IMPORTANT - PLEASE READ CAREFULLY: BY CREATING AN ACCOUNT, OR BY USING SURETECH SOLUTIONS, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This services agreement (the "Agreement") governs your use of our services, solutions and HelpDesk (the "Solutions" as defined below) provided by Topaz Group Ventures, Inc. d/b/a SureTech, a New York corporation having its principal place of business at 205 Rockingham Row, Princeton NJ 08540 (the "Provider" or "SureTech"). You are referred to as "Member" in this Agreement. If you use any Solutions, or if you click "I Accept SureTech's Master Services Agreement," then you have agreed to these terms. If you are an agent or employee of a subscriber or beneficiary of the Solutions, you individually represent and warrant to SureTech that you are authorized to bind that party to this Agreement. If you do not agree to this Agreement now or at any time, then you are not authorized to use the Solutions.
1. YOUR RELATIONSHIP WITH SURETECH
Use of Provider Subscriber Solutions or Consulting Services (collectivey and severally the “Solutions”) by Member, is subject to the terms of the following legal agreement between Member and Provider.
Unless otherwise specifically agreed in writing with Provider, Member's agreement with Provider will always include the terms and conditions set out in this Master Services Agreement (the “Agreement”). The Agreement forms a legally binding contract between Member and Provider in relation to Member's use of the Solutions. Accordingly, it is important that Member take the time to read this Agreement carefully.
2. ACCEPTING THE TERMS
Solutions shall be contracted for by a “Statement of Work” (defined below) or other subsequent written arrangement or course of conduct by the parties. However, in order to use the Solutions, Member must first accept this Agreement, and the performance of and payment for Services will be governed by this Agreement. Member may not request or use the Solutions if Member does not accept this Agreement.
Member can accept this Agreement by either:
- Clicking to "Accept this Agreement" and registering with SureTech wherever this option is made available to Member by SureTech in the user interface for any Solutions; or
- by actually using any Solutions, in which case, Member understands and agrees that SureTech will treat Member’s use of the Solutions as acceptance of this Agreement from that point forward.
However, this Agreement shall not be binding upon Provider unless and until acknowledgment of receipt and acceptance is given by Provider to Member in writing.
Member may not use the Solutions and may not accept this Agreement if (a) Member is not able to form a binding contract with SureTech, or (b) Member is barred from receiving the Solutions under the law of the United States or any other applicable law. Before continuing, please print or save a local copy of this Agreement for your records.
3. SCOPE OF SOLUTIONS
To the extent ordered through a Statement of Work or otherwise by authorized representatives of Member and Provider, Provider may, upon Member's verbal or written request, provide some or all of the following Services:
Provider will enable, connect, maintain and support Member utilization of cloud hosted Subscriber Solutions as packaged, integrated and configured from industry leading Third-Party providers such as, but not limited to, Amazon, Citrix, Microsoft and Box. All Solutions will be powered by tier 3 or tier 4 data centers connected by a multi-redundant network to the major internet backbones. Provider will maintain network and hardware monitoring and maintenance for connections between these Third-Party providers ("SureSolutions Integration Fabric") as reasonably required, 24 hours a day, 7 days a week.
Metered Subscription Services
FileStorage solutions shall be charged for actual utilization measured each month at the then current price for the lowest cost storage tier encompassing actual storage space used.
Compute utilization is calculated on a monthly utilization based on 80% of the maximum compute amount utilized for SureOffice streaming desktop or streaming application solutions.
Total User Support ("TUS") shall cover all telephone or email service requests related to the operation of Subscriber SolutionS at a fixed monthly fee. The monthly fee shall adjust quarterly to reflect the traling actual utilization of billable labor for all covered service requests billable at the then current TUS rate per hour.
Provider may render Consulting Labor and deliver customized materials (“Deliverables”) in accordance with Statements of Work (each, a “SOW”) as agreed to in writing by the parties, to be numbered sequentially. Without limiting the foregoing, Provider will review the Deliverables with Member’s primary Project Coordinator on an ongoing basis as set forth in each SOW or as otherwise agreed upon by the parties. This Agreement shall govern the performance of and payment for Services that are the subject of a SOW; to the extent reasonable to do so, the terms of this Agreement and the content of any SOW shall be construed as consistent and complementary; in the case of an irreconcilable conflict, however, the terms of a SOW shall apply to Services performed or to be performed under that SOW (but not other SOWs).
In addition to the Services set forth in each SOW, Provider will provide such additional services as Member may request from time to time verbally or in written work authorizations that specify agreed-upon Deliverables (“Additional Services”). Wherever reasonable and appropriate, Provider will endeavor to summarize Deliverables for Additional Services in written emails sent to Member in advance of performing the Additional Services. All Additional Services shall be deemed rendered pursuant to and in accordance with the terms of this Agreement and no agreements, oral or written, apart from a written SOW on SureTech letterhead may modify these terms.
3. SERVICE FEES AND HOURLY RATES
Member is responsible for reviewing and being aware of the Schedule of Fees (the “Schedule of Fees”), attached or listed at SureTech.com – the “SureTech web-site”), as it may be updated and provided to Member in the future, directly or by posting at the SureTech web-site. The Schedule of Fees is subject to change in Provider’s discretion subject only to the Member Satisfaction Guarantee detailed below.
Member agrees to pay Provider each month, in advance, the current fee listed in the Schedule of Fees for each Subscriber Solution utilized by Member and provided to Member by Provider (the “Subscriber Fees”).
Compute, Storage, Total Usability Support and Other Metered Fees
The monthly fee shall adjust quarterly to reflect the trailing average actual utilization of Metered subscriptions at the then current rate of the subscription service. Member will be notified of adjustments to Metered servics 30 days in advance of any changes taking effect.
Professional Consulting Services Fee
Subject to the terms hereof, Member will pay Provider the fees set forth in each SOW as well as the fees due for any Additional Solutions according to the current Schedule of Fees.
Provider shall render invoices to Member each month for The Services as approved by Member. Provider shall maintain reasonable and adequate documentation substantiating all charges reflected thereon. Subscription amounts are payable in advance and due either on the first day of the monthly subscription period covered by the subscription fee or on the date of delivery of the invoice to the Member, whichever is later. One time labor and special project billable amounts are payable, always subject to our Satisfaction Guarantee, net 15 days from the date service is rendered or five (5) days from the date of delivery of the invoice to Member, whichever is later. (collectively "Payment Terms")
Payment for Services will be made in US dollars by a valid credit card accepted by Provider, or by any other means approved by Provider. Member warrants that the credit card number and information provided is and will be a valid credit card number belonging to Member with available credit sufficient to pay the fees for the Services; if Member cancels this credit card or it is otherwise terminated, Member will immediately furnish Provider with a new valid credit card. Member authorizes Provider, from time to time, to undertake steps to determine whether the credit card provided to us is valid, and to access and investigate the credit rating of Member.
Member hereby authorizes Provider to charge Member’s credit card for agreed upon and due amounts on a regular monthly basis according to the Payment Terms beginning at the end of the free-trial period, if any. If Provider is for any reason unable to effect automatic payment via Member’s credit card, Provider will attempt to notify Member and access to Services will be disabled and/or discontinued at Provider’s sole discretion until payment is received. Any such suspension of service does not relieve Member from obligation to pay any past due billable amounts. In addition late balances will accrue late charges of $110 plus three percent (3%) of the late balance per month payment is late, or the maximum amount allowed by law, whichever is less. In addition, if Member fails to pay any amounts payable under this Agreement, Member shall be responsible for all costs of collection, including, without limitation, reasonable attorney fees, court costs and collection agency fees. Reinstatement of any suspended or terminated services will be subject to standard one time setup and provisioning charges.
Once paid, amounts remited for Solutions or Services Rendered are not refundable.
5. MEMBER SATISFACTION GUARANTEE
Provider strives for total Member satisfaction. If and whenever Member is uncomfortable or dissatisfied in any way with the Services, Provider encourages Member to reach out to Provider promptly with its concerns, problems, and the like, so that the parties can work together to resolve those issues in a mutually acceptable manner. If at any time Member is not satisfied, Member may decline to continue subscription to the Online Services or to accept receipt of any Deliverables and also decline to make payment for any Deliverable promptly declined and not used (and returned to the extent tangible or otherwise practicable). No payment will be due and no charges will be made to Member’s credit card for any Deliverables or Services so declined by Member. Declining payment for unsatisfactory Deliverables or Services is the exclusive remedy for any unsatisfactory Deliverable or Services or for any breach or other default by Provider with respect to any Services provided or to be provided under this Agreement. Member agrees to explicitly and promptly notify Provider in writing of any declined Service and that Member’s acceptance, retention, or utilization of Services constitutes acceptance of the Services as satisfactory and of the corresponding obligation to pay for those Services as agreed. Under the Satisfaction Guarantee, Term Agreements detailed in Article 14, shall be satisfactory and accepted for the full Agreement Period unless cancelled before 90 days after the effective date of the Term Agreement.
6. RETURN OF MERCHANDISE, REQUIRED AUTHORIZATION
- Member must call Provider’s service desk for authorization prior to the return of any product, to receive a Return Merchandise Authorization (“RMA”) number. RMA issuance is dependent upon each manufacturer’s return policy.
- No return will be accepted without an RMA number. All requests for any return must be called in within fourteen (14) days of the date product is delivered to Member. Any custom or special order, including but not limited to PC and Router configurations and discontinued merchandise, cannot be returned. All defective products, unless otherwise stated, will be returned directly to the manufacturer per the manufacturer’s warranty policy. The returned merchandise must be received at Provider’s offices at 66 Witherspoon Street #315, Princeton, NJ 08542 no later than seven (7) business days from the date of RMA issuance.
- Do not write addresses or RMA numbers on the outside of the manufacturer’s boxes. Member is responsible for retaining all manufacturers’ boxes, packing material, manuals and CDs. All products must be shipped freight prepaid and insured factory sealed in the original carton with all hardware, software, manuals, cables, etc., intact.
- Provider reserves the right to have a Provider support specialist verify all defective products.
- Upon receipt of the product and processing of the proper documentation, appropriate credit will be issued.
- Due to the price fluctuation, all product returns are subject to current pricing upon receipt by Provider and/or a minimum 15% restocking charge.
7. RESTRICTIONS AND RESPONSIBILITIES
This is an Agreement for Solutions and Member is not granted a license to any software by this Agreement. Any software used in connection with the Solutions shall be considered an instrument of service.
Member is responsible for communicating clear and concise Deliverable requests; for reading and understanding confirmation email notifications; and for paying billable amounts upon receipt of invoice each month.
Member agrees to provide a single “Project Coordinator” to coordinate Member materials gathering, approvals, work comments and scheduling for any SOW, Additional Services or Solutions.
8. OWNERSHIP OF MATERIALS AND CREATIVE WORK
Administrative Control and Access
Provider shall maintain exclusive control of Member network and technical administrative credentials in a best practice encrypted format protected by Provider security policies. Member shall retain ownership of all Member owned equipment and all access credentials and documentation shall be delivered or returned to Member immediately upon notice of termination of this agreement by either party.
Custom Graphic Designs
Unless otherwise specified in writing, an exclusive and Member-transferable license to use any graphic designs custom created by Provider for Member under this Agreement is hereby granted to Member by Provider for as long as this Agreement remains in good standing, or upon payment in full of all billable amounts if the Service is terminated.
All photographs taken by Provider used on the website are granted license for world-wide use on the Member website only. Additional use in print or other electronic formats is subject to separate agreement and reasonable and customary use fees.
Except as otherwise specifically set forth in this Agreement, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software; (v) all divisions, continuations, reissues, renewals, and extensions of any of the foregoing now existing or hereafter filed, issued, or acquired; and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Provider Services identified herein (“Provider Intellectual Property ”) are owned by Provider or its licensors, and Member agrees to make no claim of interest in or ownership of any such Provider Intellectual Property. To the extent that Member requests any “Derivative Work” (that is, any work that is based upon one or more preexisting versions of a work provided to Member, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted, and any other work so defined under applicable law), such Derivative Work shall be owned by Provider and all right, title, and interest in and to each such Derivative Work shall automatically vest in Provider. Provider shall have no obligation to grant Member any right in any such Derivative Work.
Member will not, directly or indirectly: reverse engineer, disassemble, decompile, or otherwise attempt to discover the Provider Intellectual Property or make any attempt to obtain source code to the Provider Intellectual Property; or remove any proprietary notices or labels from the Services or any software; or modify, translate, or create derivative works based on the Services or any software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any software.
Member acknowledges that no title to or other interest in the Provider Intellectual Property is transferred to Member, and that Member does not obtain any rights, express or implied, in the Provider or its Services, other than the rights expressly granted in this Agreement.
Member materials, including all copy, designs and data provided by Member to Provider will remain the sole and exclusive property of Member or its affiliates and vendors, including, without limitation, all user and organizational data, copyrights, and trademarks. Nothing in this Agreement shall be construed to grant Provider any ownership right in, or license to, Member materials except a license to use such materials as necessary only to fulfill Provider obligations within the scope of this Agreement.
Third Party Licenses
Member agrees to abide by all third-party licenses acquired or utilized by Provider on behalf of Member.
Member and Provider may, during the course of the Services, have access to and acquire knowledge from materials, data, systems, and other information of or with respect to Member or Provider or clients or customers of Member or Provider, which may not be known to the general public (“Confidential Information”).
Member and Provider agree that each will not use, publish, or divulge to any person, firm, or corporation any Confidential Information belonging to the other party without prior written approval of the other party, both during the term of this Master Services Agreement and for at least five years thereafter.
Provider will not use Member user lists or any other Confidential Information for any purposes other than those intended with the Services or as required by law.
The terms of this Agreement as well as details of web-application services are confidential and may not be disclosed to anyone except as expressly required necessary for fulfillment of Member responsibilities in this Agreement. Member and Provider agree that use of either party’s logos or service marks and/or a summary of responsibilities under this Agreement on Member and Provider web-sites, in a manner subject to mutual approval, shall not violate this confidentiality obligation.
10. SUBSCRIBER SOLUTIONS PARTICIPATION
Member acknowledges and agrees that Online Services may add, to the header or footer of web pages utilizing those Services, a brief explanatory mention such as “Powered by SureTech.com” with a word link to Provider’s description of the Online Service.
11. DISCLAIMER OF WARRANTIES
MEMBER AGREES THAT USE OF AND RELIANCE ON PROVIDER SERVICES ARE ENTIRELY AT MEMBER’S OWN RISK. MEMBER AGREES THAT ALL SERVICES ARE PROVIDED ON AN “AS IS” AND AS-AVAILABLE BASIS. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, TERMS, CONDITIONS OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT MAKE ANY WARRANTY, TERM, CONDITION OR REPRESENTATION THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE; NOR DOES PROVIDER MAKE ANY WARRANTY, TERM, CONDITION, OR REPRESENTATION AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM PROVIDER OR THROUGH PROVIDER’S SERVICES SHALL CREATE ANY WARRANTY, TERM, CONDITION, OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
12. LIMITATION OF LIABILITY
IN NO EVENT SHALL PROVIDER OR PROVIDER’S AFFILIATES OR ANY OF THEIR RESPECTIVE VENDORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE SERVICES AND/OR THE FAILURE TO PROPERLY PERFORM THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Provider’s aggregate LIABILITY FOR ALL CLAIMS ARISING OUT OF and/or in any way related to the subject matter of this agreement shall be limited to the lesser of (1) Actual damages of Member, (2) amount of fees paid by Member to Provider under this agreement during the preceding three months, or (3) One Thousand United States Dollars (US$1,000).
Any claim with respect to Services provided or to be provided under this Agreement (including, without limitation, any SOWs or other authorizations for work) must be presented in writing to Provider within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented; and no action or other proceeding may be maintained against Provider unless such action or other proceeding is commenced within six (6) months after the date on which any such written claim is made.
13. MODIFICATIONS TO THIS MASTER SERVICES AGREEMENT
Except as otherwise specifically provided herein, Member agrees, during the term of this Agreement, that Provider may: (i) amend the terms and conditions of this Agreement as reasonably necessary for Provider to effectively maintain Provider's business and viability of the services; and/or (ii) modify or otherwise change the Services provided pursuant to this Agreement either in whole or in part; and/or (iii) assign or transfer the rights and obligations of this agreement as necessary or expeditious for Provider to deliver Member Services and Solutions to Member. All amendments or modifications shall be effective immediately upon being updated, with respect to this agreement, on this web page; or with respect to Services, at the sole, reasonable and professional discretion of Provider. By continuing to use Provider Services, subject to the Satisfaction Guarantee, Member agrees to be bound by the Agreement with respect to the Services used, as modified and amended. No employee, contractor, agent or representative of Provider is authorized to alter the terms and conditions of this Agreement and Member agrees that this Agreement supercedes any other oral or written agreements.
14. SERVICE TERM AND TERMINATION
Month to Month Agreements encompass Provider subscriptions and on-demand services provided to member according to the terms of this Agreement. All subscription costs are full month and are not prorated. Additionally, regardless of any Member Termination request, any Member requested Member data preserved on a subscription service after the 25th of a month will incur a full monthly subscription cost to the Member for that subscription service containing Member data for the following month until all data can be removed at Member's direction prior to the 25th of a final subscription month.
Term Agreements are long term contracts to lower Member and Provider hardware and other resource costs. Term Agreements are effective for the time period (Agreement Period) and with an early Termination Fee as listed on the Member's monthly invoice. The Term Agreement applies to SureMail, SureDesk and Domain Management Services as well as the minimum Compute Commitment specified on the Member's monthly invoice for the duration of the Agreement Period. Unless otherwise agreed in writing on the monthly invoice, 90 days prior to the end date of the current Agreement Period all term agreements will automatically renew for an equal length Agreement Period at the same aggregate subscription rate or lower subject to Provider lower subscription rates at the time of renewal.
Month to month as well as Term Agreements may be terminated upon 30 days’ prior written notice to Provider by Member. The effective date of termination for month to month agreements shall be the 25th of the month following the month of Member's written notice of termination (this allows for orderly deprovisioning of services by provider prior by the end of the month once all Member data is removed by the 25th). The effective date of termination for Term Agreements shall be at the discretion of Member as follows: A) If notice is given prior to 30 days from the end of the active Agreement Period, the same as a Month to Month terms upon payment of the Early Termination Fee specified on the invoice; OR B) the 25th day of the last month of the term if notice is given prior to 90 days from the last day of the Agreement Period. The terms of this Agreement shall continue to apply to Services rendered through the effective date of termination. All sums due or to become due to Provider will be immediately due and payable upon such notice being given by Member, including the final month payment in full.
Member agrees that non-payment of billable charges when due shall constitute, at Provider’s sole discretion, a Member request to immediately terminate Services as of the date that unpaid charges are due.
Provider may terminate Services under this Agreement for any reason with 3 months’ prior notice to Member and good-faith efforts during the notice period to assist Member with any Member efforts to maintain uninterrupted operations after service is terminated. Notwithstanding the foregoing, Provider shall have the right in its sole and absolute discretion to immediately terminate this Agreement and discontinue any all Services hereunder in the event of a material breach by Member of the terms of this Agreement, which breach includes without limitation any non-payment, in whole or in part, of any invoice or other amounts due hereunder, which shall remain uncured for ten (10) days or more after Provider's delivery of a notice thereof to Member.
…Notwithstanding the notification terms above, either party shall have the right to terminate this Agreement effective upon written notice to the other party, in the event (1) of the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other party's debts, (2) the other party makes an assignment for the benefit of its creditors, or (3) the other party dissolves, liquidates or ceases to do business in the ordinary course.
The confidentiality obligations of Provider and Member specified herein shall survive the expiration or termination of this Agreement for as long as practicable, but not less than two years.
During the term of this Agreement, and for a period of twelve (12) months thereafter, Member agrees not to, directly or indirectly, solicit, recruit or employ any employee of Provider without the prior written consent of the chief executive officer of Provider. Member acknowledges that its failure to honor this non-solicitation provision could result in Provider suffering irreparable harm. As the exact amount of such damages cannot be readily quantified, upon a breach of this non-solicitation provision, Member shall pay to Provider, as liquidated damages (and not a penalty), the sum of $50,000 for each such breach. Neither the existence of that liquidated-damages provision nor payment of liquidated damages for any such breach in any way limits Provider’s additional right to seek injunctive or any other equitable remedies respecting any such breach or continuing breach. In addition, during the term of this Agreement, and for a period of twelve (12) months thereafter, Provider agrees not to, directly or indirectly, solicit, recruit or employ, any employee of Member without written consent from Member.
16. FORCE MAJEURE
Provider shall not be liable for nonperformance, delay, errors, data loss, and/or any other loss or damage caused in whole or in part by any event beyond Provider's reasonable control, including, but not limited to acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, breakdown of plant or machinery, default of suppliers or sub-contractors, epidemics, fire, flood, earthquake, storm, force of nature, explosion, embargo, or any law, proclamation, regulation, ordinance, or other act or order of any court, government, or governmental agency.
17. INDEPENDENT CONTRACTOR
The relationship of Provider and Member established by this Agreement is that of independent contractors (and not, without limitation, any employment relationship), and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other; (ii) deem the parties to be acting as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking, or as having a fiduciary duty toward one another; or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
Any notice or other similar communication required or permitted hereunder shall be in writing or contemporaneously confirmed in writing and will be sent by electronic mail to one or more of the respective principals and/or employees of the party regularly dealing with matters relating to the subject matter of this Agreement; provided, however, that any notice (x) alleging a breach or default, or an event or condition that if not remedied or cured would become a breach or default, on the part of the other party to this Agreement, or (y) terminating or purporting to terminate this Agreement, or (z) declining or rejecting any Deliverable or Service, must be sent by electronic mail (a) in the case of Provider to
with the subject Attention: President], and (b) in the case of Member, to it at the email address and to the attention of the person listed in the information furnished by Member in connection with Member’s acceptance of this Agreement. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this section.
19. DISPUTE RESOLUTION
In the case of any disputes or claims under or otherwise concerning this Agreement, the parties shall first attempt in good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of a formal proceeding.
Any dispute or claim arising out of or relating to this Agreement, or the breach thereof, which cannot otherwise be resolved informally as provided above shall be resolved by arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA"), and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction. The arbitration tribunal shall consist of a single arbitrator mutually agreed by the parties, or in the absence of such agreement within thirty (30) calendar days from the first referral of the dispute to the AAA, designated by the AAA. The place of arbitration shall be New York, New York, USA, unless the parties shall have agreed to another location within fifteen (15) calendar days from the first referral of the dispute to the AAA. The arbitral award shall be final and binding. The parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived.
The arbitration proceedings contemplated by this section shall be as confidential and private as permitted by law. To that end, the parties shall not disclose the existence, content or results of any proceedings conducted in accordance with this section, and materials submitted in connection with such proceedings shall not be admissible in any other action or other proceeding, provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures required by law.
Each party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) to enforce any decision of the arbitrator, including the final award. Irrespective of the arbitration provision above, Provider, at Provider's sole and absolute discretion, retains the right to seek judicial assistance, in any court in which Member is subject to jurisdiction, to pursue a debt, damages, enforcement or injunctive relief: (i) due to Member failing to pay amounts payable under this agreement, or (ii) alleged or suspected fraud, misrepresentation, misuse, abuse or theft with respect to Member use of the Services.
20. GOVERNING LAW
Any disputes related to the Services provided pursuant to this Agreement shall be governed in all respects by and construed in accordance with the laws of the State of New York, United States of America, excluding its conflict-of-laws rules.
21. INTERPRETATION; MISCELLANEOUS
Member may not, without the prior written consent of Provider, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void. All covenants of this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors, and permitted assigns. None of the provisions of this Agreement shall be deemed waived or modified, except by an instrument in writing specifically doing so and duly executed by the party against whom enforcement of such waiver or modification is sought to be enforced. If any words or phrases in this Agreement have been stricken out or otherwise eliminated (in a rider or similar addendum, a SOW, or otherwise), whether or not any other words or phrases have been added, this Agreement shall be construed as though the words or phrases so stricken out or otherwise eliminated were never included in this Agreement, and no implication or inference shall be drawn from the fact that those words or phrases were so stricken out or otherwise eliminated. This Agreement is solely to establish various rights between the parties to this Agreement, and no “third-party” or other person not a party to this agreement, shall be entitled to any rights or benefits from this Agreement or to rely on this Agreement in any way. This Agreement shall be construed fairly without regard to any presumption or other rule requiring or permitting inference or construction against the party causing this agreement to be drafted. Section headings are inserted for convenience of reference only and are not intended to be part of or to affect the meaning this Agreement.
The terms of this Services Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law and consistent with the original intentions of the parties; and the remaining terms and provisions will remain in effect.
23. ENTIRE AGREEMENT
This Agreement, including agreed upon SOWs, is entered into in good faith by Member and Provider and constitutes the entire understanding and agreement between Provider and Member with respect to the Services contemplated, and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement, or communication between Provider and Member concerning the subject matter hereof.
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