Master Services Agreement
For the purposes of this Master Subscription Agreement (“Agreement”), a "Customer" means any entity that subscribes to or uses the Service through an Order with Zengines, Inc., a Delaware corporation (“Zengines”). Each of Zengines and Customer may herein after be referred to individually as a “Party” and jointly as the “Parties”.
Recitals
WHEREAS, Zengines has developed software-as-a-service applications and related technologies, which, among other things, assist companies with data management and data migration (each, a “Service”); and
WHEREAS, Customer wishes to access and use the Service(s) set forth on an Order (as defined below) and engage Zengines for related services, and Zengines wishes to make available to Customer such Service(s) and perform related services, in each case, on the terms and conditions set forth herein.
NOW THEREFORE, the Parties hereby agree as follows:
1. ORDERS; SERVICE ACCESS GRANT
1.1. Orders
From time to time, Customer and Zengines may enter into orders, each of which (a) are signed by an authorized representative of each Party; (b) reference, and are governed by, this Agreement; (c) set forth the Service(s) and state the subscription term for Customer’s access and use of such Service(s) (each, a “Subscription Term”); and (d) state all associated fees to be paid by Customer to Zengines therefor (each, an “Order”). Each Order is hereby incorporated by reference herein.
1.2. Service; Documentation
During the applicable Subscription Term, Zengines will make available to Customer the applicable Service(s). Subject to the terms and conditions of this Agreement, Zengines hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable right, during the applicable Subscription Term, to (a) access and use the applicable Service(s) and (b) use the user manuals, operator instructions and other documentation for the applicable Service(s) delivered or made available by Zengines to Customer (“Documentation”), each of the foregoing clauses (a)–(b) solely for Customer’s internal business purposes.
1.3. Restrictions
Customer will not provide access to any Service to any person who is not an employee or contractor of Customer (“Authorized Users”). Customer will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Customer nor any Authorized User will, nor will it or they permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any Service; (b) modify, translate or create derivative works based on any Service or Documentation; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any Service; (d) use any Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any Service or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (f) remove or obscure any proprietary notices or labels of Zengines or its suppliers on any Service or Documentation; (g) use any Service, Documentation, or any information contained in any Service or Documentation or otherwise provided by Zengines or its suppliers for the purposes of developing, or having developed, any products or services competitive with any Service; or (h) otherwise access or use any Service or Documentation in a manner inconsistent with this Agreement, the Documentation, or applicable laws, rules and regulations. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of any Service and notify Zengines promptly of any such unauthorized access or use.
2. PROFESSIONAL SERVICES
2.1 Statements of Work
From time to time, Customer may engage Zengines to perform implementation, consulting and other professional services related to Customer’s use of the Service(s) (the “Professional Services”). The Professional Services will be set forth in a statement of work, which expressly incorporates this Agreement by reference, is governed by this Agreement, and is signed by an authorized representative of each Party (each, a “Statement of Work”). Each Statement of Work will include a description of the Professional Services, a schedule of payments and payment terms, and any other mutually agreed upon terms and conditions related to the performance of such Professional Services.
2.2 Obligations
Zengines will (a) use commercially reasonable efforts to perform and complete the Professional Services in accordance with this Agreement and any applicable Statement of Work and (b) provide suitably trained and skilled personnel to provide the Professional Services. Customer understands that Zengines’ performance of Professional Services is dependent in part on Customer’s actions. Accordingly, Customer will provide Zengines with any necessary items and assistance in a timely manner, including any items and assistance identified in the applicable Statement of Work. Any dates or time periods relevant to performance by Zengines under any Statement of Work will be appropriately and equitably extended to account for any delays due to Customer.
3. FEES; PAYMENT TERMS
3.1 Fees
Customer will pay Zengines the fees set forth in each Order and in any Statement of Work, in accordance with the terms and conditions herein and therein. At its discretion, Zengines may increase the pricing stated on an Order for any Renewal Subscription Term (as defined below) upon giving Customer at least ninety (90) days’ notice (which may be sent by email) prior to the end of the then-current term.
3.2 Payment Terms
Zengines will invoice Customer for fees due and payable hereunder. The fees set forth in an Order will be invoiced in accordance with such Order, and the fees due with respect to Professional Services will be invoiced in accordance with the applicable Statement of Work. In addition, Customer will reimburse Zengines for documented business expenses incurred under the terms of the applicable Order or Statement of Work. Customer will pay to Zengines all invoiced amounts within thirty (30) days of Customer’s receipt of the applicable invoice. If payment of any fees (including any reimbursement of expenses) is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Zengines within thirty (30) days from the time such payment is due, Zengines may suspend Customer’s access to the Service(s) until such payment is made.
3.3 Net of Taxes
All amounts payable by Customer to Zengines hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively, “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Zengines. Customer will not withhold any Taxes from any amounts due Zengines.
4. SERVICE LEVELS
Zengines will use commercially reasonable efforts consistent with prevailing industry standards to provide the Service(s) in a manner that minimizes errors and interruptions in accessing the Service(s).
5. OWNERSHIP; RESERVATION OF RIGHTS
5.1. Customer Data
Customer owns the unaltered data and other content uploaded to or otherwise input by Customer into each Service (collectively, “Customer Data”). Customer hereby grants to Zengines a non-exclusive, worldwide, royalty-free, fully paid up, non-sublicensable (subject to Section 12.3), non-transferable (subject to Section 12.10) right and license to copy, display, create derivative works of and otherwise use the Customer Data (a) to perform its obligations under this Agreement, (b) to internally develop and improve its products and services and (c) to create aggregated and/or anonymized data from such Customer Data (the “Anonymized Data”). Customer reserves any and all right, title and interest in and to the Customer Data other than the rights and licenses expressly granted to Zengines in this Section 5.1. For the avoidance of doubt, the Customer Data does not include the Anonymized Data.
5.2. Ownership
Customer acknowledges and agrees that, as between the parties, Zengines retains all rights, title, and interest in and to the Services, Documentation, and Anonymized Data, all copies or parts thereof (by whomever produced), and all improvements, modifications and enhancements thereto, and all related intellectual property rights. Zengines grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the foregoing.
5.3. Feedback
Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback to Zengines with respect to the Service(s) or Documentation (“Feedback”). Zengines will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Zengines a royalty-free, fully paid up, worldwide, transferable, sublicenseable (indirectly and directly through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
6. TERM, TERMINATION
6.1 Term
The term of this Agreement commences on the Effective Date and continues until the expiration or termination of all Subscription Terms in accordance with the terms herein or in the applicable Order (the “Term”). Each Subscription Term will continue for the period set forth in the applicable Order and, thereafter, unless this Agreement and/or the applicable Order terminates earlier in accordance with the terms herein or in the applicable Order, such Subscription Term will automatically renew for additional one (1) year periods (each, a “Renewal Subscription Term”) unless either Party delivers to the other Party written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term. Each Renewal Subscription Term will be deemed part of the applicable “Subscription Term”.
6.2 Termination
In addition to any other remedies it may have, either Party may terminate this Agreement and/or any Order and/or any Statement of Work upon written notice to the other Party if such other Party breaches this Agreement (or any Order or Statement of Work) and fails to cure such breach within thirty (30) days of receipt of written notice thereof. Neither Party will incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such Party (or expiration) that complies with the terms of the Agreement whether or not such Party is aware of any such damage, loss or expenses.
6.3 Effect of Termination
Upon expiration or termination of this Agreement, (a) all rights granted hereunder and all obligations of Zengines to provide the Service(s) will immediately terminate, (b) all Orders and Statements of Work will immediately terminate, and (c) the Parties will comply with Section 7.4. Promptly after the expiration or termination of this Agreement, Zengines will invoice Customer for any fees due and payable that Customer has not yet paid, and Customer will be obligated to promptly pay all such amounts in accordance with this Agreement and any applicable Statement of Work. If this Agreement is terminated by Customer pursuant to Section 6.2, Zengines will refund to Customer any prepaid fees for the period following the effective date of termination. Upon Customer’s written request within thirty (30) days after expiration or termination of this Agreement, Zengines will make available to Customer an export of Customer Data in Zengines’ systems in a format reasonably requested by Customer, subject to Zengines’ rights in Section 5.1. After the expiration of such thirty (30) day period, Zengines may at its discretion purge Customer Data from its systems.
6.4 Survival
Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate; provided, that, the following Sections will survive: 1.3, 3 (to the extent any fees that are due and payable remain unpaid), 5.2, 5.3, 6, 7, 8.4, 9, 10 and 12.
7. CONFIDENTIALITY
7.1 Definition
“Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that information related to a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Zengines’ Confidential Information includes, without limitation, the Services and Documentation. Customer’s Confidential Information includes, without limitation, the Customer Data. Information and data will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
7.2 Use and Disclosure of Confidential Information
The Receiving Party acknowledges that it will have access to the Disclosing Party’s Confidential Information. The Receiving Party will not (a) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement or any Statement of Work, or (b) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to (i) its employees and consultants who are required to have access to the Confidential Information in connection with the exercise of Receiving Party’s rights and performance of its obligations under this Agreement or any Statement of Work; and (ii) professional advisers (e.g., lawyers and accountants); provided, however, that any and all such employees, consultants, and advisers are bound by written agreements or, in the case of professional advisers, ethical duties, to treat, hold and maintain such confidential Information in accordance with the terms and conditions of this Section 7. The Receiving Party will not allow any unauthorized person access to Disclosing Party’s Confidential Information, and that Receiving Party will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information.
7.3 Disclosures Required by Law
If Receiving Party is required by any law, rule or regulation to make any disclosure of any of Disclosing Party’s Confidential Information, by subpoena, judicial or administrative order or otherwise, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection.
7.4 Termination and Stop Usage
In the event of termination or expiration of this Agreement, the Receiving Party will: (a) cease using the Confidential Information of the Disclosing Party and (b) if requested to do so in writing, either return it to the Disclosing Party or destroy it along with all copies, notes or extracts thereof, and certify to its destruction within fifteen (15) days of receipt of such written notice.
7.5 Terms of Agreement
Neither Party will disclose any of the terms of this Agreement to any third party without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may disclose such terms as are required to be disclosed: (a) to (i) its accountants and advisors who have a “need-to-know” solely for the purpose of providing services to such Party or (ii) existing and potential investors, lenders and acquirers and the accountants and advisors of any of the foregoing; provided, however, that any such recipient under either of the foregoing clauses (i) and (ii) is bound by a written agreement (or in the case of attorneys or other professional advisors, formal ethical duties) requiring such recipients to treat, hold and maintain the terms of this Agreement on a confidential basis in accordance with the terms and conditions of this Section 7; or (b) in order to comply with an applicable judicial process, if in the reasonable opinion of such Party’s counsel, such disclosure is necessary for such compliance, provided that such Party will notify the other Party of such Party’s intent to make any such disclosure sufficiently prior to making such disclosure so as to allow such other Party adequate time to review and comment on such disclosure and further to take whatever action it may deem appropriate to protect the confidentiality of the information to be disclosed.
7.6 Remedies
Customer acknowledges that any unauthorized accessor use of any Service or Documentation may cause irreparable harm and injury to Zengines for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Zengines will be entitled to seek injunctive relief in the event Customer accesses or uses any Service or Documentation in violation of the limited license granted herein or uses the same in any way not expressly permitted by this Agreement. In addition, each Party acknowledges that any breach of this Section 7 may cause irreparable harm and injury to the other Party for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, each Party further agrees that the other Party will be entitled to seek injunctive relief in the event such Party breaches this Section 7.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
8.1 Mutual
Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
8.2 By Zengines
Zengines represents and warrants to Customer that (a) the Professional Services will be performed in a professional and workmanlike manner, in accordance with the standard and quality generally recognized and accepted within its industry; (b) each Service will substantially conform with the applicable Documentation; and (c) Zengines will use reasonable measures to ensure that no Service will contain any malicious virus (or other software designed to harm software, hardware or data).
8.3 By Customer
Customer represents, warrants, and covenants to Zengines that (a) Customer has and will have the legal authority and all rights necessary (i) to provide the Customer Data to Zengines and (ii) for Zengines to fulfill its obligations and exercise its rights with respect to the Customer Data as set forth this Agreement and (b) Customer will comply with all applicable laws, rules and regulations.
8.4 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE(S) AND DOCUMENTATION ARE PROVIDED ON AN “AS-IS” BASIS AND ZENGINES DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIEDWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.
9. Enforcement
9.1 Disclaimer of Consequential Damages
THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUALPROPERTY RIGHTS OR (B) EITHER PARTY’S BREACH OF SECTION 7 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THEOTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
9.2 General Cap on Liability
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (B) EITHER PARTY’S BREACH OF SECTION 7 ABOVE, OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO ZENGINES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ORCIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ANY CLAIMS ARISING UNDER OR RELATING TO A SPECIFIC STATEMENT OF WORK, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO ZENGINES UNDER SUCH STATEMENT OF WORK DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY ARE CUMULATIVE AND NOT PER INCIDENT.
9.3 Independent Allocations of Risk
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OFTHESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10. INDEMNIFICATION
10.1 Indemnification by Zengines
Zengines will defend at its expense any claim, suit or proceeding (each a “Claim”) brought against Customer and the officers, directors, agents, and employees of Customer (collectively, “Customer Indemnified Parties”) by a third party based on a claim that Customer’s use of any Service as contemplated by this Agreement infringes such third party’s copyrights or misappropriates such third party’s trade secrets, and Zengines will pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim, subject to Section 10.3. Notwithstanding the foregoing, Zengines will have no liability or obligation under this Section 10.1 with respect to any Claim if such Claim is caused in whole or in part by (a) modification of the applicable Service by any party other than Zengines without Zengines’ express consent; (b) the combination, operation, or use of such Service with other product(s), data or services where such Service would not by itself be infringing; or (c) unauthorized or improper use of such Service. If the use of the Service by Customer has become, or in Zengines’ opinion is likely to become, the subject of any claim of infringement or misappropriation, Zengines may at its option and expense (i) procure for Customer the right to continue using such Service as set forth hereunder; (ii) replace or modify such Service to make it non-infringing so long as such Service has at least equivalent functionality; (iii) substitute an equivalent for such Service; or (iv) if options (i)–(iii) are not reasonably practicable, terminate this Agreement and refund to Customer any prepaid fees for the period following the effective date of termination. This Section 10.1 states Zengines’ entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
10.2 Indemnification by Customer
Customer will defend at its expense any Claim brought against Zengines and the officers, directors, agents, and employees of Zengines (collectively, “Zengines Indemnified Parties”) by any third party arising out of or related to (a) Zengines’ use of the Customer Data in accordance with this Agreement or (b) any access, use, or disclosure by Customer of any Service or Documentation in violation of this Agreement, subject to Section 10.3.
10.3 Indemnification Procedure
If a Customer Indemnified Party or a Zengines Indemnified Party (each, an “Indemnified Party”) becomes aware of any Claim it believes it should be indemnified under Section 10.1 or Section 10.2, as applicable, the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Claim. The Indemnified Party will promptly give the Indemnifying Party the right to control and direct the investigation, preparation, defense and settlement of such Claim and will reasonably cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense and settlement of such Claim with counsel of its own choosing. Any compromise or settlement of a Claim will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld, conditioned, or delayed.
11. COMPLIANCE WITH LAWS
11.1 Compliance with Laws
Each Party will comply with all federal, state, county, and local laws, ordinances, regulations, rules and codes applicable to such Party in connection with its activities under this Agreement.
11.2 U.S. Export Control Laws
Notwithstanding any other provision of this Agreement, each Party will retain responsibility for its compliance with all applicable U.S. export control laws and economic sanctions programs relating to its respective business, facilities, and personnel. These laws include the Arms Export Control Act, the Export Administration Act, the International Emergency Economic Powers Act, the Atomic Energy Act and regulations issued pursuant to these, including the Export Administration Regulations (EAR) (15 CFR Parts 730-774), the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130), and the Nuclear Regulatory Commission and Department of Energy export regulations (10 CFR Parts 110 and810).
12. GENERAL
12.1 Independent Contractor
Zengines is acting, in performance of this Agreement, as an independent contractor. Personnel supplied by Zengines hereunder are not Customer employees or agents. Zengines will be solely responsible for the payment of compensation of any of its personnel. Zengines will have no right, power or authority to create, and will not represent to any person that it has any such power to create, any obligation, express or implied, on Customer’s behalf without the express prior written consent of Customer.
12.2 Governing Law; Venue
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Boston, Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens.
12.3 Subcontractors
Zengines may engage subcontractors in performance of its obligations under this Agreement; provided, that Zengines will remain responsible and liable for such subcontractors’ compliance with the terms and conditions of this Agreement. This Agreement will not create any contractual relationship between Customer and any of Zengines’ subcontractors, nor obligate Customer to pay or see that payment is made to any such subcontractor.
12.4 Notices
Any notice or communication required or permitted to be given by either Party under this Agreement will be in writing and will be hand delivered or sent by registered or certified mail, return receipt requested, or by an overnight delivery service to the Party receiving such communication at the address specified in the most recent Order or Statement of Work, or such other address as either Party may in the future specify to other Party in accordance with this Section. Notices will be effective: (a) on the date delivered by personal delivery; (b) three (3) business days following the date deposited in the United States mail; or (c) the next business day following delivery to a reputable overnight delivery service.
12.5 Entire Agreement; Precedence
This Agreement and any Orders or Statements of Work contain the final and complete agreement between the Parties for the provision of the Services and performance of the Professional Services and supersede all prior and contemporaneous conduct, agreements, statements, representations, negotiations, course of conduct, course of dealing, and communications pertaining to those Professional Services and the Services, whether written or oral. This Agreement cannot be modified or amended, except in accordance with a written agreement signed by an authorized representative of each Party. In the event of any conflict between this Agreement and an Order or Statement of Work, the terms and conditions of this Agreement will govern unless such Order or Statement of Work expressly amends such terms and conditions, in which case such amended terms and conditions will govern with respect to such Order or Statement of Work only.
12.6 Force Majeure
Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any of its obligations under this Agreement, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
12.7 Publicity
Neither Party will use the other Party’s name in any public announcement, press release or other promotional materials without such other Party’s prior written consent; provided, that Customer agrees that Zengines may, without such consent, list Customer’s name (including by displaying Customer’s logo) and identify the business relationship between the Parties on Zengines’ website and in other marketing and advertising collateral, together with a list of other customers.
12.8 Waiver
A Party’s failure or delay in enforcing the terms and conditions of this Agreement or in insisting upon strict performance of any of the other Party’s obligations will not be interpreted as a waiver thereof. Waiver of any provision of this Agreement by either Party will only be effective if in writing and will not be interpreted as a waiver of any subsequent breach or failure under the same or any other provision of this Agreement. No conduct, statement, course of conduct, course of dealing, oral expression, or other action will be construed as a waiver.
12.9 Severability
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.10 Assignment
Neither Party may assign this Agreement to a third party without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 12.10 will be null and void.