MASTER SERVICES AGREEMENT
JMARK and CLIENT anticipate entering into one or more transactions for the delivery and purchase of certain business or technology services now and in the future. JMARK and CLIENT anticipate that each transaction may be different as to certain TERMS AND CONDITIONS, such as price, scope of services to be provided, or duration of services. JMARK and CLIENT wish to have a set of standard TERMS AND CONDITIONS that will be applicable to all of their transactions for the delivery and purchase of such business or technology services. The purpose of these TERMS AND CONDITIONS is to establish the obligations of JMARK and CLIENT to each other with respect to the delivery and purchase of any services from JMARK. It is understood that the TERMS AND CONDITIONS of this AGREEMENT will be referenced, incorporated, and otherwise binding between JMARK and CLIENT on all of their business or technology transactions.
The term AGREEMENTS or AGREEMENT as used herein will refer to and include: (i) this Master Services Agreement; (ii) and all other service contracts or work orders entered into between JMARK and CLIENT while this Master Services Agreement is effective; and (iii) any schedules or amendments to the foregoing items. The term “service contract” means any agreement between the parties entered into for technology or business services to be provided from JMARK to the CLIENT. The term “work order” means any service not otherwise covered by or within the scope of the services outlined in a service contract between the parties. Services performed by JMARK to CLIENT, and not part of a service contract, will be deemed to be a “work order” whether the services were authorized by the CLIENT in writing or orally. The term TRANSACTION as used herein refers to all types of services as offered, within all types of associated AGREEMENTS, collectively referred to as AGREEMENTS. JMARK AND CLIENT MUTUALLY AGREE TO ALL TERMS AND CONDITIONS AS LISTED THROUGHOUT THIS AGREEMENT AND ASSOCIATED AGREEMENTS:
2.0 DELIVERY OF SERVICES
2.1. Delivery: JMARK will deliver services to the CLIENT as further specified and agreed to between the parties for each transaction entered between them for such purchase and delivery, should the parties mutually choose to enter into a services transaction.
2.2. Non-Agreement Transaction Pricing: Any transaction performed without an associated service contract will be done at JMARK’s then current hourly rates for the services provided. CLIENT will be billed; and payment will be due on or before the thirtieth (30th) day following the date of the invoice. All invoices not paid on or before the thirtieth (30th) day following the date of invoice will bear interest at the rate of 1% per month, compounded monthly. An associated AGREEMENT may provide for a different service rate or payment terms, and if different than those provided herein, the specific AGREEMENT shall control.
2.3. Fees: CLIENT agrees to pay JMARK all fees according to the fee schedule, as specified in all associated AGREEMENTS for each service. Because pricing of many services may be based on the quantity of devices, users and/or other data, it is understood that as devices, users and/or other data are added or removed to the network/systems, the price of the services may also be increased or decreased without the renegotiation of the associated AGREEMENTS. Furthermore, a device may exist in physical or virtual configurations, but will be charged based on the number of devices that require maintenance and/or support where applicable, regardless of the configuration. Subject to those cases wherein an approved work order has been performed that is not covered by a written service contract, an explanation of the calculation of fees associated with specific services will be listed in an associated AGREEMENT. If JMARK personnel must travel to CLIENT premises to perform their duties under an associated AGREEMENT, CLIENT shall pay according to any stipulation in an AGREEMENT. If travel is associated with an approved work order that is not covered by a written service contract, CLIENT will pay JMARK’s current hourly rate for travel to CLIENT’s location, and agrees to a one (1) hour minimum charge, or an alternate travel fee may be agreed to.
2.4. Provided Services: Except in the case of an approved work order that may not be covered by a written service contract, all services that will be provided by JMARK to CLIENT will be listed in an associated AGREEMENT.
2.5. Taxes: It is understood that any Federal, State, or Local Taxes applicable will be added to each invoice for services or materials rendered under an associated AGREEMENT, or as provided as part of a transaction. CLIENT will pay any such taxes unless a valid exemption certificate is furnished to JMARK for the State of use.
2.6. Other Fees: Any equipment, software, software licenses, third-party services, projects, labor, or other costs outside the scope of an associated AGREEMENT will be billed separately and paid for by CLIENT.
2.7. Effective Agreement Date and Incorporation of Master Terms and Conditions: The effective date of any AGREEMENT will be upon the countersigned date by JMARK in the signature block of this or any associated AGREEMENT, unless an alternate Effective Agreement Start Date is specified in an associated agreement. Alternate Effective Start Dates may be subject to fees, as specified in an associated AGREEMENT. The provisions of this Master Services Agreement will be effective during the term(s) of all AGREEMENTS between the parties hereto. The provisions of these Master Service Agreement terms and conditions are and will be incorporated by reference into all AGREEMENTS between the parties hereto even if the Agreements do not directly refer hereto.
3.0 TERMINATION OF SERVICES
3.1. Breach: If CLIENT fails to fulfill in any material respect its obligations under an AGREEMENT; or otherwise breaches any material term or condition of an AGREEMENT and does not cure such failure or breach within thirty (30) days’ of receipt of written notice from JMARK of such failure or breach, then JMARK may, in its sole discretion, either: (i) suspend delivery or performance of any AGREEMENT, until such payment is made; or (ii) terminate any AGREEMENT as provided in Section 3.2, or (iii) may suspend performance and later terminate any AGREEMENT upon the failure of CLIENT to cure its default as provided in Section 3.2. In any event, CLIENT will remain liable to JMARK for any services already performed or for any materials already provided, and all expenses incurred to the time of suspension or termination. In addition, if an AGREEMENT specifies a term for which JMARK will provide services to CLIENT, and that AGREEMENT is terminated by JMARK for cause (including nonpayment) or by CLIENT without cause, then all future, recurring service fees associated with the remaining term of such AGREEMENT will become immediately due and payable, and will be paid by CLIENT to JMARK upon the effective date of such termination.
3.2. Termination for Cause: Either party may terminate an AGREEMENT upon a material breach of the AGREEMENT by the other, if the breaching party does not cure the breach within thirty (30) days after receipt of written notice from the other party specifying the breach. The exercise of the right to terminate any AGREEMENT will be in addition to any other right and remedy provided in these terms and conditions or existing at law or equity that is not otherwise excluded or limited under an AGREEMENT. Upon termination of any AGREEMENT, JMARK will assist CLIENT in the orderly termination of services, including transfer of the services to another designated provider. In the event that such assistance is provided, CLIENT agrees to pay JMARK the actual cost of rendering service including technical personnel at their usual hourly billing rate. JMARK may require an advance deposit for the estimated amount of its costs to assist in the transition as a condition to its duties under this paragraph.
3.3. JMARK’s Duties Upon Termination: If any AGREEMENTs is terminated prior to the expiration of its term due to any of the reasons described herein, JMARK agrees to provide CLIENT with the most recent copy of any data and other information that is maintained by JMARK in a readable and useable form. CLIENT agrees to pay JMARK the actual costs of rendering such assistance, and for any backup media that may be required. JMARK will not maintain a copy of any data or information after termination, and will, after giving CLIENT no less than 20 (twenty) days written notice of its intention to do so, or upon CLIENT’s written demand, destroy or permanently erase all backup or other duplicate copies of CLIENT’s data and information files.
3.4. Termination or Continuation of Agreement at End of Term: Written AGREEMENTS for a certain duration will automatically renew upon the expiration of their terms and each subsequent renewal of the term, for additional terms equal to the initial term specified in the associated AGREEMENT unless either party notifies the other of their intention not to renew the AGREEMENT in writing no later than thirty (30) days before the expiration of the then current term. Services rendered by JMARK to CLIENT pursuant to a work order not containing a duration of term will be deemed to be completed and rendered upon the completion of the specific services necessitating the work order.
3.5. Update or Modification clause: Because this AGREEMENT is being entered into with an understanding that both parties wish the AGREEMENT to be in the best interest of both parties, a meeting may be requested by either party to re-negotiate the terms of this agreement in good faith.
4.0 MISCELLANEOUS PROVISIONS REGARDING SERVICES
4.1. Assumption of Risk: CLIENT understands that JMARK will not be liable for failure or delay in delivery of JMARK’s services for reasons that are beyond JMARK’s control or without JMARK’s fault or negligence, including but not limited to: acts of God, or the public enemy, governmental action, fires, floods, earthquakes, epidemics, quarantine restrictions, labor difficulties, riots, insurrections, unusually severe weather, failure of the Internet, power failure, energy interruption or shortage, other utility interruption, or telecommunications interruption. Notwithstanding anything to the contrary contained anywhere in any AGREEMENT, CLIENT understands and acknowledges that in the normal course of business, despite all reasonable efforts by JMARK to protect CLIENT, CLIENT maintains a risk that unauthorized persons or entities may, among other things, gain access to, attach or impair the confidentiality, integrity, availability or operability of CLIENT’s technology. CLIENT understands, acknowledges, accepts, and assumes the risk that events such as those described above may occur notwithstanding that JMARK has used reasonable efforts to provide any services in a professional manner.
4.2. Supplemental Services: JMARK, in its sole discretion, may also provide CLIENT with certain limited services needed by CLIENT on an as-needed or emergency basis where such services are not included within the scope of an applicable AGREEMENT, JMARK will notify CLIENT of the fees for any supplemental services requested by CLIENT and obtain CLIENT’s approval prior to providing such supplemental services. In the event that JMARK reasonably determines that the supplemental services are required on an emergency basis, JMARK may provide such supplemental services without the consent of CLIENT and thereafter provide notice of the supplemental services to CLIENT; and CLIENT will pay for such supplemental services in accordance with JMARK’s standard hourly rates.
4.3. License and Use of Intellectual Property: If JMARK provides software or other intellectual property to CLIENT, then CLIENT understands that CLIENT’s use of such software or intellectual property will be subject to any applicable copyright(s) and user license(s) provided for by the manufacturer.
4.4. Warranties of Services: JMARK warrants that it will provide its services to CLIENT in a workmanlike manner consistent with this and other AGREEMENTS and generally accepted industry standards of care and competence. It is understood by the parties that materials provided by third parties (such as hardware, software, etc.) that are merely installed by JMARK are not covered by the provisions of this Section; however, the services contemplated within this section do include any labor performed by JMARK in the installation and implementation of such third party materials.
4.5. Third Party Services: From time to time JMARK will work with a third party vendor or manufacturer that supports a product for CLIENT. JMARK makes no independent warranty with respect to any services performed or materials provided by a third party. JMARK hereby transfers whatever transferable warranties and indemnities JMARK receives from applicable third parties that perform services or provide materials, including any transferrable warranties and indemnities respecting patent infringement.
4.6. Ownership of Equipment: In some cases, JMARK will provide to CLIENT, equipment for the purpose of providing services. This equipment may or may not be owned by CLIENT. In the event of a catastrophe, where a unit is destroyed or damaged on CLIENT premises or stolen from CLIENT premises, replacement of the unit will be the responsibility of CLIENT. If the equipment is owned by JMARK, CLIENT agrees to return the equipment if requested, not modify any equipment in any way, and further agrees to cease the use of any technology that remains the property of JMARK upon termination of any AGREEMENT.
4.7. Ownership of Data: The data being stored on any equipment and at a datacenter remains the sole property of the CLIENT. If CLIENT chooses to terminate services, JMARK will assist CLIENT in the orderly termination of services as specified in Part 3 of this Master Services Agreement.
4.8. Passwords: CLIENT acknowledges that JMARK must have access to any and all systems and resources to perform their duties under most AGREEMENTS. As such, JMARK must have access to any and all passwords as deemed necessary by JMARK in its sole discretion to perform its services under any applicable AGREEMENT.
4.9. Coverage: All services provided to CLIENT by JMARK will be performed during the hours of 8:00 AM to 5:00 PM U.S. Central Standard Time, Monday through Friday, excluding public holidays, unless alternate coverage terms are specified in an associated AGREEMENT. Services performed outside normal working hours will be subject to provisions and fees as listed in associated AGREEMENTS (or subject to JMARK’s customary rates for such outside hours in the absence of a written AGREEMENT).
4.10. Equipment/Software/System Support: JMARK can provide support of all equipment, software, and systems as specified in an associated AGREEMENT, but requires that all hardware is covered under a currently active vendor support contract, that replaceable parts are readily available (as appropriate), and that all software is genuine, currently licensed, and vendor-supported. Should any hardware, software, or system fail to meet these provisions, they will be excluded from the associated AGREEMENTS, unless otherwise specified in associated AGREEMENTS. Should 3rd party vendor support charges be required in order to resolve any issues, these will be passed on to the CLIENT after first receiving the CLIENT’s authorization to incur them.
4.11. Recovery for Current, Licensed Anti-Virus Protected Systems: Damages caused by, and recovery from, virus infection not detected and quarantined by the latest Antivirus definitions are covered, if specified in an associated AGREEMENT. This service is limited to those systems protected with a JMARK approved, currently licensed, vendor-supported anti-virus solution. If CLIENT does not maintain a current licensed or JMARK approved anti-virus software, repair and/or recovery may be billed at JMARK’s normal hourly rate. As security requirements change, as well as the needs of a CLIENT’s business, JMARK may recommend changing anti-virus software and/or other security solutions, to best protect CLIENT.
4.12. Security Services: As a part of some AGREEMENTS, JMARK can also provide security solutions that may consist of hardware, software, and services. These products provide no guarantee against a network compromise. However, JMARK will comply with all industry best practices respective to monitoring, management and alerting of device(s) provided as a part of associated AGREEMENTS.
4.13. Monitoring Services: JMARK may provide ongoing monitoring services and will document critical alerts, scans, and event resolutions to CLIENT. Should a problem be discovered during monitoring, JMARK shall make every attempt to rectify the condition in a timely manner if that is what the AGREEMENT calls for.
4.14. Vendor Support: For the purposes of any AGREEMENT, a Vendor is defined as any third-party entity which provides product(s) or service(s) to CLIENT. JMARK will provide vendor services and management as defined within an associated AGREEMENT.
4.15. Supported Vendor: A Supported Vendor is any vendor that supplies product(s) or service(s) for any JMARK covered device, software, or other technology within CLIENT’s network or systems infrastructure.
4.16. Managed Vendor: A Managed Vendor is a Supported Vendor whose product(s) or service(s) support or provide major functionality or business processes within CLIENT’s business operations; and the lack or interruption of said product(s) and/or service(s) may cause a significant impact to important function(s) of CLIENT’s business operation(s), or to JMARK or JMARK’s ability to provide the services contemplated herein to CLIENT. Due to the effort and closeness in which JMARK may need to work with this type of vendor on CLIENT’s behalf, Managed Vendors are often a JMARK services line item. The initial Managed Vendors included in JMARK coverage are named in associated AGREEMENTS, and shall be supported by JMARK as defined in said AGREEMENTS. Additional Managed Vendors may be added. Pricing for additional Managed Vendors is defined in associated AGREEMENTS.
4.17. Support and Escalation: JMARK will respond to CLIENT Support Tickets under the provisions of a specific associated AGREEMENT. Support Tickets should be opened by CLIENT’s designated Information Technology (IT) contact persons/area or division managers if possible via the JMARK Customer Portal to, or by phone or email, if the portal is unavailable. Each support request will be assigned a ticket number for tracking. JMARK’s escalation process is detailed in associated AGREEMENTS.
4.18. Performance: JMARK shall procure all permits, licenses, certificates, clearances or consents required in order that performance of an AGREEMENT complies with laws, ordinances, rules and regulations of any governmental unit or agency affecting the performance of any aspect of the Services. While JMARK is performing services related to an AGREEMENT for CLIENT, JMARK and its personnel shall follow all policies and rules of CLIENT respecting personnel, safety, and other matters, as stipulated by CLIENT from time to time.
4.19. Recording: CLIENT agrees that (i) JMARK may record any telephone calls that CLIENT or CLIENT’s employees make to JMARK’s facilities, and any telephone calls that JMARK makes from JMARK facilities to CLIENT’s location or to CLIENT’s employees, and (ii) JMARK, if audio or video capabilities service are applicable, may monitor and record all connected CLIENT facility audio and video feeds for quality assurance and testing and response purposes. CLIENT shall be solely responsible for, and indemnify JMARK with respect to all claims in connection with, any advisable or required policies, notices and consents with respect such audio/video monitoring and recording of CLIENT facilities or through CLIENT audio/video connections.
5.0 CONFIDENTIALITY AND PRIVACY
5.1. Confidential Information: The parties agree at all times to hold in strictest confidence, and not to use, except for the benefit of the other party, or to disclose to any person, firm or corporation except for the benefit of the other party and with written authorization of an authorized officer of the other party, any Confidential Information of the other party. The parties hereto each understand that “Confidential Information” means any proprietary information of the other party, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to one party by the other party either directly or indirectly, orally or by drawings or observation of parts or equipment. Each party hereto understands that Confidential Information does not include any of the foregoing items that has become publicly known and made generally available through no wrongful act of either party or of others who were not under confidentiality obligations as to the item or items involved.
5.2. Compliance with Government Regulations: JMARK will at all times fully comply with all applicable state, county, and municipal codes and regulations, and with all federal codes and regulations.
5.3. Parties’ Documents: Each party hereto agrees that, upon termination of their obligations to each other, each party will deliver to the other (and will not keep in their possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed for the other party pursuant to performance of this Agreement or otherwise belonging to the other party, its successors or assigns.
5.4. Injunctive Relief and Indemnification: Each party hereto recognizes and agrees that disclosure or use of any Confidential Information in violation of these TERMS AND CONDITIONS may cause irreparable harm to the other party. Either party may seek and obtain injunctive relief against the other for a breach or threatened breach of these provisions, in addition to all other remedies which may be available.
6.0 WARRANTIES AND TANGIBLE PRODUCTS
6.1. Sale of Tangible Products: It is understood by the parties hereto that, as part of the services provided by JMARK, the sale and delivery of tangible personal property products may be made by JMARK to CLIENT.
6.2. Product Warranties: JMARK will honor manufacturer warranties for products. CLIENT, recognizing that JMARK is not the manufacturer of the products, expressly waives any claim that CLIENT may have against JMARK based upon any alleged or actual product liability or infringement of any patent, copyright, trade secret, or other intellectual property right with respect to any product, as well as any right to indemnification from JMARK on account of any such claim made against CLIENT by a third party.
6.3. Disclaimers: EXCEPT FOR THE EXPRESS LIMITED REPRESENTATIONS AND WARRANTIES CONTAINED ANYWHERE IN THIS AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES CONCERNING SERVICES, MATERIALS OR TANGIBLE PRODUCES PROVIDED BY JMARK, EXPRESS, IMPLIED OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY FOR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CONDITION OR INCREASED EFFICIENCY OF USE OF CLIENT TECHNOLOGY. JMARK DOES NOT AUTHORIZE ANY PERSON TO ASSUME FOR IT THE OBLIGATIONS CONTAINED HEREIN.
6.4. Security Interest: To the extent that tangible products are not paid for in full by CLIENT at the time of delivery, CLIENT hereby grants to JMARK a purchase money security interest in each and every product purchased by CLIENT from JMARK, together with any proceeds thereof; and JMARK may, if necessary, file all applicable UCC filings for the limited purpose of protecting its security interest in the products. JMARK will have all rights and remedies for non-payment provided under applicable law with respect to each security interest. As to each product, JMARK’s security interest will terminate when JMARK has received all amounts due to JMARK for that product.
6.5. Delivery and Title of Products: All shipments of JMARK are F.O.B. delivery to CLIENT. JMARK will use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to CLIENT’s requested delivery dates. CLIENT acknowledges that delivery dates provided by JMARK are estimates and that JMARK is not liable for failure to deliver on such dates, provided that JMARK will use commercially reasonable efforts to inform CLIENT of delivery status. JMARK shall pass the actual fees associated with shipping and insurance onto CLIENT. JMARK reserves the right to make delivery in installments. Delivery of a quantity, which varies from the quantity specified, will not relieve CLIENT of the obligation to accept delivery and pay for the products delivered. Delay in delivery of one installment will not entitle CLIENT to cancel other installments.
6.6. Acceptance and Returns: All sales of tangible products are final except with respect to products that do not meet applicable manufacturer’s specifications or that are not identified in the AGREEMENT; however, JMARK reserves the right in its sole discretion to exchange or accept return of product as the circumstances warrant. CLIENT is deemed to have accepted the products unless written notice of rejection is received by JMARK within ten (10) days after delivery of the products.
7.1. Infringement: JMARK agrees to defend or settle, at its discretion, any claim against the CLIENT alleging that any service or JMARK-owned materials directly infringe any U.S. patent, copyright, or trademark; provided that: (i) the subject service or JMARK-owned material is used strictly as permitted by an AGREEMENT; and (ii) CLIENT provides JMARK with prompt written notice of each such claim, tenders to JMARK the defense or settlement of each such claim at JMARK’s expense, and cooperates with JMARK, at JMARK’s expense, in defending or settling each such claim. If JMARK receives notice of an alleged infringement, or if CLIENT’s use of the subject service or JMARK-owned material is prevented by permanent injunction, JMARK may, at its sole option and expense, procure for CLIENT the right to continue using such items as provided herein, modify such items so that they are no longer infringing, or replace such items with other items of equal or superior functional capability. The rights granted to CLIENT under this section will be CLIENT’s sole and exclusive remedy and JMARK’s sole obligation for any alleged infringement of any patent, copyright, trademark or other proprietary right.
7.2. Indemnification: CLIENT and JMARK will, at each respective party’s sole expense, defend, indemnify, and hold harmless the other party and any of its parents, affiliates and subsidiaries from any and all claims or liability arising from: (i) any negligence or misconduct on the part of the other party (including such other party’s employees and agents; (ii) any event alleged to be caused by the failure of any of either party’s technology; or (iii) any claim that either party’s technology, including the use of either party’s technology by the other party, infringes any third party patent, trademark, copyright or other right.
7.3. Limitation of Liability: In addition to all other liability limitations contained in herein, JMARK will not be liable for delay in JMARK’s performance or failure to perform when such delay or failure is due to unforeseen causes, as identified in Section 3.1. To the fullest extent allowable under applicable law, in no event will JMARK be liable for any special or consequential damages suffered by CLIENT for reasons beyond JMARK’s control and without JMARK’s fault or negligence. Additionally JMARK shall not be responsible for failures to provide service if any the following exclusions exist: (a) Problems caused by resources on the CLIENT’s network that interfere with the service; or (b) Changes made to the CLIENT network not communicated to JMARK; or (c) Loss of Internet connectivity to the CLIENT site for any reason; or (d) Service failures that result from any actions or inactions of the CLIENT contrary to IT Service’s recommendations; or (e) CLIENT has denied JMARK access to facilities to fix issues that cannot be performed remotely. While JMARK agrees to take reasonable actions consistent with good industry practices to assure regular backups and the ability to restore or replicate lost data, it is not liable if such restoration or replication is not possible, or is not fully possible, despite its due care and implementation of appropriate backup procedures. Unless otherwise specified herein, in no event will CLIENT’s recovery from JMARK for any claim exceed (i) the purchase price for the products paid for product giving rise to the claim; or (ii) the amounts paid for the product maintenance or services giving rise to the claim that were provided during the six (6) months preceding the claim. These limitations of liability apply to all causes of action or claims in the aggregate.
7.4. Insurance and Risk of Loss: CLIENT will provide insurance through appropriate Property, Inland Marine, Valuable papers, or other form of casualty insurance for the full replacement cost of all JMARK owned equipment sold to CLIENT as a service offering. Such insurance will be provided through companies that are reasonably acceptable to JMARK, and each policy will name JMARK as an insured or additional insured party and will, upon the written instructions of JMARK, contain a mortgagee payable clause to such person or firm as JMARK may designate. CLIENT will cause JMARK to be provided with a certificate of insurance and with a copy of all actual policies at all times during the continuation of CLIENT’s obligation to pay for JMARK owned equipment sold as a service. Each policy will contain a provision that prohibits termination of coverage without at least fifteen (15) days written notice to JMARK. The required insurance may contain a reasonable deductible not to exceed one thousand dollars ($1,000) for losses attributable to any one event or occurrence.
8.0 AGREEMENT AND AGREEMENT CONSTRUCTION
8.1. Headings and Counterparts: The headings contained herein are for purposes of convenience only and will not affect the meaning or interpretation of these TERMS AND CONDITIONS. These TERMS AND CONDITIONS may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
8.2. Binding Effect: These TERMS AND CONDITIONS will be binding upon and will inure to the benefit of JMARK, and their respective successors and assigns, and upon the CLIENT, and their heirs, personal representatives, successors and assigns.
8.3. Notices: Any notices authorized or required to be given hereunder may be personally delivered to the respective parties as designated below, or by depositing the same in the mail, postage fully prepaid, certified, return receipt requested. Either party will notify the other party as soon as is practicable upon the change of address for notification purposes. If properly addressed and mailed pursuant to the terms of this paragraph, delivery of notices will conclusively be deemed to have been made three (3) days after mailing.
8.4. Assignment: Rights and obligations pursuant to these TERMS AND CONDITIONS may not be assigned or delegated by CLIENT or JMARK unless express written consent is first obtained from the other party. Any attempted assignment or delegation by either party without the prior written consent of will be void; and may thereafter immediately terminate these TERMS AND CONDITIONS for cause.
8.5. Survivability: All provisions herein relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, payment, and no hiring, and any other provisions, which must survive in order to give effect to their meaning, will survive termination.
8.6. Choice of Law and Venue: This instrument will be construed and enforced under the laws of the State of Missouri. The parties consent and submit to the jurisdiction and venue of the State and Federal courts located in Greene County of the State of Missouri for any dispute relating to the terms, interpretation, or performance of these TERMS AND CONDITIONS.
8.7. Entire Agreement: It is agreed and understood by all parties that this instrument constitutes the entire agreement between the parties. No additional promises, agreements, and conditions have been entered into other than those expressly set forth herein. All of the foregoing TERMS AND CONDITIONS of this AGREEMENT will apply to both parties unless otherwise specifically excepted pursuant to a JMARK SCHEDULE OF EXCEPTIONS signed and dated by all parties. These TERMS AND CONDITIONS may not be modified or amended without the written, signed consent of all parties except as otherwise provided herein. These TERMS AND CONDITIONS are intended to be incorporated into and to become a part of all AGREEMENTS wherein JMARK is to provide services to the CLIENT. Therefore, it is the intention that these TERMS AND CONDITIONS be read in conjunction with and in harmony with such written AGREEMENTS.
8.8. Waiver: All parties to these TERMS AND CONDITIONS agree that the failure of any party to strictly enforce any provision of these TERMS AND CONDITIONS will never result in a waiver of such party to subsequently enforce the conditions of these TERMS, and delivery of services or products by JMARK after breach of this Agreement by CLIENT will not waive any rights or remedies accruing to JMARK as a result of such breach.
8.9. Forbearance: Failure to pursue any legal or equitable remedy or right available to a party shall not constitute a waiver of such right, nor shall any such forbearance, failure or actual waiver imply or constitute waiver of subsequent default or breach. No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision of this Agreement or of any succeeding breach of the same provision. No delay in acting with regard to any breach of any provision of this Agreement shall be construed to be a waiver of such provision.
8.10. Severability: In the event that any provision of these TERMS AND CONDITIONS, or part of any provision, is declared to be invalid for any reason, it will not affect the validity of any other provision, and all other provisions will remain in full force and effect.
8.11. Incorporation into Agreements: These TERMS AND CONDITIONS will be effective, and the provisions herein will remain in effect, during the term(s) of all AGREEMENTS between the parties hereto. The provisions of these TERMS AND CONDITIONS are and will be incorporated by reference into all AGREEMENTS between the parties hereto even if any AGREEMENTS do not directly refer hereto. It is the intention of the parties that these TERMS and CONDITIONS will be in harmony with all AGREEMENTS between the parties and will be applicable to all AGREEMENTS between the parties; however, in the event that these TERMS AND CONDITIONS conflict with any express provision in another service contract or other agreement between the parties, then the terms of the service contract or other agreement will control only to the extent of such conflict.
8.12. Agreement not Exclusive: Nothing in these TERMS AND CONDITIONS will preclude JMARK from at any time performing work or services to third parties other than the CLIENT, and JMARK will at all times be free to make their services available to the general public.
8.13. Non Solicitation of Employees: CLIENT and JMARK agree that the personnel of Client and JMARK are critical to Client and JMARK’s ability to provide services. CLIENT and JMARK agree not to solicit, make offers of employment, or hire in any capacity, either directly or indirectly, or enter into any consulting relationships or agreements with, any Client or JMARK employee or personnel associated with an AGREEMENT during the term of or for a period of one (1) year after the termination of any AGREEMENT, without the consent of the other party. If CLIENT or JMARK violates this prohibition, CLIENT or JMARK will immediately pay to the other an amount equal to two and one-half (2.5) times of the annual compensation of the employee or personnel solicited or hired as liquidated damages, it being understood that the actual damages sustained by either party for a violation of this Section 7 would be difficult, if not impossible, to ascertain.
8.14. Costs, Expenses, and Attorney Fees: The prevailing party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys’ fees, court costs, costs of investigation, expert fees and other related expenses incurred in connection with any enforcement of rights herein in law or in equity, including an action for declaratory relief.
THIS IS A BINDING LEGAL DOCUMENT. BEFORE AGREEING TO THESE TERMS AND CONDITIONS, THE PARTIES DECLARE THAT THEY HAVE LEGAL CAPACITY AND ARE DULY AUTHORIZED TO ENTER INTO THESE TERMS AND CONDITIONS, THAT THEY HAVE COMPLETELY READ THIS INSTRUMENT, AND THAT THEY FULLY UNDERSTAND ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN