These Terms of Service (hereinafter the “Agreement”) are entered into by Soaring Towers LLC, a Delaware limited liability company, with its principal place of business at 9415 Culver Boulevard, Suite 355, Culver City, California 90232 (“Provider”), and the customer (“Customer”) set forth in the accompanying order confirmation executed herewith (“Order Confirmation”), effective as of the date the Order Confirmation is executed or accepted by the Customer (the “Effective Date”). Provider and Customer may be referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, Provider provides managed information technology, support, monitoring, maintenance, security, cloud, consulting, and related technology services.
WHEREAS, Customer desires to obtain, and Provider desires to provide, certain managed services and related professional services under this Agreement and the accompanying order confirmation, as well as any additional or future order confirmations entered into by the Parties.
WHEREAS, the Parties intend for this Agreement to establish the master legal terms governing all services ordered by Customer from Provider, including the initial Order Confirmation and any additional Order Confirmations entered into after the Effective Date.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
1.2. “Authorized Users” means Customer’s employees, contractors, agents, representatives, and other users authorized by Customer to receive or use the Services.
1.3. “Customer Data” means all data, content, records, files, information, software, systems data, configurations, credentials, and materials provided by or on behalf of Customer or its Authorized Users to Provider, or accessed, processed, transmitted, stored, or generated by Provider in connection with the Services.
1.4. “Deliverables” means any reports, documentation, configurations, scripts, workflows, diagrams, written recommendations, or other work product expressly identified as deliverables in an applicable Order Confirmation.
1.5. “Fees” means all charges payable by Customer under this Agreement or any order confirmation, including recurring managed services fees, project fees, onboarding fees, usage-based fees, pass-through costs, third-party charges, and reimbursable expenses.
1.6. “Provider Materials” means Provider’s pre-existing or independently developed tools, templates, software, scripts, know-how, methodologies, documentation, processes, utilities, automation, connectors, libraries, monitoring tools, and other technology or materials used to provide the Services.
1.7. “Services” means the managed services, professional services, support services, consulting, procurement assistance, project work, maintenance, monitoring, administration, security services, cloud services, and other services described in an applicable order confirmation.
1.8. “Order confirmation” means the service order, work order, order form, quote, or similar written ordering document that: (a) identifies the Services or Deliverables to be provided; (b) is signed by both Parties or otherwise accepted in the manner specified in this Agreement via the Provider’s online ordering portal; and (c) states that it is governed by this Agreement.
1.9. “Third-Party Products” means hardware, software, cloud services, subscriptions, licenses, telecommunications services, platforms, equipment, or other products or services provided by a third party and procured, resold, recommended, configured, supported, administered, or otherwise used in connection with the Services.
2.1. Master Agreement. This Agreement sets forth the general terms and conditions governing the Parties’ relationship. Specific Services will be ordered under one or more order confirmations. This Agreement and the Order Confirmation executed herewith, and any additional order confirmations executed or accepted, comprise the entire agreement between the Parties. In the event of any conflict between this Agreement and any order confirmation, this Agreement shall govern unless the applicable order confirmation expressly states that the terms and conditions of the order confirmation shall control.
2.2. Additional Orders. Customer may order additional Services by entering into additional order confirmations with Provider. Each additional order confirmation will be deemed incorporated into and governed by this Agreement when signed by both Parties or accepted by Customer through any ordering method expressly permitted.
2.3. No Obligation Without Order Confirmation. Provider is not obligated to provide, and Customer is not obligated to pay for, any Services unless ordered under an applicable order confirmation or otherwise authorized in writing by Customer.
2.4. Changes to Orders. Changes to scope, assumptions, timelines, Deliverables, service levels, locations, supported systems, pricing, or other terms must be documented in a written change order, amended or new order confirmation, or other written authorization acceptable to Provider. Provider may suspend work on the affected change until the Parties agree on any resulting adjustments to Fees, schedule, or scope.
3.1. Performance of Services. Provider will perform the Services in a professional and workmanlike manner, using personnel with appropriate skill and experience for the Services being performed.
3.2. Scope. The scope of Services is limited to the Services expressly described in the Order Confirmation, or any additional order confirmation accepted by both Parties in the future. Services, systems, locations, users, devices, applications, environments, projects, or support obligations not expressly included in an order confirmation are out of scope.
3.3. Remote and On-Site Services. Provider may perform Services remotely or on-site as specified in the applicable order confirmation. Unless the applicable order confirmation states otherwise, on-site services, travel time, travel expenses, emergency dispatch, and after-hours support may be billed separately.
3.4. Support Requests. Customer will submit support requests through Provider’s designated support channels. Provider may prioritize requests based on severity, business impact, service plan, available information, and the applicable Order Confirmation.
3.5. Service Hours. Provider’s standard service hours are 7:30 a.m. through 5:00 p.m. Pacific Time, excluding Provider-observed holidays, unless the applicable order confirmation states otherwise. After-hours, weekend, holiday, or emergency Services may be subject to additional charges.
3.6. Excluded Services. Unless expressly included in an order confirmation, the Services do not include: (a) correction of issues caused by Customer, Authorized Users, third parties, unauthorized changes, misuse, negligence, or failure to follow Provider’s instructions; (b) support for unsupported, obsolete, end-of-life, unlicensed, or noncompliant systems; (c) data restoration not covered by an applicable backup service; (d) cybersecurity incident response, forensic investigation, legal compliance work, or breach notification services; (e) custom software development; (f) support for home networks or personal devices; or (g) services required due to force majeure events, outages, malware, ransomware, or security incidents, except to the extent expressly included in an order confirmation.
3.7. Out-of-Scope Projects. Customer acknowledges that the Services and support included under this Agreement and any applicable order confirmation are limited to the recurring managed services, support obligations, and other services expressly described in the applicable order confirmation. Any project, implementation, migration, upgrade, deployment, remediation, configuration change, new system installation, major software or hardware rollout, office move, custom development, or other work not expressly included in the applicable order confirmation will be considered out-of-scope project work. Provider is not obligated to perform out-of-scope project work unless the Parties agree to the project in writing, which may be documented through a separate order confirmation, change order, or other written authorization acceptable to Provider. Unless otherwise agreed in writing, out-of-scope project work will be charged separately on a time-and-materials basis at Provider’s then-current hourly rates, with any applicable after-hours, emergency, travel, materials, Third-Party Product, or expense charges billed in addition. Time estimates for project work are estimates only and are not fixed fees unless expressly stated in an accepted order confirmation. Provider may require Customer’s approval before commencing project work and may require a deposit, retainer, or advance payment for project work. Customer will pay all charges for approved project work in accordance with the payment terms of this Agreement.
3.8. Subcontractors. Provider may use subcontractors to perform Services, provided that Provider remains responsible for their performance to the same extent Provider would be responsible if it performed the Services directly.
4.1. Cooperation. Customer will reasonably cooperate with Provider and provide timely access to personnel, facilities, systems, networks, data, documentation, passwords, credentials, administrative privileges, licenses, equipment, and information reasonably required for Provider to perform the Services.
4.2. Accuracy of Information. Customer is responsible for the accuracy, completeness, legality, and timeliness of all information, materials, instructions, and approvals provided to Provider.
4.3. Authorized Contacts. Customer will designate one or more authorized contacts with authority to request Services, approve changes, provide instructions, and make operational decisions. Provider may rely on instructions from Customer’s authorized contacts.
4.4. Policies and Compliance. Customer is responsible for adopting, maintaining, and enforcing its own business policies, acceptable use policies, information security policies, legal compliance programs, data retention policies, privacy notices, and regulatory obligations, unless a specific responsibility is expressly assigned to Provider in an order confirmation.
4.5. Licenses and Rights. Customer will obtain and maintain all licenses, subscriptions, consents, permissions, and rights necessary for Provider to access, administer, configure, monitor, support, or otherwise use Customer’s systems, software, data, and Third-Party Products.
4.6. Backups. Customer is responsible for maintaining adequate backups of Customer Data unless backup services are expressly included in an order confirmation. If backup services are included, Customer remains responsible for confirming that the backup scope, retention period, recovery point objectives, and recovery time objectives satisfy Customer’s business and legal requirements.
4.7. Security Practices. Customer will use commercially reasonable security practices, including safeguarding credentials, promptly notifying Provider of suspected security incidents, not disabling security tools without Provider’s approval, and ensuring that Authorized Users comply with applicable security requirements.
4.8. Customer Delays. Provider is not responsible for delays, service failures, increased costs, or inability to perform caused by Customer’s failure to comply with this Agreement or an order confirmation.
5.1. Service Levels Only if Stated. Service levels, response targets, resolution targets, uptime commitments, maintenance windows, escalation procedures, service credits, or other performance commitments apply only to the extent expressly set forth in an applicable order confirmation.
5.2. Response vs. Resolution. Unless an order confirmation expressly states otherwise, any response time is a target for Provider’s initial response and is not a guarantee of resolution within that time.
5.3. Exceptions. Service levels do not apply to issues caused by: (a) Customer or Authorized Users; (b) Third-Party Products or third-party networks; (c) scheduled maintenance; (d) emergency maintenance; (e) force majeure events; (f) Customer’s failure to provide access, information, approvals, or cooperation; (g) unsupported or end-of-life systems; or (h) matters outside Provider’s reasonable control.
5.4. Exclusive Remedies. If an order confirmation provides service credits or other remedies for failure to meet a service level, those remedies are Customer’s sole and exclusive remedy for the applicable service level failure, except for Provider’s uncured material breach of this Agreement.
6.1. Fees. Customer will pay all Fees set forth in the applicable order confirmation. Unless the applicable order confirmation states otherwise, recurring Fees are billed monthly in advance and non-recurring Fees are billed upon order acceptance, project commencement, milestone completion, or delivery.
6.2. Expenses. Customer will reimburse Provider for reasonable out-of-pocket expenses incurred in connection with the Services, including travel, lodging, meals, shipping, parking, and materials, if approved in advance or specified in an order confirmation.
6.3. Taxes. Fees are exclusive of taxes. Customer is responsible for all sales, use, value-added, goods and services, excise, withholding, and similar taxes, duties, or governmental charges arising from this Agreement, excluding taxes based on Provider’s net income.
6.4. Payment Terms. Unless an order confirmation states otherwise, invoices are due within thirty (30) days after the invoice date. Customer will pay invoices without setoff, deduction, or withholding, except as required by law.
6.5. Late Payments. Past-due amounts may accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer will reimburse Provider for reasonable costs of collection, including attorneys’ fees and collection agency fees.
6.6. Disputed Amounts. Customer must notify Provider in writing of any invoice dispute within fifteen (15) days after the invoice date, specifying the disputed amount and the basis for the dispute. Undisputed amounts remain payable when due. The Parties will work in good faith to resolve invoice disputes promptly.
6.7. Fee Adjustments. Provider may adjust recurring Fees upon renewal of the applicable order confirmation or upon at least ninety (90) days’ prior written notice, unless the applicable order confirmation states otherwise. Provider may also adjust Fees to reflect changes in users, devices, locations, licenses, consumption, Third-Party Product pricing, scope, or Customer-requested changes.
6.8. Suspension for Nonpayment. If Customer fails to pay undisputed amounts when due and does not cure the failure within ten (10) days after written notice, Provider may suspend Services until all overdue undisputed amounts are paid. Provider is not liable for losses arising from a suspension under this Section.
7.1. Third-Party Terms. Third-Party Products are subject to the applicable third-party provider’s terms, conditions, warranties, service levels, data processing terms, acceptable use policies, and support policies. Customer agrees to comply with all applicable third-party terms.
7.2. Procurement and Resale. If Provider procures or resells Third-Party Products for Customer, Customer authorizes Provider to place orders, accept applicable third-party terms on Customer’s behalf where necessary, and invoice Customer for applicable charges.
7.3. No Third-Party Warranty. Provider does not warrant Third-Party Products and is not responsible for failures, vulnerabilities, outages, errors, end-of-life decisions, price changes, data loss, support limitations, or acts or omissions of third-party providers.
7.4. Pass-Through Rights. To the extent permitted by the third-party provider, Provider will pass through to Customer any warranties, indemnities, service credits, or remedies made available by the third-party provider for Third-Party Products.
7.5. Administrative Access. Customer authorizes Provider to access and administer Third-Party Products as reasonably necessary to perform the Services. Customer remains responsible for all charges, usage, commitments, and compliance obligations associated with Third-Party Products.
8.1. Confidential Information. “Confidential Information” means nonpublic information disclosed by or on behalf of a Party that is marked confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including business information, technical information, security information, pricing, Customer Data, credentials, network diagrams, vulnerabilities, and the terms of this Agreement.
8.2. Exclusion. Confidential Information does not include information that the receiving Party can demonstrate: (a) is or becomes publicly available without breach of this Agreement; (b) was known to the receiving Party without restriction before disclosure; (c) is received from a third party without breach of any duty; or (d) is independently developed without use of or reference to the disclosing Party’s Confidential Information.
8.3. Use and Protection. The receiving Party will use Confidential Information only to perform or receive Services, exercise rights, or fulfill obligations under this Agreement. The receiving Party will protect Confidential Information using at least reasonable care and no less than the care it uses to protect its own similar information.
8.4. Permitted Disclosures. The receiving Party may disclose Confidential Information to its employees, contractors, subcontractors, advisors, insurers, auditors, and legal counsel who have a need to know and are bound by confidentiality obligations at least as protective as those in this Agreement.
8.5. Required Disclosures. The receiving Party may disclose Confidential Information to the extent required by law, subpoena, court order, or governmental authority, provided that, to the extent legally permitted, it gives prompt notice to the disclosing Party and reasonably cooperates with efforts to seek confidential treatment.
8.6. Return or Destruction. Upon termination of this Agreement or upon written request, the receiving Party will return or destroy the disclosing Party’s Confidential Information, except that the receiving Party may retain copies required for legal, regulatory, archival, backup, insurance, or dispute-resolution purposes, subject to continued confidentiality obligations.
9.1. Customer Data. As between the Parties, Customer owns all Customer Data. Customer grants Provider a limited right to access, use, process, transmit, copy, store, and disclose Customer Data as necessary to provide the Services, comply with this Agreement, comply with law, and exercise Provider’s rights.
9.2. Data Processing Addendum. If Provider processes personal information, personal data, protected health information, cardholder data, or other regulated data on Customer’s behalf, the Parties will enter into any data processing addendum, business associate agreement, or similar agreement required by applicable law or specified in an order confirmation.
9.3. Security Measures. Provider will use commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data in Provider’s possession or control against unauthorized access, use, disclosure, alteration, or destruction.
9.4. Security Incidents. Provider will notify Customer within 72 hours after confirming a security incident involving unauthorized access to Customer Data in Provider’s possession or control. Provider’s notice will include information reasonably available to Provider. Provider’s notice is not an admission of fault or liability.
9.5. Customer Environment. Customer acknowledges that no information technology service, security control, backup, disaster recovery solution, or monitoring service can guarantee uninterrupted operation, complete security, complete data recovery, or prevention of all cyberattacks, malware, ransomware, unauthorized access, or data loss.
9.6. Credentials. Customer is responsible for safeguarding credentials issued to Customer and Authorized Users. Provider may rely on the validity of credentials and instructions provided through Customer accounts unless Provider has actual knowledge of unauthorized use.
9.7. Regulated Data. Customer will not provide Provider with regulated data requiring special handling unless the applicable order confirmation identifies the regulated data and the Parties have agreed in writing to the required safeguards and obligations.
9.8 Privacy Policy. Provider’s collection and use of personal information through its website, marketing, and other direct interactions is described in Provider’s Privacy Policy, available at https://soaringtowers.com/privacy-policy/ (the “Privacy Policy”), which is incorporated into this Agreement by reference. The Privacy Policy applies to personal information Provider collects and processes for its own purposes. It does not apply to Customer Data, including personal information Provider processes on Customer’s behalf in performing the Services, which is governed instead by this Section 9 and any data processing addendum entered into under Section 9.2. In the event of any conflict between the Privacy Policy and this Agreement or an applicable data processing addendum with respect to Customer Data, this Agreement and the data processing addendum control.
10.1. Customer Materials. Customer retains all rights in Customer Data and materials provided by Customer to Provider.
10.2. Provider Materials. Provider retains all rights in Provider Materials, including any improvements, modifications, enhancements, derivative works, or know-how developed before, during, or after performance of the Services.
10.3. Deliverables. Unless an order confirmation states otherwise, upon full payment of all Fees due for the applicable Deliverables, Provider grants Customer a non-exclusive, perpetual, worldwide, royalty-free license to use the Deliverables for Customer’s internal business purposes. This license does not transfer ownership of Provider Materials embedded in or used to create the Deliverables.
10.4. Feedback. Customer may provide suggestions, ideas, enhancement requests, or feedback regarding Provider’s services or products. Provider may use such feedback without restriction or obligation to Customer, provided that Provider does not disclose Customer’s Confidential Information.
10.5. Restrictions. Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, or disassemble Provider Materials; (b) remove proprietary notices; (c) use Provider Materials to compete with Provider; or (d) copy, distribute, sublicense, or commercialize Provider Materials except as expressly permitted in this Agreement.
11.1. Mutual Authority. Each Party represents and warrants that it has the authority to enter into this Agreement and perform its obligations.
11.2. Services Warranty. Provider warrants that it will perform the Services in a professional and workmanlike manner. Customer’s exclusive remedy for breach of this warranty is for Provider, at its option, to reperform the nonconforming Services within a reasonable time or credit the Fees paid for the nonconforming Services.
11.3. Customer Warranty. Customer represents and warrants that it has all rights, consents, licenses, and authorizations necessary to provide Customer Data and Customer systems to Provider for purposes of providing the Services.
11.4. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, UNINTERRUPTED OPERATION, ERROR-FREE OPERATION, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
11.5. No Legal or Compliance Advice. Provider does not provide legal, regulatory, tax, accounting, insurance, or compliance advice. Customer is responsible for obtaining advice from qualified professionals regarding its legal, regulatory, and compliance obligations.
12.1. Provider Indemnity. Provider will defend Customer against any third-party claim alleging that Provider’s Services or Deliverables, as provided by Provider and used in accordance with this Agreement, infringe a U.S. patent, copyright, trademark, or trade secret, and will pay damages finally awarded or settlement amounts approved by Provider.
12.2. Exclusions from Provider Indemnity. Provider has no obligation for claims arising from: (a) Customer Data or Customer materials; (b) Customer’s instructions or specifications; (c) Third-Party Products; (d) modification by anyone other than Provider; (e) use in combination with items not provided by Provider; (f) use after Provider provides a non-infringing alternative; or (g) unauthorized or out-of-scope use.
12.3. Customer Indemnity. Customer will defend Provider against any third-party claim arising from: (a) Customer Data; (b) Customer’s or Authorized Users’ use of the Services in violation of this Agreement or law; (c) Customer’s systems, materials, instructions, or specifications; (d) Customer’s failure to obtain required rights, consents, or licenses; or (e) Customer’s breach of third-party terms for Third-Party Products, and will pay damages finally awarded or settlement amounts approved by Customer.
12.4. Procedure. The indemnified Party must promptly notify the indemnifying Party of the claim, provide reasonable cooperation, and grant the indemnifying Party control of the defense and settlement. The indemnifying Party may not settle any claim in a manner that admits fault by the indemnified Party or imposes non-monetary obligations on the indemnified Party without its prior written consent.
13.1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS, CORRUPTION, OR RECONSTRUCTION OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ORDER CONFIRMATION WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO PROVIDER UNDER THE APPLICABLE ORDER CONFIRMATION DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
13.2. Exceptions. The limitations in Section 13.1 do not apply to: (a) Customer’s payment obligations; (b) a Party’s indemnification obligations; (c) a Party’s breach of confidentiality obligations; (d) Customer’s violation of Provider’s intellectual property rights; or (e) liability that cannot be limited under applicable law.
14.1. Agreement Term. This Agreement begins on the Effective Date and continues until terminated under this Section. Termination of this Agreement automatically terminates any order confirmation then in effect.
14.2. Order Confirmation Term. Each order confirmation will begin on the effective date stated in the order confirmation and continue for the term specified in the order confirmation. If an order confirmation does not specify a term, it will continue until the Services under that order confirmation are completed or the order confirmation is terminated in accordance with this Agreement.
14.3. Renewal. Order confirmations may renew as stated in the applicable order confirmation. If an order confirmation provides for automatic renewal, either Party may prevent renewal by giving written notice of non-renewal at least sixty (60) days before the end of the then-current term, unless the order confirmation states otherwise.
14.4. Termination for Convenience. Either Party may terminate this Agreement or any order confirmation for convenience only if the applicable order confirmation expressly permits termination for convenience or the Parties otherwise agree in writing. Any early termination fees or minimum commitments stated in an order confirmation will remain payable.
14.5. Termination for Cause. Either Party may terminate this Agreement or any affected order confirmation if the other Party materially breaches this Agreement or the applicable order confirmation and fails to cure the breach within fifteen (15) days after written notice. If the breach cannot reasonably be cured, the non-breaching Party may terminate if the breaching Party does not begin cure within the cure period and diligently pursue cure.
14.6. Immediate Termination. Either Party may terminate this Agreement or any order confirmation immediately upon written notice if the other Party: (a) ceases doing business; (b) becomes insolvent; (c) makes an assignment for the benefit of creditors; (d) files or has filed against it a bankruptcy or similar proceeding that is not dismissed within seven (7) days; or (e) engages in unlawful conduct that materially affects the terminating Party.
14.7. Effect of Termination. Upon termination or expiration of an order confirmation: (a) Provider will stop providing the affected Services; (b) Customer will pay all Fees incurred through the effective date of termination, including non-cancellable commitments and Third-Party Product charges; (c) each Party will return or destroy Confidential Information as required by this Agreement; and (d) any licenses granted under the order confirmation will end, except as expressly stated otherwise.
14.8. Transition Assistance. Upon Customer’s written request, Provider may provide reasonable transition assistance at Provider’s then-current rates and subject to a mutually agreed written transition plan. Provider may require payment of outstanding undisputed amounts and advance payment for transition assistance as a condition of providing such assistance.
14.9. Survival. Any provisions that by their nature should survive termination will survive, including payment obligations, confidentiality, data return or destruction, intellectual property, disclaimers, indemnification, limitation of liability, dispute resolution, and general provisions.
15.1. Restricted Period. During the term of this Agreement and for twelve months after termination or expiration, Customer will not directly solicit for employment or engagement any Provider employee or contractor who performed Services for Customer, except through general solicitations not targeted at Provider personnel.
15.2. Remedy. If Customer hires or engages Provider personnel in violation of this Section, Customer will pay Provider a placement fee equal to fifty percent (50%) of the person’s annualized compensation, without limiting any other remedies available to Provider.
16.1. Good Faith Escalation. Before initiating litigation, a Party will provide written notice of the dispute and the Parties will attempt in good faith to resolve the dispute through business escalation. Either Party may seek injunctive or equitable relief at any time to protect Confidential Information, intellectual property, systems, data, or security.
16.2. Governing Law. This Agreement and all order confirmations are governed by the laws of the State of California, without regard to conflict-of-law rules.
16.3. Venue. The state and federal courts located in Orange County, California will have exclusive jurisdiction over any action arising out of or relating to this Agreement or any order confirmation, and each Party consents to personal jurisdiction and venue in those courts.
16.4. Attorneys’ Fees. The prevailing Party in any action arising out of or relating to this Agreement or an order confirmation is entitled to recover its reasonable attorneys’ fees and costs, in addition to any other relief awarded.
17.1. Independent Contractors. The Parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary, employment, or franchise relationship.
17.2. Notices. Notices under this Agreement must be in writing and delivered by personal delivery, nationally recognized overnight courier, certified or registered mail, or email with confirmation of transmission to the notice addresses stated in the applicable order confirmation. Notices are effective upon receipt, except email notices are effective on the next business day after transmission if sent after 5:00 p.m. recipient local time or on a non-business day.
17.3. Assignment. Neither Party may assign this Agreement or any order confirmation without the other Party’s prior written consent, except that either Party may assign this Agreement and any order confirmation to an Affiliate or in connection with a merger, reorganization, sale of substantially all assets, or change of control, provided that the assignee assumes the assigning Party’s obligations. Any prohibited assignment is void.
17.4. Force Majeure. Neither Party is liable for delay or failure to perform, other than payment obligations, caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, epidemics, pandemics, governmental actions, power failures, internet failures, telecommunications failures, cloud provider failures, cyberattacks, supply chain disruptions, or failures of third-party services.
17.5. Export Compliance. Customer will comply with all applicable export control, sanctions, and anti-corruption laws. Customer will not use the Services in violation of such laws or permit access by restricted persons or in restricted territories.
17.6. Publicity. Provider may identify Customer as a customer in Provider’s customer lists, proposals, and marketing materials unless Customer notifies Provider in writing that it objects.
17.7. Equitable Relief. A breach of confidentiality or intellectual property obligations may cause irreparable harm for which monetary damages are inadequate. The non-breaching Party may seek injunctive or equitable relief without posting bond.
17.8. Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions remain in effect, and the invalid or unenforceable provision will be modified to the minimum extent necessary to make it valid and enforceable.
17.9. Waiver. A waiver must be in writing and signed by the waiving Party. Failure to enforce a provision is not a waiver of future enforcement.
17.10. Amendments. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed or accepted by an authorized representative of each party via the Provider’s standard order confirmation acceptance process. An order confirmation may be amended as stated in Section 2 of this Agreement.
17.11. Counterparts; Electronic Signatures. This Agreement and any order confirmation may be executed in counterparts and by electronic signature or via electronic acceptance, each of which is deemed an original and all of which together constitute one instrument.
17.12. Entire Agreement. This Agreement, together with all order confirmations, exhibits, schedules, and amendments, constitutes the entire agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous agreements, proposals, negotiations, and understandings regarding that subject matter.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date set forth above via electronic acceptance via the Provider’s online ordering portal.
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