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Service Agreement

SIGNING UP FOR INTEVEO’S SERVICE CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THE SERVICE AGREEMENT. ANY OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ELECTRONICALLY ACCEPTING THE TERMS AND CONDITIONS DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE; (2) YOUR SUBMITTAL OF AN ORDER; (3) YOUR USE OF THE SERVICE DESCRIBED HEREIN. YOU AGREE TO BE BOUND BY THE TERMS OF THE SERVICE AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE INTO THE SERVICE AGREEMENT BY TAKING THESE ACTIONS.

  1. Delivery of Services.

1.1. Introduction. These Terms and Conditions, together with any Inteveo Service Agreement, end-user license agreement, end-user service agreement, other terms and conditions, operating rules, policies, price schedules, or other supplemental documents entered into between you and Inteveo or that are otherwise applicable to your services and/or expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between Inteveo, Inc., a Nevada corporation (hereinafter referred to as “we,” “us” “Company” “EcoLink” or “Inteveo”) and the party set forth in the related registration order form (hereinafter referred to as “you,” “user” or “Customer”) regarding Inteveo’s Service (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “Inteveo” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.

 

1.2. General. By executing the Service Agreement and any subsequent order(s), Customer shall accept and pay for, and Company shall provide and support, the Services during the Initial Term listed in the Service Agreement and for any Renewal Term.  Accordingly, except as expressly provided in the Terms and Conditions, Company shall provide, and Customer shall pay for, each Service as defined in the Service Agreement through its Initial Term and any subsequent Renewal Term. This Agreement is subject to credit approval by Company in its sole discretion.

1.3. Scope. Company shall furnish services (the “Services”) as detailed and specified in Service Agreement(s) executed and attached to original Agreement by the Parties (each, a “Service Agreement”). An individual Service Agreement shall be executed for each additional Service agreed to by the Parties, provided nothing contained herein shall be construed as obligating Customer to enter into any additional or subsequent Service Agreements. Each subsequent Service Agreement shall reference these Terms and Conditions and incorporate the terms hereof as well as contain a description of the services performed by Company, and any applicable fee, billing and/or invoice information as well as additional information required for the successful completion of Services. A particular Service Agreement may contain terms in addition to those contained herein, provided that the terms do not conflict with the provisions of these Terms and Conditions. The provisions of these Terms and Conditions shall control over any conflicting provisions in any Service Agreement, except to the extent that a provision of these Terms and Conditions is expressly superseded in such Service Agreement.

1.4. Term. The Service Agreement defines the Term of each Service, which shall be four (4) year from the Effective Date of each Service Agreement (“Initial Term”).

1.4.1.      Term Commencement.  The term for each Service will commence on the Service Activation Date and shall continue for the entire Initial Term. These Terms and Conditions shall continue in full force and effect until the termination of the last Service Agreement. 

1.4.2.      Renewal Term.  Each term of each Service Agreement will renew automatically for additional terms equal in length to the Initial Term (each a “Renewal Term”) unless Customer notifies Company in writing not less than ninety (90) calendar days prior to the end of the Initial Term (or any subsequent Renewal Term, as applicable), that it wishes to terminate such Service.  The termination of any individual Service will not affect Customer’s obligations to accept and pay for all other contracted Services.

1.4.3.      Early Termination Charges (“ETF”). If a Service or Device described in the Service Agreement, a line of service or feature for the Inteveo  Service Plan, is cancelled, terminated, or converts to a line of service or feature that is not the Inteveo Service Plan or in the Service Agreement referenced herein or added within the Term, then Inteveo shall charge an early termination fee equal to the total fees owed for the remainder of the Term for any cancelled, terminated, or converted Service, Device, feature, or product. Additionally, if Customer terminates the entire Agreement with Inteveo within the Term, then Customer will pay an early termination fee equal to the total amount owed to Inteveo for the remainder of the Term under the Agreement.

 

  1. Compensation and Payment.

2.1.   Fees and Expenses.  Customer will pay all fees due according to the prices and terms listed in all Service Agreement(s).  Further, Customer shall pay Company for all fees or costs for third party products or services that Company procures on behalf of Customer. The prices listed in the Service Agreement(s) will remain in effect during the Initial Term indicated in the Service Agreement(s) and will continue thereafter, unless modified as set forth in Section 2.2.

 

2.2.   Changes in Fees.  At any time after the Initial Term, Company may change any of the fees it charges Customer for any Service.  Such changes in fees shall be effective thirty (30) calendar days after Company provides written notice to Customer of the change. If any change in fees causes a material and adverse effect to the Customer, then within ten (10) calendar days from the date of the foregoing notice from Company, Customer must provide written notice to Company that it challenges the changed fees.  Within ten (10) calendar days thereafter, Company shall elect either to continue to provide the Services under the prior terms or terminate the Service Agreement, which decision shall be effective ten (10) calendar days after notice of same to Customer.

 

2.3.   Payment TermsPayment Terms are normally Due Upon Receipt or as indicated by the Service Agreement or each particular invoice. On the Service Activation Date for each Service, Company shall bill Customer for all non-recurring fees indicated in the Service Agreement and the monthly recurring fees for the first month of the term.  Customer shall submit all non-recurring fees and the 1st month of service fees specified in the Service Agreement to Company upon execution of the Service Agreement. Customer shall also continue to submit the minimum monthly recurring fees to Company on or before the 1st of each subsequent calendar month once the service has commenced.  All other fees for Services received and expenses incurred for Services during a month (e.g., IT Services, consulting, creative design, content creation, programming, design, development, usage fees, and any other professional services) will be invoiced on the 1st day of the month following the month in which the Services were provided and payment shall be due upon receipt.

 

2.4.   Effective Date. The “Effective Date” of each Service Agreement shall be the first day of the calendar month following completion of Service installation and billing commencement.

 

2.5.   Late Payments.  Any payment not received within ten (10) calendar days of the date of the invoice will accrue late fees including a $300 late fee, $100 for each additional late day and if account balance is not paid off in full by the 10th of the month then the Company may elect to disconnect services and a reactivation fee of $750 will be assessed to commence each service. If Customer’s account becomes past due, Customer will receive written notice to that effect and will have five (5) business days to respond to the notification (cure period). If Customer fails to respond to the past due notification and make arrangements to bring the account current within the five (5) business days Company may cease the provision of Service until such time as Customer responds to the past due notification and brings its account current. If customer continues to be habitually delinquent in its payments, Company may, upon written notice to Customer, modify the payment terms to require full payment before the provision or continued use of all Services (both currently contracted and scheduled future provisioned), or require a deposit or other assurances to secure Customer’s payment obligations hereunder.

 

2.6.   Events of Default. A “Default” shall occur if (a) Customer fails to make payment as required under this Agreement and such failure remains uncorrected for seven (5) calendar days after written notice from Company; or (b) either party fails to perform or observe any material term or obligation (other than making payment) contained in this Agreement, and any such failure remains uncorrected for thirty (30) calendar days after written notice from the non-defaulting party informing the defaulting party of such failure. If Customer uses the Services for any unlawful purpose or in any unlawful manner, Company will constitute a material breach of this Agreement and Company shall have the right to immediately suspend and/or terminate any or all Services hereunder without notice to Customer (“Termination for Cause”).

 

         In the event of a Customer Default for any reason or Termination for Cause, Company may: (i) suspend Service to Customer; (ii) cease accepting or processing orders for Services and/or; (iii) terminate this Agreement. If this Agreement is terminated due to a Customer Default or Terminated for Cause, such termination shall not affect or reduce Customer’s minimum monthly commitments required under this Agreement, if applicable, and all Early Termination Charges shall apply. Customer agrees to pay Company’s reasonable expenses (including attorneys’ and collection agency fees) incurred in enforcing Company’s rights in the event of a Customer Default or Termination for Cause.

 

         In the event of a Company Default, Customer may terminate this Agreement without incurring Early Termination Charges. Customer will, however, remain liable for all charges incurred for Services provided prior to Customer’s termination of this Agreement.

2.7.   Change Orders and New Services.  Customer shall provide Company with a signed Supplement for Service in order to initiate Service to a designated Customer location. A Supplement shall be binding i) upon signature by Customer and the acceptance of the Supplement is confirmed in writing by Company; or ii) Company initiates the Service installation, whichever is first in time.

         Customer may request Customized Services outside the scope of the recurring monthly Services Initially contracted and specified in the Service Agreement and can do so via direct mail, fax, and email or over the phone. Upon receipt of such requests, Company may communicate to Customer within a reasonable period of time, all proposed fees, charges, and terms associated with the newly requested Customized Services.  Afterwards, Customer may communicate approval and authorize such new Customized Services with a signed Supplement via direct mail, fax, or email. If Company accepts the new service orders, it will automatically enter such orders as a new addendum to the existing Service Agreement, or as a new Service Agreement, and consider effectively part of the recurring monthly Services. Company will bill Customer for the newly ordered services in the same manner as original Services. Company reserves the right to accept or reject any new Service orders.

2.8.   Billing Disputes. If Customer in good faith submits a qualified dispute for any portion of any Company invoice, Customer shall submit to Company, full payment of the undisputed portion of the invoice and written documentation identifying and substantiating the disputed amount. Disputes must be received by Company within fifteen (10) days of Due Date or Customer’s right to any billing adjustment shall be waived. A qualified dispute shall be determined by Company in its sole discretion.

2.9.   Underutilization. Underutilization Charges: Monthly Volume Commitments (“MVC”) apply. MVC is defined as the Service Agreement(s) Monthly Recurring Revenue (“MRR”) charges from the Effective Date of each Service Agreement. If at the end of any month, Customer’s Service charges fail to meet or exceed the MVCs, Customer shall pay, in addition to all other charges under the Service Agreement, the difference between the MVC and Customer’s invoice during such month.        

                     

  1. Confidential Information, Intellectual Property, and Business Relationship.

3.1.      Nondisclosure of Confidential Information.  Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, vendors, employees, customers, technology, products, and other information held in confidence by the other party (collectively, “Confidential Information”).  Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential.  Confidential Information will also include, but not be limited to, Company Technology, Customer Technology, and the terms and conditions of the Service Agreement.  Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, the Service Agreement, nor disclose to any third party (except as required by law or to such party’s attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party.  Each party will take reasonable precautions to protect the confidentiality of the Confidential Information of the other party that are at least as stringent as it takes to protect its own Confidential Information.

 

3.2.      Exceptions.  Information will not be deemed Confidential Information if such information:  (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of the Service Agreement by the receiving party; or (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.  The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.

 

3.3.      Intellectual Property.  The Service Agreement does not transfer to Customer any Company Technology, and all right, title and interest in and to Company Technology will remain the sole property of the Company.  Except for the rights expressly granted herein, the Service Agreement does not transfer to Company any Customer Technology, and all right, title and interest in and to Customer Technology will remain solely with Customer.  Company and Customer each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets of the other party.

 

  1. Company Representations and Warranties.

4.1.   Authorities and Performance of Company.  Company warrants that (i) it has the legal right to enter into the Service Agreement and perform its obligations hereunder, (ii) the performance of its obligations and delivery of the Services will not violate any applicable U.S. laws or regulations or cause a breach of any Service Agreement’s with any third parties, and (iii) it will perform the Services in a manner consistent with industry standards. 

4.2.   Service Level Warranty.  Subject to the exceptions set forth herein, Company warrants that it will provide each Service at or above the service levels defined in each Service Agreement and in accordance with the Company’s Service Level Agreement (“SLA”). The parties agree that (i) the limited warranties set forth in this section are the sole and exclusive warranties provided by each party, and (ii) each party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to the Service Agreement, performance or inability to perform under the Service Agreement, the content, and each party’s computing and distribution system.  If any provisions of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

4.3.   System Maintenance. In the event Company determines that it is necessary to interrupt Service or that there is a potential for Services to be interrupted for the performance of system maintenance, Company will use good faith efforts to notify Customer prior to the performance of such maintenance. In no event shall interruption for system maintenance constitute a failure of performance by Company.

 

  1. Customer Representations and Warranties.

5.1.    Warranties of Customer.  Customer represents to Company and warrants that (i) it is certified to do business in all jurisdictions in which it will be utilizing Company’s services. (ii) it has the legal right and authority, and will continue to own or maintain the legal right and authority, during the term of the Service Agreement to use the Services; (iii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate any applicable laws, regulations or the Acceptable Use Policy (AUP) or cause a breach of any Service Agreement’s with any third parties or unreasonably interfere with use of the services offered by the Company to third parties; and (iv) from time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees and assumes sole responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.

5.2.    Breach of Warranties.  In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right, in its sole reasonable discretion, to suspend immediately any of the Services if deemed reasonably necessary by Company to prevent harm to Company or its business.  If practicable and depending on the nature of the breach, Company may provide notice and opportunity to cure.  Once cured, Company will promptly restore the Services.

5.3.   Compliance with Law and AUP.  Customer shall use the Services only for lawful purposes and in accordance with the Service Agreement.  Customer will comply at all times with all applicable laws and regulations and the AUP, as updated by Company from time to time.  The AUP is incorporated herein and made a part hereof by this reference.  Company may change the AUP by posting such changes to the Company web site.  Customer agrees that it has received, read, and understands the current version of the AUP.  Customer shall comply with AUP terms and, in the event of a failure to comply, Customer will be subject to immediate suspension or termination of Services.  Notwithstanding any suspension or termination of the Service due to violation of this Section 5.3, Customer shall continue to pay its committed minimum monthly recurring fees and all other Service Charges as set forth on all Service Agreement(s). Customer acknowledges that it is the sole responsibility of Customer to ensure all usage of Company’s services complies with all applicable laws and regulations and the AUP.

5.4.   Restrictions on Use of Services.  Customer shall not, without the prior written consent of Company (which may be withheld in its sole discretion), resell the Services, in whole or in part, to any third parties. Reselling of the Service(s) is defined as any sale of any part of the Service(s) to a third party that requires Company to invoice a third party directly. Customers providing access to the Service(s) to Customer’s clients in whole or in part and subsequently invoicing the client(s) directly are not considered reselling the Service(s).  

5.5.   Additional Assurances. Customer shall notify Company of any material and adverse change in Customer’s financial condition during the term of this Agreement.

5.6.   Regulatory. Customer shall be responsible for all sales, gross receipts, use, excise and other federal, state and local taxes, charges and assessments, which will be separately listed on each invoice along with any fees or surcharges applicable to the Services.

 

  1. Company’s Property.

6.1.      Supplied Equipment. Any equipment including all associated software (collectively “Equipment”) installed by Company at the Customer’s premises remains the personal property of Company, and nothing contained in this Agreement shall give or convey to Customer any right, title or interest whatsoever in such Equipment. Customer agrees not to interfere with or damage the Equipment, and further agrees to reimburse Company for any loss or damage thereto that is caused by the intentional or negligent acts of Customer, its agents, employees, authorized users or representatives. Customer will allow Company to promptly remove the Equipment from Customer’s premises upon termination of the Services for which the Equipment was installed and to remit payment for associated technician charges.

6.2.      Delivery and Term.  On or prior to the Service Activation Date, if required, Company shall deliver to Customer, at the designated Customer Location, any contractually obligated Company Supplied Equipment.  Customer shall have the right to use the Company Supplied Equipment for the Initial Term set forth in the Service Agreement and any additional period agreed to by Company as defined in the Service Agreement.  Customer shall not remove or alter in any manner any Company Supplied Equipment without the prior written consent of Company.  Customer will not remove, alter or destroy any labels on the Company Supplied Equipment stating that it is the property of Company and shall allow reasonable access to Company Supplied Equipment for Company employees and/or designated authorized agents.  The Customer must provide prior written notice and the written approval from Company before moving any Company Supplied Equipment from the address listed on the applicable Service Agreement and Hand Receipt that accompanies the Company Supplied Equipment.

6.3.      Title.  The Company Supplied Equipment shall always remain the sole property of Company.  Customer shall have no right or interest in or to the Company Supplied Equipment except as expressly provided in the Service Agreement and shall possess the Company Supplied Equipment subject and subordinate to the rights of Company.  Customer will, at its own expense, keep the Company Supplied Equipment free and clear from any liens or encumbrances of any kind (except any caused by Company) and will indemnify and hold Company harmless from and against any loss or expense caused by Customer’s failure to do so.  Customer shall give Company immediate written notice of any attachment or judicial process affecting the Company Supplied Equipment or Company’s ownership.

6.4.      Use, Maintenance and Repair.  Customer will, at its own expense, keep the Company Supplied Equipment in good repair, appearance and condition, other than normal wear and tear.  Customer shall use the Company Supplied Equipment in a commercially reasonable manner.  Any repair of the Company Supplied Equipment caused by normal use and not due to negligence of the Customer will be the sole responsibility of Company.  The Customer will be responsible for any reasonable assistance in this process (i.e. boxing equipment up and shipping it to Company or providing access to the equipment for Company or third party personnel).

 

  1. Warranty, Disclaimer, Limitation of Liability, and Indemnity.

7.1.      Warranty Disclaimer. Without limiting any express financial or liability provisions provided for in this agreement, neither party shall be liable to the other for any indirect, consequential, exemplary, special, incidental or punitive damages (including without limitation, lost business, revenue, profits, or goodwill) arising in connection with this agreement or the provision of services hereunder (including any service implementation delays/failures), under any theory of tort, contract, warranty, strict liability or negligence, even if the party has been advised, knew or should have known of the possibility of such damages. Company makes no warranties, express or implied, as to any service provisioned hereunder.  Company makes no warranty of any kind, where expressed or implied, with regards to any third party products, third party content or any software, equipment, or hardware obtained from third parties.  

 

Company shall not be liable for any act, omission of any other entity furnishing Customer with facilities or equipment used with the Services, nor shall Company be liable for any damages or losses due in whole or in part to the fault or negligence of Customer or due in whole or in part to the failure of Customer-provided equipment or facilities.

7.2.      Consequential Damages Waiver.  Except for a breach of Section 3.1 (“Confidential Information”), in no event will Company be liable or responsible to Customer for any special, incidental, punitive, indirect, exemplary, or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.

7.3.      Basis of the Bargain. Failure of Essential Purpose.  The parties acknowledge that Company has set its prices and entered into the Service Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.  The parties agree that the limitations and exclusions of liability and disclaimers specified in the Service Agreement will survive and apply even if found to have failed of their essential purpose.

7.4.      Indemnification.  Customer will defend, at its own expense, and shall indemnify and hold harmless Company (including its officers, directors, employees, agents, subsidiaries, affiliates, and contractors) from any and all claims, suits, liabilities, losses, damages, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) asserted against or incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from (a) Customer’s acts, omissions and/or breach of its obligations hereunder; (b) use of any Services or related products and documentation provided to Customer hereunder; and (c) Customer’s connection of any Company product or service to any third party service or network, including without limitation, damages resulting from unauthorized use of, or access to,  Company’s network. Notwithstanding any other provision of this Agreement, Customer shall pay all damages, settlements, expenses and costs, including costs of investigation, court costs and reasonable attorneys’ fees and costs incurred by Company as set forth in this Section, including, without limitation, reasonable attorneys’ fees and costs) incurred in enforcing this Agreement or Customer’s use of the Services.

 

  1. Miscellaneous Provisions.

8.1.          Force Majeure. Company shall not be liable for any failure of performance hereunder due to causes beyond its reasonable control including, but not limited to: acts of God, fire, explosion, terrorism, earthquake, flood, storm, embargo, riot, sabotage, labor shortage or dispute, vandalism, cable cut, problems within RBOC or ILEC networks, or other similar catastrophe; any law, order, regulation, direction, action or request of the United States government, including state and local governments having jurisdiction over either of the parties, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority; national emergencies; insurrections; riots; terrorist actions; wars; or strikes, lock outs, or work stoppages.

 

8.2.          Non-Solicitation.  During the term of the Service Agreement and continuing through the first anniversary of the termination of the Service Agreement, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by Company or contracted by Company to provide Services to Customer.

 

8.3.          No Third Party Beneficiaries.  Company and Customer agree that, except as otherwise expressly provided in the Service Agreement, there shall be no third party beneficiaries to the Service Agreement, including but not limited to the insurance providers for either party or the customers of Customer.

 

8.4.          Governing Law; Dispute Resolution.  The Service Agreement is made under and will be governed by and construed in accordance with the laws of the State of Texas (except that body of law controlling conflicts of law) and specifically excluding from application to the Service Agreement that law known as the United Nations Convention on the International Sale of Goods. Customer and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, the Service Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to the Service Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Travis Country, Texas and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years of experience in the practice of law and at least five (5) years of experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Texas sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Texas or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Each party shall bear its own expenses, but the parties will share equally the expenses of the arbitrator. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.

 

8.5.          Severability; Waiver.  If any provision of the Service Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, then the remaining provisions of the Service Agreement will remain in full force and effect.  The waiver of any breach or default of the Service Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

 

8.6.          Assignment. Customer may not assign the Service Agreement or its rights and obligations thereunder to any third party without the prior express written approval of Company. Company reserves the right to assign the Service Agreement in whole or part as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Company may also delegate the performance of certain Services to third parties, including Company’s’ wholly owned subsidiaries, provided Company controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services.  The Service Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

 

8.7.          Notice.  Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Service Agreement or at such other address as may hereafter be furnished in writing by either party to the other party.  Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.

 

8.8.          Business Relationship. This Agreement shall not create any agency, employment, joint venture, partnership, representation, or fiduciary relationship between the parties. Except as specifically set forth in Section 2.1, neither party shall have the authority to, nor shall any party attempt to, create any obligation on behalf of the other party.  

 

8.9.          No Inference Against Author.  No provision of the Service Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.

 

8.10.       Entire Agreement; Counterparts; Originals.  The Service Agreement, including all Appendices, Attachments, documents, Exhibits, and Schedules incorporated herein by reference, constitutes the complete and exclusive Service Agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and Service Agreement, written and oral, regarding such subject matter.  Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by Company without need of further notice of objection, and shall be of no effect or in any way binding upon Company.  The Service Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.  Once signed by both parties, any reproduction of the Service Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. The Service Agreement may be changed only by a written document signed by authorized representatives of Company and Customer in accordance with this Section 8.9.

8.11.       Legal Construction. In the event one or more of the provisions contained in this Agreement shall, for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. Each party hereto has reviewed this Agreement and any presumptions against the drafter are hereby waived.

8.12.       Survival. The covenants and agreements of Customer contained in this Agreement with respect to payment of amounts due, confidentiality, liability, and indemnification shall survive any termination of this Agreement. The rights and obligations under this Agreement shall survive any merger or sale of either party and shall be binding upon the successors and permitted assigns.

8.13.       Waiver. Under no circumstance shall the failure of Company to enforce any provision of this Agreement in any particular instance be construed as a waiver of that provision. The various rights and remedies given to or reserved by either party herein, or allowed by law, are cumulative, and no delay or omission to exercise any of its rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any breach or any provision be considered a condonement or any continuing or subsequent breach of the same provision.

 

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