SERVICES AGREEMENT
By accepting and receiving the products or services listed on the applicable work order or confirmation email that references this agreement, Customer agrees to the terms and conditions of this agreement, which may be updated from time to time. If you enter into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. In this case, “YOU” or “YOUR” shall refer to such entity and its affiliates. If you do not have such authority or do not agree with these terms and conditions, you must not accept this agreement or the products or services listed on the applicable work order or confirmation email. This Services Agreement (this “Agreement”) is made and entered into between (“Customer”) and Smith Systems Driver Improvement Institute, Inc., a Delaware corporation (“Company”). The parties agree as follows:
1. SERVICES, WORK ORDERS, AND CHANGE ORDERS
1.1 Services. Subject to the terms and conditions of this Agreement, Company will perform for Customer the one-time and/or recurring services described on a Work Order (as defined below) (“Services”).
1.2 Work Orders. The specific details of the Services to be performed will be determined on a per-project basis, and the details for each project will be described in a written work order, substantially in the form of the work order set forth in Exhibit A, that is executed by both parties (“Work Order”). Once executed by both parties, each Work Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Work Orders. If there is a conflict between the terms of this Agreement and the terms of a Work Order, the terms of this Agreement will control unless the Work Order expressly states that a specific provision of this Agreement will be superseded by a specific provision of such Work Order.
2. ACCESS TO APPS AND PORTAL
2.1 As part of the Services, Company may provide Customer with access to an online portal created, owned, or operated by or otherwise licensed to Company or its affiliates that enables Customer to view data analytics from mobile applications and/or web applications (the “Apps”) used by Customer or its employees, agents or contractors who are authorized by Customer to access and use the Services (“Authorized Users”) to assist in data consolidation and integration, live tracking and other services hosted and operated on Company’s computer servers (collectively, the “Portal”).
2.2 Customer may provide access to the Portal to its Authorized Users. As part of the registration process, Customer will identify an administrative user—including their name, email, and phone number—for Customer’s and Authorized Users’ access to the Portal (“Access Credentials”). Customer will: (a) ensure the Authorized Users comply with the terms of this Agreement; (b) routinely review the Authorized Users and ensure Access Credentials are disabled for individuals no longer employed by Customer; and (c) be responsible for all acts and omissions of its Authorized Users.
2.3 As a condition to access the Portal, Customer will work with Company to set up accounts to the Apps for Customer’s Authorized Users by providing Company with the name, mobile phone number, email address, role, and other contact information that is required to provide access to the Apps (“User Data”). Customer shall ensure that the User Data is and will continue to be accurate.
2.4 Customer will use reasonable efforts to prevent any unauthorized use of the Portal or the Apps and will immediately notify Company in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Portal or the Apps, directly or indirectly through Customer or an Authorized User, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized use of the Portal or the Apps.
2.5 The Portal and/or the Apps may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Company will use reasonable efforts to provide advance electronic notice of any scheduled service disruption.
2.6 Customer represents, covenants, and warrants that Customer and Authorized Users will use the Portal and the Apps only in compliance with this Agreement and any applicable Work Order, standard published policies then in effect related to the Apps or Portal, any documentation, and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s or its Authorized Users’ use of the Portal and the Apps, Company may do so and may prohibit any use of the Portal and/or Apps it believes may be (or is alleged to be) in violation of the foregoing.
3. PERFORMANCE OF SERVICES AND CUSTOMER MATERIAL
3.1 Performance Standard. Company will perform the Services in accordance with the applicable Work Order, including any specifications in the Work Order. Company will use reasonable efforts to complete the Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the Work Order, as applicable.
3.2 Personnel. Company may utilize employees, independent contractors or other agents to perform all or part of the Services. Company will remain solely responsible for the performance of all of the Services, including by such employee, independent contractors or other agents.
3.3 Company Material. As part of the Services, Company may provide to Customer or the Authorized Users access to, certain products, materials, documents, software, hardware, information, data, works, content, devices, methods, processes, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, text, information, images (still and moving), audio visual, video or sound recordings and program streams, and/or any other content provided as part of the Services or otherwise created for or during the performance of the Services (“Company Material”). Company Material includes, without limitation, the Apps and the Portal.
3.4 Equipment. Unless otherwise specified in a Work Order, Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and the Company Material, including, without limitation, transportation units, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer is responsible for maintaining the security of the Equipment and will be responsible for all access to the Company Material.
3.5 Restrictions. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying structure, ideas, or know-how relevant to the Company Material; (b) modify, translate, or create derivative works based on the Company Material (except to the extent expressly permitted by Company); (c) use the Services or Company Material for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels on the Company Material; (e) rent, lease, or otherwise permit third parties to use the Company Material; (f) use the Services or the Company Materials for the purposes of monitoring performance, functionality or other benchmarking activities or in connection with the development of any competitive product or service or other competitive purpose; or (g) circumvent or disable any security or other technological features or measures of the Company Materials. If Customer or any of its Authorized Users has violated, or Company has a reasonable basis to suspect that Customer or any of its Authorized Users has violated, the restrictions contained in this Section 3.4, Company may suspend the Services, including Customer or its Authorized Users’ access to the Company Material, without notice until Customer can demonstrate that its use of the Services and Company Material is in full compliance with this Agreement.
3.6 Usage Limitations. Services are subject to active licenses and or pay-per seat/view limits, including, for example, the quantities specified in a Work Order. Unless otherwise specified: (a) a quantity in a Work Order refers to Authorized Users, drivers, trainers, licenses, court views, vehicles, and trailers pulled by vehicles, as applicable. The Services and Company Material may not be accessed by more than such quantity of Authorized Users, drivers, trainers, licenses, court views, vehicles, and trailers pulled by vehicles, as appliable; (b) an Authorized User’s password may not be shared with any other individual; (c) an active license may be reassigned to a new individual or Authorized User replacing one who no longer requires ongoing use of the Service or Company Material as a result of employee turnover, change in role/responsibility, or like circumstance; provided that Company may periodically review the quantity of licenses transferred and may increase license count if transfer quantities are deemed excessive in nature; and (d) a vehicle is specified by the Vehicle Identification Number and/or decal number and is unique for each vehicle and trailer specified in a Work Order.. If Customer exceeds a contractual usage limit, Company may notify Customer that its usage exceeded that limit. Notwithstanding Company’s efforts, Customer agrees to promptly pay any invoice for excess usage in accordance with Section 4.
4. COMPENSATION
4.1 Fees. Unless otherwise specified in a Work Order, Customer will pay Company for Services as set forth in the Work Order, including credit card charges, if applicable (“Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon 60 days’ prior notice to Customer (which may be sent by email).
4.2 Payment. Unless otherwise specified in a Work Order: (a) Company will issue invoices for Fees for Services; and (b) Customer will pay any undisputed amount set forth in an invoice no later than net 30 days after receipt of Company’s invoice. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will also reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due.
4.3 Taxes. Other than federal and state net income taxes imposed on Company by the United States, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Unless otherwise specified in the applicable Work Orders, the Fees payable to Company under this Agreement do not include any Taxes or other amounts assessed or imposed by any governmental authority.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement shall commence on the Effective Date and continue in effect until 24 months after such time as all Work Orders have terminated or expired. Subject to earlier termination as set forth in this Section 6, each Work Order will have the term specified therein.
5.2 Termination for of Material Breach. If either party commits a material breach in the performance of any of its obligations under this Agreement or any Work Order, then the other party may give the breaching party written notice of the breach (including, without limitation, a description of the Services with respect to which breach has occurred, a statement of the facts relating to the breach, the applicable provisions of this Agreement or the applicable Work Order, and the action required to cure the breach), and the non-breaching party’s intent to terminate the applicable Work Order pursuant to this Section 6.2 if the breach is not cured within 30 days after the date of the notice (or a later date as may be specified in the notice). Without limitation, any failure by Customer to timely pay to Company any amounts to be paid under this Agreement or any Work Order will constitute a material breach of this Agreement and the applicable Work Order, and Company may, without limitation of any of its other rights and remedies available, suspend performance of any Services then in progress during any time that Customer fails to pay any amounts owed to Company.
5.3 Effect of Termination. If any Work Order is terminated in accordance with this Section 5, then, unless otherwise specifically provided for in the applicable Work Order, the following will apply: (a) Customer will pay to Company any Fees and other amounts payable for the Services performed under the terminated Work Order through the effective date of the termination; (b) all rights granted to Customer to access the Services and Company Materials, including the Portal and the Apps, will immediately terminate; and (c) the parties’ respective rights and obligations under Sections 4.3, 4.5, 5, 6.3, 7, 8, 9, 10, and 11 of this Agreement with respect to any Services covered by the terminated Work Order, including the obligation to pay for the Services that were to be performed, will survive.
6. CONFIDENTIALITY; PROPRIETARY RIGHTS
6.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality, and performance of the Portal and the Apps, as well as the other Company Materials. Confidential Information of Customer includes non-public data provided by Customer or an Authorized User to Company through the Apps or the Portal, including the User Data, and other Customer Material (as defined below). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use (except in performance of a party’s rights or obligations under this Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any Confidentiality Information after five (5) years following the termination of this Agreement (except with respect to any personal information or trade secrets which the Receiving Party shall protect for as long as required under applicable law) or any Confidential Information that the Receiving Party can document: (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law.
6.2 Usage Data. Notwithstanding anything to the contrary, Company and its affiliates have the right to: (a) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and Company Materials, including the Portal, Apps, and related systems and technologies (including, without limitation, information concerning the Customer and data derived therefrom) (“Usage Data”), and Company and its affiliates will be free to use such Usage Data to improve and enhance the Services and Company Materials, including the Portal and Apps, and for other development, diagnostic, corrective, or other business purposes in connection with the Company Materials, including the Portal and the Apps, and other Company and its affiliates’ offerings; and (b) use such Usage Data related to the Customer in a deidentified and aggregated manner in Company’s sole discretion (together with Usage Data, the “Company Data”).
6.3 Privacy Policy. Company’s Privacy Policy (the “Privacy Policy”), which is available at https://drivedifferent.com/privacy-policy/, applies to Customer’s use of the Services. If there is a conflict between this Agreement and the Privacy Policy, this Agreement controls.
6.4 Ownership.
(a) Customer Materials. All materials, information, and other content that Customer or the Authorized Users provide to Company, directly or indirectly, in accessing or using the Company Materials or otherwise in the course of Company performing the Services (“Customer Materials”) remain the sole property of Customer. Customer hereby grants to Company non-exclusive, paid-up, royalty-free, irrevocable, transferable, sublicensable, worldwide right and license to use the Customer Materials in connection with the performance of the Services.
(b) Company Materials. Company shall own and retain all right, title, and interest in and to: (a) the Company Materials and all derivative works, improvements, enhancements, or modifications thereto; (b) any works of authorship, software, applications, inventions, or other technology, developed in connection with the Services or the Company Materials; (c) Company Data and the know-how and analytical results generated in the processing of the Company Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Services or Company Material made based on the Company Data; and (d) all intellectual property rights related to any of the foregoing. To the extent that ownership of the foregoing does not vest in Company, Customer will assign (or cause to be assigned) and does hereby assign fully and irrevocably to Company all right, title, and interest in and to the foregoing, including all related intellectual property rights, including all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world. Customer will not have any rights to the Company Materials except as expressly granted in this Agreement. Company reserves to itself all rights to the Services and Company Materials not expressly granted to Customer in accordance with this Agreement. Subject to the terms of this Agreement, Company hereby grants to Customer a revocable, non-exclusive, non-transferable, non-sublicensable, worldwide right and license to use the Services and Company Material solely with respect to use and enjoyment of the Services.
(c) Feedback. If Customer provides any feedback to Company concerning the Company Material (including identifying potential errors and improvements), Customer hereby irrevocably assigns to Company all right, title, and interest in and to such feedback, and Company is free to use the feedback without payment or restriction.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Company Warranties. Company represents and warrants to Customer that: (a) it will perform the Services in a professional and workmanlike manner; (b) that it owns or otherwise has and will have the necessary rights and consents in and relating to the Company Materials that, as received by the Customer and processed in accordance with this Agreement and any Work Order, they do not and will not infringe, misappropriate or otherwise violate any intellectual property, or any privacy or other rights of any third party or violate any applicable law; and (c) to Company’s knowledge, the Company Materials do not contain any virus or other malicious code.
7.3 Customer Warranties. Customer represents and warrants to Company that: (a) that it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials that, as received by the Company and processed in accordance with this Agreement and any Work Order, they do not and will not infringe, misappropriate or otherwise violate any intellectual property, or any privacy or other rights of any third party or violate any applicable law; (b) the Customer Materials and the User Data are true and accurate; and (c) it will access or use the Company Materials and Services only in compliance with this Agreement and the applicable Work Order.
7.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF, OR BASED UPON, THE CUSTOMER’S USE OF THE SERVICES.
8. INDEMNITY
8.1 Claims. Each party (the “Indemnifying Party”) will, at its expense, either defend the other party, and such party’s officers, directors, employees, agents, and affiliates (collectively, the “Indemnified Party”) from or settle any claim, liability, damage, loss or expense (including reasonable attorneys’ fees) arising out of or in connection with: (a) breach or failure to comply with the terms of this Agreement or any Work Order, including with respect to the representations and warranties in Section 7 hereof, by the Indemnifying Party, its officers, directors, employees, agents, and affiliates, or Authorized Users; (b) damage to property or injury to person (including death) caused by or resulting from the acts of omissions of the Indemnifying Party, its officers, directors, employees, agents, and affiliates, or Authorized Users; and (c) the negligence or willful misconduct during the term of this Agreement or any Work Order by the Indemnifying Party, its officers, directors, employees, agents, and affiliates, or Authorized Users (the foregoing subsections (a) through (c) each being a “Claim”). Notwithstanding the foregoing, Company’s obligations under this Section 9.1 do not apply: (x) with respect to portions or components of the Company Materials, including the Portal and the Apps, that are combined with other products, processes, or materials where the alleged infringement relates to such combination; or (y) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement (collectively, “Excluded Claims”).
8.2 Procedures. The Indemnifying Party’s obligation to indemnify a Claim is conditioned on: (a) the Indemnified Party giving the Indemnified Party prompt written notice of the Claim; (b) the Indemnified Party granting the Indemnified Party full and complete control over the defense and settlement of the Claim; (c) the Indemnified Party providing assistance in connection with the defense and settlement of the Claim as the Indemnified Party may reasonably request; and (d) the Indemnified Party complying with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services). The Indemnified Party will not defend or settle any Claim without the Indemnified Party’s prior written consent. The Indemnified Party will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but the Indemnified Party will have sole control over the defense and settlement of the Claim.
9. LIMITATIONS OF LIABILITY
9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF, OR RELATED TO, THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT OR ANY WORK ORDER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF, OR RELATED TO, THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, WARRANTY CLAIMS) OR ANY WORK ORDER, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE WORK ORDER IN THE 12 MONTHS PRECEDING THE ACTION GIVING RISE TO THE CLAIM.
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10. FORCE MAJEURE
10.1 Except for the obligation to pay Fees or other money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, epidemic, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
11. IMPORT/EXPORT
11.1 In connection with all activities permitted in this Agreement, Customer shall comply with all applicable import, export, and reexport control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Specifically, Customer acknowledges and confirms that it will not provide, sell, ship, export, re-export, re-transfer, or divert the Company Materials, including the Portal, directly or indirectly through third parties or otherwise, to any restricted party as specified in the regulations listed above (“Restricted Party”) or to or through countries or regions that are the target of sanctions under trade control laws (presently, Cuba, Iran, North Korea, Syria, Russia, Belarus, and the Crimea, Donetsk People’s Republic (DNR), and Luhansk People’s Republic (LNR) regions of Ukraine) (“Sanctioned Country”). Additionally, Customer warrants that it is not (a) located in a Sanctioned Country, and (b) a Restricted Party. Customer shall immediately notify Company if it becomes a Restricted Party or its export privileges are denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government or non-governmental entity or agency.
12. MISCELLANEOUS
12.1 Third Party Products. “Third Party Products” means those services and products directly or indirectly performed or procured by persons other than Company, and all hardware, software, documentation, deliverables and supplies regardless of whether such items or services are purchased through, delivered by or installed by Company. Third Party Products may be included in, embedded in, used by, provided or distributed with, or accessible via the Services. Customer may be required to agree to additional or other terms and conditions with the provider of the applicable Third Party Products (“Third Party Terms”) or to pay Company additional fees in connection with Customer’s access to and use of the Third Party Products. To the extent Customer’s agreement to Third Party Products, or if Client will be obligated to pay Company additional fees in connection with Company’s access to and use of the Third Party Products, Customer will have an opportunity to review the Third Party Terms (either via Company or directly with the applicable third party provider) and fees charged by Company in advance. In the event of any conflict or inconsistency between this Agreement and the Third Party Terms with respect to the Third Party Products, the Third Party Terms will control. Customer shall not assert any action against Company arising out of the use or purchase of, or otherwise in connection with, a Third Party Product. Customer will not be responsible for, unauthorized use (or charges for such use) of common carrier telecommunication, data services or facilities accessed through or connected to Third Party Products. No failure of a Third-Party Product will affect Customer’s obligations to Company.
12.2 Publicity. Notwithstanding anything to the contrary herein, either party may, without the prior written consent of the other party, refer to the existence of this Agreement or use the name, trade name, trademark or service mark of the other party in any press release, advertising, or materials distributed to prospective customers. Each party hereby grants the other party a non-exclusive, transferable, royalty-free, fully paid up, worldwide, irrevocable, and sublicensable right and license to use the other party’s trademarks, trade names, trade dress, service marks, and logos (“Marks”) in: (a) such party’s client lists; (b) promotional materials; and (c) on such party’s website and other social media platforms to identify the other party as a customer or service provider, as applicable. Each party retains all right, title, and interest to its respective Marks.
12.3 Assignment. Neither party may assign any of its rights or obligations under this Agreement or any Work Order, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement or any Work Order, without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.4 Independent Company. It is the express intention of the parties that Company perform the Services as an independent Company. Without limiting the generality of the foregoing, Company is not authorized to bind Customer to any liability or obligation or to represent that Company has any authority.
12.5 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. The parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in Delaware, and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
12.6 Notices. Any notice required or permitted under the terms of this Agreement, any Work Order or required by law must be in writing and must be: (a) delivered in person, (b) sent by overnight air courier with some sort of tracking mechanism, in each case properly posted and fully prepaid to the appropriate address as set forth below or (c) sent via facsimile or electronic means. Either party may change its address for notices by notice to the other party given in accordance with this Section 10.3. Notices will be deemed given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, one 1 after delivery to an overnight air courier service or upon receipt by the transmitting party of confirmation or answer back if delivery is by facsimile or electronic means.
12.7 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
12.8 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
12.9 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
12.10 Integration. This Agreement, the Work Orders, and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement shall not be amended, except by a writing signed by both parties.
