MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is entered into between Neal and Associates Business Consultants, Inc., (“NEALABC”) and the entity or person signing below (“Client”) (collectively the “Parties” and each individually a “Party”), effective on the date of Client’s signature below (the “Effective Date”).
A. NEALABC is a provider of various consulting and technology outsourcing services.
B. Client desires to engage NEALABC to perform certain services from time to time.
C. This Agreement sets forth the standard terms and conditions under which NEALABC will provide services to Client.
NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1.1 “Affiliate” means any majority-owned subsidiary or other entity which a Party controls or is controlled by, or which is under common control with a Party, from time to time.
1.2 “Fees” include: (a) the fees for Services and Third-Party Products as set forth in a SOW (defined below in Section 2.1), and (b) any Expenses (defined below in Section 1.3) approved in writing by Client.
1.3 “Expenses” include certain expenses incurred by NEALABC to be reimbursed by Client, including, without limitation, the costs for incidental supplies and equipment, and costs related to travel, such as airfare, hotel, temporary housing, meals, parking, taxis, and mileage.
1.4 “Fixed Projects” are projects NEALABC completes for a fixed fee, as specified in the applicable SOW.
1.5 “Hourly Services Maintenance and Support Projects” are projects Client manages and for which NEALABC provides Client with specific requested Services (defined below in Section 1.9) and provides an estimate for the number of work hours required to complete the Services identified in the applicable SOW. For such projects, NEALABC will invoice, and Client will be responsible for paying for, the actual number of work hours worked and not the number of work hours estimated.
1.6 “Intellectual Property” means copyrights, patents, trade secrets, and other intellectual and industrial property rights (excepting trade mark and related rights), and all applications and registrations relating thereto.
1.7 “Projects” means Fixed Projects, Time and Materials Projects, and Hourly Services Maintenance and Support Projects.
1.8 “Representatives” means a person’s or entity’s employees, agents, and consultants, including, without limitation, counsel, accountants, and advisors.
1.9 “Services” means those consulting services and other related services that are specifically set forth in a SOW and incorporated into this Agreement by reference.
1.10 “Time and Materials Projects” are projects NEALABC manages and provides estimates for the number of work hours required to complete the Services identified in the applicable SOW. For such projects, NEALABC will invoice, and Client will be responsible for paying for, the actual number of work hours worked and not the number of work hours estimated.
1.11 “Work Product” means all ideas, discoveries, inventions, materials, data, databases, software, designs, reports, communications, deliverables, or other work that is conceived, reduced to practice, made, or developed solely or jointly by or for NEALABC in connection with NEALABC’s performance of any Services (whether patentable or copyrightable).
2.0 SERVICES, SOWs, RESTRICTIONS, & THIRD PARTY PRODUCTS
2.1 Services. NEALABC shall provide to Client consulting services and other related services set out in one or more Statements of Work referencing this Agreement, issued by Client, and accepted by NEALABC as set forth below in Section 2.2 (each, a “SOW”). Each SOW will specify whether the applicable Project will be a Fixed Project, a Time and Materials Project, or an Hourly Services Maintenance and Support Project.
2.2 SOWs. The terms and conditions of this Agreement shall apply to all SOWs agreed to in writing between NEALABC and Client. In the event of any conflict between this Agreement and a SOW, the applicable SOW will control. A SOW will not be deemed accepted by NEALABC unless accepted in writing. Once accepted by NEALABC, SOWs are non-cancellable by Client, except as set forth in Section 10.2 of this Agreement.
2.3 Restrictions. Client agrees not to: (i) rent, lease, or loan the Services, or any part thereof, or provide the Services to others on its own behalf or on a third party’s behalf; (ii) permit third parties to benefit from the use of the Services via timesharing, service bureau arrangements, or otherwise; or (iii) download, export, or re-export any software or technical data received hereunder, regardless of the manner in which received, without all required United States and foreign government licenses. Client shall not, and shall not request that any third party, modify, reverse engineer, or attempt to gain unauthorized access to any portion of the Services. Client shall, by commercially reasonable means, prevent unauthorized disclosure, publication, display, or use of the Services. Client will promptly notify NEALABC of any known or suspected misuse of any Services.
2.4 Third Party Products. NEALABC may purchase on behalf of Client or specify as part of the Services that Client purchase certain third-party hardware, software, applications, and equipment (“Third-Party Products”). Client acknowledges that recommendations of Third-Party Products are intended to be used only as guidelines and that the actual performance of Third-Party Products may vary based on such factors as exact configuration and the number of users. Client further understands that NEALABC may receive compensation in the form of a commission or revenue share in connection with the sale of certain Third-Party Products. Except as provided in an applicable SOW, Client shall contract directly with the licensor or seller (the “Licensor”) of any license, end user subscriber agreement, or other end user agreement for Third-Party Products (collectively, “EULAs”). NEALABC will not be a party to any EULA and will not become the licensee on behalf of Client. NEALABC makes no representations—express, implied, or otherwise—regarding any Third-Party Products. Client expressly acknowledges and agrees that its use of Third-Party Products is at Client’s sole risk and that Third-Party Products are recommended by NEALABC “as is” and without warranty of any kind from NEALABC, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement. Client agrees to observe the terms of any applicable EULA and that Client shall be fully liable with respect to any improper use of Third-Party Products or violation of such EULAs. Client’s remedies with respect to Third-Party Products will be limited to whatever recourse may be available against the Licensor thereof and are subject to all restrictions and other limitations as may be displayed or referenced by the EULA. Without limiting the generality of the foregoing, if a SOW provides for NEALABC to provide configuration, installation, or deployment services relating to any Third-Party Products, any warranties of NEALABC relate to and are applicable to NEALABC’s Services only, not to Third-Party Products. The performance of and all warranties applicable to Third-Party Products shall be governed exclusively by the Licensor’s warranty (including any extended warranty package purchased by Client) and NEALABC shall have no liability for the foregoing. If Client is directly sublicensing any Third-Party Products from NEALABC, then the applicable SOW will state that expressly and will include the specific terms and conditions of such sublicense. Unless otherwise specified, the initial term of discounted Third-Party Products shall be twelve (12) months. This agreement shall be automatically renewed on an annual basis unless either party provides written notice to the other of its intentions not to renew at least sixty (60) days prior to the expiration the current annualized term.
3.1 NEALABC. NEALABC shall designate personnel it deems, in its sole discretion, sufficient to perform the Services set forth in each SOW. NEALABC’s personnel shall perform the Services in a workmanlike manner consistent with industry standards for the applicable Services.
3.2 Client. Client shall be solely responsible for providing, maintaining, and ensuring the compatibility of any hardware, software, electrical, or other physical requirements necessary for NEALABC to provide the Services, and for providing NEALABC with access to and permission to use its information, internal resources, and facilities as requested by NEALABC to provide the Services. Client shall respond promptly to any reasonable requests from NEALABC for instructions, information, or approvals required by NEALABC to provide the Services.
3.3 Subcontracting. NEALABC reserves the right to employ agents and subcontractors to assist NEALABC when providing any part of the Services. Any reference to NEALABC’s personnel in this Agreement includes agents and subcontractor staff. NEALABC will remain liable to Client with respect to any Services provided, subject to the other provisions of this Agreement.
3.4 Non-Solicitation. Neither Client nor NEALABC will recruit any personnel from each other during the Term of this Agreement (as defined below in Section 10.1) or for at least one (1) year after termination or expiration of this Agreement, unless agreed in writing. If Client hires any NEALABC personnel during the aforementioned period and prior written authorization has not been obtained, Client agrees to pay liquidated damages equal to the greater of $100,000 or the then current annual salary of each NEALABC personnel converted in contravention of this Section 3.4 (the “Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation and not a penalty. The Parties acknowledge and agree that NEALABC’s harm caused by Client’s breach of this Section 3.4 would be impossible or very difficult to accurately estimate as of the Effective Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from such breach. Client’s payment of the Liquidated Damages is Client’s sole liability and entire obligation, and NEALABC’s exclusive remedy, for any Client breach of this Section 3.4.
3.5 Non-Exclusive Relationship. Client agrees that nothing in this Agreement shall be construed to preclude NEALABC from marketing, distributing, selling or providing any services to or for any other party, including other entities that may compete with Client.
4.0 PURCHASE TERMS
4.1 Invoicing. NEALABC will issue invoices to Client detailing the Fees, a description of Services to which the Fees relate, and, if applicable, the number of work hours performed each day by each NEALABC personnel. Invoices will be issued by NEALABC at the earlier of the completion of an applicable SOW or monthly.
4.2 Payment. Unless otherwise agreed in the applicable SOW and except for Fees Client disputes in good faith within two (2) weeks of receipt of each applicable invoice, all Fees are due on the date specified in each applicable invoice. All payments shall be made in U.S. Dollars by ACH or electronic funds transfer or by check. If payment is not received within thirty (30) days of the date specified in each applicable invoice, NEALABC reserves the right, in addition to any other rights it may have, to: (i) suspend all Services and Third-Party Products purchased by NEALABC on behalf of Client until such payment is made in full; (ii) charge interest on the past due Fees at the lesser of 3% per month or the maximum allowed by law; (iii) accelerate and invoice Client for any Fees remaining but not previously due for Third-Party Products purchased or licensed by NEALABC on behalf of Client; and (iv) invoice Client for all costs of collection, including, without limitation, reasonable attorneys’ fees.
4.3 Taxes. Excluding NEALABC’s own payroll and income taxes, Client shall pay amounts equal to any taxes, shipping, insurance, duties or other amounts, including without limitation, national, state, and local sales, use, withholding and VAT taxes, however designated, which are levied or based on such payments or arise as a consequence of the transactions under this Agreement. If Client is claiming tax-exempt status, Client shall provide NEALABC with tax-exemption certificates prior to the initiation of the applicable Services.
5.0 INTELLECTUAL PROPERTY
5.1 Work Product. All Work Product shall be, and remain, the sole property of NEALABC. If by operation of law or otherwise any portion of the Work Product is not exclusively owned in its entirety by NEALABC immediately upon the creation thereof or at any point thereafter, then Client hereby assigns its portion of the Work Product to NEALABC. Notwithstanding the foregoing, NEALABC grants Client a worldwide, royalty-free, non-exclusive, non-transferrable license to use the Work Product during and after the Term of this Agreement.
5.2 Intellectual Property Rights. Except for the limited rights granted to Client under this Agreement to the Work Product, all right, title, and interest in and to the Services and the Work Product, including, without limitation, all concepts, methods, processes, software, text, graphics, images, designs, databases, data, inventions and any improvements, enhancements, modifications, and derivative works thereto, and all Intellectual Property therein are, and at all times shall remain, the sole and exclusive property of NEALABC (“NEALABC Property”). All rights not expressly granted to Client are retained by NEALABC. Where NEALABC’s rights to any portion of the NEALABC Property arise under agreement with a third party supplier, such supplier shall have the benefit of NEALABC’s rights set forth in this Agreement, and may enforce such rights directly against Client.
6.1 Definitions. In connection with this Agreement, each Party (“Recipient”) may be exposed to or acquire Confidential Information (as defined below) of the other Party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form and regardless of the method of acquisition that the Discloser designates as confidential to Recipient or which, due to the nature of such information or under the circumstances surrounding disclosure, ought to be treated as confidential by the Recipient. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality. For purposes of clarity and without limitation, all Services and Work Product shall be considered the Confidential Information of NEALABC and its suppliers. Upon Discloser’s written request, Recipient shall either return or destroy the Confidential Information and any copies thereof.
6.2 Restrictions on Use. Recipient shall hold Discloser’s Confidential Information in confidence, using commercially reasonable efforts, and shall not disclose any such Confidential Information to any third party, other than to its Representatives and its Affiliates and their Representatives who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to, and no less restrictive than, those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than to carry out the terms of this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Discloser’s Confidential Information. Recipient shall promptly notify Discloser of any breach of this Agreement of which it becomes aware, and in any event, shall be responsible for any breach of this Agreement by any of its Affiliates, Representatives, or Affiliates’ Representatives.
6.3 Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall give the Discloser prompt written notice of such requirement or request prior to such disclosure and reasonable assistance (at Discloser’s expense) in obtaining an order protecting the information from public disclosure. NEALABC and Client agree that the terms and conditions of this Agreement shall be treated as Confidential Information.
7.0 LIMITED WARRANTIES
7.1 By NEALABC. NEALABC represents that: (i) the Services will be performed with such reasonable care and skill as is consistent with industry standards for such Services; (ii) it is duly organized, validly existing, and in good standing under the laws of its state of domicile; (iii) it has the power and authority to execute and perform under this Agreement; and (iv) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.
7.2 By Client. Client represents that: (i) the information provided to NEALABC for completing the Services is and will be accurate and complete in all material respects; (ii) it is duly organized, validly existing, and in good standing under the laws of its state of domicile; (iii) it has the power and authority to execute and perform under this Agreement; and (iv) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms. Client represents that, unless otherwise specified in an applicable SOW, Representatives of Client who communicate with NEALABC regarding SOWs, Services and Third-Party Products have the authority to direct NEALABC, and bind the Client accordingly, including with respect to incurring Fees under such SOWs, Services and Third-Party Products, and Client further acknowledges and represents that NEALABC has the right to rely on the foregoing representation with respect to Client communications, including but not limited to any requested changes by a Client Representative in accordance with Section 11.1.
7.3 Warranty Exclusions. NEALABC is being engaged only to provide the Services set forth in this Agreement and in the applicable SOW agreed to by the Parties in writing, including any agreed Work Product. The foregoing limited warranties do not apply to modifications to the Services of the Work Product. NEALABC shall not be liable for any loss of data and shall not be responsible for restoring any lost data or software except as specifically described in an applicable SOW. NEALABC does not warrant any Third-Party Products; however, and to the extent permitted, NEALABC will pass through any warranties from suppliers of products or services. With the exception of the foregoing limited warranties, NEALABC expressly disclaims all warranties of any kind relating to the Services or Work Product, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular use or purpose, title, and non-infringement. Without limiting the generality of the foregoing, NEALABC makes no warranty that the Services and any Work Product will meet Client’s requirements other than those set forth in the applicable SOW, that the results obtained from the use of the foregoing will be satisfactory, accurate, or reliable, or that the Services or Work Product will be error-free or completely secure. The representations of NEALABC have no authority to give any warranties on behalf of NEALABC. Client is solely responsible for the scope, goals, and overall direction of the Services, as well as the implementation of any course of action based on such Services.
8.0 INDEMNIFICATION OBLIGATIONS
8.1 Indemnity. Each Party (as the “Indemnitor”) shall defend, indemnify, and hold harmless the other Party and its officers, directors, employees, and agents (collectively, “Indemnitees”), for, from, and against any and all third party (the modifier third party applying to all of the following listed categories) losses, damages, liabilities, deficiencies, claims, actions, causes of action, judgments, settlements, assessments, demands, interest, awards, penalties, fines, costs, or expenses, including, without limitation, reasonable Attorneys’ Fees and Costs (as defined below in Section 11.5) that are incurred by Indemnitee or awarded against Indemnitee (collectively, “Losses”) that an Indemnitee may incur or be subject to as a result of or arising out of: (i) Indemnitor’s failure to comply with applicable law or regulation; (ii) the gross negligence or willful misconduct of Indemnitor (or any third party for whom Indemnitor is responsible); (iii) Indemnitor’s obligations and duties to any third party, including its obligations and duties in connection with any third party provider of software or hardware; (iv) Indemnitor’s breach of any other agreement or any judgment, order, or decree by which Indemnitor is bound; and (v) with respect to Client as Indemnitor, Client’s decisions and actions taken (or not taken) against any recommendations or advice provided by NEALABC.
8.2 Damages. The Indemnitor shall pay all damages, costs, and expenses finally awarded under Section 8.1 to third parties as a result of a final judgment against an Indemnitee or settlement of such claim negotiated by the Indemnitor, but shall not be responsible for any compromise made without its written consent. To qualify for such defense and payment, the Indemnitee must: (i) give the Indemnitor prompt written notice of any such claim; and (ii) allow Indemnitor to control, and fully cooperate with Indemnitor in, the defense and all related settlement negotiations.
9.0 LIMITATION OF LIABILITY
Except in the case of each Party’s indemnification obligations, breach of each Party’s confidentiality obligations, and Client’s breach of Section 2.3, in no event shall (i) either Party’s liability to the other exceed the aggregate amounts paid by Client to NEALABC under this Agreement in the ninety (90) days preceding any claim, except that damages for breach of Section 3.4 (non-solicitation) are not so limited, and the existence of more than one claim or cause of action will not enlarge the foregoing limit; or (ii) either Party be liable for any special, indirect, incidental, or consequential damages arising from breach of warranty, lost profits, breach of contract, negligence, strict liability, or any other legal theory, whether in tort or contract, even if such Party is aware of the likelihood of such damages occurring.
10.0 TERM AND TERMINATION
10.1 Term. This Agreement shall begin on _________________ and shall remain in full force and effect until terminated by either Party pursuant to this Section (the “Term”).
10.2 Termination. Either Party may terminate this Agreement at any time without cause upon sixty (60) days’ prior written notice to the other Party. Either Party may terminate this Agreement upon thirty (30) days’ written notice of a material breach of this Agreement if such breach is not cured within such thirty (30) day period.
10.3 Effect of Termination. Termination of one SOW with or without cause shall not terminate the Agreement, any other SOW or any Third-Party Products. Termination of this Agreement with cause shall automatically terminate all SOWs under this Agreement but will not terminate any Third-Party Products. Termination of this Agreement without cause shall not terminate any SOW then in effect, unless such SOW is also specifically so terminated, and shall not terminate any Third-Party Products. Upon termination by either Party of this Agreement or a specific SOW, Client shall pay NEALABC for all amounts due under the terms of this Agreement, such SOW or Third-Party Product purchased by NEALABC on behalf of Client, as applicable. Termination shall not preclude the non-breaching Party from pursuing any and all remedies available to it at law or equity.
10.4 Survival. In the event of termination of this Agreement for any reason, this Section 10.4 and Sections 1.0, 2.3, 3.3, 3.4, 4.0, 5.0, 6.0, 7.0, 8.0, 9.0, 10.3, and 11.0 shall survive.
11.1 Entire Agreement; Amendments; Changes. This Agreement and any SOWs, as well as any written amendments, completely and exclusively state the agreement of the Parties regarding the subject matter described. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of NEALABC and Client by their duly authorized Representatives. Any changes to the Services or any SOW may be made pursuant to change-order, email, oral request or otherwise from a Client Representative, and subject to agreement by NEALABC, Client will be bound to any such change in accordance to Section 7.2.
11.2 Assignment. Client may not assign this Agreement without the prior written approval of NEALABC. For the purposes of this Section, a change in the persons or entities that control fifty percent (50%) or more of the equity securities or voting interest of Client shall be considered an assignment.
11.3 Independent Contractor Relationship. The relationship of NEALABC and Client established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either Party the power to direct and control the behavior or day-to-day activities of the other; (ii) constitute the Parties as partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking; or (iii) allow Client to create or assume any obligation on behalf of NEALABC for any purpose whatsoever. All financial and other obligations associated with Client’s business are the sole responsibility of Client.
11.4 No Third Party Beneficiaries. Except for NEALABC’s suppliers, the terms and provisions of this Agreement are intended solely for the benefit of each Party hereto and their respective successors and assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other person.
11.5 Governing Law. This Agreement shall be governed in all respects by the laws of the State of Arizona, without regard to its choice of law rules. Both Parties consent to the exclusive jurisdiction of the courts in the State of Arizona, County of Maricopa, in the event of any dispute relating to this Agreement.
11.6 Dispute Resolution Procedures. If a dispute arises between the Parties relating to this Agreement that cannot be resolved informally, each Party involved in such dispute agrees to comply with the procedures set forth in this Section (“Dispute Resolution Procedures”). The Dispute Resolution Procedures will be invoked by a Party before such Party pursues any other available remedy by such Party giving written notice to the other Party. Following receipt of such notice, the Parties shall, for a period of thirty (30) days after the dispute first arises, attempt in good faith to negotiate a resolution of the dispute (the “Initial Negotiation”). The Initial Negotiation will include no less than two (2) in-person meetings among authorized representatives of each Party, each of whom shall have authority from the respective boards of directors of the Parties to settle the matter. If the dispute is not resolved during the Initial Negotiation, the Parties shall, for an additional period of thirty (30) days after the end of the Initial Negotiation period, continue to attempt in good faith to negotiate a resolution of the dispute (the “Extended Negotiation”). The Extended Negotiation will include no less than two in-person meetings between the President or Chief Executive Officer of Client and the President or Chief Executive Officer of NEALABC, each of whom shall have authority from the respective boards of directors of the Parties to settle the matter. If the Parties cannot reach agreement, they may proceed with such remedies as they may be entitled and deem appropriate. Each of the Parties agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISIONS OF THIS SECTION.
11.7 Breach of Non-Solicitation, Intellectual Property, or Confidentiality Provisions. The Parties acknowledge and agree that a remedy at law for any breach or attempted breach of the provisions of Sections 3.4, 5.0, and 6.0 may be inadequate; therefore, either Party is entitled to specific performance and injunctive or other equitable relief in the event of any such breach or attempted breach, in addition to any other rights or remedies available to either Party at law or in equity. Each Party waives any requirement: (i) for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief; and (ii) for proving actual damages. For clarification, a Party does not have to follow the Dispute Resolution Procedures in the event this Subsection is applicable.
11.8 Attorneys’ Fees and Costs. The Prevailing Party (as defined below) in any mediation, arbitration, or any other legal action or proceeding relating to this Agreement will be entitled to an award—in addition to such other relief as the arbitrator, mediator, or court may award—of the Prevailing Party’s reasonable Attorneys’ Fees and Costs (as defined below). “Attorneys’ Fees and Costs” include fees and out-of-pocket costs of a Party relating to the action, including that Party’s (i) attorneys’ fees, (ii) mediation, arbitration, or court-related costs and expenses, (iii) expert witness fees, and (iv) investigatory fees. “Prevailing Party” means the net winner of the dispute, taking into account the claims pursued, the claims on which the pursuing party was successful, the amount of money sought, the amount of money awarded, and offsets or counterclaims pursued (successfully or unsuccessfully) by any other party.
11.9 Notices. All notices given under this Agreement shall be in writing and effective: (i) upon receipt if hand delivered; (ii) on the next business day after being sent by confirmed email or facsimile; (iii) on the third business day following deposit with the postal service and addressed to the receiving Party’s respective address listed below unless otherwise agreed to in writing.
11.10 Waivers. The waiver by either Party of a breach of any provision shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or a continuing waiver of the provision itself.
11.11 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such provision shall be changed and interpreted so as to best accomplish the objectives within the limits of applicable law or if necessary to maintain the validity of the remaining terms not removed from the Agreement.
11.12 Neutral Construction. The Parties agree that this Agreement was negotiated fairly between them at arm’s length and that the final terms of this Agreement are the product of the Parties’ negotiations. The Parties further agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party on the grounds that the Party drafted or was more responsible for drafting the provisions.
11.13 Counterparts and Electronic Copies. This Agreement may be executed in two or more counterparts, and it is not necessary that signatures of both Parties appear on the same counterpart, but such counterparts together will constitute a single binding agreement between the Parties. Counterparts may be executed by hand or by electronic signature. Executed counterparts may be delivered via facsimile, email, or other similar transmission method, and any executed counterpart so delivered will be valid and effective for all purposes.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have made and executed this Agreement effective as of the dates indicated below.
2850 E. Camelback Rd., Suite 200,
Phoenix, AZ 85016
10201 South 51st Street, Suite 101
Phoenix, AZ 85044