IMPORTANT - PLEASE READ CAREFULLY: BY CREATING AN ACCOUNT, OR BY USING SURETECH SOLUTIONS, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This website and SureTech are service marks of the legendary SureTech technology and insurance solutions provided to Small Businesses since 1997. The SureTech brand, identity and solutions infrastructure is wholly owned by TopazGroup Ventures, Inc. This services agreement (the "Agreement") governs your use of all services (the "Solutions" as defined below) provided by Topaz Group Ventures, Inc., a New York corporation having its principal place of business at 300 Whitherspoon Street, Princeton NJ 08540 (the "Provider"). 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 Provider 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 TOPAZ GROUP AND THE SURETECH SOLUTIONS
Member’s use of, or working with any Provider’s Services, Subscriptions, Consulting, Joint Ventures, Customization, Configuration, Software Code, HelpDesk or work or feature Deliverables (collectively and severally the “Solutions”) is subject to the terms of the following legal agreement between Member and Provider.
Member and Provider mutually agree that Solutions of any kind which are delivered and invoiced to Member by 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 work with Provider and receipt and 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 by a “Statement of Work” (defined in Section 3 below) or other subsequent written agreement, Quote or Member accepted Invoice. 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:
a) Clicking to "Accept this Agreement" and registering with SureTech.com wherever this option is made available to Member in the user interface for any Solutions; or
b) By receiving and using any Solution, in which case, Member understands and agrees that Member’s use of the Solution constitutes Member’s binding acceptance of the terms of this Agreement for the Solution accepted by the Member and for all other work between Member and Provider.
This Agreement shall not be binding upon Provider unless and until Provider provides separate written acknowledgment of confirmation of Providers mutual acceptance of Member’s commitment to enter into this agreement with Provider.
Member may not use the Solutions and may not accept this Agreement if (a) Member is not able to form a binding contract with Provider, or (b) Member is barred from receiving the Solutions under the law of the United States or any other applicable law. Member usage of any Solutions indicates Member’s representation that Member a) is authorized to bind Member and Member’s organization to this Agreement and b) wishes, and is able, to receive and use the Solutions.
Before continuing, please print or save a local copy of this Agreement for your records.
3. SCOPE OF SOLUTIONS
Services and Solutions rendered to Member by Provider will be as specified in a mutually agreed Statement of Work (a SOW). Each SOW will specify with reasonable detail, the nature, features, resources, technologies, customizations and/or configurations (the Deliverables); the timeline or milestones of delivery; as well as requirements, limits and fees for the Solutions.
The form of each SOW may be on Provider Letterhead as a Quote, as a separate document proposal on Provider Letterhead, or as Additional Services from a Provider notice in email or in a Provider Invoice.
Notwithstanding any SOW specification or omission– Member Satisfaction with the solution is our only goal for any Service or Solution delivered to Member, as detailed in Section 5: Member Satisfaction Guarantee.
This Agreement, including the Satisfaction Guarantee, shall govern the performance of and payment for Solutions that are the subject of a Statement of Work (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 and Solutions set forth in each SOW, Provider will provide such additional services as Member may require from time to time, either verbally, or in written work authorizations that specify agreed-upon Deliverables or as additional necessary services to complete or maintain existing 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, or in timely Invoices provided to Member. All Additional Services shall be deemed rendered pursuant to a SOW in accordance with the terms of this Agreement and no agreements, oral or written, apart from a written and provider signed SOW on Provider letterhead may modify the terms of this Agreement.
To the extent ordered through a SOW or other mutual agreement and understanding between authorized representatives of Member and Provider, Provider may, upon Member's verbal or written request, provide any of the following Solutions:
Subscriber Solutions
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 disclosed to Member for each Solution in advance and upon request at any time. 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 Third-Party providers ("SureSolutions Integration Fabric") as reasonably required, 24 hours a day, 7 days a week.
Metered Subscription Services
Provider charges monthly fees based on actual utilization for a range of customized and easy to use solutions. These Subscriber Solutions are available on Month to Month, Annual or Multiyear Subscription terms.
Metered Solutions include, but are not limited to: File Storage solutions billed for actual storage space used each month. Cloud Compute utilization, streaming application solutions or SureOffice™ streaming solutions as reported monthly and adjusted in quarterly reviews of trailing average Compute power utilization. Hardware Maintenance and Rental Agreements based on actual hardware deployed onsite that may include setup, maintenance and/or third-party license subscription costs in one bundled monthly fee as listed in an accepted quote or on the Member Invoice. MFA, DNS, Security and Monitoring Services, SureFilesAnywhere™, Box, Office 365 and other per user license subscriptions that are charged on a per user or per license basis for the maximum total unique user counts with access to each service each month.
Total User Support ("TUS") covers all telephone or email service requests related to the operation of Subscriber Solutions at a fixed monthly fee. The monthly fee adjusts quarterly to reflect the trailing actual utilization of billable labor for all covered service requests billable at the then current TUS rate per hour. TUS and other quarterly adjusting flat rate subscriptions are designed to provide Member predictable expense planning while also ensuring Provider is compensated for actual Member value and utilization of the Solution over time.
All Metered Subscription services are for the term as shown on the quote or on the monthly invoice with Early Termination fees for cancelation prior to the end of the listed term in the amount of the remaining payments through the end of the term for the minimum subscription count listed at the beginning of the term.
Hardware Rental Agreements supply Provider-owned Equipment for Member’s use for a term of one or more months or years as listed on an approved quote or Statement of Work (SOW) and/or the monthly invoice. The term will auto-renew for an equal period upon conclusion of the Rental period unless the Agreement is terminated in writing by Member or Provider and the equipment is returned by Member to Provider.
Provider may terminate the Rental Agreement immediately if Member fails to comply with any terms of §8 “Restrictions and Responsibilities” or any other terms of the Agreement
Billable Labor and Custom Development
Provider may render Consulting Labor or deliver Customized Solutions or Customized Technologies (“Deliverables”) in accordance with a SOW as agreed in writing from time to time by the parties. Member agrees to provide clear and concise Deliverable requests; carefully review the SOW as well as all subsequent written confirmation notifications and, subject to §5 “Satisfaction Guarantee”, pay undisputed billable amounts upon receipt of invoices. Member also agrees, for each SOW, to provide a single Project Manager to coordinate Member materials gathering, approvals, work comments and scheduling for all deliverables and work requests.
Once Deliverables are agreed upon, Provider will review the Deliverables with Member’s Project Manager on an ongoing basis as set forth in each SOW or as otherwise agreed upon by the parties.
Unless otherwise specified in writing in a SOW, Provider explicitly reserves for Provider all rights of ownership to any Deliverable, customization, configuration technologies or software code produced, delivered, or rendered to Member by Provider. Subject to the terms of the Payment Terms and Satisfaction Guarantee, Member may use any Deliverables under this agreement, but as detailed in §8 (“Restrictions and Responsibilities”), Member receives no license or ownership rights to any Provider Background Technology, code, copyrights, or intellectual property utilized by, in, or in association with any Solutions.
Projects, Ventures and Joint Ventures
Provider may engage in special projects, ventures, or joint ventures with Member, as outlined in a SOW or detailed on an Invoice. These may involve specific performance deliverables and performance or milestone-based payment agreements, potentially including revenue or profit-sharing arrangements between Member and Provider.
Unless otherwise expressly stipulated in writing; participation in these special projects, ventures, or joint ventures—including those that set out performance milestones and / or unique payment, revenue, or profit-sharing provisions—will not alter any other terms of this Agreement. Importantly, this includes all terms stated in §8 ("Restrictions and Responsibilities") and §7 ("Ownership of Materials, Bespoke Deliverables and Creative Work"). No broader rights than those granted in this Agreement, ownership or otherwise, will be conferred to the Member through participation in these engagements beyond any rights or agreements explicitly written and mutually agreed in SOW or Invoice.
4. SERVICE FEES AND HOURLY RATES
Member is responsible for reviewing the current Schedule of Fees disclosed on each Quote, SOW or invoice to Member. All fees will be in line with industry standards. The Schedule of Fees is subject to change, with reasonable advance notice to Member, at the Provider's discretion. Any changes will also adhere to industry standards and be disclosed on Invoices to member subject to the Member Satisfaction Guarantee.
Subscriber Fees
Member agrees to provide credit card payment to Provider for the full current fee invoiced for each Provider Subscriber or Rental Solution utilized by Member (the “Subscriber Fees”) within 5 days of Provider invoice being received by Member.
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 services 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 Services at the then current labor rates invoiced by Provider.
Payment Terms
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.
Recurring monthly Subscription amounts are due and Payable, in advance, on the first day of each calendar month (each, a monthly Subscription Period) for the full amount of the then current Subscription Period plus any pro rata amount from Solutions added the prior calendar month. At the discretion of Provider, invoices may be created any day within each month and, unless otherwise detailed explicitly in the invoice description for each Subscription item, the Subscription Period for each invoiced Subscription Item is the month matching the month listed on the invoice as the created date of the invoice.
One time labor and special project billable amounts, subject to §5 (“Satisfaction Guarantee”), are due and payable on the later of a) fifteen (15) days from the date service is rendered, or b) ten 10 days from the Invoice Date that first lists the amount due for the applicable billable service.
Member must notify Provider in writing of any good-faith invoice dispute within ten (10) Business Days after the invoice is emailed to Member’s designated billing contact, identifying the disputed items and the basis for dispute. Absent timely written notice to Provider, the invoice is deemed correct and undisputed.
Member shall timely pay all undisputed amounts, and Member hereby authorizes Provider to charge Member’s credit card for undisputed amounts due on a regular monthly basis according to these 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.
Reinstatement of any suspended or terminated services will be subject to standard one-time setup and provisioning charges.
Any amount not received by its Due Date accrues, for each month or partial month past due—subject to the maximum permitted by law: a One Hundred Sixty Five Dollar ($165) administrative late fee per month plus One and Eight Tenths Percent (1.8%) per month late payment interest, compounded monthly on all unpaid balances from the Due Date until paid in full.
Any amount remaining unpaid more than sixty (60) days after its first Due Date and continuing until paid, will incur escalated late charges—subject to the maximum permitted by law—of a Four Hundred Forty Five Dollar ($445) administrative fee per month (up from $165) plus a Tow and Nine Tenths Percent (2.9%) interest per month (up from 1.8%), compounded monthly, on all then-outstanding past-due amounts. Previously accrued charges remain owing. Partial payments will be applied first in the following priority order: i) costs of collection, ii) late interest, iii) administrative fees and, finally, iv) invoiced Services, Solutions and Subscriptions with the most recent unpaid amounts paid first.
To secure payment of all fees, charges, and expenses owed under this Agreement, Provider has a lien and security interest—to the extent permitted by law—on all monies or property obtained, received, or held by Provider on Member’s behalf.
To the extent allowable by law, all amounts paid by Member to Provider are non-refundable.
If any fee, charge or interest would exceed the lawful maximum, it is automatically reduced to the maximum permitted, without affecting the remainder of the “Payment Terms” listed above.
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 use the Solutions or Decline 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 timely 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 notify Provider explicitly, promptly, in writing of any declined Service or Solution and that Member’s acceptance, retention, payment, or utilization of any Services constitutes Member’s acceptance of the Services as satisfactory as well as acceptance of Member’s corresponding obligation to pay for the accepted Service(s) per the terms of this Agreement.
With respect to this Satisfaction Guarantee the parties Agree that:
a) Subscription Solutions are deemed to be satisfactory, accepted, undisputed and payable by Member for the full scope and payment terms listed in the Term Agreement Quote or SOW, unless cancelled within 30 days of Member’s first usage of the Solutions.
b) Custom Development Agreements described in §3 that are Mutually agreed per a written Quote or SOW, are deemed to be satisfactory, accepted, undisputed and payable by Member for the full scope, terms and total payment amounts listed in the Quote or SOW, unless cancelled within 30 days of Member’s first acceptance and agreement to the Quote or SOW.
c) Additional Services requests, such as modifications or enhancements to an existing Solution or Deliverable, are deemed to be satisfactory, accepted, undisputed and payable by Member for the full scope of the Additional Service requested, unless the Additional Service is declined and cancelled by Member in writing within 5 Business Days of the first Additional Service progress status update provided to Member’s designated Project Contact by Provider either in writing or verbally.
d) Term Agreements, as detailed in §14, are deemed to be satisfactory, accepted and payable by Member for the full Agreement Period unless cancelled within forty five (45) days of the effective starting date of the Term Agreement.
6. RETURN OF MERCHANDISE, REQUIRED AUTHORIZATION
a) For hardware sold directly by Provider to Member (not including third party Hardware or reimbursable expense hardware purchases made on behalf of Member), 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.
b) 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, must be returned by Member directly to the manufacturer per the manufacturer’s warranty policy. The returned merchandise must be received at Provider specified address no later than seven (7) Business Days from the date of RMA issuance.
c) 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.
d) Provider reserves the right to have a Provider support specialist verify all defective products.
e) Upon receipt of the product and processing of the proper documentation, appropriate credit will be issued.
f) Due to the price fluctuation, all product returns are subject to current pricing upon receipt by Provider and/or a minimum 20% restocking charge.
7. OWNERSHIP OF MATERIALS, BESPOKE DELIVERABLES 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. 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.
Bespoke Software Code
“Bespoke Software Code” means software code file Deliverables expressly written by Provider to Member’s documented specifications set forth in a written “Custom Software Development" titled SOW.
Unless otherwise specified in a separate IP Transfer or Licensing Agreement, Provider hereby grants Member a worldwide, exclusive license to Bespoke Software Code created by Provider for Member under this Agreement to:
a) use, host, execute, display, perform, modify, and create derivative works of the Deliverables and Improvements; and
b) deploy, distribute, and make available the Deliverables and derivatives within the Member’s products, services, and internal operations; and
c) permit review access by Member’s contractors subject to standard written Non-Disclosure, Non-Use and confidentiality agreements.
This license shall remain in effect for as long as Member’s Account remains in Good Standing as defined in §8 “Solutions Conditioned on Good Standing”, or irrevocably in perpetuity, upon completion of Member’s Good Standing Termination of this Agreement per the terms of §14.
For clarity, Bespoke Software Code excludes a) any Provider Background Technology defined in §8, b) open-source software and third-party materials (which are governed by their own licenses), and c) general tools, utilities, frameworks, methodologies, templates, or know-how used or developed by Provider outside the scope of that statement of work.
No rights are granted to Member in Provider Background Technology or in Third-Party/Open-Source Materials, except (if applicable): i) Non-Exclusive worldwide use of the Provider Background Technology solely as embedded in, and inseparable from, the Bespoke Software Code files, and ii) the applicable third-party license terms for any Third-Party Materials embedded or relied upon by the Bespoke Software.
All copies and all Derivative Works of the Bespoke Software Code files made by or for Member are subject to this Agreement’s same License, scope, restrictions, conditions (including Good Standing) and confer no broader rights than those granted here. Member must flow down these obligations to all permitted contractors and recipients.
All rights not expressly granted are reserved by Provider.
Custom Graphic Designs
Unless otherwise specified in writing, a worldwide exclusive 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 irrevocably and in perpetuity, upon payment in full of all billable amounts if the Service is terminated.
Custom Photography
All photographs taken by Provider and delivered to Member, 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.
Provider Materials
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 has the right to use Provider services only under the terms and conditions set forth herein.
Member Materials
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
Provider Solutions may incorporate or interoperate with open-source software and other third-party materials (together, “Third-Party Materials”). Provider does not grant any rights to Third-Party Materials under this Agreement, and Member’s use of any Third-Party Materials is subject solely to the applicable third-party license terms. Nothing in this Agreement shall be construed to transfer ownership of, or grant any license to, Third-Party Materials except as permitted by those terms.
Artwork, software, services or any creative material sourced or procured from third parties by Provider is licensed only for the terms of use specified by Provider or third-party licensor for the material or service delivered. Acquisition of rights or license for any additional use is the sole responsibility of Member.
License or rights of use for any service or material supplied by Member shall be the sole responsibility of Member unless rights acquisition by Provider is specifically requested, agreed, and documented in a mutually agreed and paid SOW.
8. RESTRICTIONS AND RESPONSIBILITIES
This Agreement does not grant Member any license or other rights whatsoever in or to any software, code, technology, hardware, materials, documentation, data, processes, methodologies, or other intellectual property used in, referenced by, or associated with the production, delivery, or performance of any Provider Solution.
All software, materials, customizations, code, tools, utilities, frameworks, templates, know-how, processes, methodologies, updates, and derivatives that are owned or controlled by Provider and used in connection with any Provider Solution (collectively, “Provider Background Technology”) are and shall remain the sole and exclusive property of Provider. Member acquires no right, title, or interest in Provider Background Technology by virtue of this Agreement or otherwise, whether by express grant, implication, estoppel, exhaustion, or otherwise.
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.
Solutions Conditioned on Good Standing
Any use of Solutions or Provider License(s) granted under this Agreement is conditioned upon Member’s account with Provider remaining in Good Standing. For purposes of this Agreement, “Good Standing” means that Member is (a) current on all undisputed payments due to Provider, and (b) not in material breach of any material term or condition of this Agreement or any related statement of work. Member shall be deemed not in Good Standing during any period of payment delinquency or uncured Material Breach. Good Standing shall be automatically restored upon Member’s full cure of the breach and Provider’s written acknowledgment of Member’s return to compliance.
Rental Agreements
Rental Agreements do not provide any ownership rights in the rental equipment to Member, and all ownership rights remain with Provider. Additionally, Member agrees to provide network connectivity access to the equipment on a continuous 24x7 basis throughout the agreement and physical access on a reasonably scheduled and mutually agreed basis - not exceeding 10 days from the date of Provider's request.
Member agrees to use the Equipment in a good and careful manner and to comply with all manufacturer’s requirements and recommendations respecting the Equipment. Member will not alter, modify, or administer the hardware or hardware operating system.
Member agrees to maintain a manufacturer supplied warranty and extended warranty on all rental equipment throughout the rental Term.
Member will maintain company insurance on the equipment throughout the rental term.
Member will not move or relocate any rental equipment without prior written agreement from Provider.
Member assumes all risks of loss or damage to the Equipment from any cause. Member agrees to be liable for any costs incurred by Provider in connection with the repair or replacement of Equipment that is lost, stolen, destroyed, or damaged and in need of repair, as solely determined by Provider at any time during or following the term. If the Member provides an identical replacement model, Provider reserves the right to charge a configuration fee to set up the new Equipment to match the original rental item.
Promptly and no later than 10 days from the conclusion of the rental term or termination of the Rental Agreement, Member agrees to return the Equipment to Provider at a U.S. address provided by Provider, at Member’s sole cost. The Equipment must be returned in the same condition as it was received, barring normal wear and tear.
If the Equipment is not received by Provider within 30 days of the conclusion or Termination of the Rental Term, Member agrees to pay all Provider costs necessary to recover or replace the equipment in a manner determined at Provider’s sole discretion.
Upon the occurrence of any Event of Default under the Agreement, the Provider may, without notice or demand, terminate the Rental Agreement, and take possession of the Equipment, in addition to any other rights afforded to the Provider by law. The Member is not released from paying damages sustained by the Provider if the Provider terminates under this section.
If upon any termination of this lease the Member fails or refuses to deliver the Equipment to the Provider, the Provider may enter the Member's premises and retake possession of the Equipment without legal process. The Member releases any claim or right of action for trespass or damages caused by the Provider's entry and repossession. The Member expressly waives all further rights to possession of the Equipment and all claims for injury suffered through or loss caused by the repossession.
All Provider remedies are cumulative and may be exercised concurrently or separately.
9. CONFIDENTIALITY
Member and Provider may, during the course of the Solutions or 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 websites, 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” with a 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 thirty (30) 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.
Provider shall not be liable for any non-performance, 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, network or datacenter outages, utility outages, 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.
14. SERVICE TERM AND TERMINATION
Solutions are available in either a Month-to-Month or an Annual Subscription format. The Month-to-Month Agreement automatically renews each month for another month until cancelled by the Member. In this format, the Member will incur full monthly solution costs each month the subscription is in effect, with no proration available. If any Member data is maintained on a subscription solution after the 25th of any month, a full monthly subscription cost for the following month will be incurred. These charges will continue until all data is removed prior to the 25th of the final subscription month.
Annual Subscription Agreements are long-term contracts that offer reduced resource costs for both the Member and the Provider due to a larger upfront commitment. This arrangement entails higher initial costs for the Provider, due to upfront service provisioning and a longer commitment to payment by the Member. These Agreements remain effective until the end of the Subscription Term as specified in the most recent Member-approved quote, or as listed on the Member's most recent paid invoice, whichever is later."
At the end of each Subscription Term, the Agreement will automatically renew for another 12 months (Auto-Renewal), starting the day after the previous Term ends (Anniversary Date). The Auto-Renewal will continue each year unless cancelled in writing three months before the Anniversary Date (the Minimum Notice Date).
Auto-Renewal will proceed on the Minimum Notice Date each year unless the Member provides written cancellation instructions to the Provider prior to this date. In case of a request for service updates or changes, a new Annual Subscription Term can be set with a fresh 12-month term starting the month when the updated service begins.
Member can request changes to Annual Subscription item quantities, however, at least the minimum quantity of subscription items in place at the end of the first month of the Current annual term (the Minimum Subscription Charges) will apply for the full current Annual Subscription Term.
If the Member cancels the Annual Subscription Term prior to its End Date, an Early Termination Fee will be applied. This fee is equal to the total Minimum Subscription Charges for all remaining months of the current Subscription Term at the time Notice of Cancellation is received by Provider.
Both Month-to-Month and Term Agreements can be terminated with a 30-day written notice to the Provider. The termination date for Month-to-Month agreements is the 25th of the month following the month in which the Member's termination notice is given.
For Annual Subscription Agreements, the termination date can be chosen by the Member under two conditions as follows: A) If notice is given prior to 30 days from the end of the active Agreement Term, 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 to not renew the term prior to Minimum Cancelation Notice Date. The terms of this Agreement shall continue to apply to Services rendered through the effective date of termination.
On termination, all sums, materials, or equipment owed to the Provider will be due immediately, including full payment for all remaining months of any Term Agreements and the return and certification of any Provider rental equipment.
Non-payment of billable charges constitutes a Member request to terminate Services as of the date the unpaid charges were first due. The Provider reserves the right to terminate Services for any reason with 3 months’ prior notice. Immediate termination can occur in the event of a material breach by the Member.
Either party can terminate this Agreement effective upon written notice if the other party becomes insolvent, files for bankruptcy, dissolves, is subject to proceedings to settle company debts or ceases to do business. The confidentiality obligations of both parties survive as long as practicable, but not less than two years from the expiration or termination of this Agreement.
Assignment
Member will not assign or otherwise transfer this Agreement or any Member rights and obligations under this Agreement, without Provider prior written consent. Any assignment or transfer in violation of this Section will be void. Provider may assign this Agreement without Member consent (a) in connection with a merger, acquisition, or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed as substitute party to this Agreement and Provider is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.
15. NON-SOLICITATION
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. MODIFICATIONS TO THIS MASTER SERVICES AGREEMENT
Except as otherwise specifically provided herein, Member agrees, during the term of this Agreement, that Provider may, in its reasonable professional discretion:
a) Modify, enhance, replace, or discontinue any aspect of the Solutions or Services (in whole or in part), including features, interfaces, integrations, and deployment methods (collectively, “Modified Services”); and
b) Amend the terms and conditions of this Agreement as reasonably necessary to operate its business and maintain the viability and security of the Solutions and Services; and
c) Assign or transfer the rights and obligations of this agreement as necessary or expeditious for Provider to deliver the Services and Solutions to Member.
Amended terms (“Modified Terms”) are effective upon posting to this webpage https://suretech.com/msa.
By continuing to access or use the Solutions or Services on or after the effective date of any Modified Terms, or after receiving notice of updated Modified Terms, or following the implementation date of any Modified Services, Member:
a) Accepts and agrees to the Modified Terms; and
b) Accepts any Modified Services as the Solutions and Services delivered under this Agreement; and
c) Agrees to be bound by this Agreement and any Modified Terms for any continued use of Provider Solutions or Services.
If Member does not agree to the Modified Terms or Modified Services, Member must
a) Cease all use of the Solutions and Services within 30 days; and
b) Pay all undisputed amounts due and payable under this Agreement; and
c) Terminate services per the process detailed in §14 (“Service Term and Termination”).
Until this Agreement is Terminated in Good Standing, continued use of any services constitutes acceptance of the Modified Terms.
No employee, contractor, agent, or representative of Provider is authorized to alter this Agreement; no waiver or modification is valid unless in a written instrument issued by Provider or posted as Modified Terms. This Agreement supersedes any conflicting or additional oral or written terms unless expressly agreed in such written instrument.
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.
18. NOTICES
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 a) declining or rejecting any Deliverable or Service, or b) notifying of Termination of this Agreement, or c) 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, must be sent by electronic mail a) in the case of Provider to both Member’s account manager and to [email protected] with high priority and the subject Attention: Declined, Termination or Breach, as appropriate, and (b) in the case of Member, to the Billing Contact as well as 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 AND REMEDIES
The parties shall work together in good faith to resolve any invoice or payment dispute promptly, including timely scheduling of meetings, exchanging core billing/time/acceptance records, and participating in the processes in this Sectioon. Failure to cooperate in good faith—including unreasonable delay, refusal to meet, or withholding core records—may be prejudicial to the non‑cooperating party and may be considered by the expert, mediator, or arbitrator when allocating fees and costs, ordering interim relief, imposing sanctions or adverse inferences, and fashioning remedies.
Preservation; Audit
Upon notice of dispute, late payment or Breach, the parties shall preserve relevant evidence, including logs, devices, and accounts, and—subject to reasonable confidentiality and security controls—shall cooperate in reasonable audits to verify:
a) On the part of Provider;
i) Preservation and production of relevant logs, service records, audit trails, and communications related to Member dispute; and
ii) The accuracy of any accounting of Solutions or Services amounts or fees; and
iii) Return, destruction, and certified deletion of Member IP and Solutions from systems, repositories, CI/CD, devices, or; where applicable and removable by Provider; backups or caches; and
b) On the Part of Member;
i) Preservation and production of relevant logs, records, audit trails, and communications related to the dispute, Provider or any Unauthorized use of credentials/keys/tokens, webhooks, or endpoints used to access or distribute any Unauthorized materials; and
ii) Cessation of any Unauthorized Use or Disclosure and compliance with any injunctive or specific‑performance orders; and
iii) Return, destruction, and certified deletion of Member IP and Solutions from systems, repositories, CI/CD, devices, or; where accessible or removable by Member; backups or caches; and
iv) Payment of undisputed amounts and proper escrow of disputed portions as required by this Section; and
v) Funding and replenishment of any Cost Fund/escrow and compliance with fee‑advancement obligations; and
vi) Preservation and production of relevant logs, audit trails, and build/distribution records (including App Store/TestFlight/MDM/CI/CD); and
vii) Identification and notice to any downstream recipients and their compliance with cease/return/destroy and certification obligations; and
viii) The accuracy of any accounting of revenues, cost savings, or other benefits attributable to any challenged use.
Audits shall be narrowly tailored, conducted during normal business hours, and may be performed by Provider or a mutually acceptable independent examiner, with reasonable cooperation and without waiver of privilege.
Informal Resolution
The parties shall first attempt in good faith to resolve any dispute or claim under or relating to this Agreement by a meeting of senior representatives (in person or by video) within ten (10) Business Days after a party delivers written notice of the dispute. Additionally, by mutual written agreement within thirty (30) days of the initial notice of the dispute or claim, the parties may (i) submit any invoice‑ or payment‑only issues to an independent accounting expert for a binding determination (absent manifest error), or (ii) submit the matter to non‑binding mediation administered by a recognized provider; these options are voluntary and do not postpone emergency relief or arbitration if no mutual agreement is reached.
Arbitration (Default AAA; New York Seat; Confidential)
Any dispute or claim arising out of or relating to this Agreement that is not resolved within thirty (30) days of notice shall be resolved by confidential arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules before a single arbitrator, unless the parties mutually agree in writing within such thirty (30)‑day period to have the arbitration administered by JAMS, CPR, NAM, FedArb, or another mutually agreed arbitration service, in which case the arbitration shall be administered by the agreed provider under its comparable commercial rules.
The seat/place of arbitration is New York, New York, USA. If the parties do not agree on an arbitrator within thirty (30) calendar days after first referral of the dispute to the administering provider, the administering provider shall appoint the arbitrator.
The arbitrator may award all remedies available at law or in equity, including injunctive relief and fee‑shifting as provided in this Agreement, and shall issue a reasoned award. Judgment on the award may be entered in any court having jurisdiction.
The arbitration (including its existence, submissions, evidence, hearings, and award) shall be confidential to the maximum extent permitted by law, except as necessary to enforce rights or as required by law.
Pending final resolution (including, if applicable, any mutually agreed expert determination or mediation), Member shall timely pay all undisputed portions of any invoice. At Provider’s request, the disputed portion shall be placed into escrow with the administering provider (or a mutually acceptable escrow agent) and held until resolution.
The arbitrator has authority to enter interim awards directing ongoing payment/advancement and to require security for costs (including bonds or letters of credit). If Member fails to comply with advancement, replenishment, or interim orders, Provider may a) stay all merits-related deadlines until cured, and b) seek injunctive relief in court compelling payment or security, without prejudice to arbitration of the merits.
Fee Advancement (Pay-As-Incurred)
Subject to Provider’s continued communications and timely participation with the dispute resolution steps outlined herein, if, after sixty (60) days from the date of a first written notice of a Breach, Member a) has not paid all undisputed amounts due and Payable to Provider, or b) has not ceased any Unauthorized Use of Provider Solutions or Provider IP, or c) has not otherwise cured a Material Breach by Member, then Member shall advance and, as applicable, promptly reimburse Provider for all Reasonable Fees and Costs as they are incurred by Provider in investigating, asserting, or enforcing this Agreement or remedying the Member’s Breach.
“Reasonable Fees and Costs” include reasonable attorneys’ fees, expert/consultant fees, arbitration/administrator and court fees, hearing room and transcript fees, research expenses, e‑discovery processing/hosting, forensic examination costs, collection agency fees, reasonable travel, and post‑judgment/post‑award enforcement costs.
Provider may submit monthly statements in the same invoice format and terms as the Solutions. Member shall pay each statement within ten (10) days of receipt, and any unpaid amounts shall be added to the total unpaid amount outstanding due from Member to Provider.
Within ten (10) days after demand, Member shall fund and maintain a retainer or escrow designated by Provider (or the arbitration administrator) in the amount of the greater of Ninety Thousand Dollars ($90,000) or three (3) times the average of Member’s six (6) most recent monthly invoice totals (the “Cost Fund”). If the Cost Fund balance falls below the greater of thirty-five thousand dollars ($35,000) or thirty five percent (35%) of the then‑required Cost Fund amount, Member shall replenish it within ten (10) days to the original amount. The arbitrator may increase the Cost Fund amount as required to cover all reasonable Provider costs and expenses related to Provider participation in the proceedings and all Provider reasonable efforts to enforce the terms of this Agreement. Failure to fund or replenish constitutes a material breach and may result in interim relief, issue sanctions, evidentiary preclusion, or default award as the arbitrator deems just.
Any interim advancement or replenishment is without prejudice to the final allocation of fees and costs in the arbitrator’s award (including any unpaid or overpaid advancements), under the Agreement’s fee‑shifting standard.
Liquidated Damages (Unauthorized Use or Disclosure)
For any Unauthorized Use or Disclosure of Provider IP or Solutions—including, without limitation, use of Provider names, logos, trade dress, trademarks or service marks; brand/style assets; creative materials (text, images, audio, video, design files, artwork, templates, documentation, datasets); domains, handles, SEO or advertising keywords incorporating Provider’s marks; and software/code (e.g., cloning, forking, compiling, running, distributing, or creating derivatives; screenshots or transcription of literal code; automated extraction; or AI/ML training)—the parties agree that actual damages would be difficult to quantify, including impairment of goodwill and reputation, loss of exclusivity, and remediation/takedown costs.
Upon any such Unauthorized Use or Disclosure, Member shall pay liquidated damages equal to the greater of:
a) Reasonable compensatory damages including:
ix) The commercially reasonable license value for the scope and duration of any software/code Unauthorized Use or Disclosure; together with
x) For any Unauthorized Use involving Provider’s marks, names, logos or trade dress: commercially reasonable remediation and brand-restoration costs (including takedowns/delisting, corrective communications/PR, marketplace and ad-platform fees, and monitoring/brand-protection services); and
xi) A reasonable goodwill-impairment uplift as determined by the tribunal; or
b) An applicable monthly fallback of either:
i) $5,000 per month, or part of month for Unauthorized Use or Disclosure generally; or
ii) $25,000 per month for Unauthorized Use involving Provider names, logos, trade dress, or trademarks/service marks.
In all cases, total liquidated damages shall not exceed two hundred percent (200%) of the commercially reasonable license value for the same scope and duration (inclusive of above referenced remediation and goodwill components).
Liquidated damages accrue only until cessation of the Unauthorized Use or Disclosure and certified deletion/return or public removal/takedown of the affected materials (including delisting of ads/SEO uses and removal from websites, social posts, and app listings), subject to reasonable forensic verification under this Section.
The parties acknowledge this amount is a reasonable pre‑estimate of likely harm and not a penalty. The parties further agree that these liquidated damages expressly encompass impairment of goodwill and reputation and the commercially reasonable costs of removal, remediation, corrective communications, and monitoring arising from the misuse.
Liquidated damages under this Section are in addition to, and do not replace or offset, any past‑due undisputed fees, charges, taxes, late fees, and interest otherwise owed under this Agreement.
The tribunal shall credit any amounts actually paid for the same injury (including statutory or actual damages) to avoid double recovery.
Any contractual limitation or exclusion of damages does not apply to liquidated damages under this Section or to injunctive or specific‑performance relief.
In the event a court or arbitrator finds liquidated damages unenforceable, Provider may recover actual damages and disgorgement of Member’s profits attributable to the Unauthorized Use or Disclosure.
Remedies; Injunctive Relief; Specific-Performance
Provider may suspend performance and revoke Member’s access and/or License(s) to use Provider Solutions or Provider IP whenever and for so long as Member is not in Good Standing (as defined in §8).
Either party may seek emergency or temporary injunctive relief through the AAA’s Emergency Measures of Protection or in state or federal courts located in New York County, New York, or in the courts of New Jersey, without waiver of arbitration for the merits.
Each party may seek judicial assistance to: i) compel arbitration; ii) obtain interim measures of protection prior to or pending arbitration; iii) protect against Unauthorized Use or Disclosure of proprietary or confidential information; and (iv) enforce any decision or award.
Member acknowledges that Unauthorized Use or Disclosure of the Provider Solutions or Provider IP causes irreparable harm. Provider is entitled to immediate temporary, preliminary, and permanent injunctive relief and specific-performance, without posting bond to the maximum extent permitted by law, in addition to all other remedies (including fee advancement under this Section). Without limiting the foregoing, “specific-performance” may include tribunal orders to:
Enforcement of Monetary Relief; Late Fees; Setoff
Any monetary amount awarded or ordered under this Agreement—including damages, liquidated damages, fee‑advancement statements, reimbursements, arbitrator/administrator fees allocated to Member, and costs of collection/enforcement—shall be paid within ten (10) days after issuance of the order/award or the relevant invoice, unless a shorter period is specified.
The arbitrator retains continuing jurisdiction to issue interim or supplemental orders to enforce payment obligations.
Judgment on any award may be entered in any court having jurisdiction, and Member consents to post‑judgment discovery, restraining notices, turnover orders, garnishment, receivership, and other remedies available under CPLR Article 52 or analogous law.
Provider may apply the Cost Fund and any escrowed amounts to satisfy amounts due and may set off any amounts due from Member against credits, rebates, or other amounts otherwise payable by Provider or its Affiliates to Member or Member's Affiliates under this Agreement or any related agreement.
Member shall not withhold, set off, or recoup any amount against sums due hereunder except i) undisputed credits expressly due under this Agreement, or ii) as expressly ordered by the tribunal.
Provider may submit monthly statements in the same Solutions invoice format and with the same §4 ("Payment Terms") detailed in this Agreement. Member shall pay each statement within ten (10) days of receipt by same‑day wire or next‑day ACH in U.S. dollars to the account designated by Provider, free and clear of any deduction, withholding, setoff, or recoupment (except as expressly permitted in this Section or ordered by the tribunal). If any deduction or withholding is required by law, Member shall gross‑up the payment so that Provider receives the full amount it would have received absent such deduction. Any unpaid amounts shall be added to Member’s outstanding balance and accrue interest, and any applicable late fees as provided in this Agreement.
Payment obligations under this Section are not stayed by any application to modify, vacate, or challenge an award unless a stay is expressly ordered and Member posts security that is not less than One Hundred Forty Percent (140%) of the unpaid sums (to cover interest, fees, and costs accruing during the stay) in an amount acceptable to the arbitrator or court.
The terms of this entire Article 19 survive any termination or expiration of the Agreement.
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.
22. SEVERABILITY
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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