This Terms and conditions for professional services agreement (the “Agreement“), last updated November 4th 2017 (the “Effective Date“), is between Algorip – a Goodly affiliate and a Renesent, Inc. company, a Delaware Corporation with offices located at, 3422 Old Capitol Trail, PMB # 1952, Wilmington DE 19808, United States (the “Service Provider“) and the payee, a corporation, business, DBA, organization, LLC, Government (the “Customer“).
WHEREAS, Customer desires to retain Service Provider to provide certain advisory services upon the terms and conditions hereinafter set forth, and Service Provider is willing to perform such services.
In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:
“Action” has the meaning set forth in Section 11.01.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Service Recipients” means the Persons identified as such in a Statement of Work.
“Agreement” has the meaning set forth in the preamble.
“Change Order” has the meaning set forth in Section 5.02.
“Confidential Information” means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Customer” has the meaning set forth in the preamble.
“Customer Contract Manager” has the meaning set forth in Section 4.01(a)
“Customer Equipment” means any equipment, systems, cabling or facilities provided by Customer and used directly or indirectly in the provision of the Services.
“Customer Materials” any documents, data, know-how, methodologies, software and other materials provided to Service Provider by Customer, including computer programs, reports and specifications.
“Deliverables” means all documents, work product and other materials that are delivered to Customer hereunder or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in a Statement of Work.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Force Majeure Event” has the meaning set forth in Section 17.01.
“Intellectual Property Rights” 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.
“Key Personnel” means any Service Provider Personnel who is identified as being key in a Statement of Work.
“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 any arbitrator, court or tribunal of competent jurisdiction.
“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.
“Permitted Subcontractor” shall mean a third party that has been contracted by Service Provider to provide any part of the Services to Customer.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Pre-Existing Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement or independently of this Agreement.
“Project” means a project as described in/a Statement of Work.
“Project Milestone” means an event or task described in a Statement of Work which shall be completed by the relevant date set forth in the Statement of Work.
“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Service Provider” has the meaning set forth in the preamble.
“Service Provider Contract Manager” has the meaning set forth in Section 3.01(a)(i).
“Service Provider Equipment” means any equipment, systems, cabling or facilities provided by or on behalf of Service Provider and used directly or indirectly in the provision of the Services.
“Service Provider Personnel” means all employees and Permitted Subcontractors, if any, engaged by Service Provider to perform the Services.
“Services” mean any professional or other services to be provided by Service Provider under this Agreement, including without limitation through a Permitted Subcontractor, as described in more detail in each Statement of Work, and Service Provider’s obligations under this Agreement.
“Statement of Work” means each Statement of Work agreed between the parties in accordance with this Agreement including Section 2.02, and attached to this Agreement.
“Term” has the meaning set forth in Article VI.
II.1.Service Provider shall provide the Services to Customer and the Authorized Service Recipients as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement.
II.2.Each Statement of Work shall include the following information, if applicable:
(a) A detailed description of the Services to be performed pursuant to the Statement of Work;
(b) The date upon which the Services will commence and the term of such Statement of Work;
(c) The names of the Service Provider Contract Manager and any Key Personnel;
(d) The fees to be paid to Service Provider under the Statement of Work;
(e) The Project implementation plan, including a timetable;
(f) Project Milestones and payment schedules;
(g) Any criteria for completion of the Services/Project;
(h) Procedures for the testing and acceptance of the Services and Deliverables by Customer; and
(i) Any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
II.Service Provider’s Obligations
II.2.The Service Provider shall:
(a) Comply with, and ensure that all Service Provider Personnel comply with, all rules, regulations and policies of Customer that are communicated to Service Provider in writing, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Customer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures; and
(b) Be shall remain fully responsible for the performance of each Permitted Subcontractor and for their compliance with all of the terms and conditions of this Agreement. Nothing contained in this Agreement shall create any contractual relationship between Customer and any Permitted Subcontractor.
(a) Cooperate with Service Provider in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement (the “Customer Contract Manager”);
(b) Provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider and agreed with Customer in writing in advance, for the purposes of performing each Project;
(c) Respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(d) Provide such Customer Materials/information as Service Provider may reasonably request and Customer considers reasonably necessary, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects;
(e) Ensure that all Customer 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;
(f) Obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, the installation of the Service Provider Equipment, the use of Customer Materials and the use of the Customer Equipment in relation to the Service Provider Equipment to the extent that such licenses, consents and Law relate to Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
(g) Keep, maintain and insure the Service Provider Equipment in good condition, and shall not dispose of or use Service Provider Equipment other than in accordance with Service Provider’s written instructions or authorization.
III.3.If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, or its agents, subcontractors, consultants or employees outside of Service Provider’s reasonable control, Service Provider 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 Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
IV.2.If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Service Provider shall, within a reasonable time after such request (and, if such request is initiated by Customer, not more than 20 business days after receipt of Customer’s written request), provide a written estimate to Customer of:
(a) The likely time required to implement the change;
(b) Any necessary variations to the fees and other charges for the Services arising from the change;
(c) The likely effect of the change on the Services; and
(d) Any other impact the change might have on the performance of this Agreement.
IV.3.Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 18.10.
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work, unless sooner terminated pursuant to Article XIII.
Fees and Expenses; Payment Terms
V.2.In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the applicable Statement of Work.
V.3.Where the Services are provided on a time and materials basis:
(a) The fees payable for the Services shall be calculated in accordance with Service Provider’s daily, weekly, monthly, or annual retainer, as well as percentage gross revenue, percentage fee rate for the Service Provider direct sales, and marketing Service Provider set forth in the applicable Statement of Work; and
(b) Service Provider shall issue invoices to Customer weekly in arrears for its fees for time immediately preceding week, calculated as provided in this Section 7.02, together with a detailed breakdown of any expenses for such week incurred in accordance with Section 7.04.
V.4.Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in installments, as set out in the Statement of Work, with each installment being conditional on Service Provider achieving the corresponding Project Milestone. On achieving a Project Milestone, Service Provider shall issue invoices to Customer for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 7.04.
V.5. Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Customer.
V.6.Service Provider shall issue invoices to Customer only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Service Provider within 10 days after Customer’s receipt of such invoice (the “Settlement Period”), except for any amounts disputed by Customer in good faith. All payments hereunder shall be in US dollars and made by check or wire transfer. “In the event payments are not received by Service Provider within 10 days after becoming due, Service Provider may (a) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under Law, from the date such payment was due until the date paid, and (b) suspend performance for all Services until payment has been made in full, except for any amount disputed in good faith in accordance with Section 7.6.”
V.7.Customer shall be responsible for all 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 Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel or real or personal property or other assets.
V.8. All sales, and payments are final, and there will not be any refund amounts
VI.Intellectual Property Rights; Ownership
VI.2.Except as set forth in Section 8.03, Customer is, and shall be, the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all Intellectual Property Rights therein. Service Provider agrees, and will cause its Service Provider Personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Customer. To the extent that any of the Deliverables do not constitute a “work made for hire”, Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Customer, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
VI.3.Upon the reasonable request of Customer, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Customer to prosecute, register, perfect or record its rights in or to any Deliverables.
VI.4.Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Customer a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 18.07), non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables for any and all purposes/solely to the extent reasonably required in connection with Customer’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
VI.5.Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Service Provider shall have no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer.
VII.2.The Receiving Party agrees:
(a) Not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Article IX;
(b) To use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and Deliverables and
(c) To promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
VII.3.If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) Prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) Reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
VII.4.Nothing in this Agreement shall prevent either party from using any general methodologies or know-how contained in the unaided memory of such party’s personnel or those of its Affiliates developed or disclosed under this Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this Section or using any Intellectual Property Rights of the other party or any of its Affiliates.
VIII.Representations and Warranties
VIII.2.Each party represents and warrants to the other party that:
(a) It is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
(b) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
(c) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
(d) When executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
VIII.3.Service Provider represents and warrants to Customer that:
(a) The Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement and the applicable Statement of Work for a period of 30 days after acceptance by Customer. In the event of Service Provider’s breach of the foregoing warranty, Service Provider’s sole and exclusive obligation and liability and Customer’s sole and exclusive remedy shall be as follows:
(i) The Service Provider shall use reasonable efforts to cure such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach; Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 18.04.
(ii) The foregoing remedy shall not be available unless Customer provides written notice of such breach within 30 days after acceptance of such Service or Deliverable by Customer or with respect to changes made by any Person other than Service Provider or at Service Provider’s direction.
3.EXCEPT FOR THE EXPRESS WARRANTIES IN THIS Article X, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
II.2.Customer shall defend, indemnify and hold harmless Service Provider and Service Provider’s Affiliates and their officers, directors, employees, agents, successors and permitted assigns from and against all Losses awarded against Service Provider in a final judgment arising out of or resulting from any third party Action arising out of or resulting from:
(a) Bodily injury, death of any person or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of Customer; and
(b) Customer’s material breach of any representation, warranty or obligation of Customer in this Agreement.
II.Limitation of Liability
II.1.EXCEPT AS OTHERWISE PROVIDED IN Section 12.03, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA 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 SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
II.2.EXCEPT AS OTHERWISE PROVIDED IN Section 12.03, IN NO EVENT WILL SERVICE PROVIDER’S 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 SERVICE PROVIDER PURSUANT TO THE APPLICABLE STATEMENT OF WORK.
II.3.The exclusions and limitations in Section 12.01 and Section 12.02 shall not apply to:
(a) A party’s indemnification obligations under Article XI (Indemnification); and
(b) Death or bodily injury or damage to real or tangible personal property resulting from a party’s negligent acts or omissions.
III.Termination; Effect of Termination
III.1.Either party, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, at any time without cause, by providing at least sixty (60) days’ prior written notice to the other party.
III.2.Either party may terminate this Agreement, effective immediately upon 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. For the avoidance of doubt, a failure by Customer to pay Service Provider for an invoice made by Service Provider to Customer in accordance with Section 7.03 (“Invoice Breach”), shall be deemed to be a breach that is incapable of cure; and three occurrences of an Invoice Breach by Customer shall be deemed to be a material breach of this Agreement; and
(i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) 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 or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) 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.
III.3.The rights and obligations of the parties set forth in this Section 13.03 and Article I, Article VIII, Article IX, Article X, Article XII, Section 13.03, and Article XVI, 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.
The Service Provider retains the right to perform the same or similar type of services for third parties during the Term of this Agreement.
V.1.No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation:
(a) Acts of God;
(b) Flood, fire or explosion;
(c) War, invasion, riot or other civil unrest;
(d) Actions, embargoes or blockades in effect on or after the date of this Agreement;
(e) National or regional emergency;
(f) Strikes, labor stoppages or slowdowns or other industrial disturbances;
(g) Compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent;
(h) Shortage of adequate power or telecommunications or transportation facilities; or
(i) Any other event which is beyond the reasonable control of such party
(each of the foregoing, a “Force Majeure Event“). 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.
VI.1.Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
VI.2.The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
VI.3.Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s trademarks, service marks, trade names, logos, symbols or brand names, in each case, without the prior written consent of the other party.
VI.4.All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given when sent via email to the email addresses of the parties indicated below (or at such other email address for a party as is communicated to the other party in writing) to hello@Algorip.com
VI.5.For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits and Statements of Work refer to the Sections of, and Schedules, Exhibits and Statements of Work attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and Statements of Work referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
VI.6.This Agreement, together with all Schedules, Exhibits and Statements of Work and any other documents incorporated herein by reference, 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 those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Exhibits and Schedules; (b) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to this Agreement.
VI.7.Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void.
VI.8.This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
VI.9.The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
VI.10.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. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
VI.11.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 effect 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.
VI.12. Governing Law; Disputes.
(a) Governing law. Subject to Section 18.12(b) below, this Agreement and all related documents, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act shall have any application to this Agreement.
(b) Arbitration of disputes. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings; and the state of arbitration shall be Delaware.
VI.13.Each party acknowledges that a breach by a party of Article VIII(Intellectual Property Rights; Ownership) or Article IX (Confidentiality) 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.
VI.14.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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date invoice, or work statement is paid.