent of any other party.
- Due Authorization. The execution, delivery, and performance of this Agreement by it have been duly and effectively authorized by all necessary action. This Agreement, upon execution by both parties, shall constitute the legal, valid and binding obligation of it, enforceable against it except as may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors rights generally and except as may be limited by general principles of equity.
- No Conflict. The execution, delivery and performance of this Agreement by it, do not conflict with any provision of law applicable to it or result in any breach of its constituent documents, any agreement with any other party or any order, judgment or other restriction by which it may be bound.
- Additional Contractor Representations, Warranties, and Covenants. Contractor represents, warrants and covenants to Client as follows:
- Compliance with Law. Contractor shall perform its obligations under this Agreement in a manner that: (A) complies with all applicable laws, rules and regulations of any governmental entity and any self-regulatory organization or exchange; and (B) does not and shall not violate any agreements with or rights of any other party.
- No Infringement. The Services, Work Product, and the use or possession thereof, do not and shall not infringe, misappropriate or violate the intellectual property rights of any third party. If any element of the same is subject to any claim alleging a breach of this Section 7(b)(ii), Contractor shall have 30 days to do one of the following at its sole cost and expense: (A) procure the right to continue use of such element; (B) replace such element with an element retaining the same or equivalent functionality that is not subject to any such claim; or (C) modify such element so that it is not subject to any such claim while retaining the same or equivalent functionality of such element. Any such infringement, misappropriation, or violation shall not affect Contractor’s obligations under this Agreement, including Contractor’s obligations set forth in Section 9. Notwithstanding the foregoing, Contractor shall have no obligation under this Section 7(b)(ii) to the extent that any such infringement, misappropriation, or violation is based on any modifications to the Deliverables performed by any party other than by or on behalf of Contractor or any Contractor Affiliate.
- Lawful Owner. Contractor is the lawful owner or licensee of any software programs or other rights or materials used by Contractor in its performance of the Services and the delivery of the Deliverables, and Contractor has all rights necessary to provide to Client the right, title and interest set forth herein or the applicable Statement of Work.
- No Conflict. Neither Contractor nor any individual assigned by Contractor to perform Services pursuant to this Agreement is under any obligation to assign or give work done under this Agreement to any third party.
- Malware; Disabling Code. Throughout the term of any Statement of Work, Contractor shall take commercially reasonable measures consistent with the highest industry standards to prevent the coding or introduction of any Malware or Disabling Code (as defined below) into the Services or Deliverables, or any Client or Client Affiliate system interfacing with the Services, including, without limitation, the information, data and other materials delivered by or on behalf of Contractor to the Client, any Client Affiliate or their customers or third party suppliers, or the introduction of any Malware into operating environments and processes used by Contractor to provide the Services. Contractor shall continue to review, analyze and implement improvements to and upgrades of its Malware prevention and correction programs and processes that are reasonable and consistent with the highest industry standards. If Malware or Disabling Code is found to have been introduced into the Services or Deliverables, any Client or Client Affiliate system interfacing with the Services, or any information, data and other materials delivered by or on behalf of Contractor to the Client, any Client Affiliate or their customers or third party suppliers, or if any Malware is found to have been introduced into the operating environments and processes used by Contractor to provide the Services, Contractor shall promptly notify the Client (and any affected Client Affiliate) and Contractor shall take immediate and continuing action to eliminate the Malware or Disabling Code and remediate its effects at Contractor’s expense; provided, however, Contractor shall not take any such action with respect to the systems of Client’s or Client Affiliates’ customers and third party suppliers except at Client’s request. At Client’s request, Contractor shall report to Client the nature and status of all Malware and Disabling Code elimination and remediation efforts. “Malware” means computer software, code or instructions that (A) adversely affect the operation, security or integrity of a computing, telecommunications or other digital operating or processing system or environment, including without limitation, other programs, data, databases, computer libraries and computer and communications equipment, by altering, destroying, disrupting or inhibiting such operation, security or integrity; (B) without functional purpose, self-replicate without manual intervention; (C) purport to perform a useful function but which actually perform either a destructive or harmful function, or perform no useful function and utilize substantial computer, telecommunications or memory resources; or (D) without authorization collect and/or transmit to third parties any information or data, including without limitation such software, code or instructions commonly known as viruses, Trojans, logic bombs, worms, adware and spyware. “Disabling Code” means any code which could have the effect of permitting improper use, access, deletion or modification of, or, unless Client agrees otherwise in writing, disabling, deactivating, damaging or shutting down one or more software programs or systems and/or hardware or hardware systems, including without limitation, time bombs, protect codes, data destruction keys, trap doors and similar code or devices.
- Software Deliverables. Contractor warrants that any computer software, executable code or source code delivered as part of the Deliverables: (a) will be free from significant programming errors and from defects in workmanship and materials and shall conform in all material respects to the performance capabilities, characteristics, specifications, functions and other descriptions and standards described in the quotation, purchase order, software documentation and other Contractor descriptions of the software and the applicable Statement of Work (“Specifications”) when operated in accordance with the hardware and software requirements set forth in the Agreement; (b) the Software will be compatible and properly function with the hardware and software components of Client’s computer systems and Specifications; and (c) if Client is licensing Software from Contractor for use in connection with any equipment purchased by Client or otherwise provided to Client under the Statement of Work, or otherwise as part of a system of equipment and software, the equipment and software have been tested by Contractor for compatibility and that such equipment and software will be compatible with each other and will function properly together in accordance with the Specifications. In the event that the Software fails to comply with any warranty set forth in this Section 7(b)(vi), Contractor shall use commercially reasonable efforts to correct reproducible software errors that cause a breach of this warranty, and if Contractor fails to make the affected software operate as warranted within a reasonable time considering the severity of the error and its impact on Client, Client may return the affected software and/or equipment to Contractor and Contractor shall refund the fees paid to Contractor therefor and fees paid to Contractor for the unused portion of any Services that directly relate thereto, including, without limitation, any maintenance and support services fees, if any.
- Access. The Deliverables shall not contain any methods of gaining access to the same or other computer resources or data of Client or any Client Affiliate such as master access keys, passwords or trap doors
- Professional Manner. Contractor shall render the Services and deliver the Deliverables in a professional and workmanlike manner.
- Appropriate Skill. Contractor and its personnel (and consultants it may retain) have and shall have the skills, qualifications and experience necessary to perform and manage the performance of the Services and the delivery of the Deliverables. These services shall be performed by qualified personnel in a manner consistent with good practice in the industry.
- Maintenance of Resources. Contractor shall have and shall maintain sufficient resources and personnel necessary to perform its obligations in accordance with Sections 7(b)(viii) and 7(b)(ix).
- No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT, ANY MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY CONTRACTOR ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND CONTRACTOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY ADDITIONAL OR IMPLIED WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY CONTRACTOR ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. CONTRACTOR DOES NOT WARRANT THAT THE INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CLIENT IS SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM ANY MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY CONTRACTOR, AND FOR ANY RELIANCE THEREON. CLIENT ACKNOWLEDGES THAT CONTRACTOR’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CLIENT ONLY.
- Mutual Representations and Warranties. Each party hereby represents and warrants to the other party as follows:
- Acceptance Testing. Each Deliverable shall be subject to acceptance testing by Client to verify that the same is acceptable to Client, as set forth in the Statement of Work. The acceptance of any Deliverable by Client shall not occur until the earlier of: (i) Client’s express acceptance of the same in writing; or (ii) the Acceptance Period shall have expired.
- Acceptance Period. Each Deliverable shall be subject to an acceptance period of fifteen (15) days after delivery, or such other period of time as may be specified in the applicable Statement of Work (the “Acceptance Period”). At any time prior to the end of any applicable Acceptance Period, Client may reject any Deliverable by notifying Contractor if, in Client’s reasonable opinion, such Deliverable is defective or does not conform to, or perform in accordance with, its Specifications (a “Deficiency”). Contractor shall then have twenty (20) days after the delivery of such notice to fully correct such Deficiency and redeliver the Deliverable to Client, all at no cost to Client. If Contractor does not fully correct such Deficiency and redeliver the Deliverable to Client by the end of such twenty (20) day period, Client may terminate the applicable Statement of Work without any obligation or liability of any kind to Contractor. If Contractor does fully correct such Deficiency and redelivers the Deliverable to Client by the end of the twenty (20) day period, Client shall have fifteen (15) days, or the remainder of the Acceptance Period, whichever is longer, to evaluate (and reject as provided above) the same. This process shall be repeated until all Deficiencies are fully corrected by Contractor and Client accepts each Deliverable in writing. The foregoing notwithstanding, if any Deliverable does not conform to or perform in accordance with its Specifications within thirty (30) days after the end of the Acceptance Period, Client may: (i) terminate the applicable Statement of Work without any obligation or liability of any kind to Contractor; or (ii) require Contractor to continue to correct all Deficiencies, while reserving the right to terminate the applicable Statement of Work as set forth above. Within ten (10) days after any termination of a Statement of Work by Client pursuant to this Section 8(b), Contractor shall reimburse to Client all amounts paid by Client to Contractor pursuant to or in connection with any defective Deliverable and Client may provide or prepare or have a third party provide or prepare, as applicable, any such Deliverables. For the avoidance of doubt, Contractor shall not be obligated to reimburse Client for any Deliverables that have been accepted by Client.
- By Contractor. Contractor shall defend, indemnify, and hold Client harmless against all costs and reasonable expenses damages, and liabilities awarded to a third party arising out of any claim by a third party that any use of any of the Contractor’s proprietary software application(s) licensed to Client pursuant to this Agreement (“Contractor Software”) infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States, provided that Client gives Contractor (i) prompt written notice of such claim; (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Contractor may reasonably request, at Contractor’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Contractor shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Contractor Software with products, services, information, materials, technologies, methods or processes not furnished by Contractor; (2) any intellectual property owned by or licensed to Client which is not Contractor Software; (3) failure to use updates to the Contractor Software provided by Contractor; or (4) use of the Contractor Software except in accordance with any applicable user documentation or specifications (circumstances under the foregoing clauses (1), (2), (3) and (4), collectively, “Client Indemnity Responsibilities”). Upon the occurrence of a claim for which indemnity is or may be due under this Section 9(a), or in the event that Contractor believes that such a claim is likely, Contractor may, at its option (i) appropriately modify the Contractor Software so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to Client and refund to Client a ratable portion of any pre-paid amounts hereunder. The obligations set forth in this Section 9 shall constitute Contractor’s entire liability and Client’s sole remedy for any actual or alleged infringement or misappropriation.
- By Client. Client shall indemnify, hold harmless, and, at Contractor’s option, defend Contractor from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Client Indemnity Responsibilities.
- If any civil, criminal, administrative or investigative action or proceeding (any of the foregoing, a “Claim”) is threatened or commenced against any party that a party is obligated to defend or indemnify under Section 9(a) or 9(b) (such party, an “Indemnified Party”), then notice thereof shall be given to the other party (such party, the “Indemnifying Party”) as promptly as practicable; provided, however, that any delay by the Indemnified Party in giving such notice shall not constitute a breach of this Agreement and shall not excuse the Indemnifying Party’s obligation under this Section 9 except to the extent, if any, that the Indemnifying Party is prejudiced by such delay. After such notice, the Indemnifying Party may, if it so elects in writing within ten (10) days after receipt of such notice, take control of the defense, investigation and settlement of such Claim and to employ and engage attorneys of its choice reasonably acceptable to the Indemnified Party to handle, defend and/or settle the same consistent with the Indemnifying Party’s obligations set forth in this Agreement, at the Indemnifying Party’s sole cost and expense. If the Indemnifying Party has taken control of the defense in accordance with this Section 9(c)(i), the Indemnified Party, at the Indemnifying Party’s expense, shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the settlement, investigation, trial and defense of such Claim and any appeal arising therefrom; provided, however, that the Indemnified Party also may, at its own cost and expense, participate through its attorneys or otherwise, in such settlement, investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves an admission of wrongdoing or a remedy other than the payment of money by the Indemnifying Party shall be entered into by the Indemnifying Party without the prior consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed.
- After written notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such Claim pursuant to Section 9(c)(i), the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the investigation, defense or trial of that Claim and any appeal arising therefrom. If the Indemnifying Party does not assume full control over the defense of a Claim pursuant to Section 9(c)(i), then the Indemnfying Party may participate in such investigation, defense or trial, at its sole cost and expense, and the Indemnified Party may defend or settle the Claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party.
- No Limitations. The foregoing indemnity obligations shall be in addition to, and shall in no respect limit or restrict any other remedies that may be available to a party.
- Limitations and Exclusions of Liability. EXCEPT FOR A PARTY’S OBLIGATIONS PURSUANT TO SECTION 6 AND SECTION 9 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT FOR A PARTY’S OBLIGATIONS PURSUANT TO SECTION 6 AND SECTION 9 HEREOF, THE CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO CONTRACTOR BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE CLAIM. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- General Provisions.
- Entire Agreement. The Agreement, its Exhibits and executed and delivered Statements of Work embody the entire agreement between the parties and supersede any and all prior discussions, proposals, representations, negotiations, correspondence and other agreements with respect to the matters contained herein. Except as set forth in this Agreement, this Agreement and its Exhibits may be modified only in a writing signed by both parties.
- Independent Contractor. Contractor and any individual assigned by Contractor is an independent contractor. Contractor and any individual assigned by Contractor are expressly exempted from all Client employee benefits and shall not, at any time, seek such benefits from Client.
- Subcontracting. Contractor may not subcontract any of its obligations to be performed under this Agreement without the prior written consent of Client, which consent Client may withhold in its sole discretion.
- Assignability; Transfer. Other than by operation or law or in connection with a merger, consolidation or sale of all or substantially all of the assets of Contractor, Contractor may not assign or transfer this Agreement without the prior written consent of Client, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the permitted successors and permitted assigns of the parties.
- Notices. All notices that pertain to a legal matter shall be submitted in accordance with Section 11(f)(ii). All other notices shall be submitted as follows: If to Client: _________________________
If to Contractor:
Attn: Brent Doherty, Founder
1934 Old Gallows Road
Vienna, Virginia 22182.
All such notices shall be deemed given when actually received by or delivered to the other party.
- Notice of Litigation and Complaints.
- Contractor shall use commercially reasonable efforts to immediately (but in no event more than two (2) business days) notify Client following its receipt or knowledge of any of the following:
- Notice of commencement of any legal proceeding involving Client, Client Affiliates or insurance policies.
- Any communication from any insurance department, other administrative agency, or an attorney-at-law, or any other person identifying a Complaint pertaining to policies.
- Any communication, concern, notice, or discovery (by whatever means) of any alleged privacy or security violation.
- A request or demand by any court, governmental agency, or regulatory body to examine any of the books and records of Client (or Client Affiliates).
- All notices required or permitted hereunder shall be in writing and shall be delivered by registered or certified mail, return receipt requested, postage prepaid, or by Federal Express or similar express service. Contractor shall mail the original documents and all requested documents to Client within three (3) business days of receipt of such information or request.
- For purposes of Section 11(f), a “Complaint” means any communication received by Contractor that primarily expresses a grievance or dissatisfaction with Client, Client Affiliates, or one of its or their agents or associates.
- Contractor shall use commercially reasonable efforts to immediately (but in no event more than two (2) business days) notify Client following its receipt or knowledge of any of the following:
- Use of Name. Unless otherwise directed in writing by Client, Contractor may identify the Client as a client of Contractor in its promotional and marketing materials.
- Dispute Resolution.
- The parties to this Agreement understand and agree that the implementation of this Agreement will be enhanced by the timely and open resolution of any disputes or disagreements between the parties. Each party hereto agrees to use commercially reasonable efforts to cause any disputes or disagreements between the parties arising out of this Agreement to be considered, negotiated in good faith and resolved as soon as possible.
- Each party’s Project Manager will attempt to resolve any disputes between the parties. At the request of either party, the Project Managers will meet at a mutually agreeable location as soon as possible and as often as necessary in order to gather and furnish the other with all appropriate and relevant information concerning the dispute. The Project Manager will discuss the problem and will negotiate in good faith without the necessity of formal legal proceedings.
- If the matter has not been resolved within fourteen (14) days of their meeting or, if earlier, within thirty (30) days of the initial meeting request, the Project Managers shall refer the matter to senior executives, who shall be of relatively comparable levels of authority in their respective organizations and who shall have authority to settle the dispute (hereinafter called the “Senior Executives”). Thereupon, the Project Managers shall promptly prepare and exchange memoranda stating the issues in dispute and their positions, summarizing the negotiations which have taken place and attaching relevant documents. The Senior Executives will meet for negotiations within fourteen (14) days of the notification by the Project Managers that they are unable to resolve the issue(s), at a mutually agreed upon time and place.
- All statements, documents, and other communications among the parties to such negotiations shall be considered settlement-related and shall not be admissible in any subsequent proceeding for any purpose.
- No resolution or attempted resolution of any dispute or disagreement pursuant to this Section shall be deemed to be a waiver of any term or provision of this Agreement or consent to any breach or default unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.
- Governing Law. This Agreement and the legal relationships between the parties shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its conflicts of laws rules. Any cause of action, case, or controversy arising out of or connected with this Agreement shall be brought only in a court located in Fairfax County, Virginia or the United States District Court for the Eastern District of Virginia, Alexandria Division. THE PARTIES WAIVE ALL RIGHTS TO TRIAL BY A JURY.
- While this Agreement is in effect and for a period of one year thereafter, Contractor shall obtain and maintain, at its own cost and expense, insurance as set forth below. Such insurance shall be written by an insurance company or companies having an A.M. Best rating of at least A-.
- General liability insurance in an amount of $1 million per occurrence and $2 million in the aggregate.
- Worker’s compensation insurance at the statutory limit which policies shall contain a waiver of subrogation against Client and Client Affiliates with respect to any covered claim by worker’s compensation insurance.
- Errors and omissions insurance (also known as professional liability insurance) in an amount of $1 million per occurrence and in the aggregate.
- All policies of insurance shall contain appropriate endorsements extending coverage thereof to include the liability assumed by Contractor under this Agreement. Contractor shall be responsible for the payment of any deductible contained in any of the foregoing policies and certificates of insurance.
- While this Agreement is in effect and for a period of one year thereafter, Contractor shall obtain and maintain, at its own cost and expense, insurance as set forth below. Such insurance shall be written by an insurance company or companies having an A.M. Best rating of at least A-.
- No Waiver. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof of the exercise of any other right, power or remedy. Any waiver granted hereunder must be in writing and shall be valid only in the specific instance in which given.
(l) Solicitation for Employment. Neither party nor any party’s Affiliates shall solicit, hire, contract with, or engage the services of any employee of the other party (or any Affiliate of such other party) with whom a party’s personnel have had contact in the course of performance of this Agreement during the performance of such Services and for one year after the date of termination of performance of such Services that led to such contract. Notwithstanding the foregoing, either party or such party’s Affiliate may hire an employee of the other party (or any Affiliate of such other party) if the individual responds to an advertisement for employment or otherwise inquires about the possibility of employment or engagement of their own accord.
(m) Severability. If any provision of this Agreement or the application of any such provision to any party or circumstance shall be declared to be invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is valid, legal and enforceable so as to materially effectuate the parties’ intent.
(n) Headings. The headings contained in this Agreement have been inserted solely for the convenience of the parties and shall be of no force or effect in the interpretation of this Agreement.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument
- Force Majeure. Contractor shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Contractor. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
IN WITNESS WHEREOF, Client and Contractor certify by their undersigned authorized representatives that they have read this Agreement and agree to be bound by its terms and conditions.
|Client||Conscious Networks, Inc.|