Effective 01/08/19 - Master Services Agreement
This Master Services Agreement (this “Agreement”) is between ScheduleMe123, a Florida corporation with offices located at 999 Stinson Way, Suite 305, West Palm Beach, Florida 33411 (“us”, “our”, “we” or “ScheduleMe123”), and you, the entity who electronically accepts this document by you, the person who accepts this Agreement by checking “I AGREE” button (or similar syntax), below (“you”, “your” or “Client”). This Agreement is effective as of the latest date of the signatures of the parties below (“Effective Date”).
1) SCOPE OF SERVICES; SOW. This Agreement governs all services that we perform or provide to you (collectively, the “Services”). The Services will be described in one or more proposals or statements of work that we provide to you (each, a “SOW”). Once you and we mutually agree to a SOW (either by signing it or by electronic acceptance), the SOW will become a part of, and governed under the terms of this Agreement. If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability, or termination of this Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.
2) GENERAL REQUIREMENTS.
a) System. For the purposes of this Agreement, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by us pursuant to a SOW. To avoid a delay or negative impact on our provision of the Services, during the term of each SOW you agree to refrain from modifying or moving the System, or installing software on the System, unless we expressly authorize such activity.
b) Requirements. At all times, all software on the System must be genuine and licensed, and you agree to provide us with proof of such licensing upon our request. If we require you to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), you agree to do so as an ongoing requirement of ScheduleMe123 providing its Services to you.
c) Maintenance; Updates. If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, we will install the Updates only if we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. ScheduleMe123 will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
d) Third Party Support. If, in ScheduleMe123’s discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and pass through to you, without markup, all fees and costs incurred in that process. If such fees or costs are anticipated in advance or exceed $100, we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require otherwise.
e) Advice; Instructions. From time to time, we may provide you with specific advice and directions related to our provision of the Services or the maintenance or administration of the System. (For example, our advice or directions may include increasing the System’s server or hard drive capacity or replacing obsolete equipment.) You agree to promptly follow and implement any directions we provide to you related to the Services which, depending on the situation, may require you to make additional purchases or investments in the System or the environment in which the System is maintained, at your sole cost. ScheduleMe123 will not be responsible for any problems or issues (including but not limited to System downtime or security-related issues) caused by your failure to promptly follow ScheduleMe123’s advice or directions. If your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide in ScheduleMe123’s discretion, then ScheduleMe123 may terminate the applicable SOW for cause by providing notice of termination to you. Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow ScheduleMe123’s advice or directions, or your unauthorized modification of the System, as well as any services required to bring the System up to or maintain the Minimum Requirements, are not covered under any SOW and will be out-of-scope.
f) Prioritization. Unless otherwise stated in a SOW, all Services will be performed on a schedule, and in a prioritized manner, as determined by ScheduleMe123.
g) Authorized Contact(s). ScheduleMe123 will be entitled to rely on any directions or consent provided by your personnel or representatives who are authorized in a SOW to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable SOW, then your Authorized Contact will be the person(s) (i) who signed this Agreement, and/or (ii) who signed the applicable SOW. If you desire to change your Authorized Contact(s), please notify ScheduleMe123 of such changes in writing which, unless exigent circumstances are stated in the notice, will take effect three (3) business days thereafter.
h) Insurance. If you are supplied with ScheduleMe123 Equipment (defined below), you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment. ScheduleMe123 must be listed as an additional insured on any policy acquired and maintained by you under this Agreement, and the policy will not be canceled or modified during the term of the applicable SOW without prior notification to ScheduleMe123. Upon ScheduleMe123’s request, you agree to provide proof of insurance to ScheduleMe123, including proof of payment of any applicable premiums or other amounts due under the insurance policy. You further agree to reimburse us for any damages sustained to any ScheduleMe123 Equipment in your possession.
i) Consent. At all times, a person eighteen (18) years or older must be physically present to provide access at the location where ScheduleMe123 provides any onsite Services or give its advance written authorization to ScheduleMe123 to complete onsite Services. We may refuse to perform onsite Services, or delay the implementation of onsite Services, if Client does not adhere to the foregoing requirement, and any resulting delays in our performance of the Services will be billed to Client at our then-current hourly rates.
3) FEES; PAYMENT. You agree to pay the fees described in each SOW. If the SOW does not include a fee schedule, then you agree to pay ScheduleMe123 on an hourly basis pursuant to ScheduleMe123’s standard hourly rate schedule.
a) Schedule. Unless otherwise stated in a SOW, all undisputed fees will be due and payable in advance of the provision of the Services. If applicable, payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided.
b) Nonpayment. Fees that remain unpaid for more than fifteen (15) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 2% per month or the maximum allowable rate of interest permitted by applicable law. ScheduleMe123 reserves the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely received by ScheduleMe123. Notice of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter. A re-connect fee may be charged to you if we suspend the Services due to your nonpayment. Time is of the essence in the performance of all payment obligations by you.
a) You hereby grant to ScheduleMe123 the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System, on a 24x7x365 basis, for the purpose of enabling us to provide the Services. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for ScheduleMe123 to provide Services to the System and, if applicable, at your designated premises, both physically and virtually. Proper and safe environmental conditions must be provided and assured by you at all times. ScheduleMe123 shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.
b) Troubleshooting. If we are required to troubleshoot any Installed Items remotely, then we will be required to access the applicable equipment and run diagnostic tests on that equipment to determine levels of operability and functionality. For cameras, video, or audio equipment, our testing may include and require us to operate the equipment remotely, which will allow our technicians to see, hear, and/or capture the sights and sounds in the vicinity of the equipment. You understand and agree that troubleshooting activity may take place during non-business hours, and without prior notification to you, and you hereby grant us permission to conduct such testing and to remotely access the equipment as described herein and as may be reasonably necessary to fulfill our obligations under this Agreement or any Order.
5) LIMITED WARRANTIES; LIMITATIONS OF LIABILITY.
a) Hardware / Software Purchased Through ScheduleMe123. Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through ScheduleMe123 (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in ScheduleMe123’s queue for delivery. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. Unless otherwise expressly stated in a SOW, all Third Party Products are provided “as is” and without any warranty whatsoever as between ScheduleMe123 and you (including but not limited to implied warranties).
b) Warranty Application. Notwithstanding any provision to the contrary in this Agreement, any warranty offered and provided directly by ScheduleMe123 for any product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than ScheduleMe123, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by ScheduleMe123; (ii) misused, abused, or not operated in accordance with the specifications of ScheduleMe123 or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than ScheduleMe123 or persons approved or designated by ScheduleMe123.
c) Liability Limitations. This paragraph limits the liabilities arising under this Agreement or any SOW and is a bargained-for and material part of this Agreement. You acknowledge and agree that ScheduleMe123 would not enter into this Agreement unless it could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to ScheduleMe123), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except for your payment obligations and your indemnification obligations described in this Agreement, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of the fees paid by you to ScheduleMe123 for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
6) INDEMNIFICATION. Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.
7) TERM; TERMINATION. This Agreement begins on the Effective Date and continues until terminated as described in this Agreement. Each SOW will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW. The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other SOW between the parties.
a) Termination Without Cause. Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, a SOW is in progress. In addition, no party will terminate a SOW without cause prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if ScheduleMe123 decides to cease providing a service to all of its customers generally, then ScheduleMe123 may terminate an applicable SOW without cause by providing no less than one hundred and twenty (120) days prior written notice to you. If you terminate a SOW without cause and without ScheduleMe123’s consent, then you will be responsible for paying the termination fee described in Section 7(b), below. If no SOW is in progress, then either party may terminate this Agreement without cause by providing the other party with five (5) days prior written notice.
b) Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If ScheduleMe123 terminates this Agreement or any SOW For Cause, or if you terminate any SOW without cause prior to such SOW’s expiration date, then ScheduleMe123 shall be entitled to receive, and you hereby agree to pay to ScheduleMe123, (i) all amounts that would have been paid to ScheduleMe123 had this Agreement or SOW (as applicable) remained in effect, and (ii) all expenses incurred by ScheduleMe123 in its preparation and provision of the Services to you, e.g., licensing fees and equipment costs incurred by ScheduleMe123, non-mitigatable hard costs, etc. If you terminate this Agreement or a SOW for cause, then you will be responsible for paying only for those services that were properly delivered and accepted by you up to the effective date of termination.
c) Client Activity As A Basis for Termination. In the event that (i) any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the System or any part of the System to malfunction consequently requiring remediation by ScheduleMe123 on three (3) occasions or more (“System Malfunction”), and if under those circumstances, you fail to remedy, repair or replace the System Malfunction as directed by ScheduleMe123 (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then ScheduleMe123 will have the right, upon ten (10) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause or, at ScheduleMe123’s discretion and if applicable, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
d) Consent. You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time.
e) Equipment / Software Removal. Upon termination of this Agreement or applicable SOW for any reason, you will provide ScheduleMe123 with access, during normal business hours, to your premises or any other locations at which ScheduleMe123-owned equipment or software (collectively, “ScheduleMe123 Equipment”) is located to enable ScheduleMe123 to remove all ScheduleMe123 Equipment from the premises. If you fail or refuse to grant ScheduleMe123 access as described herein, or if any of the ScheduleMe123 Equipment is missing, broken or damaged (normal wear and tear excepted) or any of ScheduleMe123-supplied software is missing, ScheduleMe123 will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
f) Transition; Deletion of Data. In the event that you request ScheduleMe123’s assistance to transition away from ScheduleMe123’s services, ScheduleMe123 will provide such assistance if (i) all fees due and owing to ScheduleMe123 are paid to ScheduleMe123 in full prior to ScheduleMe123 providing its assistance to you, and (ii) you agree to pay ScheduleMe123 its then-current hourly rate for such assistance, with up-front amounts to be paid to ScheduleMe123 as may be required by ScheduleMe123. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a SOW, ScheduleMe123 will have no obligation to store or maintain any Client data in ScheduleMe123’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. ScheduleMe123 will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, ScheduleMe123’s deletion of your data beyond the time frames described in this Section 7(f).
8) RESPONSE; REPORTING.
a) Response. ScheduleMe123 warrants and represents that ScheduleMe123 will provide the Services, and respond to any notification received by ScheduleMe123 of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in an applicable SOW (“Response Time”), except for (i) those periods of time covered under the Onboarding Exception (defined below), or (ii) periods of delay caused by Client-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) periods in which ScheduleMe123 is required to suspend the Services to protect the security or integrity of your System or ScheduleMe123’s equipment or network, or (iv) delays caused by a force majeure event.
i) Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by ScheduleMe123 but which will not occur between the hours of 8:30 AM and 5:30 PM EST (or PDT, as applicable), Monday through Friday without your authorization or unless exigent circumstances exist, during which time ScheduleMe123 will perform scheduled maintenance or adjustments to its network. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
ii) Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Client-Side Downtime”).
iii) Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third party service providers, third party licensors, or “upstream” service or product vendors.
iv) Remedies; Limitations. Except for the Onboarding Exception, if ScheduleMe123 fails to meet its service level commitment in a given calendar month and if, under such circumstances, our failure is not due to your activities, omissions, or inactivity, then upon receiving your written request for credit, we will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service failure. All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to us, or (ii) if applicable, receive a monthly report showing the outage and/or failure. The remedies contained in this paragraph and in Section 7(b) are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for our failure to meet any service level commitment during the term of this Agreement.
b) Onboarding Exception. You acknowledge and agree that for the first thirty (30) days following the commencement date of a SOW, the Response Time commitments described in this Agreement will not apply to ScheduleMe123, it being understood that there may be unanticipated downtime or delays due to ScheduleMe123’s initial startup activities with you (the “Onboarding Exception”).
a) Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to us by you, including but not limited to your customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of ScheduleMe123, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
b) Use. We will keep your Confidential Information confidential, and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill ScheduleMe123’s obligations under this Agreement. If we are required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then we will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 9.
c) Due Care. We will exercise the same degree of care with respect to the Confidential Information it receives from you as we normally take to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
d) Compelled Disclosure. If we are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, we will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section 9. We will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.
10) ADDITIONAL TERMS; THIRD PARTY SERVICES.
a) EULAs. Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULAs”). EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of such EULAs, and will look only to the applicable third party provider for the enforcement of the terms of such EULAs. If, while providing the Services, ScheduleMe123 is required to comply with a third-party EULA and the third party EULA is modified or amended, ScheduleMe123 reserves the right to modify or amend any applicable SOW with you to ensure ScheduleMe123’s continued compliance with the terms of the third party EULA.
b) Third Party Services. Portions of the Services may be acquired from, or rely upon the services of third party manufacturers or providers, such as data hosting services, domain registration services, and data backup/recovery services (“Third Party Service”). Not all Third Party Services may be expressly identified as such in a SOW, and at all times ScheduleMe123 reserves the right to utilize the services of any third party provider or to change third party providers in its sole discretion as long as the change does not materially diminish the Services to be provided to you under a SOW. We will not be responsible, and will be held harmless by you, for the failure of any third-party provider or manufacturer to provide Third Party Services to ScheduleMe123 or to you.
c) Data Loss. Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmission errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) ScheduleMe123’s failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services. Unless expressly stated in a SOW, ScheduleMe123 does not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.
d) BYOD. You hereby represent and warrant that ScheduleMe123 is authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smartphones and tablet computers) that are connected to the System, regardless of whether such device(s) are owned, leased or otherwise controlled by you. ScheduleMe123 will not be obligated to provide the Services to any mobile device or temporarily-connected device unless that obligation is specifically stated in an applicable SOW. Further, unless otherwise stated in a SOW, devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the System.
11) OWNERSHIP. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party.
12) ARBITRATION. Any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration before one arbitrator to be mutually agreed upon by the parties. The arbitration shall be administered and conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth below, the procedures set forth below will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, JAMS shall select the arbitrator. The arbitration shall take place in the venue described in Section 13, below. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
a) Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. Similarly, you represent that your business is not subject to the provisions of the Federal Acquisition Regulation (FAR), or any similar regulatory acquisition process or procedure. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.
b) Assignment. Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, ScheduleMe123 may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of ScheduleMe123, or any other transaction in which ownership of more than fifty percent (50%) of ScheduleMe123’s voting securities are transferred; provided, however, that such assignee expressly assumes ScheduleMe123’s obligations hereunder.
c) Amendment. Unless otherwise expressly permitted under this Agreement, no amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by ScheduleMe123, specifically refers to this Agreement, and is accepted in writing by one of your Authorized Contacts.
d) Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
e) Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
f) Other Terms. ScheduleMe123 will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless such terms or conditions are incorporated into a duly executed SOW, or unless ScheduleMe123 has expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
g) No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
h) Merger. This Agreement, together with any and all SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the parties. ScheduleMe123 will not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
i) Force Majeure. ScheduleMe123 will not be liable to you for delays or failures to perform ScheduleMe123’s obligations under this Agreement or any SOW because of circumstances beyond ScheduleMe123’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by you, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
j) Non-Solicitation. You acknowledge and agree that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of ScheduleMe123’s employees or subcontractors to discontinue or reduce the scope of their business relationship with ScheduleMe123, or recruit, solicit or otherwise influence any employee or agent of ScheduleMe123 to discontinue such employment or agency relationship with ScheduleMe123. In the event that you violate the terms of the restrictive covenants in this Section 13(j), you acknowledge and agree that the damages to ScheduleMe123 would be difficult or impracticable to determine, and you agree that in such event, as ScheduleMe123’s sole and exclusive remedy therefore, you will pay ScheduleMe123 as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with you (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of our employees by you will be deemed to be a material breach of this Agreement, in which event we shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
k) Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
l) Insurance. ScheduleMe123 and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.
m) Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to the laws of the state of Florida. You hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Palm Beach County, Florida, for any and all claims and causes of action arising from or related to this Agreement.
n) No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
o) Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
p) Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Palm Beach County, Florida, such period will be extended to and through the next succeeding business day in Palm Beach County, Florida.
q) Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to ScheduleMe123 regarding (a) any alleged breach of this Agreement by ScheduleMe123, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to ScheduleMe123 either by U.S. mail or fax, unless such requirement is expressly and specifically waived by ScheduleMe123. All electronic documents and communications between the parties will satisfy any “writing” requirement under this Agreement.
r) Independent Contractor. ScheduleMe123 is an independent contractor, and is not your employer, employee, partner, or affiliate.
s) Subcontractors. Generally, ScheduleMe123 does not utilize subcontractors; however, should ScheduleMe123 elect to subcontract a portion of the Services, ScheduleMe123 shall guarantee all work performed by any ScheduleMe123-designated subcontractor as if ScheduleMe123 performed the subcontracted work itself.
t) Data Access/Storage. Depending on the Service provided, a portion of your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify our standard access or storage procedures.
u) Counterparts. The parties intend to accept and deliver this Agreement and any SOW electronically and in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement.