This Master Services Agreement (“MSA”) is entered into between Lincoln Labs, Inc. (“Lincoln Labs”) and client (“Customer”), effective as of the date Customer signs the Sales Order (“Effective Date”).
1. Agreement Structure and Definitions.
- This MSA establishes the general terms and conditions to which the parties have agreed with respect to the provision of the Services (defined below) by Lincoln Labs to Customer.
- At any time after the execution of an initial Sales Order (defined below), Customer may purchase additional Services, or otherwise expand the scope of the Services, under an additional Sales Order signed by an authorized representative of Lincoln Labs specifying the foregoing.
- This MSA, along with the applicable Sales Order(s) is referred to as the “Agreement.” The parties acknowledge receipt of and agree to be bound by the terms and conditions of the Agreement.
- To the extent any terms and conditions in this MSA conflict with the terms and conditions of a Sales Order, the terms and conditions of the MSA control, unless otherwise expressly indicated, with reference to the specific section of the MSA in which the language in the Sales Order shall control over.
- “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Lincoln Labs in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Lincoln Labs Platform” means the website hosting, creation, and management software-as-a -service platform made available by Lincoln Labs to Customer, and its related software, applications, and tools, as ordered by Customer under a Sales Order.
- “Confidential Information” means non-public, confidential, or proprietary information in any form or medium (whether oral, written, electronic, or other) that the disclosing party designates as being confidential or that under the circumstances should be reasonably understood to be treated as confidential. Confidential Information includes without limitation: information relating to the disclosing party’s software or hardware products that may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations, trade secrets, know-how, development methods as well as information relating to the disclosing party’s business or financial affairs (which may include without limitation, business methods, marketing strategies, pricing, competitor information, product development strategies and methods, customer lists and financial results but does not include customer database information in de-identified form). Confidential Information also includes information received from third parties that the disclosing party is obligated to treat as confidential and oral information that is identified by the disclosing party as confidential. Confidential Information does not include any information that: (1) is already rightfully known to the receiving party prior to disclosure pursuant to the Agreement; (2) is or becomes generally known by the public through no wrongful act of the receiving party; (3) is received by the receiving party from a third party without any restriction or confidentiality obligation; or (4) is approved for release by prior written authorization of the disclosing party.
- “Customer Data” means any data, information or material Customer provides or submits through the Services (excluding Aggregated Statistics).
- “Custom Content Deliverable” means solely the custom content [(such as blog content, webpage/landing page content, Facebook posts, and content updates to Customer’s Google My Business page)] that is specifically identified as a “Customer Content Deliverable” in a Sales Order to be created by Lincoln Labs expressly for Customer in the performance of Professional Services. Notwithstanding anything to the contrary in the Agreement, Custom Content Deliverables excludes the Lincoln Labs Platform (including without limitation, any code, software, features, tools, enhancements or modifications thereto, whether or not specifically created for Customer) and Third Party Content. Custom Content Deliverables also excludes any images unless expressly otherwise set forth in an applicable Sales Order.
- “Intellectual Property” means any and all intellectual property, including without limitation, technology, inventions, know-how, show-how, designs, formulae, processes, techniques, methodologies, procedures, processes, tools, utilities, techniques, concepts, ideas, methods, models, templates, content, photographs, audio and video clips, and other works of authorship, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces, consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and whether tangible or intangible.
- “Intellectual Property Rights” means any and all patent rights (including patent applications and disclosures), copyrights, moral rights, trademarks, service marks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction worldwide, now or hereafter existing, and whether or not perfected, filed, registered or recorded.
- “Professional Services” means professional set-up, implementation, customization, marketing, training or consulting services that Lincoln Labs performs as described in a Sales Order, but excluding the Lincoln Labs Platform.
- “Sales Order” means the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of the MSA, and describes order-specific information, such as description of Services ordered, fees, and milestones.
- “Services” means the Lincoln Labs Platform and/or Professional Services that Customer may purchase under a Sales Order.
- “Term” has the meaning set forth in Section 9(a) below.
- “Third Party Content” means any materials, documents, information, data, and/or content, in any form or medium, and any products or services, that are not proprietary to Lincoln Labs and are made available as part of the Services through any of Lincoln Labs’ software, websites, or Lincoln Labs Platform.
- Cooperation. Customer shall provide Lincoln Labs with good faith cooperation and access to such information, facilities, personnel and equipment as may reasonably be required by Lincoln Labs in order to provide the Services. Customer acknowledges and agrees that Lincoln Labs’ performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Services. Lincoln Labs shall be entitled to rely on all decisions and approvals by Customer. If Customer does not reasonably comply with this Section, the Start Date and Term of the Agreement shall not be affected or modified. Any failure by Customer to comply with this Section gives Lincoln Labs the right to terminate the Agreement pursuant to Sections 9(b) and (c).
- Services Generally. Subject to Customer’s compliance with the Agreement and timely payment of applicable fees, Lincoln Labs shall provide the Services to Customer in accordance with the terms of the Agreement during the Term.
- Security. Lincoln Labs will implement reasonable and appropriate measures designed to secure Customer Data against accidental or unlawful loss, access or disclosure and will promptly notify Customer of any breach. Customer will not: (i) breach or attempt to breach the security of the Services or any network, servers, data, computers, or other hardware relating to or used in connection with the Services, or any third party interfacing with any part of the Services; or (ii) use or distribute through the Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Services or the operations or assets.
- Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity of Customer Data.
3. Use Rights and Restrictions.
- Grant of Use. Subject to the provisions contained in the Agreement, including without limitation the restrictions set forth in this Section 3, and timely payment of all applicable fees, Lincoln Labs hereby grants Customer for the Term a non-transferable, non-exclusive license without the right to sub-license, to access and use the Lincoln Labs Platform identified in the Sales Order.
- Restrictions. Customer shall use the Lincoln Labs Platform only for its own business purposes. Customer shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Lincoln Labs Platform; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms tags, specifications, architecture, structure, or other elements of the Lincoln Labs Platform, in whole or in part, for competitive purposes or otherwise; (iii) allow access to provide, divulge, or make available the Lincoln Labs Platform, including any applicable web design or content products to any user other than Customer’s employees and independent contractors who have a need to such access and who shall be bound by nondisclosure obligations that are at least as restrictive as the terms of the Agreement; (iv) write or develop any derivative works based upon the Lincoln Labs Platform; (v) modify, adapt, translate or otherwise make changes to the Lincoln Labs Platform or any part thereof; (vi) disclose or publish without Lincoln Labs’ prior written consent performance or capacity statistics or the results of any benchmark test performed on the Lincoln Labs Platform; or (vii) otherwise use or copy the same except as expressly permitted herein. Any failure by Customer to comply with this Section 3(b) shall be deemed a material breach of the Agreement by Customer.
- Acceptable Use Policy and Compliance with Applicable Laws. Customer agrees not to use the Services in any manner, or post on the Services (or provide), any content or data (including Customer Data), which: (i) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, or otherwise objectionable; (ii) contains viruses or other contaminating or destructive features; (iii) violates the rights of others, such as data which infringes on or misappropriates any Intellectual Property Rights or violates or misappropriates any third party right, including, without limitation right of privacy or publicity; or (iv) otherwise violates any applicable law, including without limitation, the laws and regulations governing export control, unfair competition, or false advertising. Customer further agrees not to use the Services, to solicit users to join or to procure products or services competitive to the Services of Lincoln Labs. Lincoln Labs reserves the right to delete, move or edit any Customer content that it may determine, in its reasonable discretion, violates the Agreement or is otherwise inappropriate for posting. Customer shall obtain and provide Lincoln Labs with all rights, licenses, consents and authorizations necessary to enable Lincoln Labs to take all actions to provide the Services under the Agreement (including without limitation, all necessary rights, licenses, consents, and authorizations to all Customer Data. By signing the Agreement, Customer agrees to indemnify Lincoln Labs or any of its subsidiaries, affiliates, suppliers, and their respective directors, officers, agents or employees from and against any and all liability associated with Customer’s breach of this Section.
4. Financial Terms.
- General. Except as expressly specified in the Sales Order, all fee payment obligations start from the execution of the Sales Order. Customer shall pay Lincoln Labs the fees as set forth in (and in accordance with) an applicable Sales Order without offset or deduction. After the Initial Term, Lincoln Labs may increase the fees for any Services once per year by up to 5%. Lincoln Labs will provide Customer with thirty (30) days written notice of any fee increase. Unless otherwise specified in the Sales Order, payment of all fees is due within fifteen (15) days of the invoice date. Interest accrues on past due balances at a rate of 1.5% per month, or if lower, the highest rate permitted under applicable law. Failure to make timely payments shall be considered a material breach of the Agreement. Customer will be responsible for reimbursing Lincoln Labs for all expenses incurred, including interest and reasonable attorneys’ fees, in collecting any late amounts due hereunder.
- Taxes. Customer shall be responsible for the payment of all taxes, excluding such taxes imposed on Lincoln Labs’ net income, relating to the provision of the Services.
The receiving party agrees to maintain the confidentiality of the Confidential Information disclosed by the disclosing party, using the same degree of care that it uses to protect its own confidential information (but in no event less than a reasonable degree of care), and shall not disclose or use any Confidential Information of the disclosing party for any purpose outside of the scope of the Agreement. The receiving party shall limit access and disclosure to Confidential Information of the disclosing party to those of its employees, agents, and contractors who require such access for purposes of carrying out its obligations hereunder, and who have signed confidentiality agreements with the receiving party containing protections no less restrictive than those contained in the Agreement or who are otherwise bound by the duty of confidentiality, such as an attorney. If the receiving party is required by applicable law or legal process to disclose any Confidential Information of the disclosing party, the receiving party shall, prior to making such disclosure, use commercially reasonable efforts to notify disclosing party of such requirements to afford disclosing party the opportunity to seek, at disclosing party’s sole cost and expense, a protective order or other remedy. If the disclosing party waives compliance or, after providing the notice and assistance required under this Section 5, the receiving party remains required by law to disclose any Confidential Information, the receiving party shall disclose only that portion of the Confidential Information that, on the advice of the receiving party’s legal counsel, the receiving party is legally required to disclose. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to the other party’s Confidential Information shall be during the Term and for a period of two years thereafter; provided, however, with respect to any Confidential Information of the other party that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this MSA for as long as such Confidential Information remains subject to trade secret protection under applicable law.
The parties agree that unauthorized use or disclosure of Confidential Information may cause irreparable harm to Disclosing Party and that the Disclosing Party shall be entitled to seek injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.
6. Proprietary Rights.
- Except as expressly otherwise set forth in Sections 6(b) and 6(c) below, Customer acknowledges and agrees that the Services and all equipment, infrastructure, websites and other materials or deliverables provided by Lincoln Labs in the performance of all Services will at all times remain the exclusive, sole and absolute property of Lincoln Labs. Customer does not acquire any right, title or interest in or to such Services, equipment, materials and deliverables except the limited and temporary right to use them as necessary for Customer’s use of the Services during the Term. All rights, title, and interest in or to any Intellectual Property Rights relating to the Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Lincoln Labs. Customer may not obscure, alter or remove any copyright, patent, trademark, services mark or proprietary rights notices on any Services or other materials. In the course of the Agreement, Lincoln Labs may create or use Intellectual Property that Lincoln Labs conceived independently or while working with Customer. The parties mutually acknowledge that Lincoln Labs shall own all right, title and interest in and to such Intellectual Property including, without limitation the Intellectual Property Rights relating thereto, and may use such Intellectual Property in its business operations with other customers, without limitation.
- Lincoln Labs acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Lincoln Labs, during the Term, a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Lincoln Labs to provide the Services to Customer.
- Upon Customer’s payment in full of all associated Professional Services fees, and subject to the terms and conditions of the Agreement, the Custom Content Deliverables shall be the property of Customer; provided, however, that Customer’s ownership of a Custom Content Deliverable does not include any transfer or assignment of any of Lincoln Labs’ Intellectual Property Rights in and to the Lincoln Labs Platform). Customer hereby grants to Lincoln Labs, during the Term, a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Deliverables and perform all acts with respect to the Deliverables as may be necessary for Lincoln Labs to provide the Services to Customer.
- If Customer or any of its employees or contractors sends or transmits any communications or materials to Lincoln Labs by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Lincoln Labs is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Lincoln Labs on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Lincoln Labs is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Lincoln Labs is not required to use any Feedback.
- Notwithstanding anything to the contrary in the Agreement, Lincoln Labs may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Lincoln Labs and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Lincoln Labs. Customer acknowledges that Lincoln Labs may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Lincoln Labs may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
7. Warranty and Disclaimer.
Lincoln Labs shall use reasonable efforts consistent with prevailing industry standard to maintain the Services in a manner which minimizes errors and interruptions in the Products and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Lincoln Labs or its third-party suppliers, or because of other causes beyond Lincoln Labs’ reasonable control. THE FOREGOING WARRANTY DOES NOT APPLY, AND LINCOLN LABS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND COURSE OF DEALING, USAGE OR TRADE PRACTICE. LINCOLN LABS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. LINCOLN LABS IS NOT A LAW FIRM OR LEGAL SERVICES PROVIDER, AND DOES NOT AND CANNOT PROVIDE ANY LEGAL ADVICE, EXPLANATION, OPINION OR OTHER RECOMMENDATION ABOUT LEGAL STRATEGY.
8. Limitation of Liability.
NEITHER LINCOLN LABS NOR ANY OF ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, CONSULTANTS OR SERVICE PROVIDERS SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES IN CONNECTION OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SERVICES OR MATERIALS PROVIDED BY LINCOLN LABS, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, COST OF COVER OR OTHER PECUNIARY LOSS, EVEN IF LINCOLN LABS OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF LINCOLN LABS TO CUSTOMER, FOR ANY CLAIMS, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID HEREUNDER IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING ALLOCATION OF RISK AND LIMITATION OF LIABILITY HAS BEEN NEGOTIATED AND AGREED TO BY THE PARTIES AND FORMS THE BASIS OF THEIR WILLINGNESS TO ENTER INTO THE AGREEMENT.
9. Term and Termination.
a. MSA Term. This MSA shall be binding upon signature by both parties and shall continue in full force and effect until the expiration or termination of all Sales Orders, unless otherwise terminated earlier as provided hereunder (“Term”).
- Termination. Either party may terminate the Agreement immediately upon written notice at any time if: (i) the other party commits a non-remediable breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach, except for breach of payment obligation which shall have a ten (10) day cure period; (ii) the other party ceases business operations; or (iii) the other party becomes insolvent, generally stops paying its debts as they become due or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other. Where a party has rights to termination, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Sales Order. Sales Orders that are not terminated shall continue in full force and effect under the terms of the Agreement. Upon expiration or earlier termination of the Agreement or applicable Sales Order, Customer shall immediately discontinue use of the Lincoln Labs Platform and Lincoln Labs’ provision of Professional Services under the Agreement or applicable Sales Order shall immediately cease.
- Lincoln Labs’ Remedies for Termination. If Lincoln Labs terminates this Agreement for Customer’s material breach or as specified under this Agreement, Customer agrees to pay to Lincoln Labs the remaining value of the then-current Term (that Customer acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate recurring fees that will become due during the canceled portion of the Term. Lincoln Labs will be entitled to suspend any or all of its performance obligation hereunder in accordance with the provisions of Section 9(c), to modify the payment terms and to request full payment before any additional performance is rendered by Lincoln Labs. Customer shall reimburse Lincoln Labs for any expenses incurred, including interest and reasonable attorneys’ fees, in collecting amounts due to Lincoln Labs hereunder.
- Suspension. Lincoln Labs will be entitled to suspend any or all Services if, and so long as, in Lincoln Labs’ sole judgment, there is a security risk created by Customer that may interfere with the proper continued provision of the Services or the operation of Lincoln Labs’ network or systems. Lincoln Labs may impose an additional charge to reinstate service following such suspension. Customer remains obligated for all payment obligations under this Agreement in the event of suspension. Lincoln Labs reserves all rights and remedies under the Agreement.
a. Independent Contractor. Lincoln Labs and Customer are independent contractors. Neither Lincoln Labs nor Customer are, or shall be deemed for any purpose to be, employees or agents of the other and neither party shall have the power or authority to bind the other party to any contract or obligation.
b. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Except as provided in Section 10(g), Customer and Lincoln Labs consent to the jurisdiction of the state courts of the State of Delaware located in New Castle County, and the U.S. District Court for the District of Delaware.
- Entire Agreement and Modifications. Each party acknowledges that it has read the Agreement and agrees that the Agreement is the complete and exclusive statement of the parties and supersedes and merges all prior proposals, understands and agreements, whether oral or written, between the parties relating to the subject matter hereof. No modification, amendment or supplement to the Agreement shall be binding upon the parties hereto unless made in writing and signed by the authorized representatives of both parties.
- Severability. In the event one or more of the provisions of the Agreement is held to be invalid or otherwise unenforceable by a court of competent jurisdiction for the matter in question, the enforceability of the remaining provisions shall be unimpaired.
- Waiver. The failure of either party at any time to enforce any right or remedy available to it under the Agreement with respect to any breach or failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach of failure by the other party.
- Assignment. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assigns. No party shall assign the Agreement or any of its rights or obligations hereunder without the prior written consent of the other party; provided, however, that Lincoln Labs may assign the Agreement and all of its rights and obligation hereunder as a part of a merger or sale of substantially all of the assets or stock of Lincoln Labs. Any assignment by Customer in violation of this Section shall be null and void.
- Arbitration. Except for the: (i) right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm; or (ii) Lincoln Labs’ right to collect fees due hereunder, any claim or controversy arising out of or relating to the Agreement shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration proceedings shall be conducted before a single arbitrator from a panel of persons having experience with and knowledge of the subject matter hereof. The place of arbitration shall be New Castle County, Delaware, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any action, proceeding or arbitration hereunder.
- Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform, all or any part of the Agreement (except for payment obligations), if and to the extent such delay or failure is caused by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this Section, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, explosions, any law or direction of any governmental entity; civil unrest; viruses or denial of service attacks; telecommunications failure. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Notices. Any notice required or permitted under the Agreement or required by law must be in writing and must be: (i) delivered in person; (ii) sent via first class registered mail; or (iii) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person and address set forth in the signature block of the Sales Order. Notices shall be considered to be have been given at the time of actual delivery in person, two (2) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight courier service, provided in each case that delivery in fact is affected.
- Survival. Sections 1, 4, 5, 6, 7, 8, 9, 10, and any provisions of the Agreement that by their terms or nature are intended to survive, shall survive termination or expiration of the Agreement.
- Counterparts. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.