Unless superseded by a current executed master agreement currently in effect by and between the parties (the “Controlling Agreement”), these Standard Terms and Conditions contained herein along with the terms and conditions in the applicable quotation or invoice (the “Documentation”), constitute the complete and exclusive agreement (this “Agreement”) between ReliaQuest, LLC, on behalf of itself and its subsidiaries and Affiliates (“ReliaQuest”) and the customer named on the applicable quotation or invoice, on behalf of itself and its subsidiaries and Affiliates (“Customer” and collectively with ReliaQuest, the “Parties” and each individually a “Party”). Customer shall not seek to: (i) modify, (ii) contradict, (iii) negate, or (iv) add to, any term contained in this Agreement and any such changes shall be null and void and have no force or effect. In the absence of a Controlling Agreement, the terms of this Agreement alone shall bind the Parties in all respects.
1. Definitions. Capitalized terms contained in this Agreement shall have the following meaning: “Affiliates” shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity.
“Confidential Information” means any nonpublic information provided or made available to a Party by the other Party, that is (i) identified as confidential by the disclosing Party at the time of disclosure, or (ii) of a nature that would reasonably be considered to be confidential whether or not marked as confidential. ReliaQuest pricing and the terms of this Agreement are also considered Confidential Information of ReliaQuest. Confidential Information includes copies, summaries, and other derivatives of Confidential Information. Unless otherwise agreed to by the Parties in writing, the use by ReliaQuest of its Confidential Information to perform a Service or to support any portion of a Deliverable shall not itself become a Deliverable.
“Deliverable” means the specific work product or report identified as a deliverable in the Documentation. Products, Services, and Service Tools are not considered Deliverables.
“Hardware Product” means third party computers, networking equipment, or handheld, mobile, wireless, and other devices and equipment, related documentation, and any upgrades to them generally available from ReliaQuest. Deliverables and Services are not Hardware Products.
“Products” means Hardware Products and Software Products.
“Software Product” means a software program that is generally available from ReliaQuest, any updates to the software program provided in connection with support, associated documentation, and all copies of the foregoing. Any Software Products provided by ReliaQuest under this Agreement are subject to the terms and conditions of the specific end-user license of the Software Product manufacturer, including any applicable limitations of liability, representations and warranties, and other limitations or disclaimers.
“Service” means consulting, integration, performance tuning, trouble-shooting, and problem isolation, support, training, or other services performed by ReliaQuest in accordance with the applicable Documentation. “Service Tool” means any ReliaQuest developed software program that is used by ReliaQuest to perform the Services. All Service Tools shall remain the sole property of ReliaQuest and Customer will not attempt to decompile, reverse engineer or otherwise recreate the source code of a Service Tool. ReliaQuest may provide limited access for Customer to use a Service Tool, in whole or in part, at ReliaQuest’s sole discretion. Upon termination of the term or timeframe specified in the Documentation, ReliaQuest shall have the right to decommission and/or remove any and all parts of any Service Tools from Customer’s system and, in the event any Service Tools are retained by Customer after termination, Customer acknowledges and agrees that any such Service Tool may have limited or reduced functionally and ReliaQuest shall have no obligation to maintain, update, or support the operation or functionality of such Service Tools after the termination or expiration of this Agreement.
“Work” means the relevant Deliverables, Products, and/or Services, if any, identified in the Documentation that Customer agrees to purchase or acquire and ReliaQuest agrees to provide or perform or provide.
2. General Terms
a. Scope. The terms of this Agreement apply to all Work provided to Customer by ReliaQuest are incorporated into the Documentation. The Work and associated fees are set forth in the applicable Documentation which shall become effective and binding only when signed by an authorized representative of each Party. ReliaQuest’s Chief Executive Officer, Chief Operating Officer, and Chief Financial Officer are the only authorized representatives of ReliaQuest authorized to sign the Documentation and the Parties acknowledge and agree that the signature of any other representative of ReliaQuest shall be null and void and have no legal effect. Any services, deliverables, or other products provided by ReliaQuest that are not specified in the Documentation, or that are provided prior to the execution of any Documentation, shall also be provided subject to the terms of this Agreement, unless the items are expressly covered by a separate agreement signed by authorized representatives of the Parties. Maintenance and support for any Products or Deliverables shall be provided only if specified in a SOW and it is expressly acknowledged and agreed that ReliaQuest shall have no obligation to maintain, update, or support, the operation or functionality of any such Products or Deliverables after the termination or expiration of this Agreement.
b. Acknowledgement by Customer. ReliaQuest is providing co-managed cybersecurity and log management services which provide visibility to the customer’s security environment via log entries only (“Log Data”). The Parties acknowledge and agree that ReliaQuest shall not have access to any other Customer Data on Customer’s systems outside of the Log Data. ReliaQuest cannot guaranty that there will be no third-party security breaches, problems, or threats to Customer’s network or systems and Customer acknowledges and agrees that that ReliaQuest is only being engaged to help identify such threats using Customer’s security solutions and expressly agrees that ReliaQuest shall not be responsible under any circumstances in the event any such issues occur. In no event will Customer transmit to ReliaQuest (via Log Data or otherwise) any personally identifiable information, protected health information, or other personal information that is subject to data privacy or security laws or regulations.
c. Changes to Documentation. Requests by Customer and recommendations by ReliaQuest for changes to any Documentation will become effective on a prospective basis only and only upon mutual agreement by the Parties in writing.
d. Access to Systems and Data; Customer Materials Required to Perform Services. Customer shall grant ReliaQuest the required and necessary access to Customer’s systems and Log Data (including access via site to site VPN or Internet access) for ReliaQuest to perform the Services. If Customer provides ReliaQuest access to any of Customer’s own or a third party’s software or other materials for use by ReliaQuest in the performance of Services, then Customer grants ReliaQuest a non-exclusive, royalty-free right and license (or sublicense) to use such software or materials to the extent necessary for ReliaQuest to perform its obligations under this Agreement. Customer will be responsible for obtaining any third-party permissions or licenses required to allow ReliaQuest to access and use such third-party software or materials to perform ReliaQuest’s Services.
e. Reimbursement of Travel and Living Expenses. Customer is responsible for the reasonable travel and living expenses of ReliaQuest personnel traveling to Customer’s site to perform Services, which will be billed to Customer by ReliaQuest. ReliaQuest personnel will comply with ReliaQuest’s travel and expense reimbursement policies when traveling to Customer’s site.
f. Dependencies. Customer acknowledges that ReliaQuest’s ability to deliver a Service is dependent upon Customer’s full and timely cooperation with ReliaQuest including, but not limited to compliance with the assumptions contained in the Documentation, as well as the accuracy and completeness of any information and data Customer provides to ReliaQuest. In the event Customer fails to provide the required information, data or access needed for ReliaQuest to perform the Services, or Customer fails to meet or comply with the assumptions contained in the Documentation: (i) ReliaQuest’s Services or provision of a Deliverable may be rescheduled, delayed, or postponed, (ii) the deadline or milestone for ReliaQuest to provide any such Service or Deliverable will be extended as a result of such delay, and (iii) ReliaQuest may adjust pricing to Customer to the extent the cost to perform the Services for Customer is increased as a result of Customer’s failure to cooperate or provide the required information or data as specified above. For the avoidance of doubt, ReliaQuest shall not be required to meet, or be penalized in any manner for failure to meet, the service level commitments described in the Documentation in the event of, and the extent that, Customer fails to comply with the terms of this Section 2(f) during the period of such non-compliance.
g. Software Product License. Software Products are licensed to Customer by ReliaQuest subject to the terms and conditions of any third-party software manufacturer or developer (“OEM”) license agreement or ReliaQuest End User License Agreement (“EULA”) accompanying the Documentation, applicable to the Software Product, or incorporated into the Software Product, and Customer agrees to comply with the terms of such license agreement. As the Software Product is a third-party Software Product, ReliaQuest can provide only such license rights as permitted by the third party. Software Products provided under any open source licensing model are governed solely by such open source licensing terms, which prevail over this Agreement. All third-party Software Products are provided “AS IS” by ReliaQuest.
h. Deliverable License. Subject to the terms of this Agreement, ReliaQuest grants Customer a nonexclusive, non-transferable, non-sublicensable, personal license to use Deliverables provided to Customer by ReliaQuest. i. Licenses Temporary Until Paid For. All licenses granted under this Agreement are temporary until Customer has paid all applicable fees. The licenses may be canceled by ReliaQuest if the fees are not paid in accordance with the terms of the Documentation. After all applicable fees are paid, the licenses granted under this Agreement are perpetual, unless a license term is specified in the Documentation or the applicable Software Product license agreement. Customer will only use the licenses granted under this Agreement for internal purposes and shall not sublicense, resell, lease, rent, copy, or distribute the Software Products, Service Tools, Services, or Deliverables at any time. Licenses are granted to the object code versions of Software Products and Service Tools and Customer will not attempt to decompile, reverse engineer or otherwise recreate the source code. All rights not expressly granted are reserved by the licensor.
j. Statement of Verification; Audit Rights. Upon ReliaQuest’s written request, Customer will furnish ReliaQuest with a document signed by Customer’s authorized representative listing the locations and installations where Software Products are installed and the number and type of licenses being used for each Software Product. Customer is responsible for implementing reasonable procedures to ensure its compliance with the terms of this Agreement and applicable Software Product license agreements. ReliaQuest may from time to time, but not more frequently than one (1) times in any calendar year, visit any Customer location for the purpose of confirming that the Software Products are not being used in a manner that is prohibited by the applicable license terms. If ReliaQuest uncovers reasonable evidence that the Software Products are being used in a manner that is prohibited by the terms of this Agreement, ReliaQuest may, in its sole discretion, either: (i) agree to amend this Agreement (or enter into a new or separate license agreement(s) with Customer or other units, divisions or subparts of Customer, as the case may be), which amendment may be subject to a one-time payment to account for such previous use and may also include a change to the license fee; or (ii) immediately terminate this Agreement, and exercise any other remedies available at law or in equity.
k. Hardware Products. ReliaQuest transfers title to Hardware Products to Customer upon receipt of Customer’s payment of all amounts due for such Hardware Products. If the Hardware Products are drop shipped from the OEM then ReliaQuest can only pass through whatever shipping terms are provided by the OEM shipper. If ReliaQuest ships the Hardware Products, the delivery terms are ExWorks ReliaQuest, and Customer will bear the risk of loss or damage until delivery to the Customer address specified in the Documentation.
l. Acceptance of Products. Customer will have five (5) days after delivery of a Product to evaluate the Product (“Evaluation Period”). Customer must notify ReliaQuest in writing within the Evaluation Period if the Product does not conform to the description for such item set forth in the applicable Documentation, specifying with particularity the failure or non-conformance (the “Failure”). Upon ReliaQuest’s confirmation of the Failure, as determined by ReliaQuest in its sole discretion, ReliaQuest will use reasonable efforts to replace such item, to correct such failure on a mutually acceptable basis. Customer will then have an additional Evaluation Period of no more than five (5) days commencing upon ReliaQuest’s redelivery of the Product to verify that the previously reported Failure has been corrected and to notify ReliaQuest of any other Failure. Unless ReliaQuest receives a written notice of a Failure before the end of the first or any subsequent Evaluation Period, if applicable, the Product will be deemed accepted. If, after giving ReliaQuest two attempts to provide the Product which fails to conform to the description in the Documentation and Customer notifies ReliaQuest that a Product has not met the description (and ReliaQuest confirms the Failure), then Customer as its sole remedy, may return such Product and will have no payment obligation to ReliaQuest for such Product. THIS IS CUSTOMER’S EXCLUSIVE REMEDY FOR A DEFECTIVE PRODUCT.
m. Acceptance of Service. Services will be deemed accepted as provided.
n. Nonsolicitation of Employees. Each Party agrees during the term of this Agreement, and for the twelve (12) month period following termination of this Agreement, not to directly or indirectly (including through each Party’s divisions, parents, subsidiaries, Affiliates, successors or assignees) solicit, or make offers of employment to, or enter into consultant relationships with, any persons who are or were, during the term of this Agreement, the other Party’s employees, consultants, contractors, or subcontractors involved, directly or indirectly, in the performance of this Agreement. It will not be a violation of this Section to advertise employment opportunities in any media of general circulation, provided it is not directed at the employees of either Party.
o. Similar Services. Nothing in this Agreement will prohibit ReliaQuest from providing Services or Deliverables similar to those provided under this Agreement to other ReliaQuest customers.
p. Back-Up Data. ReliaQuest is not providing data back-up services and will not be responsible for loss or alteration of Customer data. Unless as otherwise agreed in the Documentation, Customer is responsible to back-up its own data, including any Customer Data and Log Data.
3. Payment and Delivery
a. Fees and Payment. The fees and other charges for the Work shall be specified in the SOW and Customer agrees to be invoiced in accordance with the terms of the Documentation and, in the event nothing in specified, ReliaQuest shall by entitled to invoice for all years covered upfront and prior to the performance of any Services or delivery of any Work to Customer which shall be due upon receipt. Invoices will be deemed accepted by Customer unless Customer notifies ReliaQuest of a dispute within thirty (30) days after the date of the applicable invoice. No endorsement or statement on or accompanying any check or payment will be deemed an accord and satisfaction and ReliaQuest may accept the check or payment without prejudice to ReliaQuest’s right to recover the balance due or pursue any other remedy permitted under this Agreement.
b. Taxes. All fees and other charges specified in the Documentation are exclusive of, and unless as otherwise agreed in the Documentation, Customer will pay, all taxes, customs, or other duties, levies or fees, or other similar charges imposed on ReliaQuest or on Customer by any taxing authority (other than taxes imposed on ReliaQuest’s income) related to delivery of Work as specified in the Documentation.
c. Withholding Tax. If Customer is required by law to withhold and remit tax relating to Customer’s order, Customer will withhold and remit such tax to the applicable tax jurisdiction and furnish to ReliaQuest a tax certificate or other acceptable evidence of payment of such tax as required by the relevant taxing authorities.
a. Services Warranties. ReliaQuest warrants that all Services will be performed by ReliaQuest in a professional and workmanlike manner and in accordance with industry standards for performance of such Services.
b. Deliverables Warranty. ReliaQuest warrants that each Deliverable: (i) will be provided in a timely and workmanlike manner; and (ii) that as delivered, the Deliverable will be free of any viruses, trojan horses, or other harmful or malicious code.
c. Product Warranties. ReliaQuest provides Products “AS IS” without warranties or indemnities of any kind, but the manufacturers or original suppliers of such items may provide their own warranties. For Hardware Products, warranties are typically expressed in a “statement of limited warranty.” For Software Products, warranties (and statements of limited warranty) given by the third-party licensor are typically expressed in a separate software license agreement. To the extent permitted by the manufacturer or ReliaQuest’s vendor, ReliaQuest will pass through to Customer any available warranties that are not provided directly to Customer.
d. Exclusive Remedies. If a Service does not conform to the warranty set forth in Section 4(a) or a Deliverable does not conform to the warranty set forth in Section 4(b), and Customer notifies ReliaQuest in writing during the five (5) day period following performance of the Service or delivery of the Deliverable, identifying the failure to conform with specificity in such notice, ReliaQuest will correct any non-conformance confirmed by ReliaQuest within a reasonable period of time by re-performing the Service or correcting the Deliverable, or providing a refund of fees for Services or Deliverable, unless caused by any of the exclusions set forth in Section 4(e). Customer will provide ReliaQuest with access to the Deliverable and such other information and access reasonably requested by ReliaQuest to permit ReliaQuest to confirm the non-conformance and will provide assistance and cooperation as reasonably requested by ReliaQuest to permit ReliaQuest to make required corrections. If ReliaQuest is unable to comply with the foregoing obligations, ReliaQuest will refund the fee paid by Customer for the Service or the Deliverable, Customer will discontinue all use of the Service or Deliverable and ReliaQuest will have no further obligation to Customer with respect to such Service or Deliverable. This Section 4(d) states ReliaQuest’s entire liability for warranty claims under Sections 4(a) and 4(b) relating to Services and Deliverables and ReliaQuest will have no further obligation to Customer with respect to such Service or Deliverable.
e. Warranty Exclusions. ReliaQuest will not be responsible for any breach of warranty, or any defects, problems or failures with respect to Work that is caused by or arising from: (i) any nonconformance of a Deliverable that ReliaQuest cannot recreate on Customer’s system after exercising reasonable efforts in an attempt to do so; (ii) misuse or use of a Deliverable in a manner not contemplated by the description of the Deliverable set forth in the Documentation or authorized by this Agreement; (iii) a modification of a Deliverable made by any party other than ReliaQuest; (iv) Customer’s use of a Deliverable in combination with software or hardware not specified as compatible by ReliaQuest; (v) Customer’s failure to promptly implement new releases of a Deliverable made available by ReliaQuest or to follow ReliaQuest instructions in a Deliverable’s implementation; (vi) virus, trojan horses, or other harmful malicious code not introduced by ReliaQuest; (vii) materials, information or specifications provided by Customer; (viii) changes to or errors in third party software or hardware with which the Deliverable operates or interfaces, or on which the Deliverable otherwise relies; or (ix) incidents caused by the negligence or misconduct of Customer.
f. Disclaimer. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THIS AGREEMENT ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY RELIAQUEST OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, RELIAQUEST DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE OUTSIDE OF THIS AGREEMENT (INCLUDING ALL SCHEDULES) WILL BE DEEMED TO CREATE A WARRANTY OR IN ANY WAY INCREASE THE EXPRESS WARRANTIES AND REMEDIES IN THIS AGREEMENT. ANY EXPRESS WARRANTIES AND ANY WARRANTIES IMPLIED OR REQUIRED BY LAW THAT ARE NOT DISCLAIMED OR EXCLUDED ARE LIMITED TO THE REMEDIES SPECIFIED IN THIS AGREEMENT. NO WARRANTY IS MADE THAT ANY WORK WILL MEET CUSTOMER’S NEEDS OR BE ERROR FREE OR UNINTERRUPTED. RELIAQUEST MAKES NO WARRANTIES REGARDING THE ACCURACY OF INFORMATIONAL CONTENT OR SYSTEM INTEGRATION, OR THE APPROPRIATENESS OF THE WORK FOR ANY PARTICULAR SYSTEM.
5. Intellectual Property Rights
a. Ownership of Services and Deliverables. All Deliverables are licensed for Customer’s use and they are not sold to Customer. ReliaQuest and its third-party suppliers retain exclusive ownership to the intellectual property rights associated with the Services and Deliverables, and any such title and interest therein, including in any such ideas, concepts, know how, documentation, or techniques developed or learned by ReliaQuest during the performance of Service under this Agreement. Deliverables are not considered works made for hire owned by Customer. All rights not expressly granted to Customer are reserved by ReliaQuest and there are no implied licenses. Notwithstanding the foregoing: (i) all data and information provided by Customer hereunder (“Customer Data”) shall remain as the sole and exclusive property of Customer; and (ii) any reports and security tool content provided by ReliaQuest to Customer under this Agreement and any associated Documentation will be retained by the Customer for internal use after the termination or expiration of the Agreement or applicable Documentation. If Customer suggests any new features, functionality, or improvements for any Work, ReliaQuest may use, implement and incorporate such new features, functionality, or improvements without any obligation to make any payment, share any profits or otherwise account to Customer, and such suggestions will not subject to any confidentiality restrictions. All new features, functionality and improvements for any Work developed by ReliaQuest based on Customer’s suggestions will be the sole and exclusive property of ReliaQuest.
b. Ownership of Software Products and Service Tools. ReliaQuest and its third-party suppliers shall retain exclusive ownership of all Software Products and Service Tools and retain all intellectual property rights, title, and interest therein. Software Products and Service Tools are not sold to Customer and Customer will not attempt to decompile, reverse engineer, or otherwise recreate the source code of a Service Tool. ReliaQuest may provide limited access for Customer to use a Service Tool, in whole or in part, at ReliaQuest’s sole discretion. Software Products are licensed to Customer as provided in Section 2(g) above.
6. Confidential Information
a. Nondisclosure Obligation. If a Party to this Agreement (“Recipient”) receives Confidential Information from the other Party (“Discloser”), then Recipient will protect such Confidential Information from disclosure by exercising at least the same degree of care it uses to protect its own similar information, and in any event not less than reasonable care.
b. Exceptions. The foregoing obligations will not apply to any Confidential Information that (i) is or becomes available to the public, other than by breach of a duty by Recipient, (ii) is in the rightful possession of the Recipient without an obligation of confidentiality, or (iii) is independently developed by Recipient without use of or reference to Confidential Information of Discloser. Confidential Information may be disclosed by Recipient as required by a court or governmental authority of competent jurisdiction, provided that prior to any such disclosure Recipient provides Discloser with prompt written notice so that Discloser may seek an appropriate protective order. The confidentiality obligations under this Section 6 will survive the expiration or early termination of this Agreement not withstanding following the return or destruction of the Confidential Information.
c. Service Metrics. ReliaQuest is constantly innovating and in order to provide the best possible experience for its customers, ReliaQuest may use Service Metrics for the purposes of providing, maintaining, protecting, and improving the Services, ReliaQuest’s services, and developing new services. For the purposes of this Agreement, “Service Metrics” means any and all non-Customer specific information, such as anonymized (with respect to Customer) facts, figures, numbers, characters, text, observations, measurements, statistics, quantitative or qualitative attributes, failure or alert codes, or other items of information that is generated, collected, derived or related to ReliaQuest’s performance of the Services, irrespective of the method in which such information is memorialized or recorded. ReliaQuest may combine Service Metrics related to the Services with information from other ReliaQuest services or third parties in order to improve the quality of the Services and ReliaQuest’s services. Customer agrees that ReliaQuest may use the Service Metrics for any purpose, including without limitation to: (a) carry out its obligations under this Agreement; (b) observe and report back to Customer on Customer’s usage of the Services, and make recommendations for improved usage of the Services; and (c) identify trends, publish reports, or otherwise use its findings in the performance of ReliaQuest’s services. Customer acknowledges and agrees that ReliaQuest owns all legal right, title, and interest in the Service Metrics, including any intellectual property rights which subsist in the Service Metrics (whether those rights happen to be registered or not, and wherever in the world those rights may exist); provided, however, the foregoing ownership provision for Service Metrics expressly excludes Customer Data and all other Customer Confidential Information and information of Customer’s vendors, including any intellectual property rights which subsist in same (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Customer further acknowledges that any Service Metrics provided to Customer may contain information which is designated confidential by ReliaQuest and that Customer shall not disclose such information, other than as authorized in this Section 6, without ReliaQuest’s prior written consent.
7. Limitation of Liability and Remedies
a. Limitation of Liability. Each Party’s total aggregate liability arising under or relating to this Agreement and the Work provide under applicable Documentation, is limited to either: (1) for Products, the amount paid by Customer for specific Product itself giving rise to such claim; or (2) for Services and Deliverables provided under Documentation, a maximum of two (2) months of the Service charges paid by Customer and earned by ReliaQuest under the applicable SOW with respect to the two (2) month period immediately preceding the date of the occurrence of the claim. This limitation will not apply to Customer’s payment obligations under this Agreement.
b. Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL COSTS OR DAMAGES INCLUDING DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO REALIZE EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE RESTORATION.
c. Legal Theory. TO THE EXTENT ALLOWED BY APPLICABLE LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER DAMAGES WERE FORESEEABLE.
d. Application to Third Parties. RELIAQUEST AFFILIATES AND SUPPLIERS ARE INTENDED BENEFICIARIES OF THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 7. THERE ARE NO OTHER THIRD PARTY BENEFICIARIES UNDER THIS AGREEMENT. THIS AGREEMENT EXPRESSLY EXCLUDES LIABILITY TO CUSTOMER’S SERVICE PROVIDERS, CUSTOMERS, AND OTHER THIRD PARTIES.
e. Limitations Period. Customer will not bring a legal action against ReliaQuest more than twelve (12) months after the cause of action arose unless applicable law prohibits this contractual limitation.
8. Survival. Any provisions of this Agreement that require or contemplate execution or extend after completion of the Work are enforceable against the other Party and their respective successors and assignees notwithstanding termination, including Sections 2(h), (i), (j), (m) and (o), 3, 4(f), 5, 6, 7, 8, 9, 10, and 11 of this Agreement. Any termination or expiration will be without prejudice to the terminating Party’s legal rights and remedies, including injunction and other equitable remedies, subject to the limitations and exclusions set forth in this Agreement.
a. Good Faith Negotiation. In the event of any dispute, claim, or disagreement arising from or related to this Agreement or an alleged breach of this Agreement (“Dispute”), either Party may deliver to the other Party notice of such Dispute (the “Dispute Notice”), and the Parties agree to use their reasonable efforts to settle the Dispute through good faith negotiation.
b. Mediation. If the Parties are unable to resolve any Dispute through good faith negotiation within thirty (30) days from the delivery of the Dispute Notice (the “Negotiation Period Expiration”), the Parties agree first to try in good faith to settle the Dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The Parties will attempt to select a single mediator by mutual agreement, and if they are unable to do so within fifteen (15) days after the Negotiation Period Expiration, either of the Parties may request the appointment of a single neutral mediator by the AAA.
c. Arbitration. If the Parties are unable to resolve any Dispute through good faith negotiation and mediation within seventy-five (75) days from the delivery of the Dispute Notice, the Dispute shall be settled by and submitted to arbitration administered by the AAA under its Commercial Arbitration Rules, which are available at the AAA website at www.adr.org. Either Party may initiate such an arbitration proceeding by notifying the other Party in writing.
d. Arbitrator. The Parties will attempt to select a single arbitrator by mutual agreement. If they are unable to do so within thirty (30) days after the initiating of an arbitration proceeding, the Parties may request the appointment by the AAA of a neutral arbitrator that is a retired judge. Location and Language. Each mediation and arbitration proceeding will take place exclusively in Tampa, Florida at a reasonably convenient location. The proceedings will be conducted in the English language. To avoid any doubt, any question or dispute concerning the jurisdiction of the arbitrator or the arbitrability of the dispute will be decided by the arbitrator and will be governed by the U.S. Federal Arbitration Act.
e. Evidence and Limitations. No written or oral statements of position or offers of settlement made in the course of the Dispute resolution process will (i) be offered into evidence for any purpose, or (ii) constitute an admission or waiver of rights by either Party. The arbitrator or mediator will have no authority to award punitive damages or to exceed the contractual limitations on damages and remedies set forth in this Agreement.
f. Fees. Each Party will bear its own costs and expenses, and an equal share of the fees, of the negotiation, mediation and arbitration.
g. Findings. The arbitrator will (i) issue a final award in writing, (ii) sign it, and (iii) include a reasoned opinion with findings of fact and a breakdown of specific claims. The final award of the arbitrator will be final and binding and judgment on the award rendered by the arbitrator may be entered by either Party in any court having jurisdiction.
h. Interim Measures. Nothing in this Agreement will limit or in any way restrict the ability of ReliaQuest to seek interim, provisional or conservatory measures such as any pre-mediation or prearbitral or other injunction or attachment in any court of competent jurisdiction and without the obligation of posting any bond or surety.
i. WAIVER OF JURY TRIAL. EACH PARTY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING PERTAINING TO THE AGREEMENT OR ANY SERVICE PROVIDED BY EACH PARTY. THE WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. EACH PARTY AGREES NOT TO INCLUDE ANY EMPLOYEE, OFFICER, OR DIRECTOR OF THE OTHER PARTY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM.
10. Notices. Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation, or personal delivery to the other Party at the address listed on the applicable quotation or purchase order or other Documentation. Notice is effective: (i) when delivered personally, (ii) three (3) business days after sent by certified mail, (iii) on the business day after sent by a nationally recognized courier service for next day delivery, or (iv) on the business day after sent by facsimile with electronic confirmation to the sender. A Party may change its notice address by giving notice in accordance with this paragraph.
a. Force Majeure. Neither Party will be liable for performance delays or non- performance due to causes beyond its reasonable control. This provision will not apply to Customer’s payment obligations.
b. Assignment. Each Party will have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or otherwise. Any other attempted assignment, delegation, or transfer by a Party without the express prior written consent of the other Party is void.
c. Export and Import. If Customer exports, re-exports, or imports a Product, Service, Deliverable, technology, or technical data purchased under this Agreement, then Customer assumes responsibility for complying with, and Customer will comply with, all applicable laws and regulations and for obtaining required export and import authorizations. ReliaQuest may suspend performance if Customer is in violation of any applicable laws or regulations.
d. Governing Law. This Agreement will be governed by the laws of the State of Florida, without regard to conflict of law principles. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
e. Entire Agreement. This Agreement, including any applicable Documentation, forms the entire agreement between ReliaQuest and Customer regarding Customer’s purchase of the Work and supersedes and replaces any previous communications, representations, or agreements, or Customer’s additional or inconsistent terms, whether oral or written. In the event any provision of this Agreement is held invalid or unenforceable the remainder of this Agreement will remain enforceable and unaffected thereby.
f. Enforceability of Limitations. THE TERMS OF THIS AGREEMENT THAT LIMIT, DISCLAIM, OR EXCLUDE WARRANTIES, REMEDIES, OR DAMAGES ARE INTENDED BY THE PARTIES TO BE INDEPENDENT AND REMAIN IN EFFECT DESPITE THE FAILURE OR UNENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT. THE PARTIES HAVE RELIED ON THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS AGREEMENT IN DETERMINING WHETHER TO ENTER INTO IT.
g. Waiver. Neither Party’s failure to exercise or delay in exercising any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights.
h. Amendment. For a change to this Agreement to be valid, authorized representatives of each Party must sign a written amendment. Changes in any other form are void, including any handwritten interlineations to this Agreement. Any conflicting or additional terms and conditions on or accompanying any purchase order or other communication from Customer are void. ReliaQuest’s failure to object to provisions contained in any purchase order or other communication from Customer will not be construed as a waiver of this Section 11(h).
i. Facsimile Copies. Signatures exchanged via facsimile or PDF signatures exchanged by electronic transmission will be deemed originals.
j. Interpretation. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one Party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
k. Order of Precedence. In the event of a conflict, the terms of the Documentation will prevail over the terms of this Agreement, provided that Sections 2(o), 4(f), (6) and 7 of this Agreement may not be modified in the Documentation.
l. Relationship of the Parties. Each Party is an independent contractor in the performance of this Agreement. Neither Party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other, unless explicitly provided otherwise in this Agreement. Personnel of each Party and their Affiliates will not be deemed employees or agents of the other Party.
m. Publicity. Without the prior written consent of the other Party, neither Party will: (i) publicly use the name, logo or other identifying marks of the other Party, or (ii) issue or permit the issuance of any press release or other public statement regarding this Agreement or the Parties’ relationship, provided however that ReliaQuest shall be able to identify Customer as current customer of ReliaQuest in its sales and marketing materials and also identify Customer as a current customer on its website by name and through use of Customer’s logo.
n. Subcontracting. ReliaQuest retains the right to subcontract the performance of any Service, or any part of it, to subcontractors selected by ReliaQuest so long as ReliaQuest remains liable to Customer for the performance of the Service as specified in this Agreement and the Services the Documentation.