2019
Secure the Enterprise... Enable the Business

Terms and Conditions

Tag Category

Master Services Agreement

By subscribing to the services (as defined below) offered by INCENTER SOLUTIONS LLC d/b/a INCENTER TECHNOLOGY, a Delaware limited liability corporation, and its affiliates (collectively "Service Provider"), you ("Client") agree to be bound by the Terms and Conditions as defined in this Master Services Agreement (“Master Agreement”).

 

This Master Agreement governs the relationship between Service Provider and Client in connection with the purchase and sale of the Services (as defined below).  In consideration of the mutual promises set forth in this Master Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be bound, the Parties hereby agree as follows:  

 

1.                    Services; Components of the Agreement 

(a)                 Services .  During the term of this Master Agreement and subject to the terms and conditions herein, Service Provider agrees to provide to Client the specific services specified in one or more statement(s) of work (“SOW(s)”) executed by the Parties (the “Services).  All SOWs executed by the Parties are subject to the terms and conditions of this Master Agreement and will include the following: (i) the specific Services to be performed, (ii) the term of the Services, (iii) the Charges for the Services and (iv) any other applicable information agreed to by the Parties.

(b)                 Components of the Agreement .  The “Agreement” consists of (1) this Master Agreement, and (2) the SOWs entered into by the Parties pursuant to this Master Agreement and any exhibits to each SOW.  If a conflict exists among terms within the Agreement, the terms will be interpreted in the following order of precedence: (i) the SOWs, (ii) the exhibits to the SOWs, and then (iii) this Master Agreement. 

2.                    Client Cooperation

Client acknowledges that Service Provider’s performance and delivery of the Services are contingent upon: (i) Client providing safe and hazard-free access to its personnel, facilities, equipment, hardware, network and information, (ii) Client’s timely decision-making and (iii) Client providing the requested information and granting of approvals or permissions.  Service Provider will be excused from its failure to perform its obligations under the Agreement if such failure is caused by Client’s delay in performing or failure to perform its responsibilities under the Agreement.

 

3.                    Term

This Master Agreement shall be for a term of one year commencing on the Effective Date (“Term”), unless earlier terminated in accordance with the Agreement.  Thereafter, the Term shall automatically extend for successive one year terms, unless written notice of non-renewal is given by either Party to the other at least 90 days before the start of the next one year term, or the Parties have negotiated a different extension by mutual written agreement.  Notwithstanding the foregoing, the Term shall survive until all SOWs have expired or terminated in accordance with their terms.

 

4.                     Charges, Payments, Taxes

(a)                 Service Provider shall invoice Client for, and Client shall pay Service Provider, the service fees, expense reimbursements and other amounts set forth in each SOW (the “Charges”).  Service Provider reserves the right to increase the Charges on an annual basis upon written notice to Client.  Client shall pay all amounts invoiced no later than 30 days after the date of the applicable invoice.  All amounts paid by Client are non-refundable.  Past due amounts are subject to a late fee of 1.5% per month or the maximum rate permitted by law, whichever is less.  If Client’s failure to make a payment when due is not cured within 10 days following Service Provider’s written notice thereof, Service Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other person by reason of such suspension.  Service Provider’s acceptance of late or partial payments is not a waiver of its right to collect the full amount due.  Client’s payment obligations include late fees and third party collection costs incurred by Service Provider, including, but not limited to, reasonable attorneys’ fees, if Service Provider fails to cure its breach of these payment terms. 

(b)                 If Client disputes a Charge in good faith, Client may withhold payment of that Charge if Client (i) makes timely payment of all undisputed Charges and (ii) within 30 days of the due date, provides Service Provider with a written explanation of Client’s reasons for disputing the Charge in sufficient detail.  Client must cooperate with Service Provider to resolve promptly any disputed Charge.  If Service Provider determines, in good faith, that the disputed Charge is valid, Service Provider will notify Client and, within five days of receiving notice, Client must pay the Charge.  If Service Provider determines, in good faith, that the disputed Charge is invalid, Service Provider will credit Client for the invalid Charge.

(c)                 If and to the extent that the implementation, performance or delivery of the Services requires Service Provider to be present at Client’s premises, then subject to Service Provider’s adherence to Service Provider’s travel reimbursement guidelines, or other travel reimbursement guidelines set forth in the applicable SOW, Client shall reimburse Service Provider for all out-of-pocket travel expenses, including, but not limited to, hotel, airfare and meals, incurred in connection with the Services.

(d)                 The Charges set forth in the SOWs are exclusive of all taxes.  Client shall pay all taxes, including, but not limited to, sales, use, gross receipts, excise, VAT, property, transaction, or other local, state or national taxes or charges imposed on, or based upon, the provision, sale or use of the Services, however, Client will not be responsible for payment of Service Provider’s direct income taxes and employment taxes.  Notwithstanding any other provision of the Agreement, if a jurisdiction in which Client conducts business requires Service Provider to deduct or withhold separate taxes from any amount due to Service Provider, Client must notify Service Provider in writing.  Service Provider will then increase the gross amount of Client’s invoice so that, after Client’s deduction or withholding for taxes, the net amount paid to Service Provider will not be less than the amount Service Provider would have received without the required deduction or withholding.  

5.                    Proprietary Rights

(a)                 Client Data .  As between Client and Service Provider, Client will own all right, title and interest in and to any data provided by Client to Service Provider and/or the data of Client accessed or used by Service Provider or transmitted by Client to Service Provider in connection with Service Provider’s provision of the Services, including, but not limited to, Client’s data included in any written or printed summaries, analyses or reports generated in connection with the Services (the “Client Data”).  Client hereby grants Service Provider a worldwide, royalty-free, irrevocable, non-exclusive license to Service Provider, its affiliates and their respective employees, agents and contractors to access and use the Client Data as necessary or useful for Service Provider to perform the Services during the Term, and to create derivative works and modifications of the Client Data to perform the Services and deliver the deliverables.  Client represents, warrants and covenants that it has sufficient right, title and interest (and has obtained the  necessary licenses, consents, permissions and releases) to transmit the Client Data to Service Provider and to allow Service Provider, its affiliates and their respective employees, agents and contractors to access and use the Client Data to perform the Services as set forth in the Agreement.

(b)                 Service Provider Property .  As part of Service Provider’s performance of its obligations hereunder, Service Provider may utilize technology, information, works of authorship or products, including without limitation, software, equipment, methodologies, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, inventions, know-how, techniques or data, which have been originated, developed or purchased by Service Provider or by third parties under contract to Service Provider (all of the foregoing, collectively, “Service Provider Information”).  Service Provider shall own all right, title and interest in and to (i) the Service Provider Information, (ii) any deliverables or work product created pursuant to a SOW, unless otherwise set forth therein, and (iii) all intellectual property rights in the foregoing, including, without limitation, patents, copyrights, trademarks, trade secrets, applications and registrations for the foregoing, and any other intellectual property or proprietary rights therein (collectively, the “Service Provider Property”).  The Agreement does not transfer or convey to Client or any third party, any right, title or interest in or to the Service Provider Property, but only a limited right of use as granted in and revocable in accordance with the Agreement. 

(c)                  Software .  Where software is provided with the Services, Client is granted a non-exclusive, non-sublicenseable and non-transferable license, during the term of the applicable SOW, to use the software, including any related documentation, solely to enable Client to use the Services in accordance with the applicable licensing requirements.  Software licensing terms and conditions of Service Provider’s software vendors are provided by Service Provider to Client or are otherwise provided to Client through click or shrink-wrap agreements.  Client must comply with all such terms and conditions and they take precedence over the Agreement as to such software.  Service Provider may suspend, block or terminate Client’s use of any software if Client fails to comply with any applicable licensing requirement.  Client is not granted any right to use any software on behalf of third parties or for time share or service bureau activities. No rights are granted to source code and Client agrees not to reverse engineer, decompile, modify or enhance any software.  Subject to the license to the software granted to Client above, Service Provider or its suppliers retain title and property rights to Service Provider-provided software.  Upon termination or expiration of the Agreement or the applicable SOW, any applicable software license will terminate and Client will surrender and immediately uninstall and return the Service Provider-provided software to Service Provider.

(d)                 Equipment .  Services may include use of certain equipment owned or leased by Service Provider that is located at the premises of Client ("Service Provider Equipment"), but title to the Service Provider Equipment will remain with Service Provider.  Client shall: (i) provide a suitable operating environment for the Service Provider Equipment, (ii) use the Service Provider Equipment only to receive the Services and in accordance with Service Provider’s reasonable instructions and/or any software license terms associated with such Service Provider Equipment disclosed to Client, (iii) not modify, relocate, or interfere with the Service Provider Equipment, except in the normal course of using or accessing the Services, (iv) be responsible for any theft and damage to the Service Provider Equipment (other than damage caused by Service Provider, its affiliates and their respective employees, agents and contractors), (v) keep the Service Provider Equipment free from any liens or other encumbrances, (vi) permit Service Provider reasonable access to inspect, test, maintain and replace it at reasonable times and (vii) upon termination of the applicable Services, surrender and immediately return the Service Provider Equipment to Service Provider or, at Service Provider’s option, allow Service Provider to access it at reasonable times to remove it.

(e)                 Feedback .  Service Provider encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding or related to the Services. To the extent Client provides such feedback, Client grants to Service Provider a royalty-free, fully paid, sub-licensable, transferable (notwithstanding any restrictions on assignment in the Agreement), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into Service Provider’s service and product offerings) without restriction.

(f)                  Analyses .  Client agrees that Service Provider may collect, use and disclose quantitative data derived from the use or performance of the Services for industry analysis, benchmarking, analytics, marketing, and other business purposes; provided, however, that any such data disclosed to third parties other than Service Provider’s affiliates will not identify Client without the approval of Client.

6.                    Representations and Warranties; Disclaimer

(a)                 Each Party represents and warrants that (i) it has full authority to enter into and perform the Agreement, (ii) the Agreement will not to the best of its knowledge violate any agreement, understanding, commitment or the like that it has with any other person or entity and (iii) it shall comply with applicable laws, rules and regulations.

(b)                 Service Provider represents and warrants that the Services will substantially conform with the description of the Services set forth in the applicable SOW.  Client shall notify Service Provider in writing of any breach of the foregoing within 30 days after performance of the non-conforming Services.  Upon receipt of such notice, Service Provider, at its option, shall either use commercially reasonable efforts to re-perform the Services in conformance with this Section 6(b) or shall terminate the affected Services and provide a pro-rata refund in the amount of the unused portion of any prepaid Charges for the terminated Services calculated as of the effective date of termination. This Section 6(b) sets forth Client’s exclusive rights and remedies, and Service Provider’s sole liability, in connection with the warranty in THIS Section 6(b) .

(c)                 service provider shall not be liable to client for use of the services in hazardous or high-risk environments requiring fail-safe performance, in which the failure or malfunction of the services could lead directly to death, personal injury, or severe physical or property damage.  Such use is at client’s own risk, even if service provider knows of such use, and service provider expressly disclaims any express or implied warranty of fitness for such high-risk activities.

(d)                 Except as expressly set forth in THIS MASTER Agreement, Service provider does not make, and service provider hereby specifically disclaims, any and all representations and warranties express or implied, arising by law or otherwise, arising under or relating to the Agreement or the subject matter hereof.    Service Provider further disclaims any implied warranty of merchantability, any implied warranty of fitness for a particular use or purpose, any warranty, express or implied, of no infringement, and any warranty that the Services will be error-free or operate without interruption.   

7.                    Confidential Information

(a)                 Client and Service Provider may have access to or be exposed to information of the other Party not generally known to the public, including, but not limited to software, product plans, marketing and sales information, customer lists, “know-how,” or trade secrets, which may be designated as confidential or which should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure (collectively, “Confidential Information”).  The Agreement and its terms and conditions are considered to be Confidential Information.  Confidential Information does not include information: (i) known to the Party receiving the Confidential Information (the “Recipient”) prior to disclosure by the Party disclosing the Confidential Information (the “Disclosing Party”); (ii) independently developed by Recipient, without reference to the Disclosing Party’s Confidential Information; (iii) acquired by Recipient from a third Party that was not to Recipient’s knowledge prohibited from disclosing the information; or (iv) that is or becomes publicly available through no breach by Recipient of the Agreement.

(b)                 Confidential Information may not be disclosed to third parties unless such disclosure is to the Recipient’s personnel, including employees, agents, attorneys and contractors, who are subject to legally binding obligations of confidentiality no less restrictive than those herein and who have a business need for such access to perform hereunder on the Recipient’s behalf, and so long as the Recipient is responsible for the breach of these confidentiality obligations by such personnel.  Each Party agrees to take the necessary precautions to maintain the confidentiality of the other Party’s Confidential Information by using at least the same degree of care as such Party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality.

(c)                 Upon the first to occur of (i) termination or expiration of this Master Agreement or (ii) request by the Disclosing Party, the Recipient will return to the Disclosing Party or destroy (at the Disclosing Party’s discretion) all Confidential Information of the Disclosing Party, except for copies maintained in the Recipient’s legal and business records.

(d)                 Notwithstanding anything to the contrary in the Agreement, Service Provider may issue a press release regarding the existence of a business relationship between Service Provider and Client and may include Client on its client lists, and otherwise reference Client as a customer of Service Provider.

8.                    Termination

(a)                 Either Party may terminate the Agreement, in whole or in part, effective immediately upon written notice to the other Party or upon such later date as set forth in such notice, if the other Party: (i) materially breaches the Agreement and fails to cure such breach within 30 days of written notice of such breach, or (ii) becomes insolvent, files, or has filed against it and not dismissed within 60 days, a petition for bankruptcy, or makes an assignment for the benefit of its creditors.  In addition, Service Provider may terminate the Agreement, in whole or in part, immediately by providing Client with as much advance notice as is reasonably practicable under the circumstances if Client: (A) commits a fraud upon Service Provider, (B) utilizes the Services to commit a fraud upon another party, (C) unlawfully uses the Services or (D) abuses or misuses the Services. 

(b)                 All sums owed by either Party to the other shall become due and payable immediately upon termination or expiration of this Master Agreement or the applicable SOW, as applicable.

(c)                 The terms and provisions contained in the Agreement that by their sense and context are intended to survive the performance thereof by either or both Parties shall so survive the completion of performance and termination or expiration of the Agreement, including without limitation, the payment obligations, indemnity obligations and limitations of liability set forth herein.

9.                    Indemnity

(a)                  Service Provider Indemnity .  Service Provider shall indemnify and hold Client and its directors, managers, officers, employees and agents (collectively, the “Client Indemnitees”) harmless from and against any damages and losses (including  reasonable attorneys’ fees) finally awarded against a Client Indemnitee (or the amount of any settlement Service Provider enters into) with respect to any claims, actions or suits brought by a third party (“Claims”) against the Client Indemnitees alleging that the Services infringe or misappropriate a U.S. patent, copyright, trademark or trade secret and shall defend the Client Indemnitees against such Claims.  If the Services become, or in Service Provider’s opinion are likely to become, the subject of a Claim for infringement and/or other violation of such third party intellectual property, Service Provider may, at its option and expense, either (i) procure for Client the right to continue using the Services, or (ii) replace or modify the Services so that they become non-infringing.  To the extent that Service Provider determines that each of aforementioned options (i) or (ii) is impracticable or commercially unreasonable, Service Provider may terminate the applicable SOW, in whole or in part, and Service Provider will provide a pro-rata refund in the amount of the unused portion of any prepaid Charges for the terminated Services calculated as of the effective date of termination.  Notwithstanding the foregoing, Service Provider will have no obligation with respect to any Claim under this Section 9(a) if the Claim was caused by: (A) use of the Services in combination with any software, service, system, technology or data not provided or approved in writing by Service Provider, (B) any materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client; (C) use of the Services not in accordance with the Agreement, (D) Client’s failure to implement changes or corrections provided by Service Provider, or Client’s failure to comply with Service Provider’s written instructions which if implemented would have rendered the Services non-infringing, (E) modification of Services by anyone other than Service Provider, or (F) Service Provider’s compliance with Client’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Client (collectively, the “Excluded Claims”).  This Section 9(a) states Service Provider’s entire liability and Client’s sole and exclusive remedy against Claims of infringement or other intellectual property violations . 

(b)                 Client Indemnity .  Client shall indemnify and hold Service Provider, its affiliates, and its and their respective directors, managers, officers, employees, licensors, contractors and agents (collectively, the “Service Provider Indemnitees”), harmless from and against any damages and losses (including reasonable attorneys’ fees) finally awarded against the Service Provider Indemnitees (or the amount of any settlement Client enters into) with respect to any Claims relating to or arising from (i) the Client Data and any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client, (ii) Client’s failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by Client, or associated with non-Service Provider software or other components directed or requested by Client to be accessed, installed or integrated as part of the Services, (iii) the Excluded Claims, or (iv) an alleged breach by Client or its users of a software license agreement governing software provided in connection with the Services, and shall defend the Service Provider Indemnitees against such Claims.

(c)                  Procedure .  The indemnified party shall promptly provide the indemnifying party with written notice of the Claim.  The indemnified party will allow the indemnifying party to control the defense and settlement of the Claim and will reasonably cooperate with the indemnifying party; but the indemnifying party will use counsel reasonably experienced in the subject matter at issue.  The indemnifying party may not settle a Claim without the consent of the indemnified party, which consent will not be unreasonably withheld or delayed, except that no consent will be required where relief on the Claim is limited to monetary damages that are paid by the indemnifying party.

10.                Limitation of Liability 

(a)                 EXCEPT FOR (I) CLIENT’S PAYMENT OBLIGATIONS, (II) DAMAGES ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS OR (III) DAMAGES ARISING FROM OR RELATED TO CLIENT’S UNAUTHORIZED USE OF THE SERVICE PROVIDER property (COLLECTIVELY, THE “DAMAGES EXCEPTIONS”), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST OR CORRUPTED DATA OR SOFTWARE (OR THE RECOVERY OF SUCH), LOSS OF USE OF SYSTEMS OR NETWORKS (OR THE RECOVERY OF SUCH), LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOSS OF BUSINESS OPPORTUNITY, LOST FUTURE EARNINGS, LOST ECONOMIC ADVANTAGE OR THE PROCUREMENT OF SUBSTITUTE SERVICES ARISING FROM OR RELATING TO THE AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EACH PARTY HEREBY WAIVES AND RELEASES ANY SUCH CLAIMS FOR SUCH DAMAGES AGAINST THE OTHER PARTY. 

(b)                 EXCEPT FOR THE DAMAGES EXCEPTIONS and EXCEPT as expressly stated in Section 10(c) BELOW, A PARTY’S LIABILITY TO THE OTHER PARTY IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING UNDER THE AGREEMENT IS LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE SPECIFIC SERVICES GIVING RISE TO SUCH CLAIM DURING THE PRIOR 12 MONTHS.

(c)                 NOTWITHSTANDING SECTION 10(b) above, IF CLIENT ENTERS INTO AN SOW FOR service provider’s managed security Program offering, service provider’s LIABILITY TO client IN THE AGGREGATE under such sow FOR ANY AND ALL CYBER-SECURITY INCIDENTS, except for those CYBER-SECURITY INCIDENTS caused by the acts or omissions of client or anyone acting on its behalf, IS LIMITED TO the AMOUNT PAID BY CLIENT FOR THE SPECIFIC SERVICES GIVING RISE TO SUCH CLAIM DURING THE PRIOR 24 MONTHS.  a “CYBER-SECURITY INCIDENT” shall have the meaning set forth in the applicable SOW.

11.                Audit Rights and Reporting

(a)                 SOC Report .  Service Provider will, on an annual basis, have an audit conducted in accordance with SSAE No. 18 developed by the American Institute of Certified Public Accountants (AICPA) and have issued a SOC 2 (Type I) report covering the controls and systems relating specifically to the Services (the “SOC Report”).  Upon Client’s request, Service Provider will provide to Client a copy of Service Provider’s then current SOC Report.  Client acknowledges that the SOC Report is considered the Confidential Information of Service Provider.

(b)                 Client Audits .  Client may, at its expense, audit Service Provider’s compliance with the terms of the Agreement up to once per year in accordance with Section 11(d) .  However, if the requested audit scope is addressed in the SOC Report or similar audit report performed by a qualified third party auditor within the prior twelve months and Service Provider confirms there are no known material changes in the controls audited, then Client agrees to accept those findings in lieu of requesting an audit of the controls covered by any such report.  Any request for Service Provider to provide assistance with an audit is considered a separate, chargeable service if such audit assistance requires the use of resources different from or in addition to those required for the provision of the Services.  Service Provider will be under no obligation to perform such services until Client has agreed to pay any such related fees and expenses.

(c)                 Service Provider Audits .  Service Provider may, at its expense, audit Client’s compliance with the terms of the Agreement up to once per year in accordance with Section 11(d) .  Client will reasonably cooperate with Service Provider in the performance of such audit.

(d)                 Audit Process .   To request an audit, the requesting Party (“Auditor”) must submit a detailed audit plan to the other Party (“Auditee”) at least two weeks in advance of the proposed audit date.  The audit plan must describe the proposed scope, duration and start date of the audit. The Auditee will review the audit plan and provide the Auditor with any concerns or questions within five days of receipt of the audit plan.  The Auditee will work cooperatively with the Auditor to agree on a final audit plan. The audit must be conducted during regular business hours at the applicable facility, subject to Auditee’s policies, and may not unreasonably interfere with the Auditee’s business activities.  If a third party is to conduct the audit on behalf of the Auditor, then the third party must be mutually agreed to by the Parties and must execute a written confidentiality agreement acceptable to the Auditee before conducting the audit.  If an audit by Service Provider reveals any excess use of the Services by Client, then within 30 days, (i) Client must purchase additional Services to cover such excess use and (ii) if such excess use is 5% or more than the then-current use level purchased by Client, then Client must reimburse Service Provider for the costs Service Provider incurred in performing the audit and purchase additional Services to cover such excess at 125% of Service Provider’s then-current price list.    

12.                General

(a)                 Non-Solicitation .  During the term of the Agreement and for a period of 12 months thereafter, Client promises and agrees that it will not, without the prior written approval of Service Provider, (i) employ or hire, or engage as a consultant or subcontractor, any employee or subcontractor of Service Provider or its affiliates, (ii) solicit any employee or subcontractor of Service Provider or its affiliates to become an employee or subcontractor of Client or any other party, or (iii) recommend or suggest to any other person or entity that such person or entity should solicit, employ, hire, or engage any such employee or subcontractor. 

(b)                 Independent Contractors .  The Parties are independent contractors.  No provision of the Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Service Provider and Client, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to the Parties. Neither Party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another Party except as expressly specified in the Agreement. 

(c)                 Assignment .  Neither Party may assign any of its rights or responsibilities under the Agreement, except for transfers to an affiliate of such Party or to an entity which has acquired all or substantially all of the assets of such Party or into which such Party has merged, without the express written permission of the other Party, which consent shall not be unreasonably withheld or delayed.  The Agreement shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.  Notwithstanding the foregoing, Service Provider may, in its sole discretion, engage third parties to perform the Services.

(d)                 Severability .  If, for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of the Agreement shall continue in full force and effect.

(e)                 Waiver .  Failure or delay on the part of either Party to exercise any right, power, privilege or remedy under the Agreement shall not constitute a waiver thereof.  No modification or waiver by either Party of any provision of the Agreement shall be deemed to have been made unless made in writing.

(f)                  Governing Law .  ALL RIGHTS AND OBLIGATIONS OF THE PARTIES RELATING TO THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE-OF-LAW PROVISION OR RULE (WHETHER OF THE STATE OF delaware OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.  EACH PARTY SHALL BRING ANY SUIT, ACTION OR OTHER PROCEEDING WITH RESPECT TO THE AGREEMENT IN ANY STATE OR FEDERAL COURT LOCATED IN dallas, texas.  each party CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT EMPOWERED TO ENFORCE THE AGREEMENT LOCATED IN dallas, texas, AND WAIVES ANY OBJECTION THERETO ON THE BASIS OF PERSONAL JURISDICTION OR VENUE, INCLUDING THE RIGHT TO CHALLENGE THE PROCEDURAL OR SUBJECT MATTER OF THIS TRIBUNAL, VENUE IN THIS TRIBUNAL, OR THAT THERE IS A MORE CONVENIENT FORUM.  NOTWITHSTANDING THE FOREGOING, NO EXCLUSIVITY AS TO JURISDICTION WILL APPLY WITH RESPECT TO: (I) A PARTY SEEKING EQUITABLE, INJUNCTIVE OR OTHER SIMILAR RELIEF OR (II) ENFORCEMENT OF A JUDGEMENT OR OTHER SIMILAR PROCEEDINGS IN ANY COURT OF COMPETENT JURISDICTION.

(g)                 Dispute Resolution .  Any dispute, controversy, or claim related to the Agreement (a “Dispute”) will be resolved first through good faith negotiations between the Parties.  If the Parties are unable to resolve the Dispute through such negotiations, they will submit it for mediation by a single mediator chosen by the mutual consent of Service Provider and Client.  If the Parties are unable to agree on a mediator, Service Provider will nominate one individual and Client will nominate another and those two individuals jointly will choose a mediator.  The mediation will take place in Dallas, Texas.  Any Dispute that cannot be resolved by mediation shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect at the time that a Dispute is submitted for resolution (the “Rules”), as modified by this Master Agreement.  Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Such arbitration shall be held in Dallas, Texas.  The Parties shall, within 20 days of the issuance of a written notice of the intent to arbitrate, as provided by the Rules, jointly select one independent arbitrator licensed to practice law.  If the Parties cannot agree on an arbitrator within the specified 20-day period, then the selection shall promptly be made by the AAA in accordance with the Rules and the criteria set forth above.  The Agreement evidences a transaction in interstate commerce, and therefore the Federal Arbitration Act, 9 U.S.C. § 1, et seq (“FAA”), governs the interpretation and enforcement of this provision.  In the event of a conflict between the FAA and the Rules, the FAA shall govern.  In no event shall the arbitrator have the authority to make any award that is in excess of or contrary to what the Agreement provides.  Nothing in this Section 12(g) shall prevent either Party from applying to a court or other tribunal with jurisdiction to seek provisional, temporary or preliminary injunctive relief in response to an actual or threatened breach of the Agreement, or otherwise to avoid irreparable injury or maintain the status quo while any claim or controversy is resolved.

(h)                 Third Party Beneficiaries .  Except as set forth in Section 9 (Indemnity), the Agreement does not and is not intended to confer any rights or remedies upon any person other than the Parties.

(i)                   Force Majeure .  Except for payment of amounts due, neither Party will be liable for any failure or delay in performing under the Agreement due to any circumstances or causes beyond its reasonable control, including fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of God, government regulation or acts or omissions of carriers or suppliers (each, a “Force Majeure Event”).  In such event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure Event.

(j)                   Notices .  All notices required or permitted to be given under the Agreement shall be in writing, shall specifically reference this Master Agreement, shall be delivered by hand or via overnight delivery by an express courier with a reliable system for tracking delivery, and shall be effective on receipt (in the case of deliveries by hand) or on the next business day after being deposited with express courier (in the case of deliveries by an express courier), in each case to the addresses set forth below:

If to Client:                           Client address as in the customer record                                                                             

 

 

If to Service Provider:            ATTN:  Legal Counsel (Incenter Technology)

                                               129 West Trade St., 9th Floor

                                                Charlotte, NC 28202

 

 

(k)                 Interpretation .  The terms and provisions of the Agreement will be construed fairly as to the Parties hereto and not in favor of or against either Party, regardless of which Party was generally responsible for the preparation of the Agreement.  Client acknowledges that the limited warranties, disclaimers and limitations of liability contained in the Agreement set forth an allocation of risk reflected in the Charges due hereunder.  The section headings used in the Agreement are for reference and convenience only, and will not enter into the interpretation thereof. As used herein, the words “include(s)” and “including” mean “including without limitation.”

(l)                   Counterparts; Authorized Signatures .  The persons signing this Master Agreement and each SOW shall have all legal authority and power in their respective capacities to bind Client and Service Provider, and this Master Agreement or an SOW shall not be effective until fully executed and delivered to all Parties (with email or facsimile being acceptable modes of delivery).  This Master Agreement and each SOW may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. 

(m)       Entire Agreement; Amendments.  The Agreement constitutes the entire understanding between the Parties and supersedes all previous agreements or negotiations on the subject matter herein, whether written or oral, and shall not be modified or amended except by written agreement duly executed by the Parties. Any purchase order submitted by Client is for Client’s internal purposes only and its terms and conditions are superseded and replaced by the Agreement, and the purchase order terms and conditions have no force or effect.