Master Services Agreement

 

 

 

 

 

 

SERVICES AGREEMENT

This Services Agreement (this “Agreement”), is effective as of the date of the last signature  (the “Effective Date”), is by and between MIND GYM (USA) Inc., a Delaware corporation with offices located at  475 Park Ave South, 2nd Fl, New York, NY 10016 (”Service Provider”) and [CLIENT NAME], a [STATE OF ORGANIZATION] [corporation/LLC/[OTHER ENTITY]], with offices located at [ADDRESS] (”Client” and together with Service Provider, the “Parties”, and each a “Party”).

WHEREAS, Service Provider is in the business of providing creative personal development and learning services.

WHEREAS, Client desires to retain Service Provider to provide such services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Client agree as follows:

  1. Services

Service Provider shall provide to Client the range of learning and development services (“Services”) set out in one or more statements of work to be issued, (each, a “Statement of Work” or “SOW”). Each Statement of Work shall outline the plan describing the Services to be provided, an estimated timetable, specific deliverables (including by example scoping, product development, documents, Digital Products (defined in Section 3), Sessions (defined in Section 5) or other products, data and materials) and the fees and any expenses to be paid. Statements of Work shall be deemed issued and accepted only if signed by both Parties whereupon it shall become a contractual obligation.   Each Statement of Work shall be part of this Agreement and shall not form a separate contract to it.

2. Service Provider Obligations.

  • Service Provider shall use reasonable efforts to manage and provide the Services in all material respects and to meet any performance dates in accordance with the Statement of Work.
  • Service Provider shall appoint a primary contact to act as its authorised representative to all matters pertaining to the Services and Deliverables (defined in Section 7), such person shall be identified in the Statement of Work. The Service Provider shall use reasonable efforts to ensure that the same person acts as the manager throughout the term of any particular SOW but the Client acknowledges that it may not always be possible for the Service Provider to do so.  If reasonably requested by the Client, Service Provider shall use reasonable efforts to appoint a replacement manager, at the earliest time it determines to be commercially viable.
  • Service Provider shall not be liable for failure to perform any of its obligations, including satisfaction of the time deadlines set forth in the applicable SOW, where Service Provider is unable to perform, or its performance is delayed, due to the actions or inactions of Client including, but not limited to, Client’s failure to meet its project deadlines, fulfil the Client obligations set forth in any SOW or provide necessary information or facilities to enable the Service Provider to provide the Services.

3. Client Obligations. Client shall:

  • Designate a person to be the primary contact with respect to all matters pertaining to the Services and Deliverables to be delivered, such person shall be identified in the Statement of Work.
  • Require that the manager respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services and Deliverables.
  • Cooperate with Service Provider in its performance of the Services and delivery of Deliverables and provide access to Client’s premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services and Deliverables.
  • Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Service Provider’s provision of the Services and Deliverables
  • Comply with all applicable laws rules and regulations to enable the Service Provider to provide the Services and Deliverables.
  • Ensure that the attendees of each Session or those that use Service Provider’s products available via a digital platform, (“Digital Products”) shall be only those of the Client’s employees or such independent contractors under the Client’s control, (the “Client’s Participants”) whose job or engagement requirements make it appropriate for them to attend.

4. Fees and Expenses.

  • In consideration of the provision of the Service by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services and the delivery of the Deliverables. Unless otherwise provided in the applicable Statement of Work, said fee will be payable within 30 days of receipt by the Client of an invoice from Service Provider. If Client disputes any invoice, Client must notify Service Provider in writing prior to the due date of such invoice, otherwise the invoice shall be deemed accurate.
  • Client shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Statement of Work within 30 days of receipt by the Client of an invoice from Service Provider.
  • If the Client is required under any applicable law to withhold or deduct any amount from the payments due to the Service Provider, the Client shall increase the sum it pays to the Service Provider by the amount necessary to leave the Service Provider with an amount equal to the sum it would have received if no such withholdings or deductions had been made
  • Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
  • Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Client fails to pay any undisputed amounts/fees when due hereunder and such failure continues for 30 days following written notice thereof. Client shall reimburse Service Provider for all costs of collection (including attorneys fees and expenses) in pursuing overdue amounts.
  • Where Client has agreed in writing (either in a Quote or SOW or as otherwise agreed between the Parties) to pay in advance a non-refundable payment of 12 months’ worth of Fees for future Services, (a “Prepayment”), the Client shall pay the Service Provider the Prepayment prior to but no later than the commencement of the first Services and/or Deliverables. The Client is entitled for a 12 month period, commencing from the date detailed in the Statement of Work or agreement between the Parties, to purchase the Prepayment value of Services and/or Deliverables. The Service Provider shall use its reasonable endeavours to alert the Client on a regular basis as to the time period left within which the Client must use the Prepayment. The Prepayment is non-refundable in the event the Client does not purchase sufficient Services and/or Deliverables by the end of the 12 month period.

5. Cancellation Terms

If a Session (being delivery of a training session by the Service Provider by a live virtual feed or in person in a physical location and attended by the Client’s permitted invitees) is cancelled by the Client giving more than 28 days advance written notice to the Service Provider, then the Client may (i) re-arrange the date of such Session, (and the Client remains liable for the fees and expenses associated with the re-arranged Session), or (ii) terminate the Service Provider’s obligation to provide the cancelled Session without incurring any liability to the Service Provider for the fees associated with such Session; provided, however, that the Client shall not be relieved of its obligation to pay the Service Provider amounts owed in respect of expenses already incurred by the Service Provider or Services previously supplied in respect of the cancelled Session. Any cancellation pursuant to this paragraph shall not otherwise affect any agreement on future Services to be performed.

  • If a Session is cancelled, by the Client giving at least 14 but not more than 28 days advance written notice to the Service Provider, then the Client may (i) re-arrange the date of such Session (and the Client remains liable for the fees and expenses associated with the re-arranged Session), or (ii) terminate the Service Provider’s obligation to provide the cancelled Session but the Service Provider shall be entitled to charge the Client fifty percent (50%) of the price agreed for the cancelled Session and any expenses already incurred by the Service Provider in respect thereof, which sums shall be immediately due and payable. The Client shall not be relieved of its obligation to pay the Service Provider amounts owed for Services previously supplied in respect of the cancelled Session. Any cancellation pursuant to this paragraph shall not otherwise affect any agreement on future Services to be performed.
  • If a Session is cancelled by the Client giving less than 14 days advance written notice (or no notice, in writing or otherwise) to the Service Provider, all payments due and expenses incurred by the Service Provider in respect of such Session shall be due and payable by the Client as if the Session had taken place. Notwithstanding the foregoing, and without prejudice thereto, the Service Provider may in its absolute discretion determine whether it will re-arrange the date of the cancelled Session, Such cancellation shall not otherwise affect any agreement on future Services to be performed.
  • In the event that the Service Provider’s services comprise development and design services, the Client shall be entitled to cancel such services by way of written notice to the Service Provider; provided, however that the Client shall be liable for the applicable cancellation fee in accordance with the following rates (such rates to be based on thresholds in relation to such services as shall be determined by agreement between the Client and the Service Provider below):
  • Digital Products are non-cancellable either during the agreed term of the licence granted or upon a one-off purchase unless the Service Provider is in material breach of this Agreement.
Percentage of work completed by Service Provider Cancellation fee – percentage of Charges payable to Service Provider
0% 0%
33% 33%
66% 66%
100% 100%

 

 

 

 

 

6.Limited Warranty and Limitation of Liability.

  • Service Provider warrants that it shall perform the Services:
    • In accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement.
    • Using personnel of commercially reasonable required skill, experience, and qualifications.
    • In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar Services.
  • Service Provider’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows:
    • Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 10.2.
    • In the event the Agreement is terminated pursuant to Section 6.2(a) above, Service Provider shall within 30 days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Services or Deliverables, less a deduction equal to the fees for receipt or use of such Deliverables or Services up to and including the date of termination on a pro-rated basis.
  • SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 6.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.

7. Intellectual Property.

  • All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the “Deliverables”), except for any Confidential Information of Client or Client materials, shall be owned by Service Provider.
  • Service Provider Deliverables: The Service Provider hereby grants the Client a royalty free, non-exclusive, non-transferable, revocable, (but only in the case for breach of this Agreement), and perpetual licence for the use and receipt of the Deliverables and Services provided in accordance with this Agreement on an ongoing basis as long as Client does not, (without express prior written consent from the Service Provider), use the Deliverables for additional training without the Service Provider’s involvement or to provide training to additional employees, or disseminate the Deliverables outside the Client. The Licence enables the Client Participants, (being the Client’s employees and individual contractors that have been nominated by the Client to receive the Services and Deliverables) to use any Deliverables provided by the Service Provider for their own personal development purposes, and to facilitate discussions about the training and to share ideas with other employees for their internal personal development. Except as outlined above, the Client may not duplicate, reproduce, copy, translate, publish, supply, stream, record, extract, adapt or create versions, derivative or compilation works from any of the Deliverables unless the Client has the express prior written consent from the Service Provider.
  • Client Materials. As between the Client and the Service Provider, all Intellectual Property Rights and all other rights in the Client Materials, shall be owned by the Client and the Client grants to the Service Provider a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this Agreement for the purpose of providing the Services to the Client.
  • The Service Provider warrants that the use of the Deliverables by the Client shall not infringe any Intellectual Property Rights, of any third party. Subject to the Client making no admission in respect thereof or otherwise prejudicing the Service Provider in respect thereof, the Service Provider, at its own expense, shall defend, indemnify and hold the Client harmless from and against any claims, actions, liabilities or losses that are suffered by or brought against the Client directly by a third party resulting from, pertaining to or in connection with any infringement by the Client by its use of the Deliverables of that third party’s Intellectual Property Rights. The Client shall have no claim to the extent the infringement arises from the use of Client Materials in the development of, or the inclusion in, any Deliverable, or from any modification of any Deliverable, (other than by or on behalf of the Service Provider) by the Client or in compliance with the Client’s specifications or instructions.
  • The Client warrants that the receipt and use in the performance of this Agreement by the Service Provider, its agents, subcontractors or consultants of the Client Materials shall not infringe any Intellectual Property Rights of any third party. Subject to the Service Provider making no admission in respect thereof or otherwise prejudicing the Client in respect thereof, the Client, at its own expense, shall defend, indemnify and hold the Service Provider harmless from and against any claims, actions, liabilities or losses that are suffered by or brought against the Service Provider directly by a third party resulting from, pertaining to or in connection with any infringement by the Service Provider by its use of the Client Materials of that third party’s Intellectual Property Rights.
  • If either party (Indemnifying Party) is required to indemnify the other party (Indemnified Party) under this clause 7 the Indemnified Party shall
    • notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity (as applicable) (IPRs Claim);
    • allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
    • provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
    • not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

8. Confidentiality

  • From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party (”Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 8; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
  • The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to those personnel of the Receiving Party’s who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
  • If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
  • Upon termination or request, the Receiving Party will return and procure the return of all Confidential Information in document form, including any copies made to the Disclosing Party and shall delete all information stored in computer readable form with the exception of Confidential Information held on automatic back-up files, provided that such back-up files shall not be generally accessed by the Receiving Party and which shall be kept confidential until the back-up files are destroyed in accordance with the Receiving Party’s electronic archiving procedures

9. ‌Data Protection

  • In this clause the following definitions have the following meanings:
    • “CCPA”: California Consumer Privacy Act, Civil Code § 1798.100 et seq.
    • Data Protection Legislation”: all laws, regulations, legislative and regulatory requirements and codes of practice applicable to the processing of Personal Data including, without limitation, the UK Data Protection Act 2018 and any regulations, instruments or codes of practice issued pursuant to that Act, the GDPR, and any successor legislation replacing, repealing or amending those laws.
    • GDPR”: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
    • Participant Personal Data”: Personal Data relating to or obtained from Participants that is processed by either Party in connection with this Agreement, as detailed in the Data Processing Notice.
    • Participants”: means the Client’s employees and individual contractors that have been nominated by the Client to participate in Sessions or use Digital Products.
    • Personal Data or “Personal Information”: has the meaning given to it in the Data Protection Legislation applicable in the UK from time to time.
    • Processing Purposes”: each Party’s purposes for processing Participant Personal Data, as set out in Data Processing Notice.
    • Processing Schedule”: details the categories of Personal Data that the Supplier may collect and process under this Agreement.
  • The Parties acknowledge and agree that:
    • both Parties will act as controllers when processing Participant Personal Data in connection with this Agreement; and
    • Participant Personal Data is likely to comprise the types of Personal Data set out in the Processing Schedule depending upon the nature of the Services and Deliverables provided under a SOW. See the full Mind Gym Privacy Policy for further information about our processing of Personal Data and rights in respect of Personal Data.
    • With respect to Personal Information (as defined under the CCPA) provided by Client to Service Provider, Service Provider certifies and understands that (i) it is a service provider (as defined under the CCPA) (ii) it shall not sell Client’s Personal Information and (iii) it shall not retain, use, or disclose Client’s Personal Information for any purpose other than for the specific purpose of performing the Services specified in this Agreement or outside of the direct business relationship between Service Provider and Client.
    • Nothing herein shall restrict Service Provider’s use of Personal Information that a participant has provided directly to Service Provider and authorizes Service Provider to independently use.
  • Each Party shall comply with its obligations under the Data Protection Legislation in respect of its processing of Participant Personal Data in connection with this Agreement. Without limiting the generality of the foregoing, each Party shall:
    • ensure that any disclosure of Participant Personal Data to the other Party is in accordance with the Data Protection Legislation;
    • ensure that the privacy notice requirements of the Data Protection Legislation with respect to its own processing of Participant Personal Data (including disclosure of Participant Personal Data to the other Party and receipt of Participant Personal Data from the other Party) are met;
    • only process Participant Personal Data for the Processing Purposes applicable to that Party or as may otherwise be required by applicable laws and/or permitted under the Data Protection Legislation.
  • The Client acknowledges that much of the Participant Personal Data obtained by the Service Provider directly from Participants, in particular diagnostic and psychometric data and information disclosed by Participants in Sessions, will be processed by the Service Provider in accordance with professional obligations of confidentiality to which the Service Provider and the Service Provider personnel who deliver the Services and Deliverables are subject, and that accordingly no such Participant Personal Data will be disclosed to the Client except as may be required by applicable laws and in accordance with the Data Protection Legislation.
  • Each Party shall co-operate with the other, to the extent reasonably requested, in relation to:
    • any request by a Participant to exercise any of his/her rights as a Data Subject under the Data Protection Legislation;
    • any other communication from a Participant or other data subject concerning the processing of their Personal Data comprised in Participant Personal Data; and
    • any communication from a supervisory authority concerning the processing of Participant Personal Data.
  • The processing of Participant Personal Data is likely to involve a restricted transfer of Participant Personal Data. The Parties agree to take such steps as are necessary to ensure that there is a valid transfer mechanism in place in respect of the transfer in accordance with the Data Protection Legislation and shall enter into controller-to-controller standard contractual clauses, the appendices in any such standard contractual clauses to be completed in accordance with the processing details set out in the Processing Schedule.  In the event of a conflict between any provision of any standard contractual clauses executed pursuant to this clause and any provision of this Agreement, the provision of the standard contractual clauses shall prevail.

10. Term, Termination, and Survival.

  • This Agreement shall commence as of the Effective Date and shall continue thereafter unless sooner terminated pursuant to Section 10.2, 10.3 or Section4.
  • Either Party may terminate this Agreement without cause on more than 28 days written notice to the other Party.
  • Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
    • Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
    • Becomes insolvent or admits its inability to pay its debts generally as they become due.
    • Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 14 business days or is not dismissed or vacated within 45 business days after filing.
    • Is dissolved or liquidated or takes any corporate action for such purpose
    • Makes a general assignment for the benefit of creditors.
    • Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business
    • the other Party takes any action or permits any act or omission which, as a consequence, puts at peril any Intellectual Property Rights of the other Party.
  • Notwithstanding anything to the contrary in Section 10.3(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for 28 days after Client’s receipt of written notice of non-payment; or (b) more than 3 times in any 12 month period.
  • The Service Provider may cancel a Session at any time on reasonable written notice to the Client and, provided the Client is not in default of this Agreement, (in particular the cancellation terms in clause 5), the Service Provider shall refund any sums already paid by the Client in respect thereof or credit any invoices that have been delivered to the Client in relation to agreed Services subsequently not supplied. Such sums shall be the entire liability of the Service Provider for such cancellation or termination.
  • The rights and obligations of the parties set forth in this Section, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information the rights and obligations set forth in Section 8 hereof will survive such termination or expiration of this Agreement for a period of 5 years; and if the Confidential Information constitutes a trade secret under applicable law, the rights and obligations set forth in Section 8 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or the Receiving Party’s personnel.

11. Limitation of Liability.

  • EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3 (EXCEPTIONS), IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  • IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE STATEMENT OF WORK.
  • The exclusions and limitations set forth in Section 11 will not apply to any claim, damages or other liabilities arising out of or related to (a) fraud, and wilful misconduct or anything else that cannot be legally exempted or (b) infringement, misappropriation or violation of any Intellectual Property Right of a Party.

12. Entire Agreement

This Agreement, including and together with any related Statements of Work, exhibits, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.

13.

All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this 14.

Notice to Client:

 

[CLIENT ADDRESS]

 

 

 

Attention: [TITLE OF OFFICER TO RECEIVE NOTICES]

 

Notice to Service Provider:

 

SERVICE PROVIDER ADDRESS]

 

 

 

Attention: [TITLE OF OFFICER TO RECEIVE NOTICES]

 

 

 

 

 

 

 

 

 

 

 

 

14. Severability.

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, [the Parties shall negotiate in good faith to/the court may] modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15. ‌Amendments.

No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, and signed by an authorized representative of each Party.

16. Waiver.

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17. Non Solicitation

Client agrees that, from the date of this Agreement until twelve (12) months after the expiration or termination of this Agreement, it will not, directly or indirectly, solicit for employment, hire or engage as an independent contractor any current or former employee of the Service Provider who has been directly and substantially involved in rendering Services under this Agreement.  Notwithstanding the foregoing, the provisions of this Section shall not restrict or preclude the Client from making generalized searches for employees by the use of advertisements in the media or by engaging search firms to engage in searches that are not targeted or focused on the Service Provider’s employees.

 

18. Assignment.

  • Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 19 shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement.
  • The Service Provider may at any time assign, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement; provided, that the Service Provider will:
    • secure the services of any sub-contractor on terms that are no less restrictive concerning maintaining the confidentiality of materials, and providing that the Service Provider is solely responsible for making all payments to the sub-contractor; and
    • (b) be solely responsible for overseeing the performance of the sub-contractor and shall be and remain responsible for any act or omission of the sub-contractor.

19. Successors and Assigns.

This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

20. Relationship of the Parties.

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

21. No Third-Party Beneficiaries.

This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

22. Choice of Law.

This Agreement and all related documents including all exhibits attachments and appendices attached to this Agreement, and all matters arising out of or relating to the making or performance of this Agreement whether sounding in contract, tort, or statute are governed by, and construed in accordance with and enforced under the laws of the State of New York, United States of America  without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.

23. Choice of Forum.

Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, attachments, and appendices attached to this Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the courts located in New York County, New York. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such courts. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

24. WAIVER OF JURY TRIAL.

EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS,  ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

25. Counterparts.

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

26. Force Majeure.The Service Provider shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client shall be entitled to give notice in writing to  Service Provider to terminate this Agreement.

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