January 2, 2019

Master Services and Purchasing Agreement


THIS MASTER SERVICES AND PURCHASING AGREEMENT (this “Agreement”) is entered into of       (“Effective Date”) by and between Point Wireless Brokers, LLC dba eSquared Communication Consulting, LLC, a Arizona limited liability company with a principal place of business at 4625 S. Ash Ave. Suite J-17, Tempe, AZ 85282 (“Vendor” or “Company”)  and       a limited partnership with a principal place of business at       (“Formal Company Name” or “Customer”).   Customer on behalf of itself and Customer’ Affiliates, as that term is defined herein.


In consideration of the mutual promises and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, Customer or, where applicable, a Customer Affiliate, agrees to purchase from Vendor certain Products and Services, as those terms are defined herein, and Vendor agrees to provide Customer or, where applicable, a Customer Affiliate, such Products and Services, on the terms and conditions attached hereto (the “Terms and Conditions”).


For purposes of this Agreement, “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Customer, where “control” means ownership of fifty percent (50%) or more of the outstanding voting and, for the avoidance of doubt, specifically includes all such entities located in Canada. Affiliates of Customer as of the Effective Date, including Affiliates located in Canada, are set forth in Exhibit A.  In the event that Customer acquires, divests, or otherwise modifies the list of Affiliates, Customer shall so notify Vendor in writing and Exhibit A shall be deemed amended to insert, delete, or replace the relevant Affiliate without further action by the parties.


Customer’ Affiliates may purchase Products and Services, as those terms are defined herein, from Vendor on the Terms and Conditions.  The Terms and Conditions shall be deemed to be an independent agreement between Vendor and the purchasing Affiliate where the purchasing Affiliate shall be substituted for “Customer”. The agreement between Vendor and the purchasing Affiliate shall govern all purchases from Vendor and incorporate by this reference any Statement of Work or Order executed by the Affiliate or by Customer on the Affiliate’s behalf.


Affiliates purchasing Products and Services under this Agreement shall be responsible for all obligations, including payment, set forth in the Terms and Conditions and shall bear all risks with respect to such purchases. However, in the event any Affiliate is in default of its payment obligations for purchases under the Terms and Conditions, Customer guarantees such payment obligations and shall make prompt payment of undisputed amounts due to Vendor.





1.1          Term.  Subject to earlier termination as provided in Article 7, the initial term of this Agreement shall be for a period beginning on the Effective Date and, unless earlier terminated as set forth herein, continue until   (“Initial Term”).  This Agreement shall automatically renew thereafter for successive one-year terms unless terminated as set forth herein (each a “Renewal Term” and collectively with the Initial Term the “Term”).  All orders placed under this Agreement must be placed prior to the expiration or termination of the Agreement.


1.2          Statement of Work Term. The term of any Statement of Work (“SOW”) shall be as set forth therein, and may be coterminous with this Agreement or longer or shorter than the term hereof.  Termination of any Statement of Work shall not affect the term of this Agreement or any other Statement of Work.  Termination of this Agreement shall not affect any Statement of Work(s) unless such Statement of Work(s) is/are specifically terminated.




2.1          Statements of Work. Vendor shall provide to Customer services in accordance with the provisions, specifications, conditions, warranties and agreements set forth herein and as more fully described in separate “Statement of Work” that shall, from time to time, be defined and executed by the parties (“Services”).  Each such Statement of Work shall be substantially similar to the example Statement of Work attached to this Agreement as Schedule A and shall be incorporated herein by this reference. In the event of a conflict between this Agreement and a Statement of Work, the terms of this Agreement shall control unless the clause in the Statement of Work expressly references the conflicting term of this Agreement.


2.2          Services and Work.  Vendor represents and warrants that it and (if applicable) its employees will perform the Services on time and pursuant to the quality standards set forth in any SOW executed by the parties.  In the event Vendor and/or its employees fail to do so, Customer may withhold payments until the Services have been satisfactorily performed, and Vendor and/or its employees shall do whatever is necessary to remedy the failures of performance at Vendor's expense. In the event Vendor and/or its employees are unable or unwilling to do so in a timely basis, Customer shall be entitled to pursue any remedy available to it at law or equity.


2.3          Phases of Work.  If a Statement of Work states that Vendor shall provide Services in phases, Vendor agrees to perform each phase of Services in the order specified in the Statement of Work, and at the conclusion of each phase to submit a progress report to Customer that certifies that Vendor has completed all the tasks that were a part of that phase.  Each progress report shall be signed by an authorized manager of Vendor who shall certify that the representations contained therein are complete and accurate.  The progress report shall also set forth any changes recommended by Vendor with respect to any remaining phases of Services.


2.4          Vendor Employees.  With respect to all of Vendor's employees supplied to Customer to perform the Services, Vendor agrees that it will screen all such individuals to ensure that each such person is fully qualified to perform the Services, and if required by state law or local ordinance, is validly licensed and/or has obtained all requisite permits to perform such Services for Customer.  Customer may reject any individual Vendor employee assigned to a Customer project at any time for reasonable cause, and Vendor will replace such rejected employee as soon as reasonably possible with an employee acceptable to Customer.  In the event Vendor must replace an employee, Vendor will not charge Customer for the time it takes to get such replacement employees trained and familiarized with the project (not to exceed a period of 30 calendar days) and will absorb any overtime costs needed to ensure that the project stays on schedule.


2.5          Data Access.  Vendor shall install and keep fully functional on all computer equipment connected directly or indirectly to any computer equipment of Customer security measures and protocols, including anti-virus software, that conform with then-current industry standards and then-current security policies of Customer.  During the term, Vendor shall follow all protocols and practices provided by Customer with respect to data access and use reasonable efforts, consistent with industry standards, to ensure that Vendor does not intentionally or unintentionally permit unauthorized access by third parties into any computer equipment, software, or data storage devices used by Customer.  Provided, however, that Vendor shall notify Customer in writing in the event that any security policy, protocol, or procedure implemented by Customer would require Vendor to incur an unreasonable cost and the parties shall negotiate in good faith to agree to adopt a less costly alternative.


2.6  Customer Data.  All information and data provided to Vendor by or on behalf of Customer, including data acquired by Vendor via access to Customer networks and databases, (collectively, “Customer Data”) shall be the Confidential Information of Customer as that term is defined below.




3.1          Recorded Calls: Customer understands that some or all inbound and outbound calls including service and support calls will be recorded by Vendor.





4.1          Ordering Procedure.  Vendor shall provide a secure online portal through which Customer may submit orders for hardware and other products (“Order”). Vendor shall not accept Orders unless placed or approved by authorized personnel designated by Customer.  Customer may change such designation immediately upon written notice to Vendor.


4.2          Orders. Each Order shall be governed by this Agreement and incorporated herein by this reference. In the event of a conflict between this Agreement and an Order, the terms of this Agreement shall control unless the clause in the Order expressly references the conflicting term of this Agreement.


4.3          Reseller.  The parties agree that vendor is acting as a reseller of Products.  Except as otherwise expressly provided herein, Vendor shall not provide warranties with respect to the Products.  However, Vendor shall pass through or assign to Customer the rights Vendor obtains from the vendors of any Products, including warranty and indemnification rights. Vendor shall coordinate with, and be the point of contact for, resolution of any warranty non-conformity or other Product issue through the applicable vendor.  Without diminishing its other obligations under the Agreement, if any warranties or indemnities may not be passed through, Vendor shall, upon Customer’ request, take commercially reasonable action to enforce (not to include any obligation to initiate litigation or formal dispute resolution) any applicable warranty or indemnity that is (a) reasonably relevant and applicable to the nonconforming Product and (b) enforceable by Vendor in its own name.




5.1          Fees.  Customer will pay to Vendor the fees in the amounts and in the manner set forth in the appropriate Statement of Work or Order.  For the administrative convenience of both Customer and Vendor, Customer may order Products and Services and make payments on behalf of its Affiliates. Vendor agrees to provide ordering and invoicing data in a form reasonably required by Customer.


5.2          Rates.  Unless otherwise set forth in a Statement of Work, Vendor shall provide Services at the rates set forth in Exhibit B.  The rates set forth in Exhibit B shall not increase during the Initial Term.  Thereafter, Vendor shall not increase rates more frequently than once per calendar year, and any such increase may not exceed the lesser of (a) three percent (3%) over the prior calendar year or (b) the percentage by which the CPI (as that term is defined below) for the month in which the rate is increased exceeds the CPI for the same month in the previous year. For purposes of this Agreement, “CPI” shall mean the Consumer Price Index for All Urban Consumers as published by the Bureau of Labor Statistics of the Department of Labor.


5.3          Expenses.  Customer will reimburse Vendor for all reasonable out‑of‑pocket costs and expenses, including without limitation reasonable travel and travel‑related expenses, incurred by Vendor in providing Services associated with this Agreement or any Statement of Work.  All travel and travel-related expenses shall be in accordance with Customer’ then-current IT Vendor Travel Policy.


5.4          Invoices.  Vendor will invoice Customer on a monthly basis for all fees and charges due and payable hereunder, unless provided otherwise in a Statement of Work.


5.5          Dispute.   In the event Customer disputes any amount set forth in an invoice provided by Vendor, Customer shall so notify Vendor in writing within sixty (60) days of the date of the invoice. Such writing shall provide a detailed description of the amount and reasonable grounds for dispute.  Customer shall not dispute any invoice except based on a good faith belief that an invoice amount was charged in error. Invoice amounts shall be deemed accepted by Customer if Customer does not provide such written notification.


5.6          Audit.  Vendor shall maintain complete and accurate accounting records, in a form in accordance with standard accounting practices, to substantiate Vendor's charges under all Statement of Works. Such records shall include, but not be limited to, time cards, job cards, attendance cards, job summaries and travel expense reports if reimbursement is claimed for such expenses. All payments, if any, made by Customer shall be subject to final adjustments as determined by such audit(s). Vendor shall retain such records relating to each Statement of Work for a period of two (2) years from the date of final payment for Services covered by each Statement of Work.


5.7          Billable Hours. Hours of support are considered billable if captured in company CRM tool which records time spent on service tickets. Non-billable hours are defined as those hours spent on items that are listed and priced separately in the specific SOW, e.g. “staging and kitting” if listed as a billable item at $30/unit, will not be calculated into billable hours. Sales representative’s or upper management’s time spent interacting with Customer is also non-billable.




                Vendor represents and warrants that, in performing the Services:


(a) Vendor will strictly comply with the descriptions and representations as to the Services and Deliverables (including performance capabilities, accuracy, completeness, characteristics, specifications, configurations, standards, functions and requirements) which appear in this Agreement and in the Statement of Work(s);


(b) Vendor and its employees will perform the Services on time;


(c) Vendor's work product shall be uniform in appearance, clean and presentable in accordance with generally applicable standards in the industry;


(d) any preparation software or data analysis used in the Services shall be available to Customer for a period of ten (10) years following the completion of the Services. This warranty shall only apply to preparation software or data analysis owned by or under the control of Vendor;


(e) the Services will not be in violation of any applicable law, rule or regulation, and Vendor will have obtained all permits required to comply with such laws and regulations;


(f) the Services will not violate or in any way infringe upon the rights of third parties, including property, contractual, employment, trade secrets, proprietary information and nondisclosure rights, or any trademark, copyright or patent rights;


(g) it is the lawful owner or licensee of all programs not provided by Customer used in the performance of the Services contemplated hereunder; such programs have been lawfully developed or acquired by Vendor and Vendor has the absolute right to permit Customer access to or use of such program;


(h) it will screen all employees supplied to Customer to ensure that each employee is fully qualified to perform the Services, and if required by state law or local ordinance, is validly licensed and/or has obtained all requisite permits to perform such Services for Customer .




7.1          Termination for Cause.  If either party materially defaults in its performance under this Agreement or any Statement of Work and fails to cure such default within thirty (30) days after receiving written notice specifying the default, then the performing party may terminate this Agreement or any applicable Statement of Work by written notice to the breaching party.



7.5          Obligations Upon Termination.  Upon the termination of this Agreement or any Statement of Work, by either party, each party shall promptly return or, at the other party’s option, destroy other all data, materials and other properties of the other held by it.  In addition, Vendor agrees to reasonably cooperate and provide such assistance and information as may be reasonably requested by Customer so that Customer may complete any outstanding Deliverables.


7.6.         Post-Termination Transition.  Within fifteen (15) days of the termination of this Agreement for any reason or Customer’ payment of all undisputed amounts due hereunder as of the date of termination, whichever occurs later, Vendor shall:

(a)           at Customer’ expense and direction, arrange to ship any Products or other hardware or materials in Vendor’s possession to a location designated by Vendor;

(b)           provide Customer with any logins, passwords, or other information used by Vendor on Customer’ behalf and reasonably required to access Products or provide the Services;

(c)           provide Customer with any policies, procedures, knowledge banks, workflows, or other information created by Vendor specifically to provide the Services to Customer; and provide; and

(d)           provide Customer a report showing the status of any open support tickets as of the date of termination.





8.1          Deliverables.  Vendor agrees that the Deliverables, the Customer Data, and all Intellectual Property Rights (as such term is defined below) relating to the Deliverables and Customer Data shall be the sole and exclusive property of Customer and Vendor hereby irrevocably assigns all of its right, title and interest in the foregoing Deliverables, Customer Data, and Intellectual Property Rights to Customer. The parties acknowledge that to the full extent applicable, the Deliverables shall be deemed works made for hire under the United States copyright laws. In the event that a Deliverable is determined not to be a work made for hire under the United States copyright laws, Vendor hereby irrevocably assigns the copyright in the Deliverable including all rights thereunder to Customer in perpetuity. Vendor agrees to execute such further documents and perform such other acts as Customer may reasonably deem necessary, useful or convenient to evidence or perfect the rights of Customer defined herein. For purposes of this Agreement, “Intellectual Property Rights” shall mean all copyright, patent, trade secret, trademark, moral, termination, authorship, right of publicity, and other proprietary rights.


8.2          Third-Party Software.  In the event that any of the Deliverables are to include any third-party software not owned by Vendor (“Third-Party Software”), Vendor shall provide to Customer, prior to the execution of the applicable Statement of Work for such Deliverables, any software license agreements that relate to the Third-Party Software.  Customer may negotiate the terms of such software license agreements directly with the provider of such Third-Party Software.  If Vendor fails to provide Customer such Third-Party Software license agreements prior to the execution of a Statement of Work, and if any of the terms of such software license agreements are unacceptable to Customer, in its sole discretion, Customer may terminate the Statement of Work immediately and shall be entitled to a full refund of any fees paid to Vendor for such Statement of Work




In no event shall either of the parties hereto be liable to the other for the payment of any indirect, special, incidental or consequential damages. However, the provisions of this ARTICLE shall not apply, in any way, to (a) Vendor's obligation to indemnify any Indemnified Party UNDER ARTICLE 10 BELOW or (B) claims of intentional misconduct arising out of or in connection with Vendor’s performance under this AGreement or any applicable Statement of Work.




Customer and Company shall defend, indemnify and hold harmless the other from and against any and all claims for damage to tangible property or bodily injury, including claims for wrongful death, to the extent that such claim arises out of the gross negligence or wrongful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with this Agreement or the provision of Services hereunder.  (b) Customer will defend, indemnify and hold harmless Company and its officers, directors, members, stockholders, employees, contractors and agents and third party providers and underlying carriers from and against any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or un-liquidated, including without limitation, all reasonable costs and expenses incurred including all reasonable litigation costs and attorneys’ fees arising out of, resulting from or based upon any complaint, claim, action, proceeding or suit of any third party based upon an alleged defect in or failure of Service, failure to obtain approval, consent, or authorization, or based on Customer’s  violation of any law or any rule or regulation due to the sole negligence of the Customer.  This indemnity extends to any and all third party applications, services, or hardware represented or administered by Vendor (e.g. mobile device management or “MDM” software providers), and Company shall not be held liable for any loss or damages (financial or other) resulting from failure of such applications, services, or hardware.






11.1        Acknowledgement. Each party acknowledges and agrees that in order for the other party to fulfill its obligations hereunder, the first party (the “Discloser”) may from time to time disclose certain Confidential Information (as defined below) to the other party (the “Recipient”).  Each party acknowledges and agrees that the other party’s Confidential Information has significant monetary and strategic value to that party.

11.2        Obligation of Confidentiality.  Except as expressly authorized elsewhere in this Agreement, Recipient shall use its best efforts to strictly maintain the Confidential Information of Discloser as confidential and shall not use or disclosure such Confidential Information to third parties without the Discloser’s prior written approval.  Vendor shall use Customer’ Confidential Information solely for the purposes of performing its obligations hereunder and for no other purposes.  Vendor shall limit its disclosure of Customer’ Confidential Information to its employees, agents and representatives with a need to know such Confidential Information.


11.3        Injunctive Relief.  Recipient acknowledges that a breach by it of this Article 11 will give rise to irreparable injury to the Discloser, inadequately compensable in damages.  Accordingly, Recipient hereby consents to the obtaining by Discloser of injunctive relief against the breach or threatened breach of the undertakings of Recipient contained in this Article 11.  Recipient further agrees that such an order so enjoining it may be issued pending final determination thereof, without the requirement to post a bond.  The obligation of Recipient under this Article 11 shall survive the termination of this Agreement.


11.4        Definition.  “Confidential Information” shall include all trade secrets, confidential and/or proprietary information of Discloser, whether of a technical, engineering, operational, financial or marketing nature, that is (a) in writing and marked as “Trade Secret,” “Confidential,” “Proprietary” or with words of a similar nature; (b) orally disclosed and clearly identified as a trade secret, confidential and/or proprietary at the time of such oral disclosure and confirmed as such in writing promptly following such oral disclosure; or (c) of such a nature that Recipient should clearly expect that Discloser would deem the information a trade secret, confidential and/or proprietary.




Any controversy or claim, whether based on contract, tort, strict liability, fraud, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement (“Dispute”) shall be resolved solely in accordance with the terms of this Article 12.  If the Dispute cannot be settled by good faith negotiation between the parties, Vendor and Customer will submit the Dispute to non-binding mediation to be held in Tempe, AZ.  If complete agreement cannot be reached within ten (10) days of submission to mediation, any appropriate claims may be brought in a state or federal court of competent jurisdiction (as described in more detail below) or resolved through binding arbitration if the parties mutually agree in writing to such arbitration.




13.1        Independent Contractor. Vendor agrees that in rendering all Services hereunder, Vendor and any person employed by Vendor to perform the Services shall act (and be considered for all purposes) as a contractor independent of Customer, and not as an employee or agent of Customer. In its capacity as an independent contractor Vendor agrees and represents, and Customer agrees, that Vendor: (a) has the right to control and direct the means and methods of performing the Services by itself and its employees; (b) will provide supervision of all its employees assigned to perform the Services; (c) will perform, or ensure that its employees will perform, the Services off the premises of Customer if possible, or if the Statement of Work is such that the Services must be performed on Customer’ premises, will restrict its and its employees’ work to a separate assigned work area as much as is feasible; (d) receives compensation from Customer only as set out in the Statement of Work and does not participate in benefits of any sort which Customer offers to its employees; (e) is responsible for paying all ordinary and necessary expenses of its employees, except to the extent the Statement of Work specifies reimbursement of expenses, which Vendor shall claim by submitting its own expense vouchers; (f) assumes the risk of loss if the payments to Vendor specified in this Agreement do not equal or exceed the fixed or not-to-exceed price set forth in the applicable Statement of Work; (g) shall, to the extent practical, keep its equipment, materials, drawings and the like separate from any Customer property, and will not remove any Customer property from the premises without prior written approval by an authorized representative of Customer; (h) maintains a place of business at a location other than the premises of Customer; (i) will not require that it or its employees be trained by Customer in the professional skills necessary to perform the Services, though the Customer may give general directions and orientation instructions; (j) shall be fully liable for the negligent or willful injurious acts or omissions of itself and its employees causing harm to persons or property, but shall not be liable for consequential damages due to defects in performance; and (k) shall deal with Vendor employees' trade or union representatives, negotiate all employee disputes and terminate or change all employee assignments.


Inasmuch as Vendor and Customer are contractors independent of one another, neither has the authority to bind the other to any third person or otherwise to act in any way as the representation of the other, unless otherwise expressly agreed to in writing signed by both parties hereto. Further, Vendor agrees not to represent itself as Customer’ agent for any purpose to any party unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose(s) stated in such authorization. This prohibition includes the use by Vendor of Customer’ stationery and forms; all contracts with third parties shall be made on Vendor's own stationery and in Vendor's own name.  Vendor agrees to assume full liability for any contracts or Agreements Vendor, its employees, or Vendor’s sub-vendors enter into on behalf of Customer without the express knowledge and written consent of Customer.


13.2        Governing Law.


13.2.1 This Agreement shall be governed by and constituted in accordance with the laws of the State of Arizona.  Any suit between the parties hereto, other than one seeking payment of the charges due hereunder, shall be commenced, if at all, within one (1) year of the date that the claim accrues.


13.2.1 Any dispute or matter arising in connection with or relating to this Agreement shall initially be attempted to be resolved by non-binding arbitration under the rules of the American Arbitration Association.  Any such dispute shall be determined on an individual basis, shall be considered unique as to its facts, and shall not be consolidated in any arbitration or other proceeding with any claim or controversy of any other party.


13.3        Notice.  Any notice necessary under this Agreement shall be in writing and shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received if sent by telecopy, prepaid courier, express mail or personal delivery, to the addresses provided at the beginning of this Agreement.


13.4        Severability.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions, and this Agreement shall be construed as if such invalid or unenforceable provisions were omitted, unless the omission of such provision would deprive one of the parties of a material benefit of its bargain hereunder.


13.5        Assignment.


13.5.1 Neither party shall assign or subcontract the whole or any part of this Agreement without the other party's written consent, except that: (a) Customer has the right to assign this Agreement and the appropriate Statement of Work(s) or to delegate any duties due under this Agreement and Statement of Work(s) to any of its current or future affiliates or subsidiaries provided that Customer remains the guarantor of, and is fully liable for, the performance of all its obligations under this Agreement and (b) Vendor may assign this Agreement and the appropriate Statement of Work(s) pursuant to the terms of any merger, sale of its stock or assets, or other transaction which results in a change of ownership or control.  Customer may terminate this Agreement and any Statement of Work on sixty (60) days written notice after an assignment by Vendor if the Agreement is assigned to: (i) a foreign entity not subject to U.S. law; (ii) an entity that is not in or after assignment ceases the business of soliciting customers for the type of products and services provided hereunder; (iii) a supplier who is in a dispute with Customer at the time of the proposed assignment based on products or services substantially similar to those provided under this Agreement; or (iv) a competitor of Customer.


13.5.2  Vendor represents that the individuals who are to perform the requested services as defined in this Agreement or any Statement of Work are employees of Vendor and are not contractors or subcontractors. Vendor shall not subcontract any portion of the Services without first obtaining Customer’ written authorization to do so.


13.6        Waiver.  The forbearance or failure of one of the parties hereto to insist upon strict compliance by the other with any provisions of this Agreement, whether continuing or not, shall not be construed as a waiver of any rights or privileges hereunder.  No waiver of any right or privilege of a party arising from any default or failure hereunder of performance by the other shall affect such party's rights or privileges in the event of a further default or failure of performance.


13.7        Binding Effect.  This Agreement shall be binding on and inure to the benefit of the parties and their respective permitted successors and assigns.


13.8        Insurance.


13.8.1    Comprehensive.  Vendor shall, at its sole cost and expense, secure and maintain, at all times during the term of this Agreement, with one or more insurance companies reasonably acceptable to Customer, and on forms acceptable to Customer comprehensive general liability insurance in an amount not less than One Million Dollars ($1,000,000) insuring against loss, damage or injury that might arise out of or in connection with this Agreement and including, without limitation, personal injury liability, property damage, products liability, defamation, advertising injury, infringement, independent contractors and broad form contractual liability coverage specifically in support of the indemnity obligations of Vendor contained in this Agreement. Should Vendor use subcontractors for providing any of the goods or services pursuant to this Agreement, Vendor shall require such subcontractors to maintain liability insurance in accordance with the provisions hereof.


13.8.2    Inventory.  At all times during the term, Vendor shall maintain insurance in an amount sufficient to cover the loss of all Products purchased by Customer from Vendor and any other hardware or goods owned by Customer but stored or otherwise held in Vendor’s possession on behalf of Customer, unless Customer agrees in writing to a lower coverage amount.  Vendor shall notify Customer in writing of the cost and terms of such insurance, and Customer shall pay Vendor One hundred percent (100%) of such costs.


13.8.3    Insurance Requirements. All insurance policies hereunder shall name Customer as an additional insured, shall not be cancelable without thirty (30) days prior written notice to Customer and shall be written as primary policies (primary over any insurance carried by Customer), not contributing with and not in excess of coverage which Customer may carry, if any. Vendor hereby releases Customer and its directors, officers, shareholders, representatives, and affiliates (collectively, "Affiliates") from any and all claims or causes of action whatsoever that Vendor might otherwise possess resulting in or from or in any way connected with any loss covered or that should have been covered by insurance, including the deductible portion thereof, maintained and/or required to be maintained by Vendor hereunder.  All insurance policies required to be maintained by Vendor hereunder shall include an endorsement waiving the insurer's right of subrogation against Customer and its affiliates. Vendor and its subcontractors must provide Customer with certificates of insurance evidencing the above minimum requirements within thirty (30) days of the Effective Date or Customer may terminate this Agreement or withhold payment of any amounts due until it receives such certificates.


13.9        Entire Agreement. This Agreement and any Statement of Work(s) constitute the entire Agreement and understanding of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter.  The parties agree that there is no oral or other Agreement between the parties which has not been incorporated into this Agreement.  This Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto.


13.10     Modification.  Vendor and Customer shall modify or rescind this Agreement or any Statement of Work hereunder only in a written Change Order which is signed by both parties. Additions or deletions to Customer’ Statement of Work(s), or provisions on Vendor’s forms shall be considered deleted and have no effect, unless Customer expressly consents to them in writing.


13.11  Survival.  All obligations of the parties that expressly or by their nature survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding its expiration or termination and until they are satisfied in full or by their nature expire.


13.12 Non-solicitation. Both parties acknowledge that each has a substantial investment in their respective employees and consultants.  In consideration of this investment, during the term of this Agreement and for the six (6) months thereafter, neither party may directly and knowingly solicit, recruit or hire the other party’s personnel involved with providing services under this Agreement without the prior written consent of the other party; provided, however, that the foregoing does not prevent a party from employing such persons who contact such party on their own initiative without prior solicitation from such party or who respond to general advertisements or other general solicitations of employment not specifically directed to the other party’s personnel.



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