MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is by and between Inscale Technologies, LLC, a North Carolina limited liability company, having its principal place of business at 1544 Blowing Rock Road # 3716, Boone, NC 28607 (“Inscale Technologies”), and (“Client”) as defined by the legal party listed on the Inscale Technologies Statement of Work referencing this agreement Whereas, Client wishes to purchase professional services provided by Inscale Technologies.
Now Therefore, Inscale Technologies and Client agree as follows: THE PARTIES’ EXECUTION OF A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT CONSTITUTES AN ACCEPTANCE BY CLIENT AND THAT BOTH PARTIES AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1.1 Services. On the terms and conditions set forth herein, Client hereby engages Inscale Technologies on its behalf to perform those services mutually agreed upon from time to time by Inscale Technologies and Client (collectively “Services”) in written statements of work (each, a “Statement of Work”), and Inscale Technologies hereby accepts such engagement. Inscale Technologies shall render Services and deliver the deliverables set forth in the respective Statement of Work (“Deliverables”) in accordance with the timetable and milestones set forth in the respective Statement of Work. Neither Inscale Technologies nor Client shall be obligated to enter into any Statement of Work. Any estimates of availability made verbally by Inscale Technologies prior to receipt of a signed Master Services Agreement and Statement of Work shall not constitute a commitment of resources or constitute a timeline for delivery of Services.
1.2 Statement of Work Authorization and Modification. Each Statement of Work is to be signed on behalf of the Client exclusively by designated authorized representatives of Client. Any deviation from or modification to a Statement of Work must be agreed to by the parties in writing. In the event of any express conflict or inconsistency between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of this Agreement will govern and control unless the parties include an express statement of the parties’ intention to supersede or override such provision of this Agreement, in which case such provision of such Statement of Work will govern and control with respect to the interpretation of that Statement of Work only; provided, however, that the provisions of the Statement of Work will be so construed as to give effect to the applicable provisions of this Agreement to the fullest extent possible, including, without limitation, Sections 3.3, 3.4, 4.1, 4.2, and 4.3 of this Agreement.
1.3 Acceptance. Within thirty (30) days after the receipt by Client of any Deliverable, together with a written notice of completion and successful testing from Inscale Technologies, Client agrees to review and/or test the deliverable. Unless written notice is provided by Client to Inscale Technologies within this thirty (30) day period, the Deliverable will be deemed to be accepted. In the event that Client determines that any part of the Deliverable is not acceptable, Client has the right to reject the Deliverable and Client shall notify Inscale Technologies in a writing setting forth with reasonable specificity any deficiency. Inscale Technologies shall then have thirty (30) days to correct the deficiency, unless additional time is expressly approved by Client in writing, and the process set forth in this Section 1.3 shall repeat with respect to the corrected deliverables.
2. FEES AND BILLING
2.1 Charges for Services. Client will pay to Inscale Technologies the charges set forth in each Statement of Work in accordance with this Agreement and such Statements of Work. Unless otherwise provided in the Statement of Work, Inscale Technologies agrees not to change its fees during the term of the Statement of Work without the written consent of Client; provided, however, Inscale Technologies may adjust its fees prior to entering into a new Statement of Work.
2.2 Out-of-Pocket Expenses. Client will also pay Inscale Technologies as charges any reasonable out-of-pocket expenses (including without limitation, travel expenses) incurred by Inscale Technologies in the course of providing Services to Client.
2.3 Payment. Unless otherwise expressly provided in a Statement of Work with respect to the charges to be paid thereunder, Inscale Technologies will invoice Client for charges on a monthly basis for time and materials as set forth in the Statement of Work, with each invoice setting forth the charges related to the previous month. Unless otherwise expressly provided in a Statement of Work, any amount due to Inscale Technologies under this Agreement and each Statement of Work shall be payable in full within thirty (30) days after Client’s receipt of an invoice therefore without withholding, deduction or offset of any amounts for any purpose. Client shall be responsible for all taxes (including sales taxes) imposed as a result of the Services, excluding only taxes based on the net income of Inscale Technologies, its property, and its employees. Any amount not paid within thirty (30) days of the applicable due date of each invoice shall be subject to an interest charge equal to the lesser of 1% monthly or the maximum interest charge permissible under applicable law. Client shall be responsible for the payment of all invoices in accordance with this Agreement. Any charges not disputed by Client in good faith within ten (10) days of the Client’s receipt of an invoice therefore will be deemed payable in full by Client.
3.1 Inscale Technologies Warranty. Inscale Technologies hereby represents and warrants and covenants that (i) its personnel shall perform the Services in a manner consistent with generally accepted industry standards and practices and in compliance with applicable law, (ii) it has obtained all consents and rights required to perform the Services and for Client to receive the Services, including all necessary consents and rights from Salesforce or any of its affiliates (collectively, “SFDC”), and (iii) the Deliverables shall perform substantially in accordance with the requirements of the Statement of Work. In the event of a breach of the foregoing warranty in clause (i), Inscale Technologies’ sole obligation and Client’s exclusive remedy will be to have Inscale Technologies perform again the Services in respect of which the warranty has been breached to bring them into compliance with such warranty. Any claim for breach of the foregoing warranty must be made by notice to Inscale Technologies within 60 days of completion of the acceptance of the final Deliverable with respect to Services or said claim shall be deemed waived.
3.2 Mutual Warranties. For each Statement of Work, each party hereby represents and warrants and covenants that (i) with respect to tools, hardware, software and other products provided by such party for use by the other party under this Agreement and the Statement of Work, such party has obtained all licenses and permits which are required to be obtained to enable such use by such other party; and (ii) each party has, or will have, the personnel and other resources available, and will provide, or cause to be provided, such personnel and resources, to fulfill its obligations set forth in each Statement of Work. Client further represents, warrants, and covenants that the information furnished by Client to Inscale Technologies on which Inscale Technologies based the description of the Services and the charges to be paid to client therefore, as set forth in each Statement of Work, is accurate and complete in all material respects.
3.3 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 3.1 & 3.2, INSCALE TECHNOLOGIES DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES OR THE SERVICES RENDERED BY INSCALE TECHNOLOGIES OR ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK PURSUANT TO THIS AGREEMENT OR ANY STATEMENT OF WORK. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY INSCALE TECHNOLOGIES.
3.4 If Client or its clients licensed, sublicensed, purchased or leased any third-party software or hardware, from Inscale Technologies, Client must refer to the separate limited warranty documentation, if any, provided with the software and/or hardware by the manufacturer or licensor for information on the limitation and disclaimer of certain warranties with respect to such software or hardware. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. If the software and/or hardware did not include a limited warranty from the manufacturer or licensor, Client agrees that the software is accepted “AS IS.” OTHER THAN WARRANTIES, IF ANY, AS TO THE SOFTWARE AND/OR HARDWARE EXPRESSLY SET FORTH IN DOCUMENTATION PROVIDED WITH THE SOFTWARE AND/OR HARDWARE BY THE MANUFACTURER OR LICENSOR, Inscale Technologies MAKES NO WARRANTIES UNDER THIS AGREEMENT OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS HEREUNDER ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE SOFTWARE AND/OR HARDWARE BY THE MANUFACTURER OR LICENSOR. CLIENT ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THESE DISCLAIMERS ARE AN INTEGRAL PART OF INSCALE TECHNOLOGIES PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PERFORM SERVICES HEREUNDER AND PURSUANT TO THE STATEMENTS OF WORK. Client shall make no warranty to its clients relating to the Services, deliverables, software or hardware in addition to, or inconsistent with, the limited warranties contained in this Section 3.4
4. LIMITATION OF LIABILITY
4.1 Limitation on Consequential Damages, etc. EXCEPT AS SET FORTH IN SECTION 4.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER PARTY, ITS CUSTOMERS OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, OR WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 Limitation on Cumulative Liability. EXCEPT AS SET FORTH IN SECTION 4.3, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO INSCALE TECHNOLOGIES BY CLIENT.
4.3 Allocation of Risk.
(a) EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS SET FORTH HEREIN, THE FEES PAID BY CLIENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. SECTIONS 4.1 AND 4.2 SHALL NOT APPLY WITH RESPECT TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INTENTIONAL BREACH OF SECTION 5.1(a) or 5.1. (b) Inscale Technologies shall indemnify and hold harmless Client and its respective directors, officers, employees, agents, and clients from and against any all losses, liabilities, obligations, costs, damages, charges, awards, judgments, fines, penalties, assessments, deficiencies, taxes, and expenses (including, in each case, interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense, or settlement) to the extent arising out of any third party proceeding in connection with or by reason of: (i) any actual or alleged infringement, misappropriation, or other violation of intellectual property rights of any third party in connection with the performance or receipt of any Services or (ii) any violation of applicable law, gross negligence, willful misconduct, or fraud by or on behalf of Inscale Technologies in connection with this Agreement.
(b) Inscale Technologies shall indemnify and hold harmless Client and its respective directors, officers, employees, agents, and clients from and against any all losses, liabilities, obligations, costs, damages, charges, awards, judgments, fines, penalties, assessments, deficiencies, taxes, and expenses (including, in each case, interest, penalties, reasonable attorneys’, consultants’ and experts’ fees and expenses and all amounts paid in investigation, defense, or settlement) to the extent arising out of any third party proceeding in connection with or by reason of: (i) any actual or alleged infringement, misappropriation, or other violation of intellectual property rights of any third party in connection with the performance or receipt of any Services or (ii) any violation of applicable law, gross negligence, willful misconduct, or fraud by or on behalf of Inscale Technologies in connection with this Agreement.
5.1 Confidential Information.
(a) For purposes of this Agreement, “Confidential Information” shall mean nonpublic information, in tangible or intangible form, of the disclosing party that disclosing party designates as confidential or which under the circumstances surrounding the disclosure would reasonably be considered confidential. Confidential Information shall include, without limitation, information contained in design documentation relating to any programs of Inscale Technologies (in the case of Inscale Technologies), Client or Client’s customers to whom Services are rendered (in the case of Client), any source code, development level documentation, all Inscale Technologies development tools (except for publicly available tools), data files, databases, marketing plans, supplier and customer information, proprietary and technical information, and business and marketing strategies and plans (in the case of Inscale Technologies), and information received from others that disclosing party is obligated to treat as confidential (in the case of either party). A party’s Confidential Information shall include all nonpublic information and data that such party discloses, provides, or otherwise makes available to the other. Notwithstanding the foregoing, information disclosed to or acquired by recipient of the information shall not constitute Confidential Information to the extent that the recipient can demonstrate (i) such information was lawfully known to the recipient prior to the disclosure thereof by disclosing party without breach of any obligation owed to the disclosing party; (ii) such information is or thereafter becomes lawfully obtained from a third party without breach of any obligation owed to the disclosing party; (iii) the recipient’s duty as to confidentiality is waived in writing by disclosing party; (iv) such information was developed by employees or agents of the recipient of the information independently of and without reference to Confidential Information or other information that disclosing party has disclosed in confidence to any third party. In the event a recipient or any of its Representatives are required by legal process or applicable law to disclose any Confidential Information of the disclosing party, the recipient of the Confidential Information shall notify the disclosing party in writing prior to disclosure of such Confidential Information and shall fully cooperate with and assist the disclosing party in taking legally available steps to seek a protective order or other appropriate remedy. In the event such disclosing party seeks but fails to obtain a protective order or other appropriate remedy, the recipient may (and shall cause its Representatives to) disclose only that portion of the Confidential Information that is legally required to be disclosed and shall fully cooperate with disclosing party in its efforts to ensure that confidential treatment will be accorded to Confidential Information disclosed in such manner.
(b) Inscale Technologies shall (and shall ensure that its Representatives) (i) not use, access, modify, disable access to, or delete, sell, assign, license, or subject to any lien, any Client Data, (ii) take all reasonable technical and organizational measures necessary to ensure that Client’s Confidential Information is protected against, and shall be liable for, any and all loss, destruction, damage, and unauthorized access, use, modification, and disclosure, and other misuse of Client’s Confidential Information, including such measures as logically separating Client’s Confidential Information from all other data, and (iii) ensure that only persons with a specific need and authorized by Client have access to Client’s Confidential Information (and that no other third parties to whom Inscale Technologies or any of its affiliates is providing services has access to any Client Confidential Information). Promptly upon discovery of an actual or suspected breach of the privacy or security of any Client Confidential Information, any violation of any law related to data privacy and security with respect to Client’s Confidential Information, or any such loss, destruction, damage, unauthorized activity, or misuse, Inscale Technologies shall provide notice to Client explaining the nature and scope of the incident and cooperate in any investigation Client deems reasonably necessary (including any forensic investigation). Client shall control all communications and notifications regarding any such breach or violation.
5.2 Nondisclosure. Each party acknowledges that in performance of this Agreement, it may acquire knowledge of the other’s Confidential Information. Subject to the provisions of this Section 5.2, each party acknowledges and agrees that all of the Confidential Information disclosed to or acquired from the other party to this Agreement (i) shall be maintained in strict confidence by such party, (ii) that such party will protect such Confidential Information using at least the same degree of care it would use with respect to its own Confidential Information of like kind (but no less than a reasonable standard of care), and (iii) that such party shall not disclose any Confidential Information to any person or entity except (a) to its Representatives with a need to know as and to the extent required to perform this Agreement and who have signed confidentiality agreements with the recipient containing protections no less stringent than those herein, (b) in the case of Client, to exercise its rights hereunder, or (c) as expressly permitted by the disclosing party in writing. No party shall use the other party’s Confidential Information nor circulate it within its own organization except to further the purposes of this Agreement. Each party shall be responsible and liable to the other for any disclosure of Confidential Information by any employee, contractor, agent or other person or entity to whom such party discloses Confidential Information of the other. “Representatives” means, with respect to a party, (A) an affiliate of such party or (with respect to Inscale Technologies) a permitted subcontractor; (B) any director, officer, or employee of such party or of any such party’s affiliates; or (C) any attorney, accountant, or other professional advisor bound by obligations of confidentiality and non-disclosure. For purposes of this Section 5.2, a third party breach of the security of Client Confidential Information shall not be considered to be a disclosure of Client Confidential Information under this Section 5.2.
5.3 Irreparable Harm. In addition to all other legal or equitable remedies to which a party may be entitled to enforce Section 5.2, both parties acknowledge that any violation of Section 5.2 by the non-disclosing party would cause irreparable harm to the disclosing party and agree that the other party shall be entitled to an immediate injunction or other equitable relief or specific performance to prevent violations of Section 5.2 without the necessity of proving actual harm or posting bond.
5.4 Independent Development; Residuals.
Nothing in the terms of this Agreement and any Statement of Work shall be construed to limit Inscale Technologies’ or Client’s right to independently develop or acquire products without the use of Confidential Information of the other party. Upon Client’s prior written consent, not to be unreasonably withheld, Inscale Technologies shall not be prohibited under this Agreement to use for any purpose the Residuals resulting from access to or work with Confidential Information, provided such party shall maintain the confidentiality of Confidential Information as provided in Sections 5,1, 5.2, and 5.3 and any other written confidentiality agreement between the parties. For purposes of this Agreement, “Residuals” shall mean technical information related to software technology in nontangible form, which may be retained in unaided memory by individuals who have had access, as permitted by this Agreement, to Confidential Information, where (i) such information constitutes general ideas, concepts, know-how or techniques, and (ii) such individuals (x) did not intentionally memorize the applicable idea, concept, know-how, or technique for the purpose of retaining or subsequently using or disclosing it, and (y) did not recall, in good faith, that the idea, concept, know-how, or technique constituted the Client’s Confidential Information. Neither Inscale Technologies nor Client shall have any obligation to limit or restrict the assignment of such individuals or to pay compensation resulting from the use of the Residuals in accordance with this Agreement. Notwithstanding the foregoing, this Section shall not be construed to grant either Inscale Technologies or Client a license of the other party’s copyrights or other intellectual property.
5.5 CLIENT AGREEMENTS. Client shall enter into a written agreement with each of its clients to whom, or for whose benefit, Services are provided which contain the following minimum provisions: (i) provisions preventing the disclosure of Inscale Technologies’ Confidential Information substantially similar to Section 5.2 of this Agreement; (ii) provisions disclaiming warranties and limiting liabilities for Services substantially similar to Sections 3.3, 3.4, 4.1, 4.2, or 4.3 of this Agreement; (iii) provisions prohibiting the client from taking any actions which impair or infringe the intellectual property rights of Client or its licensors, including Inscale Technologies; (iv) requiring the client not to remove or destroy any copyright notices, other proprietary markings or confidential legends placed upon or contained within an deliverable; and (v) prohibiting the solicitation, hiring or employing of employees or independent contractors of Inscale Technologies (see Section 6.5). Client shall cause such agreements to be executed prior to the rendering of Services by Inscale Technologies. Inscale Technologies shall be a third party beneficiary of each such agreement. Client shall use its best efforts to assist Inscale Technologies in the protection of Inscale Technologies’ legal rights and to enforce Inscale Technologies’ and applicable third party’s intellectual property rights. Client shall cooperate fully with Inscale Technologies in any action by Inscale Technologies in the event of an actual or threatened violation of Inscale Technologies’ proprietary rights by any person or entity, including clients of Client.
6. TERM AND TERMINATION
6.1 Term. This Agreement shall be effective on the date a Statement of Work is executed by the parties and thereafter shall remain in effect until terminated by Inscale Technologies or Client as provided in this Agreement or until all Statements of Work have expired or been terminated. The term of any Statement of Work shall be as provided therein. Termination of this Agreement shall have the effect of terminating all Statements of Work.
6.2 Termination. This Agreement or any Statement of Work may be terminated by Client without cause by giving Inscale Technologies thirty (30) days prior written notice. This Agreement or any Statement of Work may be terminated by Inscale Technologies immediately upon written notice in the event Client fails to perform its obligation for payment of undisputed invoices pursuant to this Agreement and such failure to perform continues for thirty (30) days after receipt by Client of written notice from Inscale Technologies that Client has failed to pay an undisputed invoices (including the details of such non-payment). This Agreement or any Statement of Work may be terminated by a party if the other party commits a material breach or default of this Agreement which breach or default is not cured within thirty (30) days after such party’s written notice of such breach or default.
6.3 Effect of Termination. Upon termination of this Agreement: (a) Client shall promptly pay all amounts payable to Inscale Technologies for Services rendered and reasonable out-of-pocket expenses incurred up to the date of termination; and (b) each party shall return or destroy, at the written direction of the other party, all the other party’s Confidential Information in its possession or under its control.
6.4 Survival. Sections 3.1-5.3, and 6.1-7.9 and 7.11-6.14 shall survive any termination or expiration of this Agreement and/or termination or expiration of any Statement of Work.
6.5 SOLICITATION OF OTHER PARTY PERSONNEL. For a period of one (1) year from the expiration or termination of each applicable Statement of Work, each party agrees not to solicit the employment of any personnel or agent of the other party who has been directly involved with the delivery of Services under such Statement of Work unless such other party grants it consent in writing. If this condition is breached, the breaching party agrees to compensate the other party with a sum equal to twenty-four (24) times the average monthly salary received by such individual during the last one (1) year which the individual was employed by such party plus the fees payable under the Statement(s) of Work for which the such individual was/is/will be directly involved with the delivery of Services. General advertisements, solicitations or publication of employment opportunities by a party that are not targeted at the employees or officers of the other party shall not be deemed to violate this Section 6.5.
7.1 Notices. Any notices or communications required or permitted to be given regarding this Agreement shall be in English and in writing, and shall be sent via U.S. Certified Mail, Return Receipt Requested, or by prepaid overnight or courier service, to the addresses above, or such other address as shall be designated in writing by either party to this Agreement to the other. Notices are deemed given on receipt or attempted delivery (if receipt is refused).
7.2 Independent Contractor. Each party, in rendering performance under this Agreement is acting solely as an independent contractor. In no way is either party to be construed as the agent of the other party in any respect, any other provisions of this Agreement hereunder notwithstanding.
7.3 Entire Agreement; Amendments. This Agreement and the Statements of Work together constitute the entire agreement between the parties regarding the subject matter hereof. This Agreement may not be amended except by the written agreement of the parties.
7.4 Construction; Headings. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice versa. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement or any of its provisions. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole (including any Schedules hereto) and not to any particular provision of this Agreement. Inscale Technologies shall fully cooperate and assist Client in connection with Client’s receipt of the Services. All references to “dollars” or “$” will be deemed references to the lawful money of the United States of America.
7.5 Severability. If any provision of this Agreement or its application to any person or circumstance shall be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall be enforceable to the fullest extent permitted by law. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
7.6 Waivers. No action or inaction taken pursuant to this Agreement shall be deemed to constitute a waiver of compliance with any covenant, condition or agreement contained herein. The waiver by any party hereto of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach Any and all waivers shall be in writing, expressly stated to be a waiver and signed by the waiving party.
7.7 Rights and Remedies Cumulative. Unless otherwise specifically provided, the rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute or otherwise.
7.8 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without regard to principles of conflict of laws that would require application of the laws of any other jurisdiction. Any and all claims, controversies, and causes of action arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by the internal laws of the State of Delaware, including its statutes of limitations, without giving effect to any laws or other rules that would result in the application of the laws or statute of limitations of a different jurisdiction. Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware for the City of Wilmington (and to the extent that the Court of Chancery of the State of Delaware for the City of Wilmington does not have subject matter jurisdiction, the jurisdiction of the courts of the state and federal courts of the State of Delaware) for the purpose of any dispute arising out of or relating to this Agreement or the transactions contemplated hereby, and each of the parties hereby irrevocably agrees that all claims with respect to such disputes may be heard and determined exclusively in such courts.
7.9 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.
7.10 Assignment. Neither party shall assign (including by operation of law or in connection with a division or allocation of assets) or subcontract this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except each party shall have the right to assign this Agreement or any of its rights or obligations under this Agreement, in whole or in part and without the prior written consent of the other party, in connection with a sale or divestiture of all or substantially all of the assets of such party. In the event of any such sale or divestiture, Inscale Technologies shall cooperate with Client to provide an orderly transition of the Services and upon Client’s request, Inscale Technologies shall provide any requested Services to the purchaser of the sold or divested business for twelve (12) months in accordance with this Agreement. Any purported assignment in violation of this Agreement shall be null and void.
7.11 Force Majeure. Neither party shall be responsible for failure to perform under this Agreement to the extent its failure results from any of the following causes beyond its reasonable control: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, or any other cause beyond its reasonable control (collectively, “FME”). FME shall not include regulatory acts of governmental authorities, labor strike, trouble, dispute, or interruption, or non-performance of subcontractors. The affected party shall promptly notify the other party of any occurrence of an FME and abatement thereof.
7.12 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one Agreement.
7.13 Key Personnel. Each Statement of Work shall list any key personnel (including their respective names and titles) or roles (the “Key Personnel”) and their respective responsibilities to facilitate continuity of Services during the term. Except in the event of a Key Personnel Exception, Inscale Technologies shall not reassign, replace, remove or make unavailable any such Key Personnel without the prior consent of Client. In the event of a Key Personnel Exception, Inscale Technologies shall provide prompt notice thereof to Client containing reasonable detail regarding the circumstances thereof and make commercially reasonable efforts to replace any Key Personnel with successor Key Personnel. “Key Personnel Exception” shall mean, with respect to a Key Personnel: (x) such Key Personnel’s (a) voluntary resignation or leave of absence, (b) involuntary termination by Inscale Technologies for cause, (c) inability to work due to long-term illness or disability, or (d) death.
6.14 Work Product. Inscale Technologies agrees that, as between Inscale Technologies and Client, Client shall own all right, title, and interest in and to, and Inscale Technologies hereby assigns to Client all of Inscale Technologies’ right, title, and interest in and to, all Client Data (as defined below) and the Statement of Work (in each case, including all intellectual property rights therein and thereto). “Client Data” means all data or information of the Client or any of its affiliates that is collected, processed, generated, derived, stored by or on behalf of, or transmitted to or on behalf of, Inscale Technologies in connection with this Agreement. The Statement of Work and Client Data shall constitute Client’s Confidential Information.