This MASTER SERVICES AGREEMENT (“Agreement”), is made and entered into by and between Sererra Consulting Group, LLC (“Sererra”), a California Limited Liability Company with its principal place of business located at 3349 Michelson Drive, Suite 200, Irvine, CA 92612 and _____________ (“Company” or “Client”) with its principal place of business located at ______________________. This Agreement sets forth the terms and conditions under which Sererra shall provide certain Sererra consulting and professional services to Company.

 

TERMS AND CONDITIONS

WHEREAS the parties desire that Sererra be retained by Company to provide the products and services described in the Statement of Work (“SOW”) attached here as Exhibit 1, and any other SOW’s added by the parties to this Agreement (the “SOW”); and,

WHEREAS the parties mutually agree that the terms and conditions set forth herein (the “Terms and Conditions”) shall apply to the products and services provided under the SOW and that any additional products and services provided under any additional SOWs agreed to by the parties (the “Services”); and

WHEREAS, the attached SOW is incorporated by reference into these Terms and Conditions, and the SOW and the Terms and Conditions are collectively referred to as the “Agreement”.

NOW, THEREFORE, in consideration of the SOW(s) and the mutual promises of the parties contained in this Agreement, the parties agree as follows:

 

1. Terms of Payment; Term and Termination

1.1. Payment

The Services to be performed and provided by Sererra, and the estimated fees are set forth in the applicable SOW attached hereto and additional SOWs to which the parties may agree from time to time. (For recurring Services under the same SOW, the Services to be performed and the specific term for which such Services are to be performed are specified in the first SOW and in a Subscription Agreement made part of such SOW, if applicable). Payment is due on the date specified in the applicable SOW, or if no due date is specified, upon receipt of Sererra’s invoice. Payments for monthly fees are due in advance, but no later than the third business day of the month. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated monthly) or the maximum amount allowed by law, whichever is less. Upon five (5) days prior written notice, Sererra reserves the right to temporarily suspend Services under one or more SOW(s) until past due amounts are paid; such temporary suspension will not affect the amounts due and owing.

1.2. Expenses.

Company will reimburse Sererra promptly upon receipt of invoice for reasonable out-of-pocket expenses incurred by Sererra for the provision of the Services hereunder, in accordance with the applicable SOW, provided, however, except as otherwise stated in any SOW, Sererra shall not incur any out-of-pocket expenses without the prior written consent of Company.

1.3. Term

This Agreement shall continue from the Effective Date until the termination of Services under any outstanding SOW hereunder. Except as otherwise stated in a SOW or any exhibits to the SOW, including without limitation in a Subscription Agreement, if Services are to be performed on a recurring basis for a specific term, the Company may terminate Sererra’s Services under a SOW before the end of the term stated in the SOW by (i) providing Sererra with written notice of termination, and (ii) paying Sererra, at the time of providing such written notice, one third of the amount that otherwise would have become due over the term had the Services been performed for the full term. If Services are to be performed under a SOW on a recurring basis for an unspecified term, unless otherwise stated in the SOW attached thereto, the Company may terminate the Services under such a SOW by providing Sererra with at least one (1) calendar month’s written notice of termination, and by paying Sererra for Services rendered through the termination date under the applicable SOW, with any initial deposit being nonrefundable. Termination of the Agreement or any SOW shall not relieve Company of its obligation to pay for any outstanding invoices or for work or Services provided up until termination, or after termination for work in progress still to be completed at Company’s request. The SOW, or the Schedules thereto, may set forth additional terms of cancellation prior to termination.

1.4. Renewal; Additional SOW’s

Except as expressly set forth in any SOW, any additional SOW, or any amendment to or renewal of any SOW and acceptance of any additional order for Services from Sererra, shall be based on then current market prices, in Sererra’s sole discretion. Pricing of Services under any new SOW, or for any renewal period of a SOW, is subject to change from time to time and will be based on then current market prices. Except for increases due to a change of law under Section 16 of this Agreement, in the event Sererra institutes a price increase under an existing SOW, Company shall have the option, within thirty (30) in days after receiving written notice from Sererra of such increase, to terminate the applicable SOW, but not any other SOW(s) or this Agreement, upon written notice to Sererra, unless otherwise stated in the SOW to which the price increase is being applied.

1.5. Collection

There will be a $25.00 fee on all returned checks, plus any additional bank fees incurred by Sererra. Company shall pay all attorneys’ fees and costs incurred by Sererra in the collection of any amounts due Sererra and not paid by Company in accordance with the terms of this Agreement, including any SOW.

1.6. Taxes

The charges for the Services described in the SOW do not include taxes.  Sererra shall be responsible for its own taxes, including, but not limited to, income, payroll, sales, use, gross receipts, real estate, personal property or other taxes.  Company will reimburse Sererra only for sales/use taxes properly applicable to transactions under this Agreement, if any.  Sererra agrees to comply with Company’s reasonable request with respect to mercantile terms.  If Sererra is required to pay any federal, state, country or local sales, use or similar taxes based on the Services provided under this Agreement or any SOW, the taxes shall be itemized, billed to and paid by Company. Company shall not be responsible for taxes based on Sererra’s income, payroll taxes, and any other taxes pursuant to this Agreement.

1.7. Audit

Sererra must maintain complete and accurate records of, and supporting documentation for, the amounts billable to and payments made by Company hereunder in accordance with generally accepted accounting principles applied on a consistent basis.  Sererra agrees to provide Company with documentation and other information with respect to each invoice as may be reasonably requested by Company to verify accuracy and compliance with the provisions of this Agreement.  Following reasonable written notice to Sererra, Company or its agents may conduct an audit, during regular business hours, of the books and records maintained by Sererra for Company to verify Sererra’s compliance with this Agreement and the accuracy of charges during the term of this Agreement and for two (2) years after expiration of the Services provided for in this Agreement.  Sererra shall reasonably cooperate with Company audits, including, without limitation, making applicable data available in a reasonably requested format.  Audits shall be completed not more frequently than once per year, absent reasonable suspicion that a breach has occurred.  Costs of the audit will be at Company’s expense, including the reasonable cost of Sererra’s internal costs of complying with the audit.

 

2. Scope of the Agreement

2.1.      Services and SOW Form.

Sererra will provide to Company the Services that are described in this Agreement and any other SOWs executed by both Parties in accordance with this Agreement.  Sererra is authorized to perform Services only through the execution of one or more SOWs.

2.2.      General Standards of Performance.

Sererra and the Company shall at all times comply with all applicable foreign and domestic laws and regulations in the course of the performance of the Services.  Sererra and the Company each has obtained any permits or licenses required for their respective activities in connection with the Services, such permits or licenses are in full force and effect, and will remain in full force and effect during the term of this Agreement.

2.3.      Change Procedure.

In order for an SOW to be modified, a Project Change Request (“PCR”) must be executed by a duly authorized representative of each party.  Each PCR will describe the proposed change, the rationale for the change, and the expected effects, if any, the change will have on project cost, schedule, and other subjects.  A PCR containing any changes to the project costs or due dates must be executed by Sererra and the Company Project Representative in order to be binding.  For the purposes of this Agreement, a Project Representative means the representative of each party named in each SOW hereto.

2.4.      Order of Precedence.

If there is any conflict between this Agreement and any SOW, the conflict will be resolved by giving effect first to this Agreement and secondly to the SOW, except the SOW will control as to the particulars of the Services to be performed.  An SOW may modify the terms of the Agreement only with respect to Services under that particular SOW.

 

3. Relationship of Parties

3.1. Independent Contractor Status.

The parties agree that Sererra is an independent contractor; that neither party has the authority to act for the other party or to bind the other party in any respect whatsoever, or to incur any debts or liabilities in the name of or on behalf of the other party, that the persons performing Services hereunder are not agents or employees of Company, that Sererra has and hereby retains the right to exercise full control of and supervision over the performance of Sererra’s obligations hereunder and full control over the employment, direction, compensation and discharge of all Sererra employees assisting in the performance of such obligations.

3.2. No Joint Venture Relationship.

Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.

3.3. No Employment Relationship

Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Company and either Sererra or any employee or agent of Sererra. Each party will be solely responsible for payment of all compensation owed to its employees, as well as federal and state income tax withholding, Social Security taxes, and unemployment insurance applicable to such personnel as employees of the applicable party. Each party shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits (if any) to which such party’s employees may be entitled. Each party agrees to defend and indemnify the other against any claims that the indemnified party has failed to pay compensation, tax, insurance, or benefits for employees of the indemnifying party.

 

4. Delivery and Acceptance Testing

4.1       Manner. 

Company shall provide each deliverable under a SOW (“Deliverable”) to the designated Company project representative on or prior to the due date set forth in the applicable SOW.  Each delivery shall be in a format or medium acceptable to both parties or as specified in the applicable SOW.  Deliverables shall conform to the applicable SOW (“Specifications”).

 

5          Confidentiality; Intellectual Property Rights

5.1. Definition.

As used in this Agreement, “Confidential Information” shall mean any information which is disclosed by one party (hereinafter “Discloser”) to the other (hereinafter “Recipient”) in connection to the Agreement which is conveyed either: (a) in written, graphic, machine readable or other tangible form and marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature; or (b) orally, provided that such information is designated as confidential at the time of such oral disclosure and reduced to writing within fifteen (15) days from the date of disclosure.  This Confidential Information shall include, without limitation, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, semiconductor designs, schematics, designs, contacts, customer lists, financial information, sales and marketing plans and business information.

5.2. Confidentiality Obligations

During the term of this Agreement and for a period of two (2) years thereafter, the receiving party shall not, without the prior written consent of the furnishing party, use, exploit, reveal or disclose to any person or entity any Confidential Information relating to the business and services of the furnishing party, including the Services, customers or confidential affairs of the furnishing party, other than to comply with the reasonable requests of the receiving party’s auditors or other professional consultants, which the receiving party shall bind to the confidentiality provisions of this Agreement. The receiving party shall use prudence and care in the dissemination of Confidential Information of the furnishing party within the receiving party’s own organization to only employees who need to know, auditors, independent contractors or other professional consultants. The receiving party shall protect the Confidential Information of the furnishing party with the same degree of care as the receiving party employs for the protection of its own trade secrets and Confidential Information (but in no event shall such care be less than that which is commercially reasonable).

5.3       Exceptions

The provisions of this Section shall not apply to Confidential Information of the furnishing party:  (a) which is or becomes through no fault of the receiving party part of the public domain; (b) which is contained in the receiving party’s public disclosures; (c)  which is lawfully obtained by the receiving party from a third party outside of this Agreement; (d) the Confidential Information is required to be disclosed by a government agency to further the objectives of this Agreement, or by a proper court of competent jurisdiction; provided, however, that the receiving party will use its best efforts to minimize the disclosure of such information and will consult with and assist disclosing party in obtaining a protective order prior to such disclosure. The receiving party acknowledges that all information of the furnishing party shall be and remain the property of the furnishing party. The receiving party shall return to the furnishing party all Confidential Information, products, literature, documents, proprietary materials, intellectual property, marketing materials and other confidential information received from the furnishing party promptly after a request by the furnishing party. Any reports, summaries, analysis or other similar materials prepared by Sererra, in connection with the Services or otherwise, shall remain the work product and property of Sererra.

5.4       Press Release

Furnishing and receiving parties agree that neither party will, except as required by law, disclose or issue any press release with respect to this Agreement or any transactions contemplated by this Agreement, without the prior written consent of the other party to this Agreement.  Such prior written consent shall not be unreasonably withheld from the requesting party.

5.5       Injunctive Relief

Because of the unique nature of Confidential Information, the receiving party understands and agrees that, in the event it fails to comply with any of the terms of this Article 5, the furnishing party will suffer irreparable and extreme harm, and that monetary damages may be inadequate to compensate the disclosing party for such breach.  Accordingly, the receiving party agrees that the furnishing  party will, in addition to any other legal or equitable remedies available to it, be entitled (without the requirement of posting a bond or other form of security) to seek immediate injunctive relief to enforce the terms of this Article 5.  The foregoing right is not exclusive and the exercise thereof will not constitute an election of remedies.

 

6. Intellectual Property Rights

6.1 Intellectual Property of Company

Each SOW will identify any computer software (in object and source code form), artwork, graphical elements and other design criteria, script, programming code, data, information or HTML script developed or provided by Company, and any trade secrets, know-how, methodologies and processes related to Company’s products or services, shall remain the sole and exclusive property of Company or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other inherent proprietary rights (collectively “Company Materials”) Each SOW will specify any Company Property that Company is required to provide for that SOW.  As between Company and Sererra, Company will retain all ownership of, and Intellectual Property Rights in Company Property.  Sererra will use Company Property only for purposes of performing Services under this Agreement.  Contractor will cease use of Company Property upon expiration or termination of the applicable SOW.

For the purposes of this Agreement, “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.

6.2. Intellectual Property of Sererra

Except as otherwise stated in a SOW, all materials, including but not limited to any computer software (in object and source code form), artwork, graphical elements and other design criteria, script, programming code, data, information or HTML script developed or provided by Sererra, and any trade secrets, know-how, methodologies and processes related to Sererra’s products or services, shall remain the sole and exclusive property of Sererra or its suppliers, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other inherent proprietary rights (collectively “Sererra Materials”). To the extent, if any, that ownership of the Sererra Materials does not automatically vest in Sererra by virtue of this Agreement or otherwise, Company hereby transfers and assigns to Sererra (and agrees to transfer and assign in the future as requested by Sererra) all rights, title and interest which Company may have in and to the Sererra Materials. No right or license to any intellectual property rights associated with the Sererra Materials shall be implied.

6.3. Permitted Uses and Authority

6.3.1. Use of the Sererra Materials and Services

For the duration and subject to the terms of this Agreement and payment of any amounts due hereunder and under any applicable SOW, including any subscription agreement thereunder, Sererra grants to Company a non-exclusive, non-transferable, non-sublicensable limited license to create configurations and customizations of the Sererra Materials and Services and to reproduce, modify, and deliver such configurations and customizations to Company’s for use.

6.3.2. Use of the Sererra Materials and Services

For the duration and subject to the terms of this Agreement and under any applicable SOW, including any subscription agreement thereunder, Company grants to Sererra a non-exclusive, non-transferable, non-sublicensable limited license to use the  of the Company Materials and Services to perform its obligations hereunder.

6.3.3. Company’s Agents

Upon advance written notice to Sererra, Company shall have the right to allow access by third-party service providers or consultants (“Agents”) to the Sererra Materials as reasonably necessary for the conduct of Company’s business, provided that such Agents have executed an agreement with Company agreeing to be bound by the terms of the Confidentiality provision of this Agreement and Company shall be liable for any acts of its Agents in violation of this Agreement. Agents shall not be deemed to be licensees of the Sererra Materials under this Agreement for any reason and Company shall be liable for any use and mis-use of the Sererra Materials by its Agents in the same manner as Company is responsible hereunder.

6.3.4. Company Restrictions

Except as otherwise specifically provided under this Agreement or in any SOW, Company will not, and will use its best reasonable efforts not allow any customer, user, or other third party of Company to (a) modify, copy, or otherwise reproduce the Sererra Materials or Services in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the software used in the Sererra Materials or Services; (c) provide, lease, or lend the Sererra Materials or Services to any third party, except as expressly authorized hereunder; (d) remove any trademarks, logos, copyright notices, proprietary notices, or labels displayed on the Sererra Materials or Services, (e) modify or create a derivative work of any part of the Sererra Materials or Services; (f) use the Sererra Materials or Services for any unlawful purpose; or (g) create Sererra’s hyperlinks to or from the Sererra Materials or Services, or frame or mirror any of Sererra’s content which forms part of the Sererra Materials or Services.

6.3.5. Sererra Restrictions.

Except as otherwise specifically provided under this Agreement or in any SOW, Sererra will not, and will use its best reasonable efforts not allow any contractor, user, or other third party of Sererra to (a) modify, copy, or otherwise reproduce the Company Material in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the software used in the Company Materials; (c) provide, lease, or lend the Company  Materials to any third party, except as expressly authorized hereunder; (d) remove any trademarks, logos, copyright notices, proprietary notices, or labels displayed on the Company  Materials or Services, (e) modify or create a derivative work of any part of the Company Materials or Services; (f) use the Company Materials for any unlawful purpose; or (g) create Company hyperlinks to or from the Company Materials, or frame or mirror any of Company’s content which forms part of the Company Materials.

7. Warranty

7.1.      Mutual Representations.

Each party represents and warrants to the other that: (a)  it is duly organized and validly existing under the laws of its state of organization and it has full right, power, and authority to enter into and perform its obligations under this Agreement;  (b) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement is not inconsistent with, and will not breach, any contract by which it or any of its material assets are bound, or an event that would, with notice or lapse of time or both, constitute such a breach; (c)it has obtained all necessary licenses, permits and other actions required by applicable laws or government regulations in connection with its ability to perform its obligations under this Agreement; and (d) it is not and will not be bound by any agreement, nor will it assume any obligation, which would in any way be inconsistent with or breached by its performance of its obligations under this Agreement. 

7.2       Sererra Warranties

Sererra warrants (a) the Services will function substantially in conformance with the SOW, (b) it will provide the Services hereunder in accordance with prevailing, generally accepted professional standards; (c) that at the time of delivery the Services and for six (6) months thereafter, the Services will substantially conform to the then current Specifications set forth in the applicable SOW and perform without material error; (d) that all Services and Deliverables are either the original work of Sererra, or Sererra has obtained the right to use the Services as contemplated hereunder (including any Third Party Technology; (e) no Service nor Deliverable will knowingly infringe any copyright, trademark or trade secret rights of a third party; and (f) no Service nor Deliverable will, to Sererra’s knowledge, infringe any U.S. patent issued as of the effective date of the applicable SOW. In the event of a default by Sererra of (a) or (b) or (c), and provided that Company provides Sererra with written notice of such non-conforming service in writing by no later than ten (10) days after its discovery, and in any case no later than six (6) months from the date of delivery of the Services to Company under the applicable SOW, Sererra shall, promptly repair or replace such non-conforming Service. If such repair or replacement cannot be made within thirty (30) days of Company’s notification in accordance with this Agreement, Company may terminate this Agreement without penalty.

 

8. Disclaimer of Warranties; Limitation of Liability

EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERERRA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF ANY OF THE SERVICES OR PRODUCTS PROVIDED BY SERERRA OR ANY OF ITS AFFILIATES, PARTNERS, VENDORS, WEB PROPERTIES OR SIMILAR THIRD PARTIES FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION, SERERRA SHALL NOT BE LIABLE FOR OR TO COMPANY OR ANY THIRD PARTY FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING ATTORNEY’S FEES) INCURRED IN CONNECTION WITH COMPANY’S PARTICIPATION IN THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OR INACCURACY OF DATA OR OTHER INJURY, DAMAGE OR DISRUPTION TO COMPANY’S WESBSITE, LISTINGS OR ADVERTISEMENTS, OR SERERRA’S USE OF CONTENT OR OTHER MATERIALS BY SERERRA IN THE PERFORMANCE OF THE SERVICES, WHETHER OR NOT PROVIDED BY COMPANY.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY, INCLUDING DAMAGES FOR ANY LOST PROFITS; ANY LOSS OF BUSINESS; ANY COST OF REPLACEMENT SERVICES. IN NO EVENT SHALL EITHER PARTY’S  LIABILITY EXCEED THE TOTAL AMOUNT PAID TO SERERRA BY COMPANY HEREUNDER; PROVIDED HOWEVER THAT THE FORGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO PARTY’S: (A) OBLIGATIONS OF INDEMNTY; (B) OBLIGATIONS OF CONFIDENTIALITY; OR C) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

9. Indemnification

9.1. By Company

Company shall indemnify, defend and hold Sererra, its officers, directors, stockholders, employees and agents harmless from and against any losses, costs, damages or expenses (including reasonable attorneys’ fees) resulting from any claims or actions arising in connection with Company’s breach of any agreement, representation or warranty hereunder including, without limitation, claims for infringement of trademark, copyright or other intellectual property rights and violation of rights of privacy or publicity.

9.2. By Sererra

Sererra shall indemnify, defend and hold the Company, its officers, directors, stockholders, employees and agents harmless from and against any losses, costs, damages or expenses (including reasonable attorneys’ fees) resulting from any claims or actions arising in connection with Sererra’s breach of any agreement, representation or warranty hereunder including, without limitation, claims for infringement of trademark, copyright or other intellectual property rights and violation of rights of privacy or publicity. 

9.3. Replacement Services

Following notice of an infringement claim, and in the event an injunction is sought or obtained or in indemnifying party’s opinion is likely to be sought or obtained, indemnifying party shall, at its option and expense, either (i) procure for indemnified party the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make the use non-infringing while being capable of performing the same function without degradation of performance.

9.4. Infringement

Neither party shall have any liability, for any infringement claim based on (i) a party’s access to and/or use of the Services after notice that such party should cease use of the Services due to an infringement claim; (ii) any unauthorized modification of the Services resulting in the infringement claim; (iii) unauthorized combination of the Services with third party programs, data, hardware, or other materials; or (iv) any unauthorized use of the other party’s trademark(s), marking(s) or branding.

 

10. Non-Interference/Non-Solicitation Covenants 

10.1. Non-Interference

For the duration of this Agreement and any applicable SOW and a period of twelve (12) months thereafter, neither party Company shall, directly or indirectly, (individually or as an employee, officer, director, independent contractor, consultant, or agent, or as a venturer, partner, member, shareholder, or other beneficial holder of any interest in any sole proprietorship, joint venture, partnership, limited liability company, corporation, or other entity or business organization): (i) interfere with the contractual relationship or prospective business relations between the other party and any customer or prospective customer of such other party; or (ii) do anything, intentionally or recklessly, to discredit or otherwise injure the reputation or goodwill of the other party. 

10.2. Non-Solicitation

Without the prior written consent of the other party, during the Term of this Agreement and continuing through the first anniversary of the termination or expiration of this Agreement, neither party shall directly solicit or attempt to solicit for employment any person who is, or has been an employee, independent contractor, or other professional or business relation of the other party during the prior six (6) months, unless prior written permission is obtained by the other party. If a party does hire an employee or independent contractor of the other party, with or without the written permission of the other party, the hiring party shall pay $40,000 as a placement or recruitment fee (“Liquidated Damages”) to the other party. Notwithstanding the foregoing, in the event an employee, independent contractor, or other professional or business relation, of their own initiative or in response to a general public advertisement not targeted at the other party’s employees or independent contractors, applies for and is offered employment by the other, no breach of this Section 10 will have been made and no claims for damages, including Liquidated Damages, shall be made by against the hiring party.

 

11. Force Majeure; Delay

11.1. Force Majeure

Neither party shall be liable for any delay in the provision of any Services if such delay or failure is due to any cause beyond the control of such party, including without limitation, fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, acts of terrorism or similar acts, inability to secure necessary materials, services or products, acts or omissions of vendors or suppliers or other causes beyond its control whether or not similar to the foregoing, provided however, the acts described in this Section 11 shall not relieve Company of its obligation to pay for Services rendered and completed by Sererra prior to such force majeure event.

11.2. Completion/Delivery Dates

Any completion dates and the project scope and timeline for Services or products to be delivered to Company by Sererra are estimates only and do not constitute a binding commitment under this Agreement. Any delay in the completion of Services to be performed by Company due to external forces beyond Sererra’s control (such as unusual transportation delays, unforeseen problems at a vendor site, computer/Internet related issues, holidays, bad road conditions, etc.), or actions or negligence of the Company (i.e., content delivery delays), shall, upon notice to the Company, result in an extension of the completion/delivery date under a SOW by the time equivalent of such a delay and according to Sererra’s production schedules.

 

12. Insurance

Each party shall maintain at its sole cost and expense, the minimum valid, effective and collectible insurance of the types and minimum coverage amounts as are standard in the industry.

 

13. Assignment

Except as otherwise provided herein, neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party (which consent shall not be unreasonably withheld), except that either party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment or delegation without such consent or condition shall be void. This Agreement, including any SOW(s) hereunder, will bind and inure to the benefit of each party’s successors and permitted assigns. Except in the event of the sale of all or substantially all of the assets of Sererra, no assignment or delegation shall relieve the assigning party of its obligations under this Agreement or any SOW(s), including but not limited to payment obligations. The prohibitions against assignment contained herein shall not apply in the case of subcontractors with whom Sererra may contract to perform the Services hereunder.

 

14. Notice

All notices and other communications under this Agreement shall be in writing and shall be deemed duly given either (i) when delivered in person to the recipient named above, (ii) upon confirmation of a facsimile transmission to the intended recipient; (iii) three (3) business days after mailed either registered or certified U.S. mail, return receipt requested, postage prepaid, addressed by name and address to the party intended as set forth above; or (iv) one (1) business days after delivery by nationally recognized overnight delivery service.

 

15. Compliance with Law

Each party is responsible for ensuring that all goods and services offered by the other party, that all materials provided to the other party to be used in connection with the Services under this Agreement, and that all aspects of such party’s business, comply with all applicable laws and regulations in all jurisdictions in and to which the Services are provided by Sererra. Each party is also responsible for ensuring that it is authorized under all applicable laws and regulations to offer sell or deliver, as the case may be, all of such party’s products and services in all jurisdictions in and to which the Services are provided by Sererra. Additionally, each party shall maintain all records pertaining to the sales of its goods and services in accordance with applicable laws.

 

16. Changes in Law

If any existing law or regulation is changed or if any new law or regulation is enacted that resulting in a tax or assessment that affects the Services provided under this Agreement or any SOW for which work is in the process of being performed, Sererra and/or Company may modify this Agreement to the extent reasonably necessary to ensure that such Services will be in full compliance with such laws and regulations and Sererra may modify the rates applicable to such Services to reflect the pass through of such tax or other assessment. Notwithstanding the foregoing, if such increase in rates is more than five percent (5%), then Company shall have the right to terminate the applicable Services as of the effective date of such increase upon written notice to Sererra, provided that upon such termination, Company shall make payment of all amounts due up through such date in full to Sererra.

 

17. Amendments

Any change in the specified scope of Services must be mutually agreed upon by the parties in writing. Any other changes outside the scope of Services not authorized by the foregoing may be made only by a written amendment, referring to the Agreement or the SOW and/or clauses of such documents to be changed, and signed by the specifically authorized representatives of both parties.

 

18. Merger

This Agreement constitutes the entire understanding between the parties and supersedes all negotiations, representations, prior discussions and preliminary agreements between the parties. This Agreement shall be construed as though all parties had drafted it.

 

19. Waiver

Any waiver by any party of any breach of any kind or character whatsoever by any other party, whether such waiver be direct or implied, shall not be construed as a continuing waiver of, or consent to, any subsequent breach of this Agreement on the part of the other party or parties. No course of dealing or performance between the parties, or any delay in exercising any rights or remedies or otherwise, shall operate as a waiver of any of the rights or remedies of any party.

 

20        Governing Law; Jurisdiction

This Agreement shall be construed in accordance with the laws of the State of California, without regard to conflict of law provisions thereof. Any claims arising out of this Agreement shall be brought in a court of competent jurisdiction in California and both parties agree to the jurisdiction of such courts.