DIGITAL FUTURES MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is between [CLIENT’S NAME] (“CLIENT”),an organization located in the State of [state], with a principal place of business at [street address], [city], [state] [zip code], and DIGITAL FUTURES, INC. (“DIGITAL FUTURES”)(the “Service Provider”), a corporation located in the State of North Carolina, with a principal place of business at 2530 Meridian Parkway, Suite 300, PMB 26606, Durham, NC 27713. The CLIENT and DIGITAL FUTURES are collectively referred to herein as “Parties” and individually as a “Party.”
WHEREAS, DIGITAL FUTURESis a woman and minority-owned business enterprise that supports the operations and advancement of clients’ digital hardware, software, infrastructure and people capabilities, all by providing services and tools to enable clients to create and maintain both physical and digital technology infrastructures that support ever-changing business operations and customer expectations – including cloud connectivity services, internet connectivity services, digital infrastructure support desk services, mobile device management services, laptop lease or purchase programs, and education and training on laptop and computer software programs usage – with a portfolio of client offerings delivered to K-12 educational institutions, higher education institutions, small and mid-size businesses, and non-profit organizations (“Services”);
WHEREAS, The details of the Services to be provided by DIGITAL FUTURES to CLIENT shall be set forth in one or more Statements of Work that the Parties may execute pursuant to this Agreement (each, a “Statement of Work” or “SOW”);
WHEREAS, For purposes of this Agreement, “Affiliate” means any entity that is controlled by, or is under common control between CLIENT, or DIGITAL FUTURES, and a Third Party. More specifically, Affiliates may consist of subcontractors, teaming partners or subsidiaries of either Party. And, Affiliates of either Party shall have the right (but not the obligation) to enter into Statements of Work with that Party under the terms and conditions of this Agreement. Therefore, all references to CLIENT or DIGITAL FUTURES in this Agreement shall be deemed to include the Affiliate of CLIENT or DIGITAL FUTURES, as the case may be, entering into any SOW hereunder. And the SOW of an Affiliate shall be subject to the terms and conditions of this Agreement;
WHEREAS, the CLIENT desires to engage DIGITAL FUTURES, on a non-exclusive basis, to provide the Services stated herein;
WHEREAS, DIGITAL FUTURES is willing and able to provide Services to the CLIENT;
NOW, THEREFORE, for and in consideration of the mutual promises and agreements contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties, intending to be legally bound hereby, agree as follows:
1. INCORPORATION OF THE RECITALS.
The Recitals above are incorporated herein as terms and conditions of this Agreement.
(a) Terms and Conditions. The CLIENT shall pay DIGITAL FUTURES, in accordance with SOW #1.
(b) No Payments in Certain Circumstances. No payment will be payable to DIGITAL FUTURES under any of the following circumstances:
(i) If prohibited under applicable government law, regulation or policy;
(ii) If DIGITAL FUTURES did not directly perform or complete the Services described in SOW #1;
(iii) If DIGITAL FUTURES did not perform the Services to the reasonable satisfaction of the CLIENT; or
(iv) If the Services performed occurred after the expiration or termination of the Term of this Agreement, unless otherwise agreed to in writing between the Parties.
(c) No Other Payment. The payment set out above will be DIGITAL FUTURES’s sole compensation under this Agreement.
(d) Reimbursable Expenses. In addition to compensation for specific Services, DIGITAL FUTURES shall be reimbursed for the actual out-of-pocket and pre-approved expenses directly related to undertaking the Services, in accordance with SOW #1.
(e) Taxes. DIGITAL FUTURES is solely responsible for the payment of all income, social security, employment-related, or other taxes incurred as a result of the performance of the Services by DIGITAL FUTURES under this Agreement, and for all obligations, reports, and timely notifications relating to those taxes. The CLIENT has no obligation to pay or withhold any sums for those taxes.
(f) Other Benefits. DIGITAL FUTURES has no claim against the CLIENT under this Agreement or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
(g) Invoicing, Payments & Late Payment Interest. DIGITAL FUTURESshall submit a monthly invoice to the CLIENT for payment. Invoices shall be submitted by electronic mail by DIGITAL FUTURES to the CLIENT within five (5) business days after the 15th of each month. DIGITAL FUTURES shall submit monthly invoices detailing the Services rendered pursuant to this Agreement. The monthly invoice shall include the services rendered, hours worked or specific tasks and deliverables completed. Pre-approved and reimbursable expenses shall be billed at cost with supporting documentation. Payments shall be made within fifteen (15) calendar days of the CLIENT’s receipt and approval of such invoices, unless the Parties agree to an alternative arrangement, as set forth in SOW #1. All payments shall be specified and made in U.S. dollars. The CLIENT reserves the right to review and verify the accuracy of information and satisfactory performance of the work. The CLIENT shall pay interest on any late payments at the rate of one and one-half percent (1 and 1/2%) per month until all such amounts, including interest, are paid to DIGITAL FUTURES in full. The interest amount shall be calculated from the invoice date.
3. TERM AND TERMINATION.
(a) Effective Date/Term. This Agreement shall become effective as of the dates the Agreement is signed by the Parties, as set forth in the signature section below (“Effective Date”). The date on which this Agreement is signed by the last Party (as indicated by the date associated with that Party’s signature) shall be deemed the Effective Date of this Agreement. Unless it is terminated earlier in accordance with Subsection 4(b), this Agreement shall continue until the Services have been satisfactorily completed and DIGITAL FUTURES has been paid in full for such Services (the “Term”).
(b) Termination. This Agreement may be terminated:
(i) By either Party, with cause, upon providing thirty (30) calendar days’ written notice to the other Party;
(ii) By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within thirty (30) calendar days of receipt of written notice of the breach; or
(iii) By the CLIENT at any time and without prior notice, if DIGITAL FUTURES is convicted of any crime or offense of intentional violence or moral turpitude, fails or refuses to comply with the written policies or reasonable directives of the CLIENT, or is found guilty of serious misconduct in connection with performance under this Agreement.
(c) Effect of Termination. After the termination of this Agreement, for any reason, the CLIENT shall promptly pay DIGITAL FUTURES for Services rendered before the effective date of the termination. No other payment, of any nature or type, shall be payable after the termination of this Agreement, unless required by applicable law.
4. VALIDITY AND RENEWAL OF AGREEMENT
This Agreement shall be valid for a period of two (2) years from the Effective Date first hereinabove specified, and this Agreement shall be automatically renewed for successive two (2) year periods unless notice of non-renewal is issued by either Party at least sixty (60) days prior to the expiration of this Agreement.
5. OWNERSHIP OF DELIVERABLES AND INTELECTUAL PROPERTY
(a)Custom Software. After the CLIENT has made full payment of all fees and expenses due under this Agreement, the CLIENT shall acquire ownership rights in any Deliverable(s) provided by DIGITAL FUTURES under this Agreement, including but not limited to Custom Software (as defined below). DIGITAL FUTURES hereby assigns to the CLIENT, subject to the CLIENT’s timely payment of amounts due under this Agreement, all ownership rights in any Custom Software developed by DIGITAL FUTURES under a SOW. For the purposes of this Agreement, “Custom Software” shall mean any software specifically written or developed by DIGITAL FUTURES for the CLIENT under a SOW, excluding any software identified as third party software (“Third Party Software”).
To the extent that DIGITAL FUTURES cannot grant the aforementioned rights to Third Party Software or materials, then such Third Party Software or material will be identified in the applicable SOW prior to execution, or otherwise in writing, and the CLIENT shall determine, at its sole option, how to procure such rights
(b) Knowledge Capital. DIGITAL FUTURES shall retain all right, title and interest in all of its ideas, know-how, approaches, methodologies, concepts, skills, techniques, processes, standard operating procedures, and expressions (collectively referred to as “Knowledge Capital”), irrespective of whether possessed by DIGITAL FUTURES prior to this Agreement, or acquired, developed, or refined by DIGITAL FUTURES (either independently or in concert with the CLIENT but excluding the CLIENT’s proprietary ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes identified in writing in advance to DIGITAL FUTURES) during the course of its performance under this Agreement.
It is agreed and understood that DIGITAL FUTURES is in the business of providing services, products and applications to third parties, which are or may be substantially similar to any Deliverables being licensed to and/or developed for the CLIENT. It is not the intent of this Agreement to prevent DIGITAL FUTURES from pursuing its stated business by independently creating such original but similar works for the benefit of third parties.
(c) End-User Information. End-user information (other than any DIGITAL FUTURES Work Product contained therein) shall belong exclusively to the CLIENT, whether or not fixed in a tangible medium of expression: all of the CLIENT end user lists, reports, records of communications, and call tracking related to end user correspondence.
It is understood that DIGITAL FUTURES may retain a copy of such end-user information for its files during the term of this Agreement. However any DIGITAL FUTURES Work Product, which existed prior to the date of this Agreement (“Pre-existing DIGITAL FUTURES Work Product”) shall, as between the CLIENT and DIGITAL FUTURES, remain the exclusive property of DIGITAL FUTURES.
This Agreement does not grant or otherwise give either Party ownership in or other proprietary rights or license to use the other Party’s intellectual property rights except as expressly provided for herein. Each Party’s rights and obligations under this Section 5 shall remain in effect and survive any termination or expiration of this Agreement.
6. USE OF HARDWARE.
DIGITAL FUTURES may, from time to time, lease or rent laptops and other computer hardware (“Equipment”) to CLIENT. If that occurs, the terms and conditions of such an arrangement shall be set forth in a separate Lease Agreement between the Parties, including provisions as to the maintenance and return of such Equipment by CLIENT to DIGITAL FUTURES.
7. USE OF TRADEMARKS.
DIGITAL FUTURES may use, reproduce, and distribute the CLIENT’s service marks, trademarks, and trade names (if any) (collectively, the “CLIENT Marks”) in connection with the performance of the Services. Any goodwill received from this use will accrue to the CLIENT, which will remain the sole owner of the CLIENT Marks. DIGITAL FUTURES may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the CLIENT’s interest in the CLIENT Marks. DIGITAL FUTURES may not cause diminishment of value of the CLIENT Marks through any act or representation. DIGITAL FUTURES may not apply for, acquire, or claim any interest in any CLIENT Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of this Agreement, DIGITAL FUTURES will have no further right to use the CLIENT Marks, unless the CLIENT provides written approval for each such use.
8. LIMITATIONS ON THE USE OF DIGITAL SERVICES.
The Parties hereby agree that if DIGITAL FUTURES provides the CLIENT with internet connectivity and other similar digital services, DIGITAL FUTURES reserves the right to establish limitations on how and the extent to which the CLIENT makes use of those services. The objective of this section is to ensure that DIGITAL FUTURES reserves the right to manage costs, quality, and legal liability exposure associated with internet connectivity and other similar services – to include blocking adult websites, game sites, or other streaming services which may greatly impact service deliverability, costs, and other matters associated with the delivery of the Services under this Agreement.
(a) Representations and Warranties of DIGITAL FUTURES. DIGITAL FUTURES represents and warrants to the CLIENT that: (i) the Services shall be performed in a professional manner and as specified in the applicable SOW; (ii) DIGITAL FUTURES’s personnel shall have sufficient skill, knowledge and training to perform the Services; and (iii) for a period of fifteen (15) days following performance of a Service, such Service shall substantially conform to the specifications set forth in the applicable SOW. DIGITAL FUTURES shall, at its sole expense, promptly take all commercially reasonable actions to correct any Services that do not conform to the foregoing warranty. All warranties herein are expressly conditioned upon (A) the CLIENT promptly notifying DIGITAL FUTURES in writing, within fifteen (15) days following performance of a Service, of the non-conformity, which notice must identify with particularity the non-conformity; (B) the CLIENT’s full cooperation with DIGITAL FUTURES in all reasonable respects including, in the case of Custom Software, assisting DIGITAL FUTURES to locate and reproduce the non-conformity; and (C) with respect to any Service, the absence of any alteration or other modification of such Service by any person other than DIGITAL FUTURES. Notwithstanding any provision of this Agreement to the contrary, DIGITAL FUTURES shall NOT be responsible for any delay in performing the Services or Additional Services, or any delay in the delivery schedule, that arises on account of the effects of malicious code or virus introduced by the CLIENT.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, DIGITAL FUTURES IS MAKING NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY REPRESENTATION OR WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SERVICES RENDERED OR THE RESULTS OBTAINED, AND THE CLIENT AGREES THAT ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES THAT ARE NOT PROVIDED IN THIS SECTION 9 ARE HEREBY EXCLUDED AND DISCLAIMED.
DIGITAL FUTURES and the CLIENT shall comply, at all times, as applicable, with the provisions of the United States Foreign Corrupt Practices Act and, without limiting the generality of the foregoing, each Party affirmatively acknowledges that it has not, and shall not agree at any time to pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly to, or for the benefit of: (i) any government official, political party or candidate for political office; or, (ii) any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with the CLIENT’s and DIGITAL FUTURES’s business.
(b) Representations and Warranties of the CLIENT. The CLIENT represents and warrants to DIGITAL FUTURES as follows:
The CLIENT has full power and authority to execute, deliver and perform this Agreement.
This Agreement has been duly and validly authorized, executed and delivered by the CLIENT and constitutes a valid and binding agreement enforceable against the CLIENT, in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to creditors’ rights generally and by principles of equity.
There are no pending or threatened lawsuits, claims, disputes or actions: (i) alleging that any CLIENT-supplied property or Third Party Software or the CLIENT’s content or the CLIENT-provided service, tool, system, process or procedure to be used in providing the Services or Additional Services herein, does or may infringe, violate or misappropriate any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party; or (ii) that does or may adversely affecting the CLIENT’s ability to perform its obligations under this Agreement.
10. CONFIDENTIAL INFORMATION.
(a) Confidentiality. During the Term, DIGITAL FUTURES may have access to or receive certain information of or about the CLIENT that the CLIENT designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by DIGITAL FUTURES (“Confidential Information”).
Confidential Information shall mean any information that provides economic value to the CLIENT by not being generally known, including without limitation, information relating to the CLIENT or its current or proposed business; trade secrets; know-how; research or development projects; operational methods, financial statements; budgets and projections; employers; products; computer programs; specifications; manuals; software; analyses; strategies; marketing plans; business plans; pricing strategy, information or lists; business, scientific, technical or other information; letters; customer lists and correspondence; confidential business information or data; customer identifying information; potential and intended customers; and any other information relating to the CLIENT’S products, services or business which may or may not be marked as “confidential.”
Confidential Information may exist in oral or written form, by drawings, or by any other media.
DIGITAL FUTURES shall treat the CLIENT’S Confidential Information as confidential and will not disclose it to any Third Party or use it for any purpose but to fulfill its obligations under this Agreement.
In addition, DIGITAL FUTURES shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
(b) Exceptions. The obligations and restrictions in subsection 10 (a) above do not apply to that part of the Confidential Information for which DIGITAL FUTURES demonstrates:
(i) Was or becomes generally publically available, other than as a result of a disclosure by DIGITAL FUTURES, in violation of this Agreement;
(ii) Was or becomes available to DIGITAL FUTURES on a non-confidential basis before its disclosure to DIGITAL FUTURES by the CLIENT, but only if:
A. The source of such information is not bound by a confidentiality agreement with the CLIENT or is not otherwise prohibited from transmitting the information to DIGITAL FUTURES by a contractual, legal, fiduciary, or other obligation; and
B. DIGITAL FUTURES provides the CLIENT with written notice of its prior possession either (i) before the effective date of this Agreement or (ii) if DIGITAL FUTURES later becomes aware (through disclosure to DIGITAL FUTURES) of any aspect of the Confidential Information as to which DIGITAL FUTURES had prior possession, promptly on DIGITAL FUTURES so becoming aware;
(iii) Is requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. However, DIGITAL FUTURES shall:
A. Provide the CLIENT with prompt notice of these requests or requirements before making a disclosure so that the CLIENT may seek an appropriate protective order or other appropriate remedy; and
B. Provide reasonable assistance to the CLIENT in obtaining any protective order.
If a protective order or other remedy is not obtained or the CLIENT grants a waiver under this Agreement, the DIGITAL FUTURES may furnish that portion (and only that portion) of the Confidential Information that, in the written opinion of counsel reasonably acceptable to the CLIENT, the DIGITAL FUTURES is legally compelled or otherwise required to disclose. However, the DIGITAL FUTURES shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information disclosed in this way; or
(iv) Was developed by DIGITAL FUTURES independently without breach of this Agreement.
(c) Remedy. Money damages may not be a sufficient remedy for any breach of this Section 10 by DIGITAL FUTURES and, in addition to all other remedies, the CLIENT may seek (and may be entitled to) as a result of such breach, specific performance and injunctive or other equitable relief as a remedy, as provided under applicable law.
(d) Term of This Covenant. The provisions of this Section 10 shall apply during DIGITAL FUTURES’s engagement with the CLIENT and for a three (3) year period thereafter. This covenant shall apply to the CLIENT’s Trade Secrets, as defined under applicable law.
11. OTHER ACTIVITIES/NON-EXCLUSIVITY.
During the Term of this Agreement, DIGITAL FUTURES shall have the right to unilaterally decide to work with other client’s at any given time on services similar to those covered by this Agreement. DIGITAL FUTURES is free to engage in other independent contracting activities, except that DIGITAL FUTURES may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with DIGITAL FUTURES’s obligations or the scope of Services to be rendered for the CLIENT under this Agreement.
12. RETURN OF CLIENT’S PROPERTY.
Within ten (10) business days of the expiration or earlier termination of this Agreement, DIGITAL FUTURES shall return to the CLIENT, upon the CLIENT’s request, retaining no copies or notes, all of the CLIENT products samples, models, property, and documents relating to the CLIENT’s business, including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by DIGITAL FUTURES during and in connection with its work with the CLIENT.
All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the CLIENT’s business, whether prepared by DIGITAL FUTURES or by others, remain the CLIENT’s exclusive property.
(a) Of the CLIENT by DIGITAL FUTURES. At all times after the effective date of this Agreement, DIGITAL FUTURES shall indemnify the CLIENT and its officers, managers, employees, affiliates, subsidiaries, successors, agents and (collectively, the “CLIENT’S Indemnitees”) from all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys’ fees, accounting fees, expert witness fees, costs of investigation, court costs, other litigation expenses, and related business expenses) (collectively, the “Claims”) that any of the CLIENT Indemnitees may incur and that arise from:
(i) DIGITAL FUTURES’s negligence or willful misconduct arising from DIGITAL FUTURES’s carrying out of its obligations under this Agreement;
(ii) DIGITAL FUTURES’s breach of any of its obligations or representations under this Agreement; or
(iii) DIGITAL FUTURES’ breach of any of its obligations or representations under this Agreement. However, DIGITAL FUTURES is not obligated to indemnify the CLIENT if any of these Claims result from THE CLIENT’S own actions or inactions.
(b) Of DIGITAL FUTURES by the CLIENT. At all times after the effective date of this Agreement, the CLIENT shall indemnify DIGITAL FUTURES and its members, employees, contractors, agents, affiliates, successors, and (collectively, “DIGITAL FUTURES’ Indemnitees”) from all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys’ fees, accounting fees, expert witness fees, costs of investigation, court costs, other litigation expenses, and related business expenses) (collectively, the “Claims”) that DIGITAL FUTURES’ Indemnitees may incur arising from:
(i) The CLIENT’s operation of its business;
(ii) The CLIENT’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a Party; or
(iii) The CLIENT’s breach of any of its obligations or representations under this Agreement. However, the CLIENT is not obligated to indemnify DIGITAL FUTURES if any of these Claims result from DIGITAL FUTURES’ own actions or inactions.
The CLIENT has the absolute right to defend any claim arising from any actions or omissions highlighted above and shall have the right to have counsel of its own choosing, the reasonable cost of which shall be borne by DIGITAL FUTURES.
DIGITAL FUTURES shall procure and maintain, at its expense, all insurance coverage required under applicable laws for all claims arising during the term of this Agreement, including but not limited to, as applicable, workers’ compensation, unemployment, and commercial liability insurance.
15. LEGAL COMPLIANCE.
DIGITAL FUTURES shall perform the Services in accordance with standards prevailing in the CLIENT’s industry, and in accordance with applicable laws, rules, or regulations. DIGITAL FUTURES shall obtain all business permits, certificates and licenses required to comply with those standards, laws, rules, or regulations.
16. NO SOLICITATION OF EMPLOYEES.
Each Party agrees not to solicit in any manner, whether directly or indirectly, for employment, any employee of the other Party directly involved in providing the Services hereunder during the Term of this Agreement, including any extension thereof, for one (1) year after this Agreement Termination Date. This restriction does not prohibit either Party from employing general recruiting strategies that are not specifically directed towards the other Party’s employees.
17. FORCE MAJEURE.
No Party shall be considered in breach of or in default of this Agreement because of, and will not be liable to the other Party for, any delay or failure to perform its obligations under this Agreement by reason of fire, earthquake, flood, tornado, hurricane, explosion, strike, riot, war, terrorism, epidemic, pandemic, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”). However, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a) Notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
(b) Use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this Agreement.
Any dispute, controversy or claim arising out of or in connection to this Agreement, including without limitation any dispute as to the construction, validity, interpretation, enforceability or breach of this Agreement, shall be submitted first to voluntary mediation, and if mediation is not successful, then the matter shall be exclusively and finally settled by binding arbitration.
The arbitration proceedings shall be conducted in Durham, North Carolina, the city agreed upon by the Parties, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as amended from time to time.
The costs of the arbitration proceedings, including attorneys’ fees and costs, shall be borne in the manner determined by the arbitrators.
The decision of the arbitrators shall be reduced to writing and shall be final and binding, constituting the sole and exclusive remedy, without right of appeal.
Any award made by the arbitrators shall be promptly paid in United States dollars, and any costs or fees incident to enforcing the award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The award shall include interest from the date of any breach or violation of this Agreement, as determined by the arbitral award, and from the date of the award until paid in full, at a per annum rate deemed appropriate by the arbitrators.
Judgment upon the arbitral award may be entered in any court having jurisdiction over the Parties or the assets of the Party owing the judgment, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be.
19. LIMITATIONS OF LIABILITY/NO PUNITIVE DAMAGES.
THE LIABILITY OF EACH PARTY TO THE OTHER WITH REGARD TO THIS AGREEMENT AND SOWs AUTHORIZED HEREUNDER WILL – WITH THE EXCEPTIONS OF LIABILITIES FOR BREACH OF NON-SOLICITATION, PERSONAL INJURY AND TANGIBLE PROPERTY DAMAGE – IN NO EVENT SHALL EXCEED THE AMOUNT PAID BY THE CLIENT TO DIGITAL FUTURES FOR THE PRECEDING SIX (6) MONTHS UNDER ANY SOW PRECIPITATING ANY CLAIM.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
PUNITIVE DAMAGES ARE PROHIBITED UNDER THIS AGREEMENT.
20. GOVERNING LAW, CHOICE OF FORUM, AND ATTORNEYS’ FEES.
(a) Choice of Law. The laws of the state of North Carolina shall govern this Agreement, without giving effect to its conflicts of law principles.
(b) Choice of Forum. Both Parties consent to the personal jurisdiction of the state and federal courts in Durham County, City of Durham, state of North Carolina.
(c) Attorneys’ Fees. If either Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the losing Party shall reimburse the prevailing Party for its reasonable attorneys’ fees.
No amendment to this Agreement will be effective unless it is in writing and signed by the Parties or their authorized representatives.
(a) No Assignment. Neither Party may assign any of its rights under this Agreement, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld. All voluntary assignments of rights are limited by this subsection.
(b) No Delegation. Neither Party may delegate any performance under this Agreement, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld.
(c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this Section 22, it is void.
23. COUNTERPARTS AND ELECTRONIC SIGNATURES.
(a) Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
(b) Electronic Signatures. This Agreement, agreements ancillary to this Agreement, and related documents entered into in connection with this Agreement are signed when a Party’s signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
If any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, but this Agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this Agreement to be unreasonable.
(a) Writing; Permitted Delivery Methods. Each Party giving or making any notice, request, demand, or other communication required or permitted by this Agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this Agreement: (i) personal delivery, (ii) mail (registered or certified mail, (iii) postage prepaid, return-receipt requested), (iv) nationally recognized overnight courier (fees prepaid), (v) facsimile, or (vi) email.
(b) Addresses. A Party shall address notices under this Section 25 to a Party at the following addresses:
If to the CLIENT:
ATTN: [contact person]
[street mailing address]
[city, state, zip code]
If to the DIGITAL FUTURES:
DIGITAL FUTURES, INC.
ATTN: Jerri Bland, Ed.D., CEO/Founder
2530 Meridian Parkway
Durham, NC 27713
(c) Effectiveness. A notice is effective only if the Party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
27. ENTIRE AGREEMENT.
This Agreement constitutes the final agreement of the Parties. It is the complete and exclusive expression of the Parties’ agreement about the subject matter of this Agreement. All prior and contemporaneous communications, negotiations, and agreements between the Parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither Party was induced to enter this Agreement by, and neither Party is relying on, any statement, representation, warranty, or agreement of the other Party except those set forth expressly in this Agreement. Except as set forth expressly in this Agreement, there are no conditions precedent to this Agreement’s effectiveness.
In the event of any termination of this Agreement, Sections 1, 2, 3, and 5 thru 27 of this Agreement shall survive and continue in effect.
The descriptive headings of the sections and subsections of this Agreement are for convenience only, and do not affect this Agreement’s construction or interpretation.
30. NECESSARY ACTS; FURTHER ASSURANCES.
Each Party and its officers and directors shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this Agreement contemplates or to evidence or carry out the intent and purposes of this Agreement.
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