Last updated on 4.25.2024
This Master Services Agreement (this "Agreement") is effective upon the date of the addendum signing (the
"Effective Date"), by and between Vector
Choice Technologies, LLC ("Vector Choice"),
and (Client) (collectively "Parties"), (individually "Party").
Recitals
A. Vector
Choice is a provider of Managed IT Services, Cloud Services, Cyber Security
& Compliance Services, IT Consulting, Hardware and Software Consulting,
Building Tech Solutions, and CTO, CSO, CCO Services ("Services") and Hardware
and Software Procurement ("Product"); and
B. Client
may consider Products or Services from Vector Choice pursuant to an addendum(s)
to this Agreement ("Addendum").
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows:
1.
Definitions. For the purposes of this Agreement, the
following terms have the meaning set forth below:
· "Addendum"
has the meaning set forth in the Recitals.
· "Affiliate" is a person who is
directly or indirectly under common control (the power to direct or cause the
direction, including through the ownership, voting proxies, by contract or
otherwise) a Party.
· "Confidential Information" means
any information that is not publicly known and is treated as confidential by a Party
(i.e., personally identifiable information, trade secrets, information about
business operations and strategies, Clients, contract terms, vendors, pricing,
and marketing).
· "Client Equipment" means any
equipment, cabling or facilities provided by Client and used in the provision
of Services.
· "Client Materials" means any
documents, data, methodologies, and other materials provided to Vector Choice
by Client.
· "Deliverables" means work product
delivered to Client pursuant to an hereunder or prepared by or on behalf of
Vector Choice in the course of performing Services pursuant to an Addendum.
· "Disclosing Party" means a party
that discloses Confidential Information under this Agreement.
· "Initial
Assessment" means the process of accessing, understanding, and evaluating
Client's current System, network, and peripherals as a critical first step
before initiating a managed services engagement and involves gathering
essential information to create a tailored service plan.
· "Intellectual Property Right(s)" means
all: (a) patents, patent disclosures and inventions (whether patentable or not);
(b) trademarks, service marks, trade dress, trade names, logos, corporate names
and domain names, together with all of the goodwill associated therewith; (c)
copyrights and copyrightable works (including computer programs) and rights in
data and databases; (d) trade secrets, know-how and other confidential
information; and (e) all other intellectual property rights, in each case
whether registered or unregistered and including all applications for, and
renewals or extensions of, such rights, and all similar or equivalent rights or
forms of protection in any part of the world.
· "Law" means any statute, law,
ordinance, regulation, rule, code, order, constitution, treaty, common law,
judgment, decree, other requirement, or rule of law of any federal, state,
local or foreign government or political subdivision thereof, or tribunal of
competent jurisdiction that applies to a Party.
· "Losses" mean all losses, damages,
liabilities, deficiencies, actions, judgments, interest, awards, penalties,
fines, costs, or expenses of whatever kind, including reasonable attorneys'
fees and the cost of enforcing any right to indemnification hereunder and the
cost of pursuing any insurance providers.
· "MSA"
means Master Services Agreement
· "Permitted Subcontractor" has the
meaning set forth in Section 2.1(b).
· "Person" means an individual,
corporation, limited liability company, partnership, joint venture,
governmental authority, unincorporated organization, trust, association, or
other entity.
· "Project"
means a project as described in an Addendum.
· "Receiving Party" means a party
that receives or acquires Confidential Information directly or indirectly under
this Agreement.
·
"Services" has
the meaning set forth in the recitals and includes any services provided by
Vector Choice pursuant to an Addendum hereto, which shall be made a part of,
and incorporated into, this Agreement.
·
"System"
means the Client's assemblage of devices, hardware, software, peripherals,
data, processes, networks, servers, and related components.
·
"Term"
as it relates to this MSA and Addendum term(s) have the meaning set forth in
Section 4.
·
"Vector
Choice Equipment" means any equipment or hardware provided by Vector
Choice and used in the provision of the Services for which ownership has not
transferred to Client.
·
"Vector
Choice Resources" means all employees and Permitted Subcontractors, of
Vector Choice.
2. Vector
Choice's Obligations.
2.1 Upon execution of an Addendum to this
Agreement, Vector Choice shall:
(a)
Appoint one Vector Choice Personnel as
primary contact with authority to act on behalf of Vector Choice in connection
with matters pertaining to this Agreement (the "Vector Choice COO and/or CEO");
(b)
Require any
Person engaged as subcontractors of Vector Choice to provide Services pursuant
to an Addendum ("Permitted Subcontractor") to be bound similar to no
less restrictive requirements than those of Vector Choice in this Agreement,
and, upon Client's written request, to enter into a non-disclosure or
intellectual property assignment or license agreement in a form that is
reasonably satisfactory to Client.
3.
Client's
Obligations.
3.1
Client shall:
(a)
cooperate with Vector Choice to
facilitate the Services and appoint a Client's employee to serve as the primary
contact with respect to this Agreement and who will have the authority to act
on behalf of Client with respect to matters pertaining to this Agreement;
(b)
obtain and
maintain all necessary licenses and consents and comply with all applicable Laws
in relation to the Services, including all applicable local, state, federal,
and international laws in all cases before the date on which the Services are
to start;
(c)
grant Vector Choice the right to send
Client's employees Vector Choice's Newsletter, "Tech Tips" and other email
communications; and
(d)
allow Vector Choice to access the
System through a reputable third-party software provider allowing remote
monitoring and access. Such access includes Vector Choice's ability to assess
Client's System for the Initial Assessment. Due to such remote access, Vector
Choice cannot guaranty security of Client data. Vector Choice shall use a
reputable third-party software to access the System.
(e)
provide
such access to Client's premises, and such office accommodation and other
facilities as may reasonably be requested by Vector Choice and agreed to by the
Client in writing in advance, for the purposes of performing the Services;
(f)
respond
promptly to any Vector Choice request to provide direction, information,
approvals, authorizations or decisions that are reasonably necessary for Vector
Choice to perform Services in accordance with the requirements of this
Agreement;
(g)
provide
such Client Materials as Vector Choice may request, in order to carry out the
Services, in a timely manner, and ensure that it is complete and accurate in
all material respects; and
(h)
ensure that all Client Equipment is in good working order
and suitable for the purposes for which it is used in relation to the Services
and conforms to all relevant legal or industry standards or requirements. Client should, at Client's expense, procure and
maintain cyber insurance covering Client's system with a financially sound and
reputable insurer. Upon request, Client will provide Vector Choice with a
certificate of insurance from Client's insurer evidencing the insurance
coverage.
(i)
ensure that Client
Equipment, Systems and any relevant devices are required to maintain an active
and applicable warranty throughout the duration of this Agreement. In the event
that any warranty, as required by this Agreement, is inactive, inapplicable, or
invalid or if technological advancements or industry standards necessitate a
warranty upgrade during the term of this Agreement, Vector Choice may
automatically renew or upgrade any such applicable warranty to meet the
requirements herein. Client shall be responsible for the costs and fees
associated therewith, which will be due upon receipt of an invoice associated
with such warranty.
4.
Term,
Termination and Survival.
4.1
This
Agreement shall commence as of the Effective Date and shall continue thereafter
for as long as an Addendum to this Agreement is continuing plus one (1) year
after the completion of Services under all Addendums, unless sooner terminated
pursuant to Section 4.2 or Section 4.3 below. Vector Choice is not providing
any services under this Agreement (services are specified and provided under
Addendums), Client understands Client will remain bound by this Agreement for
provisions including but not limited to, items regarding confidentiality,
payment of fees, and limitation of liability.
4.2
Either Party may terminate this
Agreement, effective upon sixty (60) days written notice to the other Party
(the "Defaulting Party") if the
Defaulting Party:
(a)
materially breaches this Agreement,
and such breach is incapable of cure, or with respect to a material breach
capable of cure, the Defaulting Party does not cure such breach within thirty
(30) days after receipt of written notice of such breach;
(b)
becomes insolvent or admits its
inability to pay its debts generally as they become due;
(c)
becomes subject, voluntarily or
involuntarily, to any proceeding under any domestic or foreign bankruptcy or
insolvency law, which is not fully stayed within seven business days of filing
or is not dismissed or vacated within forty-five (45) days after filing;
(d)
is dissolved or liquidated or takes
any corporate action for such purpose;
(e)
makes a general assignment for the
benefit of creditors; and
(f)
has a receiver, trustee, custodian, or
similar agent appointed by order of any court of competent jurisdiction to take
charge of or sell any material portion of its property or business.
4.3
Notwithstanding anything to the
contrary in Section 3.2, if the termination is by Client and not for Cause or
is by Vector Choice and resulting from a breach by Client, Client shall pay:
(a)
a termination fee equal to the cost of
six (6) months' worth of the average fees paid by Client per month over
the prior twelve (12) months, or the actual remaining months of fees if less than six (6) months
remain on the term. ("Early Termination Fee").
(b)
any unpaid monthly fees due through
the termination date of the Addendum; and
(c)
all amounts for Products, vendor
service and equipment commitments made by Vector Choice's in order to provide
Services to Client for (1) the remainder of the Term, or (2) the termination
fees required by of Vector Choice's to terminate such commitments, whichever is
less. Some vendors, i.e. Microsoft, do not allow early termination of license
fees and Client understands and consents to payment of the licenses for the
remainder of the license term.
4.4
In addition to the provisions included
in this Section 4.4, Vector Choice may terminate this Agreement before the expiration
date of the Term on written notice if Client fails to pay any amount when due
hereunder. Payment is due within fifteen (15) days from the date of any invoice
(Net 15). Client is granted a five (5)
day grace period before a late fee applies, and if payment is not received
within twenty (20) days of the date of any invoice, a late fee shall apply.
Furthermore, if Client's nonpayment continues for thirty (30) days from the
date of an invoice, Vector Choice will provide Client with written notice that Client
is behind on satisfying its payment obligations for services rendered. If
Client's nonpayment persists for sixty (60) days, Vector Choice may shut down
Client's access to Vector Choice support services. If Client's nonpayment
persists for ninety (90) days, Vector Choice may shut down support along with
all other services Client receives from Vector Choice. If Client cures its
nonpayment between sixty (60) and eighty-nine (89) days from the date of the
applicable invoice, a reactivation fee of 10% of the unpaid invoice(s) shall
apply. If Client cures its nonpayment within ninety (90) days or thereafter, a
reactivation fee of 25% of the unpaid invoice(s) shall apply. VECTOR CHOICE
SHALL HAVE NO LIABILITY FOR ANY SUSPENSION OF SERVICES BASED ON CLIENT'S
FINANCIAL BREACH. Time is of the essence in the performance of all payment
obligations by Client.
4.5
The rights and obligations of the Parties
set forth in Section 4.6 and in Sections
7, 8, 9, 10, 11, 12, 13 and 15, and any right or obligation of the parties
in this Agreement which, by its nature, should survive termination or
expiration of this Agreement, will survive any such termination or expiration
of this Agreement.
4.6
Upon
expiration or termination of an Addendum to this Agreement:
(a)
Vector Choice shall; (i) promptly
deliver to Client all Deliverables (whether complete or incomplete) for which
Client has paid and all Client Equipment and all Client Materials; (ii)
promptly remove any Vector Choice Equipment located at Client's premises that
has not been sold to Client; (iii) provide reasonable cooperation and
assistance to Client upon Client's written request and at Client's expense in
transitioning the Services to an alternate service provider; and (iv) on a pro
rata basis, repay all fees and expenses paid in advance for any Services or
Deliverables which have not been provided;
(b)
Client shall pay and reimburse Vector
Choice for its costs in providing the transition services set forth in Section
5.5(a), in advance based upon Vector Choice's estimate of costs for transitions
services at its then-current billable rates; and Vector Choice shall reconcile
actual charges for transition to new service provider with the prepaid amount
described above within thirty (30) days of completion of transition assistance.
(c)
Each Party shall; (i) return to the
other Party all documents and tangible materials (and any copies) containing,
reflecting, incorporating or based on the other Party's Confidential
Information; (ii) within sixty (60) days after the termination of services
permanently erase all of the other Party's Confidential Information from its
computer systems and; (iii) certify in writing to the other Party that it has
complied with the requirements of this clause; provided, however, that Client
may retain copies of any Confidential Information of Vector Choice incorporated
into the Deliverables or to the extent necessary to allow it to make full use
of the Services and any Deliverables. Notwithstanding anything herein to the
contrary, Vector Choice may permanently delete all of Client's information in
its possession sixty (60) days following the date of expiration or termination
of this Agreement.
i.
Vector Choice shall be held harmless
for and indemnified by Client against any and all claims, costs, fees, or
expenses incurred by either party that arise from, or are related to, Vector
Choice's deletion of Client data beyond the time frames described in this
Section.
(d)
Vector Choice shall have no obligation
to store or maintain any Client data in Vector Choice's possession or control
for more than fifteen (15) days following the expiration or termination of an
applicable Addendum, unless otherwise required by law.
5.
Fees and Expenses; Payment Terms. Client
will pay to Vector Choice fees set forth in each Addendum for the Services or
Products provided under that Addendum. Any Services beyond the scope detailed
within an Addendum(s), or within the scope of an Addendum but for which
Services are required to be performed outside of regular business hours of 8:00
a.m. to 5:00 p.m. local time, Monday-Friday ("Business Hours"), or on [New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Friday following
Thanksgiving Day, Christmas Eve, Christmas Day or New Year's Eve] ("Holiday"),
or due to unauthorized modifications to System by Client ("Out-of-Scope Work"),
shall be billed to Client and Client shall pay
for such Out-of-Scope Work according to Vector Choice's then-current
rate schedule, which can be found at https://vectorchoice.com/ratecard, which may be modified by Vector Choice with
notice to Client. Out-of-Scope Work
shall not be provided to Client without written confirmation by either party
within thirty (30) days of such request and an invoice may serve as such
confirmation. All Vector Choice representations relating to time relating to
Out-of-Scope Work are estimates of actual time and not a guarantee or agreement
to perform for a fixed fee as time and cost involved may vary based upon the
issues. Client may halt Out-of-Scope Work at any time with notice and payment
of balance of work performed. Different hourly rates may apply based upon
overtime, weekends or Holiday time, different levels of personnel experience,
and/or sophistication of work. Unless otherwise provided in the Addendum, said
fee will be payable within thirty (30) days of invoice to Client. Vector Choice
shall add any sales, use and excise taxes, and any other similar taxes, duties
and charges of any kind imposed by any federal, state or local governmental
entity on any amounts payable by Client hereunder; provided, that, in no event
shall Client pay or be responsible for any taxes imposed on, or with respect
to, Vector Choice's income, revenues, gross receipts, personnel or real or personal
property or other assets.
6.
Intellectual
Property Rights; Ownership.
6.1
Vector Choice hereby irrevocably
assigns a nonexclusive right throughout the world in and to the Deliverables.
6.2
Vector Choice and its licensors are,
and shall remain, the sole and exclusive owners of all right, title and
interest in and to its Intellectual Property.
6.3
Except as
explicitly set forth in this Section 6, no other license or transfer of any
Intellectual Property right is conveyed or implied by this Agreement.
7.
Confidential
Information.
7.1
Defined.
Confidential Information shall mean any and all non-public information provided
to Vector Choice by Client, including but not limited to Client's customer
data, personally identifiable information, employee information, customer
lists, internal Client documents, and related information. Confidential
Information shall not include information that: (i) has become part of the
public domain through no act or omission of Vector Choice; (ii) was developed
independently by Vector Choice; (iii) is or was lawfully and independently provided
to Vector Choice prior to disclosure by Client, from a third party who is not
and was not subject to an obligation of confidentiality or otherwise prohibited
from transmitting such information.
7.2
Use. Vector Choice shall keep Client's
Confidential Information confidential and shall not use or disclose such
information to any third party for any purpose except as needed to perform
hereunder. If Vector Choice is required to disclose the Confidential Information
to any third party, then Vector Choice shall, by written agreement, keep the
information confidential under terms that are at least as restrictive as those
stated in this Section.
7.3
Due Care.
Vector Choice shall exercise the same degree of care with respect to the
Confidential Information it receives from Client as Vector Choice normally
takes to safeguard its own confidential and proprietary information, which in
all cases shall be at least a commercially reasonable level of care.
7.4
Compelled Disclosure.
If Vector Choice is legally compelled by subpoena or similar process to
disclose Confidential Information, Vector Choice shall notify Client in writing
so that Client may seek a judicial remedy. Vector Choice will cooperate, at
Client's expense, with Client efforts to obtain judicial relief. Failing Client
securing judicial relief, Vector Choice may disclose, without liability
hereunder, that portion of the Confidential Information that it is legally
compelled to disclose.
7.5
Vector
Choice Information. Client shall
not disclose information provided to Client by Vector Choice relating to
proposals, pricing or deliverables of Vector Choice to Client.
8.
Limited
Warranty.
8.1
Vector Choice warrants only that its
technicians are qualified to provide the Services. In the event of Vector
Choice's breach of the foregoing warranty, Vector Choice's sole and exclusive
obligation and liability and Client's sole and exclusive remedy shall be as
follows:
(a)
Vector Choice shall use reasonable
efforts to cure such breach; provided, that if Vector Choice cannot cure such
breach within a reasonable time (but no more than thirty (30) days) after
Client's written notice of such breach; Client may, at its option, terminate
the Agreement by serving written notice of termination in accordance with
Section 13.1.
(b)
In the event the Agreement is
terminated in accordance with this Section 8.1, Vector Choice shall within
thirty (30) days after the effective date of termination, refund to Client any
fees paid by the Client as of the date of termination for such Service or
Deliverable less a deduction equal to the fees for receipt or use of such
Deliverables or Service up to and including the date of termination on a
pro-rated basis.
(c)
The foregoing remedy shall not be
available unless Client provides written notice of such breach within thirty
(30) days after delivery of such Service or Deliverable to Client or with
respect to changes made by any Person other than Vector Choice or at Vector
Choice's direction.
8.2
EXCEPT FOR
THE EXPRESS WARRANTIES IN SECTION 8.1 ABOVE; (A) VECTOR CHOICE HEREBY DISCLAIMS
ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS
AGREEMENT, AND; (B) VECTOR CHOICE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT. CLIENT SHALL RELY UPON
THE WARRANTY OF THE THIRD-PARTY MANUFACTURER OF PRODUCTS ONLY. CLIENT MAY
PURSUE WARRANTY CLAIMS AGAINST THE MANUFACTURER ONLY, AS PRODUCTS ARE PROVIDED
BY VECTOR CHOICE "AS IS", WITH ALL FAULTS AND SUBJECT TO ANY LICENSE AGREEMENT.
9.
Indemnification.
9.1
Each party
(an Indemnifying Party") hereby agrees to indemnify, defend and hold the other
party (an "Indemnified Party") harmless from and against any and all loss,
damage, cost, expense or liability, including reasonable attorney's fees,
(collectively "Damages") that arise from, or are related to the negligent acts,
negligent omissions or intentional wrongful misconduct of the Indemnifying
Party and/or the Indemnifying Party's incurred, material breach of this MSA.
Wrongful misconduct shall include infringement of copyrights, patent rights
and/or unauthorized or unlicensed use of any material, property, or other work.
9.2
An Indemnitee seeking indemnification
hereunder shall promptly notify the Indemnifying Party in writing of any Action
and cooperate with the Indemnifying Party at the Indemnifying Party's sole cost
and expense. The indemnifying Party shall immediately take control of the
defense and investigation of such Action and shall employ counsel of its choice
to handle and defend the same, at the Indemnifying Party's sole cost and
expense. The indemnifying Party shall not settle any Action in a manner that
adversely affects the rights of the Indemnitee without the Indemnitee's prior
written consent, which shall not be unreasonably withheld or delayed. The
Indemnitee's failure to perform any obligations under this Section 10.2 shall
not relieve the Indemnifying Party of its obligations under this Section 10.2
except to the extent that the Indemnifying Party can demonstrate that it has
been materially prejudiced as a result of such failure. The Indemnitee may
participate in and observe the proceedings at its own cost and expense.
10.
Limitation of Liability.
10.1
IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE,
OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING
OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2
IN NO EVENT SHALL VECTOR CHOICE'S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER
ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO VECTOR CHOICE
PURSUANT TO THE APPLICABLE ADDENDUM IN THE TWELVE (12) MONTH PERIOD PRECEDING
THE EVENT GIVING RISE TO THE CLAIM.
10.3
In the event
Vector Choice's insurance carrier accepts the defense and indemnification of a
claim submitted by Client, the preceding provisions of Section 11 shall not apply
and the limits of liability shall be the accepted limit of the insurer.
10.4
In the event
that Vector Choice cause any damage to Client's personal property, Vector
Choice shall replace the damaged personal property.
10.5
VECTOR CHOICE
SHALL NOT BE LIABLE FOR DELAY IN PERFORMANCE OR NONPERFORMANCE OF ANY TERM OR
CONDITION OF THIS MSA DIRECTLY OR INDIRECTLY RESULTING FROM LACK OF FULL AND
FREE ACCESS TO SYSTEM OR PREMISES. THIS LIMITATION OF LIABILITY REPRESENTS A
BARGAINED FOR EXCHANGE AND IS A MATERIAL COMPONENT TO THE CALCULATION OF FEES
BY VECTOR CHOICE. NOTWITHSTANDING THE FOREGOING, VECTOR CHOICE SHALL NOT BE
LIABLE FOR ANY DAMAGES WHICH WERE CAUSED OR WOULD HAVE BEEN PREVENTED BY
PRODUCTS OR SOFTWARE OFFERED TO CLIENT BY VECTOR CHOICE FOR WHICH CLIENT
DECLINED OR DELAYED IMPLEMENTATION, OR FOR THE INTENTIONAL CRIMINAL ACTS OF THIRD
PARTIES.
10.6
IF VECTOR
CHOICE'S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS PREVENTED OR
DELAYED BY ANY ACT OR OMISSION OF CLIENT OR CLIENT'S AFFILIATES, AGENTS,
SUBCONTRACTORS, CONSULTANTS OR EMPLOYEES, VECTOR CHOICE SHALL NOT BE DEEMED IN
BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE LIABLE FOR ANY
COSTS, CHARGES OR LOSSES SUSTAINED OR INCURRED BY CLIENT, IN EACH CASE, TO THE
EXTENT ARISING DIRECTLY OR INDIRECTLY FROM SUCH PREVENTIONS OR DELAY.
11. Placement
Fee.
11.1
Client agrees that during the Term of
this Agreement and for a period of twelve (12) months thereafter, Client will
pay Vector Choice the Placement Fee for, individually or in conjunction with
others, hiring or retaining, directly or indirectly any of Vector Choice's
employees or subcontractors ("Vector Choice Resources") in order to compensate
Vector Choice for the internal and external costs of recruitment, interviewing,
placement expenses, training, certification and other efforts of Vector Choice
relative to such person. "Placement Fee" means fifty percent (50%) of that
employee or subcontractor's annualized compensation with Vector Choice
(including any bonuses) which shall be due and payable fifteen (15) days
following Client's hiring of a Vector Choice Resource.
12. Force
Majeure. No Party shall be liable or
responsible to the other Party, nor be deemed to have defaulted for any failure
or delay in fulfilling or performing any (except for payment obligations of
Client for Services actually rendered), to the extent such failure or delay is
caused by, or results from, acts beyond the affected Party's reasonable control
(a "Force Majeure Event"), including, without limitation: (a) nature disaster;
(b) flood, fire or explosion; (c) war, invasion, riot or other civil unrest;
(d) actions, embargoes or blockades; (e) national or regional emergency;
(f) strikes, labor stoppages or slowdowns; (g) compliance with any law or
governmental order, rule, regulation or direction, embargo, export or import
restriction, quota or other restriction or prohibition; (h) shortage of
adequate power or telecommunications facilities; (i) epidemic; or (j) public
health emergency. A Party whose performance is affected by a Force Majeure
Event shall give notice to the other Party, stating the period of time the occurrence
is expected to continue and shall use diligent efforts to end the failure or
delay and minimize the effects of such Force Majeure Event. During the Force Majeure Event, the
non-affected Party may similarly suspend its performance obligations until such
time as the affected Party resumes performance. The non-affected Party may
terminate any affected Addendum if such failure or delay continues for a period
of thirty (30) days or more.
13.
Miscellaneous.
13.1
Notices.
All notices, requests, consents, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been given (a) when
delivered by hand (with written confirmation of receipt); (b) when received by
the addressee if sent by a nationally recognized overnight courier (receipt
requested); or (c) on the third day after the date mailed, by certified or
registered mail, return receipt requested, postage prepaid. Such communications
must be sent to the respective Parties at the addresses indicated below, or at
such other address for a Party as shall be specified in a notice given in
accordance with this Section 16.4.
If to Vector Choice:
Vector Choice Technologies, LLC
5280 34th St
Lubbock, TX 79407
Attn: William Nobles, CEO
If to Client:
Client Primary Address on Addendum.
13.2
Entire
Agreement. This Agreement, together with Addendums,
constitutes the sole and entire agreement of the Parties to this Agreement with
respect to the subject matter contained herein, and supersedes all prior and
contemporaneous understandings and agreements, both written and oral, with
respect to such subject matter. In the event of any conflict between the terms
and provisions of this Agreement, and any Addendum, the Addendum shall have
precedence except as it relates to term, limitation of liability and warranties.
13.3
Assignment. Neither Party may assign or transfer its
rights or obligations under this Agreement without the prior written consent of
the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, Vector Choice may assign the Agreement to an Affiliate or to a
successor of all or substantially all of the assets of Vector Choice through
merger, reorganization, consolidation or acquisition. Any attempted assignment,
transfer or other conveyance in violation of the foregoing shall be null and
void. This Agreement shall be binding upon and shall inure to the benefit of
the Parties hereto and their respective successors and permitted assigns.
13.4
Recording of Conversations.
For training and quality purposes, each party to this Agreement acknowledges
and agrees to the tape recording of conversations between the parties.
13.5
Amendments.
This Agreement may only be amended, modified, or supplemented by an agreement
in writing signed by each Party hereto. No waiver by any Party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and
signed by the Party so waiving.
13.6
Severability.
If any term or provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this Agreement
or invalidate or render unenforceable such term or provision in any other
jurisdiction. Upon such determination that any term or other provision is
invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good
faith to modify this Agreement so as to affect the original intent of the
Parties as closely as possible in a mutually acceptable manner in order that
the transactions contemplated hereby be consummated as originally contemplated
to the greatest extent possible. If no such
modification is possible, this Agreement shall terminate, and Client shall pay
any sums outstanding for Services actually rendered within thirty (30) days,
and Vector Choice shall refund any sums paid in advance for Services not
rendered within thirty (30) days.
13.7
Choice
of Law and Venue. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Texas
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Texas or any other jurisdiction) that would cause the
application of Laws of any jurisdiction other than those of the State of Texas.
Any legal suit, action or proceeding arising out of or related to this
Agreement or the Services provided hereunder shall be instituted exclusively in
the federal courts of the United States or the courts of the State of Texas in
each case located in the City of Lubbock, TX, and each Party irrevocably
submits to the exclusive jurisdiction of such courts in any such suit, action
or proceeding. Service of process, summons, notice or other document by mail to
such Party's address set forth herein shall be effective service of process for
any suit, action or other proceeding brought in any such court.
13.8
Waiver of Jury Trial. Each Party acknowledges that any controversy that
may arise under this Agreement, INCLUDING ADDENDA, is likely to involve
complicated issues and, therefore, each such Party irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any legal action arising out of or relating to this Agreement.
13.9
Equitable
Relief. Each Party acknowledges that a breach by a
Party of Intellectual Property Rights or Confidential Information may cause the
non-breaching Party irreparable damages, for which an award of damages would
not be adequate compensation and agrees that, in the event of such breach or
threatened breach, the non-breaching Party will be entitled to seek equitable
relief, including a restraining order, injunctive relief, specific performance
and any other relief that may be available from any court, in addition to any
other remedy to which the non-breaching Party may be entitled at law or in
equity. Such remedies shall not be deemed to be exclusive but shall be in
addition to all other remedies available at law or in equity, subject to any
express exclusions or limitations in this Agreement to the contrary.
13.10
Attorneys'
Fees. In the event that any action, suit, or other
legal proceeding by either Party against the other Party arising out of or
relating to this Agreement, the prevailing Party shall be entitled to recover
its reasonable attorneys' fees and court costs from the non-prevailing Party.
13.11
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall be deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or
other means of electronic transmission shall be deemed to have the same legal
effect as delivery of an original signed copy of this Agreement.
