Master Service Agreement
This Master Service Agreement ("Agreement") governs all orders placed by customers for colocation services. By signing a service order document (“Order Form”) referencing this Agreement, the customer (“Customer”) agrees to contract with SATC COLO LLC, a Texas limited liability company with offices located at 3463 Magic Drive, Suite 100, San Antonio, TX 78229 (“Supplier”) and be bound by the terms and conditions set forth in this Agreement, including all terms and conditions incorporated by reference.
1. Services.
a. Services Provided. Supplier agrees to provide colocation services (“Services”) to Customer as set forth in the applicable Order Form. Services will include but are not limited to connectivity, bandwidth, and the necessary infrastructure to support the delivery of these services. Specific brands or technologies used (e.g., ATT Fiber, SONNET, Ring Network) are not specified and may change over time as needed.
b. Changes to Services. Supplier reserves the right to update, modify, or enhance the Services at any time, provided that such changes do not result in a material adverse reduction in the core functionality of the Services. Supplier may implement updates, improvements, or changes to maintain security, comply with applicable laws, enhance performance, or introduce new features. Any such modifications will be communicated to Customer in accordance with Supplier’s standard notification procedures.
c. Installation and Operation of Customer Equipment in the Colocation Space. “Customer Equipment” refers to any and all computer equipment, software, networking hardware or other materials placed by or for Customer in the Colocation Space (as defined in the applicable Order Form). Supplier grants Customer the right to install and operate Customer Equipment at the Colocation Space. All equipment in the Colocation Space that is not Customer Equipment or equipment belonging to a third-party is “Supplier Equipment.” Customer may use the Colocation Space only for the purposes of maintaining and operating Customer Equipment. Customer will install Customer Equipment in the Colocation Space only after obtaining appropriate authorization from Supplier as provided in the applicable Order Form. Customer will remove and be solely responsible for all packaging of Customer Equipment.
d. Access. Customer will have access to the Colocation Space on a 24-hour basis. Customer may access the Colocation Space only in accordance with the Security and Access Policy (available at https://satccolo.securityaccesspolicy.com), incorporated into this Agreement by reference. Customer is responsible for any and all actions of Customer representatives and any escorted persons. No unescorted persons may enter the Colocation Space under any circumstances.
2. Supplier’s Obligations.
a. Compliance with Laws. Supplier will comply with, and ensure its personnel comply with, all laws, regulations, and orders issued by courts or other governmental bodies of competent jurisdiction and applicable to the provision of the Services.
b. Internet Service. If the Order Form includes internet services, Supplier will provide 99% uninterrupted transit to the Internet. Should transit to the Internet become unavailable for more than 4 hours in any one calendar month, Customer will receive, at Supplier’s discretion, a credit up to 20% of monthly service fee. This provision does not cover outages caused by equipment and/or events not under the direct control of Supplier or caused by individuals not directly employed by Supplier. This provision does not cover outages due to scheduled or emergency network and/or facility maintenance, which will be broadcast to applicable Customers in advance, and will not exceed one hour per month. Any and all credits to Customer will not exceed 20% of Customer's recurring monthly fees for the month in which the unavailability occurred. This section 2b. is Customer’s sole and exclusive remedy for unavailable internet.
3. Customer’s Obligations
a. Compliance with Laws. Customer shall comply with all laws, regulations, and orders issued by courts or other governmental bodies of competent jurisdiction and applicable to the Services and its use of the Services.
b. Acceptable Use Guidelines. Customer shall not use Services or the Colocation Space in violation of Supplier’s Acceptable Use Policy (available at www.satccolo.acceptableusepolicy.com), incorporated into this Agreement by reference.
c. Insurance. Customer will keep in full force and effect during the term of this Agreement comprehensive general liability insurance. Customer agrees it shall not pursue any claims against Supplier for any liability Supplier may have under or relating to this Agreement unless and until Customer makes claims against Customer’s insurance provider(s) and such insurance provider(s) finally resolve(s) such claims.
d. Security. Customer agrees that it is solely responsible for security of Customer Equipment and that Supplier cannot guarantee security of Customer Equipment, nor can it be held liable for any security breach to the Colocation Space, nor any damages resulting from such a breach. Customer further agrees that it and all its employees shall comply with all applicable security measures set forth herein, the Order Form, and the Security and Access Policy. Only individuals whom Customer has identified as “Customer Representatives” (and persons escorted by Customer Representatives) listed on the Order Form will be permitted to enter the Colocation Space. Only Customer Representatives will be permitted to request Services on Customer’s behalf or to request any support services with respect to Customer Equipment. For good cause, Supplier may suspend the right of any Customer Representative or other person to visit Supplier premises and/or the Colocation Space. Supplier will assist in a security breach detection and identification, but shall not be liable for any inability, failure or mistake in doing so.
e. Removal of Customer Equipment. Customer will provide Supplier with written notification two (2) days before Customer wishes to remove a significant piece of Customer Equipment. (This does not include replacing a piece of equipment with a similar piece of equipment). Before authorizing the removal of any significant Customer Equipment, Supplier’s accounting department will first verify that Customer has no payments due to Supplier. Once Supplier authorizes removal of Customer Equipment, Customer will promptly remove such Customer Equipment and will, at its own expense, be solely responsible to leave area in good operating condition.
f. Roof Access. The Customer may be permitted to install and maintain Customer Equipment (e.g., antennas, cabling) on the roof of the building where the Colocation Facility is located, subject to prior written approval from the Supplier. All roof access must be escorted and pre-coordinated with the Supplier. The Customer requesting roof access or installation must comply with all applicable building policies, lease restrictions, and any additional requirements imposed by the landlord or building management. The Customer assumes all risks associated with Customer Equipment on the roof, including damage, theft, or interference. Upon termination of Services, the Customer shall, at its own expense, remove all Customer Equipment and restore the affected areas to their original condition.
4. Fees and Payment.
a. Service Fees. Customer shall pay the fees and charges for Services as set forth in the applicable Order Form and in accordance with this Section. Supplier may change its fees and charges from time to time upon reasonable advance written notice to Customer.
b. Statement of Charges. Customer will provide Supplier with all information requested on each Order Form, including a valid e-mail address and billing address. Supplier will post and transmit all of its fees and charges electronically to the contact name and e-mail address specified in the applicable Order Form. Customer agrees that all payments are due upon posting to the Customer’s account unless specified otherwise in the applicable Order Form.
c. Late Fees. Unless otherwise provided on the applicable Order Form, if Customer fails to pay any undisputed amount within thirty (30 days) from the date any fees or charges are posted to the Customer’s account, Supplier may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly. Customer shall also reimburse Supplier for all costs incurred in collecting late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
d. Taxes. Customer will pay all applicable federal, state, municipal, local, or other governmental sales, use, excise, value-added, or other taxes, tariffs, access fees, or other fees or charges now in force or enacted in the future, that arise from or as a result of, the Services or equipment.
e. Billing Disputes. All disputes of any kind must be reported in writing to Supplier no later than thirty (30) days from the date the disputed charge was posted to the Customer’s account. Submission of a written dispute notice shall not relieve the Customer of its obligation to timely pay all amounts.
f. No Deductions or Setoffs. Except as expressly provided in this Section, all amounts payable to Supplier under the applicable Order Form shall be paid by Customer to Supplier in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
5. Confidential Information.
a. Definition. Confidential Information means: (i) written information the parties share with each other in connection with this Agreement or in anticipation of providing Services under this Agreement, but only to the extent such written information is marked as Confidential Information; and (ii) except to the extent required by applicable law or regulation, the terms of this Agreement and any pricing or other proposals. Confidential Information will not include any information that: (x) is independently developed by the receiving party (“Receiving Party”); (y) is lawfully received by the Receiving Party free of any obligation to keep it confidential; or (z) becomes generally available to the public other than by breach of this Agreement.
b. Obligations. For a period of three years following a party’s receipt of any Confidential Information of the other party (the “Disclosing Party”), and except as provided in Section 5c. below, each party agrees: (i) not to disclose or otherwise make available such Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, employees, consultants and legal advisors who have a “need to know,” who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 5; (ii) to use such Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services; and (iii) to notify the Disclosing Party in the event it becomes aware of any loss or disclosure of such Confidential Information of Disclosing Party. Notwithstanding the foregoing, a party’s obligations under this Section 5b. with respect to trade secrets, including without limitation, software, shall remain in effect for as long as such information remains a trade secret under applicable law
c. Subpoenas and other Legal Requests for Information. Supplier may provide information and respond to law enforcement requests, subpoenas, court orders, and similar legal processes, for any purpose Supplier determines is appropriate in its sole discretion. This includes, but is not limited to, protecting Supplier, its rights and/or property, and in cases where failure to disclose the information may result in personal injury or loss of property of the Customer or others.
6. Non-Solicitation. Neither Supplier nor Customer shall knowingly, during the Term of this Agreement and for a period of one year thereafter, solicit for employment or employ, whether as an employee or independent contractor, any person who is or has been employed by the other party during the Term, without the prior written consent of such other party. The remedies for violation of the terms of this section include, but are not limited to, direct and indirect damages resulting from lost revenue, the hiring and training of replacement employees, related attorney fees, and court costs. Any amount due as a result of such violation shall constitute liquidated damages and shall not be deemed or construed as a penalty.
7. Intellectual Property.
a. Supplier IP Rights. To provide and maintain the Service, Supplier uses proprietary software, know-how and information that embody methods, algorithms, inventions, information, logos, and other elements that Supplier uses to provide the Services and that are protected (or qualify for protection) under US patent, trademark, copyright or trade secret law (the “SATC COLO IP”). SATC COLO and its licensors own the SATC COLO IP, and all related intellectual property rights and all content in the Service other than Customer Data.
b. Customer Technology. “Customer Technology” means hardware, software, applications or other information technology components that Customer provides, hosts or stores using the Services. Customer and its licensors own the Customer Technology and all related intellectual property rights other than the SATC COLO IP.
c. Customer Data. When Customer or its users enters information, files, or images (“Customer Data”) into an information technology system (hardware/software, or other information technology components) which is subject of the Services or related to the Services, it grants Supplier a non-exclusive, royalty free, worldwide license to use Customer Data to make the Services and their features available. Customer is responsible for backing up all Customer Data.
d. Feedback. Customer agrees that all feedback and suggestions for enhancement provided to Supplier concerning the Service (“Feedback”) will be owned by Supplier without any obligation of compensation to Customer.
8. Disclaimer; Limitations of Liability.
a. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SUPPLIER DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY (I) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (II) ARISING BY USAGE OR TRADE PRACTICES, COURSE OF DEALING OR COURSE OF PERFORMANCE; (III) THAT THE SERVICES ARE ERROR FREE, UNINTERRUPTED OR SECURE FROM THIRD- PARTY ATTACK; AND (IV) THAT SERVICES ARE FREE FROM DEFECTS, FIT TO BE SOLD, WILL PERFORM IN A PARTICULAR MANNER OR SPEED OR TO A PARTICULAR STANDARD OR ANY QUALITY OF SERVICE. FURTHER, SUPPLIER MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMBER), OR GUARANTEE REGARDING NETWORK SECURITY, THE ENCRYPTION EMPLOYED BY THE SERVICES, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT TO LOAD BALANCING, OR THAT SUPPLIER’S SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO CUSTOMER’S DATA AND CONFIDENTIAL INFORMATION.
b. Exclusions. SUPPLIER SHALL NOT BE LIABLE: i. FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXPECTANCY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS, DELIVERY OF SERVICES, OR DELAY IN INSTALLATION OF SERVICES. ii. FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT, OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICES DEFECTS, SERVICES LEVELS, DELAYS, OR INTERRUPTIONS (EXCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN THIS AGREEMENT); ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING 911 CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER’S, ITS AFFILIATES, USERS, OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS, CONFIDENTIAL INFORMATION, NETWORK OR SYSTEMS.
c. Limitation of Liability. SUPPLIER’S ENTIRE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR DAMAGES ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE SERVICES, AND NOT CAUSED BY CUSTOMER’S NEGLIGENCE, SHALL IN NO EVENT EXCEED THE APPLICABLE CREDITS SPECIFIED IN AN ORDER FORM, OR IF NO CREDITS ARE SPECIFIED, ANY AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF SERVICES DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR, OR DEFECT IN THE SERVICES OCCURS AND CONTINUES. IN NO EVENT SHALL ANY OTHER LIABILITY ATTACH TO SUPPLIER. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
9. Indemnification. Subject to the Indemnification Conditions, each party will at its own expense, defend the other party from and against any Claim to the extent arising as a result of the indemnifying party's (the "Indemnitor"): (a) violation of applicable laws, (b) breach of its obligations under the Agreement, or (c) action(s) or omission(s) constituting fraud or willful misconduct, and will indemnify the indemnified party (the "Indemnitee") from and against Loss(es) finally awarded against the Indemnitee as a result of, or agreed upon by the Indemnitor in settlement of, such a Claim. The Indemnitee may engage counsel of its choice at its own expense. "Claim" means any claim, demand, suit or proceeding brought against the Indemnitee by a third party. "Loss(es)" means any liabilities, damages, costs or expenses, including attorneys' fees and costs.
The indemnity obligations will apply only if each of the following (each, an "Indemnification Condition") is true: (a) the Indemnitee has provided written notice of the Claim to the Indemnitor as soon as possible, but no later than 10 days following the Indemnitee's discovery of the Claim, (b) the Indemnitee has provided all documents and materials in the Indemnitee's possession that are reasonably relevant to the Claim or otherwise discoverable and all assistance reasonably necessary for the defense, settlement, and mitigation of the Claim, (c) the Indemnitee has allowed the Indemnitor to assume sole responsibility for defense of the Claim, including but not limited to choice of counsel and control over settlement negotiations/decisions, (d) the Claim does not result from the Indemnitee's gross negligence or willful misconduct or breach of any provision of the Agreement or action authorized or requested by the Indemnitee, and (e) where applicable, the Indemnitee agrees to assert, or permit the Indemnitor to assert on the Indemnitee's behalf, against such third party any of the Indemnitee's intellectual property rights that may assist in connection with the indemnity obligations. The Indemnitee will perform each obligation in the Indemnification Conditions with respect to any Claim subject to indemnity obligations.
10. Term; Termination; Effect of Termination.
a. Term. This Agreement commences on the effective date of the first Order Form and continues until such time that there is no active Order Form for ninety (90) days, unless terminated earlier as provided hereunder (the “Term”).
b. Termination. In addition to any termination provisions of an applicable Order Form, either party may terminate this Agreement and/or the applicable Order Form(s), effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
i. materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (including without limitation, nonpayment of fees), the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, if Customer is in breach, Supplier may elect to suspend (and later terminate) the affected Services, and if the breach implicates the entire Agreement, suspend (and later terminate) the entire Agreement;
ii. becomes insolvent or admits its inability to pay its debts generally as they become due;
iii. becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing;
iv. is dissolved or liquidated or takes any corporate action for such purpose;
v. makes a general assignment for the benefit of creditors; or
vi. has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c. Termination by Supplier. Supplier may immediately terminate or suspend an affected Service, and if the activity implicates the entire Agreement, terminate the entire Agreement, immediately by providing Customer with as much advance notice as is reasonably practicable under the circumstances if Customer:
i. commits a fraud upon Supplier;
ii. utilizes the Services to commit a fraud upon a third party;
iii. unlawfully uses the Services;
iv. abuses or misuses Supplier’s network or Services; or
v. interferes with a third party’s use of Supplier’s network or services.
d. Effect of Termination. Upon expiration or termination of this Agreement or any Service for any reason:
i. No Waiver. Termination by either party of the Services or the Agreement does not waive any other rights or remedies a party may have under this Agreement. Termination or suspension of a Service will not affect the rights and obligations of the parties regarding any other Service.
ii. Termination Charge. In the event of early termination by either Customer or Supplier, the full fee amount, specified in the Order Form, is due immediately.
iii. Survival. The rights and obligations of the parties set forth in this Section 9.f and Section, 4, Section 5, Section 6, Section 7, Section 9, Section 10, Section 11, Section 12 and Section 13, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
11. Governing Law. This Agreement and the Order Form it contemplates shall be governed, interpreted, construed, enforced, and performed in accordance with the Laws of the State of Texas, without regard to conflicts of laws principles.
a. Forum. Any disputes between the Parties that are not subject to arbitration under Section 11c., or any action involving the applicability or enforceability of the arbitration provision or any of its parts, (“Judicial Action”) shall be brought only in state or federal courts in San Antonio, Texas, and each Party consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any Judicial Action and waives any claim of forum non conveniens and objection to venue. Process in any Judicial Action may be served on a Party anywhere in the world, whether within or out of the state of Texas. The choice of forum shall not prohibit the enforcement of any judgment obtained in that forum or any other appropriate forum.
b. Mediation. Before proceeding to arbitration, as set forth in Section 11c., the Parties shall first try in good faith to settle any and all disputes arising out of or relating to this Agreement, or the breach thereof, by non-binding mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The declaration of an impasse by the mediator, or the mutual written agreement of the Parties to withdraw the matter from mediation, shall be a condition precedent to the institution of an arbitration, litigation, or other dispute resolution procedure with respect to the matter.
c. Arbitration. Subject to Section 11a., any and all disputes arising out of or relating to this Agreement or a breach thereof, shall be resolved by binding arbitration administered in accordance with the AAA’s Commercial Arbitration Rules (including the Procedures for Large, Complex Commercial Disputes) then in effect, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitration shall be conducted before a single arbitrator unless the parties mutually agree to a panel of three arbitrators. If the parties cannot agree on the selection of the arbitrator within fifteen (15) days of the initiation of arbitration, the arbitrator shall be appointed in accordance with the rules of AAA. All issues are for the arbitrator to decide, except only a court can decide issues relating to the scope and enforceability of this arbitration provision. Any arbitration pursuant to this Section 11c. shall be held in San Antonio, Texas, unless otherwise mutually agreed by all Parties. Each party shall bear its own attorneys’ fees, costs, and expenses, except that the arbitrator shall have the discretion to award attorneys’ fees and costs to the prevailing party as part of the final award. The arbitrator’s decision shall be final, binding, and enforceable in any court of competent jurisdiction. This arbitration provision survives termination of the Agreement.
12. Import/Export Control. The parties acknowledge that equipment, Services, software, documentation, technical information, and other materials provided under this Agreement may be subject to import and export laws, conventions, or regulations, and any use or transfer of the equipment, products, software, and technical information must be in compliance with all applicable laws, conventions, and regulations. The parties will not use, distribute, transfer, or transmit such equipment, Services, software, documentation, technical information, or other materials (even if incorporated into other products) except in compliance with such laws, conventions, and regulations. Customer, not Supplier is responsible for complying with such laws, conventions, and regulations for all information, equipment, software, and other materials transmitted between countries using the Services.
13. Miscellaneous.
a. Force Majeure. Except for payment of amounts due as outlined in the applicable Order Form, neither party will be liable for any delay, failure in performance, loss, or damage because of fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of civil or military authority, war terrorism, acts of God, acts of a public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond such party’s reasonable control, including instances where primary and secondary internet-service-providers are impacted.
b. Trademarks and Service Marks. The Customer acknowledges and agrees that the Marks (as defined below) are the sole and exclusive property of Supplier and that nothing herein conveys any interest in the Marks to the Customer and the Customer may not use or display the Marks. The License does not include the right to use Marks. “Marks” shall mean any or all of Supplier trade name, logo, trademark, trade device, service mark, symbol, code or specification, or any abbreviation, contraction, or simulation thereof. This Agreement is not a trademark or service mark license and does not create a franchise.
c. Marketing. Customer acknowledges that Supplier from time to time may use the technology solution provided to Customer in marketing and reference materials for promotional purposes. Customer acknowledges that such marketing and reference materials may contain Customer’s name, image, and likeness.
d. Assignment . This Agreement may not be assigned by Customer without the prior written consent of Supplier (which consent will not be unreasonably withheld or delayed). This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
e. Severability. If any portion of this Agreement is found to be invalid, illegal, or unenforceable, or if applicable law mandates a different interpretation or result, the remaining provisions will remain in effect and the parties will negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision consistent with the original intent of the parties.
f. Injunctive Relief. Except as expressly provided herein, nothing in this Agreement is intended, or should be construed, to limit a party’s right to seek preliminary or permanent injunctive relief from a court of competent jurisdiction for a breach of any provision of this Agreement.
g. Legal Action. Any legal action arising in connection with this Agreement must be filed within three (3) years after the cause of action accrues or it will be deemed time-barred and waived. The parties waive any statute of limitations to the contrary.
h. Notices. All notices required under this Agreement will be delivered in writing to the recipient’s contact designated on the attached Order Form, or to such other address as designated in writing from time to time. Notices shall be delivered by internationally recognized overnight courier, certified or registered mail, or email and will be effective upon receipt or when delivery is refused, whichever occurs sooner.
i. No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
j. Relationship of the Parties. Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer or agency relationship. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
k. Representation on Authority of Parties/Signatories. Each person signing an Order Form represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver the Order Form. Each party represents and warrants to the other that the execution and delivery of the Order Form and the performance of such party’s obligations hereunder have been duly authorized, and that this Agreement, incorporated by reference in the applicable Order Form, is a valid and legal agreement binding on such party and enforceable in accordance with its terms.
l. Modifications. Supplier reserves the right, in its discretion, to change, modify, add to, or remove portions of the Agreement (collectively, “Changes”), at any time. Supplier will notify Customer of Changes by sending an email to the address identified in the applicable Order Form and by posting a revised version of the Agreement incorporating the Changes to its Website. Customer’s continued use of the Website or Services following notice of the Changes (or posting of the Agreement incorporating the Changes in the event Customer’s email address is no longer valid, is blocked, or is otherwise not able to receive the notice) will mean that Customer accepts and agrees to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Website.
m. Entire Agreement. This Agreement, together with all Order Forms and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Order Form, the following order of precedence shall govern: (a) first, the applicable Order Form; (b) second, this Agreement.
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