CHIRON DATALABS · DRAFT FOR LEGAL REVIEW
Adapted for Chiron Datalabs. Draft only—not effective until approved. Legal entity details and governing law require confirmation; the California terms below are retained from the reference for review.
Welcome, and thank you for your interest in Chiron Datalabs (“Chiron Datalabs”). Pursuant to the terms and conditions of this Master Development Services Agreement (this “MSA”), Chiron Datalabs will provide certain Services to you (the “Customer”), as defined in the order form entered into by Chiron Datalabs and you (the “Order Form”) that references this MSA (together with such Order Form, this “Agreement”). This Agreement is a legally binding contract between you and Chiron Datalabs regarding the Services and Deliverables. All capitalized terms not defined herein are as defined in the Order Form. In the event of any conflict or inconsistency between the terms of this MSA and any Order Form, the terms of the applicable Order Form will govern solely with respect to the subject matter of that Order Form.
1. SERVICES, ORDER FORMS, AND CHANGE ORDERS
1.1 Services and Order Forms.
Subject to the terms and conditions of this Agreement and at Customer’s request and direction, Chiron Datalabs will perform for Customer the Services described in a written Order Form that references this MSA and is executed by both parties. Once executed by both parties, each Order Form will be part of a unique Agreement that incorporates the terms of this MSA and stands alone with respect to all other Order Forms.
1.2 Change Orders.
Unless otherwise specified in an Order Form, Customer may reasonably request in writing that revisions be made with respect to the Services or Deliverables set forth in that Order Form (each, a “Change Order”). If a Change Order recites revisions that materially increase the scope of the Services or the effort required to deliver Deliverables under the applicable Order Form, then within 5 business days after Chiron Datalabs’s receipt of that Change Order, Chiron Datalabs will deliver to Customer a written, revised Order Form reflecting Chiron Datalabs’s reasonable determination of the revised Services, Deliverables, delivery schedule, and payment schedule, if any, that will apply to the implementation of the revisions. If Customer approves the revised Order Form, then the parties will execute it, and upon execution, the revised Order Form will supersede the then-existing Order Form. If Customer does not approve the revised Order Form within 5 business days after its receipt by Customer, the then-existing Order Form will remain in full force and effect, and Chiron Datalabs will have no further obligation with respect to the applicable Change Order.
2. PERFORMANCE OF SERVICES
2.1 Project Management.
Each party will designate a single point of contact within its organization to manage the Services described in an Order Form (each, a “Project Leader”). The Project Leaders will meet as necessary to manage the Services to be performed under an Order Form. Disputes will be escalated to more senior executives, if the Project Leaders are unable to resolve a problem.
2.2 Performance Standard.
Chiron Datalabs will diligently perform the Services in accordance with the applicable Order Form, including any specifications in the Order Form. Chiron Datalabs will use commercially reasonable efforts to complete the Services, including the delivery of any Deliverables, in accordance with the schedule of times and milestones specified in the Order Form.
2.3 Personnel.
The Services will be performed in a competent, professional, and workmanlike manner by qualified personnel in accordance with applicable laws. Chiron Datalabs may utilize independent contractors to perform all or part of the Services. Chiron Datalabs will remain solely responsible for the performance of all of the Services that are subcontracted.
2.4 Materials.
Except as otherwise specified in an Order Form, Chiron Datalabs will be responsible for and supply all necessary equipment, materials, and other resources required to perform the Services.
2.5 Customer Materials.
Any materials provided by Customer to Chiron Datalabs are to be used solely to perform the Services. Customer will retain ownership of these materials (“Customer Materials”). Chiron Datalabs will treat the Customer Materials as Confidential Information (defined below). Customer hereby grants Chiron Datalabs a limited, non-exclusive, royalty-free, worldwide license to use the Customer Materials solely as necessary to perform the Services.
3. ACCEPTANCE OF DELIVERABLES
3.1 Initial Delivery.
Chiron Datalabs will notify Customer when it has completed a Deliverable and will deliver the Deliverable to Customer in the format specified in the applicable Order Form for Customer’s acceptance in accordance with the terms of this Section 3.
3.2 Inspection and Testing.
After Chiron Datalabs’s delivery of each Deliverable, Customer will inspect the Deliverable to verify that it conforms in all respects to the applicable specifications and test it in accordance with the acceptance criteria, if any, specified in the applicable Order Form. If Customer does not provide Chiron Datalabs with a Rejection Notice (defined below) with regard to a specific Deliverable within 5 business days, the Deliverable will be deemed accepted by Customer.
3.3 Rejection Notice.
If Customer determines that the Deliverable does not conform to the applicable specifications or does not pass the applicable acceptance criteria, if any, Customer will promptly notify Chiron Datalabs of its determination in a Notice (defined below) setting forth a description of the nonconformities exhibited by the Deliverable (“Rejection Notice”). A Deliverable will be deemed accepted by Customer if it delivers a Notice of acceptance to Chiron Datalabs.
3.4 Correction of Nonconformities.
After Chiron Datalabs receives a Rejection Notice, the parties will meet and confer to agree in good faith upon the timing schedule by which Chiron Datalabs will perform additional Services at no charge to remedy the nonconformities set forth in the Rejection Notice. When Chiron Datalabs remedies the nonconformities, Chiron Datalabs will redeliver the Deliverable to Customer and Customer will again review the Deliverable for acceptance or rejection in accordance with this Section 3.
3.5 Remedies.
If the parties mutually conclude that Chiron Datalabs will be unable to correct all nonconformities in a Deliverable in a reasonable period of time, Customer will have the option to (a) terminate the Order Form only with respect to the nonconforming Deliverable and receive a refund for the fees attributable to that Deliverable; or (b) accept the nonconforming Deliverable and receive a partial refund that will represent the reduction in value caused by the nonconformity.
4. THIRD PARTY MATERIALS
4.1 Obligation to Seek a License.
If an Order Form requires Chiron Datalabs to obtain, for use in connection with the Services, any material from a third party (including codebases or software) from whom Chiron Datalabs has not yet acquired the necessary right or license for the use or incorporation, then the parties will mutually agree in writing upon the allocation of any associated costs.
5. COMPENSATION
5.1 Fees.
Customer will pay the fees as set out in each Order Form (“Fees”). Customer will not reimburse Chiron Datalabs for any costs or expenses under this Agreement unless the nature of the costs and expenses to be reimbursed are specified in the Order Form and Chiron Datalabs receives approval before incurring a specific cost or expense. Chiron Datalabs is responsible for all taxes associated with the performance of the Services and imposed upon the Fees.
5.2 Payment.
Unless otherwise specified in an Order Form: (a) Chiron Datalabs will issue monthly invoices for Fees for Services that have been performed in the month; and (b) Customer will pay any undisputed amount set forth in those invoices no later than 30 days after receipt of Chiron Datalabs’s invoice.
6. TERM AND TERMINATION
6.1 Term.
This Agreement will commence on the Effective Date and will continue through the License Term and any Renewal Terms (together, the “Term”) set forth in the Order Form unless earlier terminated as provided in this Agreement or as otherwise set forth in the Order Form.
6.2 Termination.
Either party may terminate this Agreement by providing written notice to the other party if the other party materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days after receiving written notice describing the breach in reasonable detail.
6.3 Survival.
Upon termination, all rights and duties of the parties toward each other cease except that: (a) within 30 days of the effective date of termination, Customer will pay all amounts owing to Chiron Datalabs for Services or Chiron Datalabs will return to Customer any amount paid to Chiron Datalabs as a retainer that is not owed against Services; and (b) Sections 6.3, 6.4, 7, 8, 10, 11, and 12 will survive termination or expiration of this Agreement.
6.4 Return of Materials.
Upon the termination of this Agreement, or upon Customer’s earlier request, Chiron Datalabs will deliver to Customer all Customer Materials and Confidential Information that are in Chiron Datalabs’s possession or control.
7. CONFIDENTIALITY
7.1 Definition.
“Confidential Information” means any non-public information that relates to the actual or anticipated business, research, or development of a party (the “Discloser”) and any proprietary information, trade secrets, and know-how of the Discloser that are disclosed to the other party (the “Recipient”) by Discloser or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Chiron Datalabs’s Confidential Information includes the terms of this Agreement, research, development, and commercialization plans, processes, techniques, formulas, prototypes, and all information generated by Chiron Datalabs in the performance of the Services.
7.2 Exceptions.
“Confidential Information” does not include any information that Discloser can demonstrate: (a) was publicly known and made generally available in the public domain before Recipient disclosed the information to Discloser; (b) became publicly known and made generally available, after disclosure to Discloser by Recipient, through no wrongful action or inaction of Discloser or others who were under confidentiality obligations; (c) was in Discloser’s possession, without confidentiality restrictions, at the time of disclosure by Recipient, as shown by Discloser’s files and records; or (d) was independently developed without use of or reference to the Confidential Information.
7.3 Nondisclosure and Nonuse.
Discloser will not, during or after the Term of this Agreement, disclose any Confidential Information to any third party or use it for any purpose other than performing its obligations and exercising its rights under this Agreement. Discloser will protect the confidentiality of the Confidential Information using the same degree of care it uses to protect its own most highly confidential information, but in no event less than reasonable care. Discloser will take reasonable steps to prevent unauthorized disclosure, including ensuring that its employees and independent contractors with access to the Confidential Information are bound by written confidentiality obligations at least as protective as those set forth in this Agreement. Discloser will not, during or after the Term of this Agreement, reverse engineer, decompile, or disassemble any Confidential Information, except to the extent such restriction is prohibited by applicable law.
7.4 Existing Obligations.
The obligations in this Section 7 are in addition to, and supplement, each party’s obligations of confidentiality and nondisclosure under the terms of any confidentiality or nondisclosure agreement between the parties (referred to herein, collectively, as the “NDA”).
8. OWNERSHIP AND LICENSE
8.1 Inventions.
All works of authorship, ideas, notes, records, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, technology, developments, know-how and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship, or ownership) by Chiron Datalabs, solely or in collaboration with others, in the course of performing the Services; (b) that reflect or contain Chiron Datalabs’s Confidential Information; or (c) that form all or part of a Deliverable provided as part of the Services (collectively, “Inventions”) will be the sole and exclusive property of Chiron Datalabs. For avoidance of doubt, the Deliverables set forth in the Order Form are Inventions that are the sole and exclusive property of Chiron Datalabs. Chiron Datalabs retains all rights in the Deliverables except for the limited use rights granted to Customer in Section 8.2 below. Chiron Datalabs may freely use, reproduce, modify, distribute, and create derivative works from any Deliverable, including for Chiron Datalabs’s other customers, provided that Chiron Datalabs does not disclose or incorporate any of Customer’s Confidential Information in doing so.
8.2 License.
Subject to Customer’s compliance with this Agreement, including payment of all applicable Fees, Chiron Datalabs grants Customer a limited, non-exclusive, non-transferable (except as permitted under this Agreement), non-sublicensable, worldwide, royalty-free license under Chiron Datalabs’s intellectual property rights in the Deliverables, to use the Deliverables solely for Customer’s internal business purposes during the Term and solely in accordance with any documentation and use parameters provided by Chiron Datalabs to Customer. Except as expressly permitted by this Agreement, Customer will not, and will not permit any third party to: (a) copy, reproduce, modify, adapt, or create derivative works of any Deliverable; (b) distribute, sublicense, sell, lease, disclose, or otherwise make any Deliverable available to any third party; (c) use any Deliverable for the benefit of any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying ideas, algorithms, structure, or organization of any Deliverable; (e) remove, alter, or obscure any proprietary notices on or within any Deliverable; (f) access or use the Deliverables to build a product or service that is competitive with Chiron Datalabs; or (g) use any Deliverable in violation of any applicable law or regulation.
8.3 Background IP.
Customer acknowledges that Chiron Datalabs uses its internal, AI-based proprietary platform and related tools (the “Chiron Datalabs Platform”) in its performance of the Services, including developing the Deliverables. Customer agrees that any learnings, improvements, optimizations, or model training derived from Chiron Datalabs’s development of the Deliverables may be retained and used by the Chiron Datalabs Platform and by Chiron Datalabs for any purpose in compliance with applicable law, including in connection with developing deliverables for other customers, provided that such use does not include or disclose Customer’s Confidential Information. Chiron Datalabs may incorporate into or use in connection with performance of the Services its own pre-existing or independently developed works of authorship, ideas, notes, records, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, technology, developments, know-how and information (together with the Chiron Datalabs Platform, the “Background IP”). All right, title, and interest in and to the Background IP will remain the sole and exclusive property of Chiron Datalabs, including any improvements to or derivative works thereof created in the course of performing the Services. To the extent any Background IP is incorporated into any Deliverable, Chiron Datalabs grants Customer a limited, non-exclusive, non-transferable (except as permitted under this Agreement), non-sublicensable, worldwide, royalty-free license under Chiron Datalabs’s intellectual property rights in the Background IP, to use such Background IP solely to the extent necessary for Customer to exercise its license rights to the Deliverables as set forth in Section 8.2 above. Except for the limited license granted in this Section 8.3, no rights or licenses, express or implied, are granted to Customer under any Background IP.
9. WARRANTIES
9.1 By Chiron Datalabs.
Chiron Datalabs represents, warrants, and covenants as follows:
(a) Organization; Authority. Chiron Datalabs is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation, and has all necessary power and authority to enter into this Agreement and perform its obligations hereunder.
(b) No Conflict. The entering into and performance of this Agreement by Chiron Datalabs does not and will not violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which Chiron Datalabs is a party or by which it or any of Chiron Datalabs’s property is or may become subject or bound. Chiron Datalabs has and will have all requisite ownership, rights, and licenses to fully perform its obligations under this Agreement and to grant to Customer all rights with respect to the Deliverables and Inventions and related intellectual property rights to be granted under this Agreement.
(c) Services. The Services will be performed in a timely, competent, professional, and workmanlike manner by qualified personnel.
(d) Compliance with Laws. Chiron Datalabs’s performance under this Agreement will comply with all applicable federal, state, and local laws, and government rules and regulations.
9.2 By Customer.
Customer represents, warrants, and covenants as follows:
(a) Organization; Authority. Customer is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation, and has all necessary power and authority to enter into this Agreement and perform its obligations hereunder.
(b) No Conflict. The entering into and performance of this Agreement by Customer does not and will not violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which Customer is a party or by which it or any of Customer’s property is or may become subject or bound.
(c) Lawful Use. Customer will use the Services and Deliverables only in compliance with this Agreement and all applicable federal, state, and local laws, and government rules and regulations.
(d) Customer Materials. To the extent Customer provides any materials, data, software, or other content to Chiron Datalabs (“Customer Materials”) for use in connection with the Services or Deliverables, Customer represents and warrants that it has all necessary rights and consents to provide such Customer Materials and to permit their use by Chiron Datalabs as contemplated under this Agreement, without violating any third-party rights.
(e) Restrictions. Customer will not (and will not permit others to) use the Deliverables outside the scope of the license granted or in violation of the restrictions set forth in this Agreement, including without limitation in Section 8.2.
10. INDEMNIFICATION
10.1 By Chiron Datalabs.
Chiron Datalabs will indemnify, defend, and hold harmless Customer and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any act of gross negligence or willful misconduct by Chiron Datalabs or Chiron Datalabs’s employees or agents in connection with the Services; (b) any material breach by Chiron Datalabs or Chiron Datalabs’s employees or agents of any of the covenants, warranties, or representations contained in this Agreement; (c) any failure of Chiron Datalabs to perform the Services in accordance with all applicable laws, rules, and regulations; or (d) any violation or claimed violation of a third party’s intellectual property rights resulting from the Deliverables under this Agreement.
10.2 Intellectual Property Infringement.
In the event of any claim concerning the intellectual property rights of a third party that would prevent or limit Customer’s use of the Deliverables, Chiron Datalabs will, in addition to its obligations under Section 10.1, take one of the following actions at its sole expense: (a) procure for Customer the right to continue use of the Invention or infringing part thereof; or (b) modify or amend the Deliverable or infringing part thereof, or replace the Deliverable or infringing part thereof with another Deliverable having substantially the same or better capabilities. Chiron Datalabs will have no obligation under this Section 10 to the extent that the alleged infringement arises out of (i) use of the Deliverables in a manner not authorized by this Agreement; (ii) modification of the Deliverables by anyone other than Chiron Datalabs; (iii) combination of the Deliverables with other services, processes, or materials not provided or authorized in writing by Chiron Datalabs; or (iv) Customer’s continued use of the Deliverables after being provided with a modified version that would have avoided the infringement.
10.3 By Customer.
Customer will indemnify, defend, and hold harmless Chiron Datalabs and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any act of gross negligence or willful misconduct by Customer or Customer’s employees or agents in connection with the use of the Services or Deliverables; (b) any material breach by Customer or Customer’s employees or agents of any of the covenants, warranties, or representations contained in this Agreement; (c) any failure by Customer to use the Services or Deliverables in accordance with applicable laws, rules, and regulations; or (d) any use of the Services or Deliverables in violation of the license granted by Chiron Datalabs, including any use that infringes or is alleged to infringe the intellectual property or other proprietary rights of a third party.
10.4 Procedure.
The party seeking indemnification (the “Indemnified Party”) must promptly notify the other party (the “Indemnifying Party”) of any claim for which it seeks indemnification. Failure to provide prompt notice will not relieve the Indemnifying Party of its obligations except to the extent materially prejudiced. The Indemnifying Party will control the defense and settlement of the claim, but may not settle without the Indemnified Party’s prior written consent if the settlement admits liability, imposes obligations, or does not include a full release. The Indemnified Party will reasonably cooperate in the defense at the Indemnifying Party’s request and expense.
11. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES
11.1 Limitation of Remedies.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF SECTION 7 (CONFIDENTIALITY), A PARTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF THOSE DAMAGES OCCURRING. EXCEPT FOR FEES PAYABLE UNDER THIS AGREEMENT OR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF SECTION 7 (CONFIDENTIALITY), EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO CHIRON DATALABS UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION WILL APPLY EVEN IF THE REMEDIES AVAILABLE IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11.2 Disclaimer of Warranties.
CHIRON DATALABS MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES OR DELIVERABLES EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 3 AND 9. OTHERWISE, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” AND CHIRON DATALABS SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
12. MISCELLANEOUS
12.1 Publicity.
The parties may issue a joint press release and case study regarding Customer’s use of the Services and Deliverables. Such press release and case study will be subject to both parties’ prior approval which shall not be unreasonably withheld. Chiron Datalabs will provide any proposed press release or case study to Customer for review, and unless Customer requests reasonable changes in writing within 5 business days of receipt, the case study will be deemed approved by Customer. Chiron Datalabs may refer to Customer by name or with Customer’s trade names, trademarks, service marks, and logos (collectively, Customer’s “Marks”), if applicable, and may briefly describe Customer’s business and use of the Services in Chiron Datalabs’s customer lists, investor and marketing materials, social media, and website. Customer hereby grants Chiron Datalabs a non-exclusive, royalty-free, non-transferable and non-sublicensable license to use Customer’s Marks solely in connection with the promotion of Chiron Datalabs and the Services, provided that (a) Chiron Datalabs will comply with any brand guidelines or other instructions regarding the Marks provided by Customer; and (b) Chiron Datalabs will not use Customer’s Confidential Information for any of the foregoing publicity or promotional purposes.
12.2 Feedback.
If Customer provides to Chiron Datalabs any feedback suggesting or recommending changes to the Services or Deliverables, including without limitation, new features or functionality relating thereto, or any other comments, questions, or suggestions (“Feedback”), Customer hereby assigns to Chiron Datalabs all right, title, and interest in and to the Feedback.
12.3 Independent Contractor.
It is the express intention of the parties that Chiron Datalabs perform the Services as an independent contractor. Without limiting the generality of the foregoing, Chiron Datalabs is not authorized to bind Customer to any liability or obligation or to represent that Chiron Datalabs has any authority. Chiron Datalabs will indemnify and hold Customer harmless to the extent of any obligation imposed on Customer resulting from a determination that Chiron Datalabs is not an independent contractor.
12.4 Force Majeure.
Neither party shall be liable for any failure or delay in performance under this Agreement (other than payment obligations) to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, epidemics, acts of government, labor disputes, civil disturbances, acts of terrorism, or interruptions of internet or utility services. The affected party shall promptly notify the other party of the force majeure event and use commercially reasonable efforts to resume performance as soon as practicable.
12.5 Governing Law.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of California, without reference to its choice of law rules that would result in the application of the laws of another jurisdiction and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in San Francisco County, California and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
12.6 Nonassignment; Subcontractors.
Customer may not assign or transfer this Agreement, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Chiron Datalabs. Any attempted assignment or transfer by Customer without such consent will be null and void. Chiron Datalabs may assign or transfer this Agreement, including in connection with a merger, acquisition, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
12.7 Notices.
Any notice required or permitted under the terms of this Agreement or required by law in connection with this Agreement (each, a “Notice”) must be provided in writing to the other party at the applicable address set forth in the Order Form through one of the following methods: (a) in person; (b) by certified or registered mail, or air mail, as appropriate, return receipt requested; (c) by nationally recognized overnight courier service; or (d) via email (and, if receipt is not confirmed within 2 business days, supplemented by one of the methods specified in (a), (b), or (c) of this section). Notices will be considered to have been given (1) at the time of actual delivery in person, (2) three business days after deposit in the mail as set forth above, (3) one business day after delivery to an overnight courier service, or (4) for email, the earlier of the date receipt is acknowledged by recipient and the date the supplemental Notice would otherwise be deemed given in accordance with this section. Either party may change its address for Notice by providing Notice of the change in accordance with this section. If an individual named as the recipient for Notices to a party ceases to work in the role specified or ceases to work for a party and that party fails to notify the other party of an alternative individual, delivery of Notices marked to the attention of an individual in the same or equivalent role at that party is deemed compliant with the Notice obligations.
12.8 Waiver.
Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
12.9 Severability.
If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
12.10 Interpretation.
For purposes of this Agreement: (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (f) whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa; and (g) days, months, and years refer to calendar days, months, and years unless otherwise expressly specified. The headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
12.11 Integration.
This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. Except as expressly set forth in this Agreement, no terms, provisions, or conditions of any order form, purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions.