Terms and Conditions
- SERVICES
- TERM
- PAYMENT
- CONFIDENTIALITY
- USE AND OWNERSHIP
- CRISIS24 REPRESENTATION AND WARRANTIES
- RISK MITIGATION AND PERSONAL PROPERTY WAIVER
- INDEMNIFICATION
- INSURANCE
- CRISIS24 PERSONNEL
- GENERAL TERMS
These terms and conditions (the “Agreement”) apply to the provision of Services specified in the Statement of Work (each, an “SOW”) between the Parties and is a contract between the Parties signing the applicable SOW.
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. SERVICES
a. Scope of Agreement. This Agreement sets forth the terms and conditions that will apply when Crisis24 provides services to Client (the “Services”) as described in a Statement of Work (each, an “SOW”) executed by the Parties pursuant to this Agreement. Any of the Crisis24 companies may perform the Services.
b. SOW Content and Form. Services shall be evidenced by one or more written SOW(s). Each SOW will specify the Services, the scope of Services, term, fees, milestones, deadlines, locations, and any other relevant instructions for each SOW. In the event of a conflict between this Agreement and the applicable SOW, the terms of the particular SOW will prevail.
c. No Obligation. This Agreement does not impose an obligation to deal exclusively with the other Party. In addition, Crisis24 is not obligated to undertake, and Client is not obligated to purchase or pay for, any Services unless this Agreement and an SOW for Services is executed and delivered by both parties.
d. Changes to Services. If either Party believes a change in circumstances justifies any modification to the SOW, the Parties shall discuss in good faith a modification to the relevant SOW. Any modification requires a written amendment or other written confirmation, executed by the Parties.
2. TERM
a. Term of Agreement and SOW. The term of this Agreement will begin on the Effective Date and continue until terminated as set forth herein (the “Term”). The term for each individual SOW will be as set forth in the applicable SOW.
b. Termination for Cause. Either Party shall have the right to terminate this Agreement upon written notice if (i) the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within ninety (90) days, or makes any assignment for the benefit of creditors ; (ii) the other Party breaches any anti-bribery or anti-corruption laws; or (iii) the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Termination of the Agreement as stated in this section 2(b) will terminate any SOW(s) in effect at such time. Neither Party shall be liable to the other for any cost (other than fees incurred before termination), expense, or damages whatsoever for terminating the Agreement as set forth herein. Client shall be liable to Crisis24 for any fees due for Services under an SOW, including any professional services, provided prior to the date of termination.
c. Termination by Crisis24. In addition to any other termination rights, Crisis24 shall have the right in its discretion to terminate this Agreement or any SOW under this Agreement, for any reason or for no reason, upon thirty (30) days’ prior written notice to Client. For termination under this subsection, Client will pay Crisis24 for Services rendered up to the date of termination.
3. PAYMENT
a. Terms. Client agrees to pay Crisis24 for the Services as set forth in the SOW. Invoices may be issued by any party in the Crisis24 group of companies specified above. Unless otherwise specified in an SOW, fees and charges set forth in any SOW are valid for twelve (12) months from the Effective Date of this Agreement and are subject to change thereafter.
b. Expenses. Fees for Services shall not include reimbursable costs, which include, but are not limited to, reasonable travel, lodging, vehicle reimbursements, mileage, per diem and various other travel expenses (“Expenses”). In the event Client requests that Crisis24 personnel incur or advance any Expenses for or on behalf of Client, Crisis24 will apply a seven and a half percent (7.5%) fee to cover the direct carrying costs and administration of the service.
c. Emergency Services. In the event of any exigent circumstances requiring the immediate provision of Services of any kind prior to execution of an SOW all Services shall be provided subject to the terms of this Agreement and all Fees shall be based upon and payable at Crisis24's then prevailing rate for such Services.
d. Equipment. Medical and emergency supplies and equipment may be required in order to perform the Services. In case of such an emergency, Crisis24 will obtain the supplies and equipment and Client agrees to reimburse Crisis24 for required equipment, as provided for in the Agreement. In instances where Crisis24 determines the need to obtain medical and emergency supplies and equipment on a non-emergency basis, it shall obtain advance written approval from the Client for any such expense.
a. Additional Hours. Unless addressed in an SOW, any additional service hours requested by Client (e.g. extending shift length) and Crisis24 observed holidays shall be billed at an overtime rate equal to one and a half (1.5) times the regular hourly rate.
e. Retainer. Unless otherwise specified in an applicable SOW, prior to commencement of services, Crisis24 requires a Retainer. The Retainer will be specified in the SOW. All charges and approved expenses shall be charged against the Retainer and any unused balance will be refunded to Client.
f. Invoicing. Crisis24 shall invoice Client in accordance with the terms of the SOW. Except as otherwise provided in an SOW, all invoices from Crisis24 are payable in USD currency and all invoices shall be issued monthly in arrears for the Services completed during that period and shall be due and payable within thirty (30) days after receipt of invoice and all required documentation. Crisis24 reserves the right to impose a late fee charge of the lesser of (i) 1.0% per month or (ii) the maximum amount allowed by applicable law for undisputed invoices remaining unpaid more than thirty (30) days. Client will pay the fees via ACH, wire transfer or credit card only. However, credit card payments will incur an additional three and a half percent (3.5%) fee.
g. Invoicing Disputes. In the event of Client’s good-faith dispute of all or part of any invoice, Client shall still pay any undisputed amounts. In the event Client fails to pay undisputed, properly invoiced amounts, Crisis24 will notify Client in writing of the non-payment. Client will endeavor to resolve the undisputed non-payment within thirty (30) days after Client’s receipt of written notice from Crisis24 of such delinquency. The prevailing party to any collection proceedings arising under this Agreement shall be entitled to recover from the other party, reasonable costs (including attorney’s fees) incurred in such proceedings.
h. Taxes. Crisis24 shall be responsible for the withholding or payment, as required by law, of all federal, state and local taxes (including, without limitation, all employment, income, sales, use, services and other taxes) imposed on Crisis24 or its employees or permitted subcontractors because of the performance of Services. Crisis24 shall comply with all federal and state benefits laws applicable to Crisis24 or its employees, including, without limitation, making deductions and contributions to social security, disability, and unemployment tax. All fees are exclusive of applicable state and local taxes.
4. CONFIDENTIALITY
a. Confidential Information. Confidential Information. “Confidential Information” means any information that is not generally available to the public that is treated as confidential by the disclosing party including, without limitation, trade secrets, technical information, business forecasts and strategies, marketing plans, any information relating to a Party’s techniques, algorithms, pricing, know-how, current and future products and services, research, engineering, design, customer and supplier lists and transactional data, employee information, financial and operations data, and proprietary information of third parties. Confidential Information shall also include any and all personal information of any kind or nature whatsoever of, regarding, or concerning any current, past, or potential client of a disclosing party as well as their associates, including, but not limited to, the names, pseudonyms, identifying characteristics, or information which reveals or could reveal the identity of any disclosing party's client or associates; the location and/or whereabouts of client or associates; the personal habits, routines or schedules of client and associates; personal or business associates of client; personal and/or real property and/or assets of client and associates; security programs of clients, including, but not limited to, staffing of security details, the identity or number of personnel assigned to security details, shifts of personnel assigned to security details, the identity of potential stalkers, predators, pursuers, and/or suspects of the client or associates. Confidential Information does not include any information which (i) is in the public domain at the time of disclosure; (ii) is in the possession of the receiving party free of any obligation of confidence prior to the time of disclosure; (iii) becomes part of the public knowledge through no fault of the receiving party; (iv) is rightfully received by the receiving party without obligations of confidence from a third party who is free to disclose the information; or (v) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.
b. Obligations. Each party agrees not to use or allow the use by any of its agents or representatives, the other party’s Confidential Information for any purpose other than performing the Services in accordance with this Agreement. Each party agrees to keep confidential and not to disclose or allow disclosure by any of its agents or representatives, the other party’s Confidential Information. Each party further agrees not to disclose any Confidential Information to any agent or representatives who are not bound by nondisclosure obligations consistent with the terms of this Agreement. Each party will promptly notify the other in writing in the event of any disclosure, loss or use in violation of this Agreement.
c. Permitted Disclosures. The receiving party will be permitted to disclose Confidential Information to the extent that such disclosure is required by law or court order, provided that the party promptly notifies the disclosing party in writing of the required disclosure and cooperates, at the disclosing party’s reasonable request and expense, to contest or limit the scope of the required disclosure and to obtain a protective order so that the party only discloses information to the minimum extent required by such law or court order.
d. Personally Identifiable Information. In addition to the limitations of this section, to the extent that Crisis24 has access to Client’s and its affiliates’ customer or employee, personally identifiable information or other data pertaining to those customers and employees, including without limitation information held by the Client or collected by Crisis24 in the course of performing Services, Crisis24 shall not use or disclose such personally identifiable information for any purpose not required to perform the Services in accordance with this Agreement. In addition, Crisis24 will comply with all privacy and information confidentiality laws and regulations with respect to personally identifiable information.
e. Injunctive Relief. In the event of a breach or threatened breach of this section, the receiving party agrees that the disclosing party may be irreparably harmed and that the disclosing party shall be entitled to both temporary and permanent injunctive relief without necessity of posting bond or other security.
5. USE AND OWNERSHIP
a. Crisis24 Materials. All materials provided by Crisis24 for incorporation or completion of the Services (the “Crisis24 Content”) shall remain the sole and exclusive property of Crisis24, including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights contained therein. Nothing in this Agreement shall be construed to grant Client any ownership right in, or license to, Crisis24 Content, except as provided for in an SOW.
b. Client Materials. If Client provides Crisis24 with any materials, tools, equipment, software, lists, files, or contacts that are owned by Client or any third party (collectively, the “Deliverables”), Client grants to Crisis24 a non-exclusive, limited, non-transferable license to use such Deliverables solely in connection with the performance of its obligations under the SOW to which they relate and solely for the term of such SOW. Crisis24 agrees to abide by any and all license requirements and instructions of Client related to such Deliverables. Upon the earlier of Client’s request or the expiration or termination of this Agreement or relevant SOW, Crisis24 shall return the Deliverables to Client in substantially the same condition as provided to Crisis24, reasonable wear and tear excepted, and shall not retain any copy thereof. With respect to software owned or licensed by Client and provided to Crisis24 for purposes of performing the Services, Crisis24 shall not copy, reproduce, modify, adapt, translate or create any derivative works from such software, or disassemble, decompile, reverse engineer or make any other attempt by any means to discover or obtain the source code of such software.
6. CRISIS24 REPRESENTATIONS AND WARRANTIES
Crisis24 represents and warrants on behalf of itself and its employees, agents, and subcontractors that:
a. it shall operate in compliance with applicable law and that it is properly registered to do business and licensed in all jurisdictions in which it will provide Services;
b. it has the requisite skill, experience and resources to perform all Services;
c. that the Services shall be performed in a timely and professional manner, consistent with industry standards; and
d. that the Services will not violate or infringe upon on any copyright, patent, trade secret or trademark of any third party.
7. RISK MITIGATION AND PERSONAL PROPERTY WAIVER
a. Risk Mitigation. Client agrees to inform Crisis24 now and throughout the Term of any risks, events or situations which Client believes might pose a hazard to Client or those in Client's environment. Client agrees that Client shall, to the extent reasonably possible, cooperate with the reasonable safety and security recommendations provided by Crisis24 personnel and the Client will not unreasonably expose himself/herself/itself to, or precipitate conditions which present an immediate threat of injury or harm to Client. Client shall assume all risks attendant to, arising out of, or in connection with any failure or refusal to follow the reasonable advice or recommendations of Crisis24 personnel, whether or not the risk of such failure or refusal is known or foreseeable. Client hereby releases and holds Crisis24 and its employees harmless from and against any liability, loss, damage, claims, or injuries to Client which may arise out of, or in connection with, the failure or refusal of Client to cooperate with the reasonable safety and security recommendations provided by Crisis24 personnel, or Client's negligent or intentional acts or omissions, which precipitates any condition that presents an immediate threat of injury or harm to Client. Client hereby extends express authorization for performance of such actions that are deemed reasonably necessary by Crisis24 personnel to protect the safety of Client or any person in Client’s environment. Client acknowledges that such reasonable action may include physical contact between Crisis24 personnel and Client or any person in Client’s environment, as well as between Crisis24 personnel and third parties. Client shall defend, indemnify, and hold Crisis24 harmless against any claims or injuries to Client or by any third parties resulting from or arising out of the reasonable use of force by Crisis24 personnel in protection of Client or any person in Client’s environment.
b. Client’s Personal Property. It is understood by all parties that Crisis24 is not and cannot be an insurer of its clients' personal possessions or property. Client is encouraged to maintain sufficient insurance for the value of their own personal property. Crisis24 shall not be responsible for any loss or damage, of any nature or kind, to any personal property caused by any third party, except to the extent such loss is caused by the gross negligence or willful misconduct of Crisis24 personnel. In the event of any such loss or damage to personal property caused by a third party for which Crisis24 is found directly liable in a court of law or by arbitration, Crisis24's liability shall not exceed $1,000,000. In the instance that Client requests the secure transfer of personal possessions or property, it is understood that this transfer is outside of the Services described herein, and Client shall defend, indemnify, and hold Crisis24 harmless against any claims resulting from or arising out of the loss or destruction of Client’s personal possessions or property.
c. Air Travel. It is understood by all Parties that Crisis24 is not the security provider for the aircraft or the airport and in no way assists with the appointment or provision of those services. Client acknowledges and understands that the Services provided by Crisis24 with relation to air travel logistics are limited to observing and reporting on the surroundings of the aircraft and/or its passengers. As such, Client acknowledges and understands that Crisis24 shall not be responsible for securing the aircraft, its safety features, cargo, equipment, or any other security aspect of the aircraft. Client shall assume all risks attendant to, arising out of, or in connection with the security of the aircraft. Client hereby releases and holds Crisis24 and its employees harmless from and against any liability, loss, damage, claims, or injuries, including death, to Client, passengers, or its employees or independent contractors which may arise out of or in connection with the security of the aircraft. Client further agrees to indemnify, defend, protect and hold harmless Crisis24, its parent, officers, directors, employees, agents, successors and assigns from and against, any and all claims, demands, actions, losses, liabilities, injury, damages (including taxes), suits (or any claims relating to the foregoing) and all related costs and expenses, including without limitation attorneys’ fees, reasonable investigation and discovery costs, in connection with any injury, death or damage arising out of or in any way connected with the Services. Crisis24 shall not be responsible for any loss or damage, of any nature or kind, to the aircraft caused by any third party, except to the extent such loss is caused by the gross negligence or willful misconduct of Crisis24 personnel. In the event of any such loss or damage to the aircraft caused by a third party for which Crisis24 is found directly liable in a court of law or by arbitration, Crisis24's liability shall not exceed $1,000,000.
8. INDEMNIFICATION
a. Mutual Indemnification. Each Party hereby agrees to indemnify, defend, protect and hold harmless the other Party, its parent, officers, directors, employees, agents, successors and assigns (the “Indemnified Party”) from and against, any and all claims, demands, actions, losses, liabilities, injury, damages (including taxes), suits (or any claims relating to the foregoing) and all related costs and expenses, including without limitation attorneys’ fees, reasonable investigation and discovery costs, which are caused by, arise out of, or relate to the Indemnifying Party’s (i) negligent acts or omissions in connection with this Agreement; (ii) breach of this Agreement; (iii) violation of applicable law; (iv) unemployment insurance, social security and employment and tax laws and other laws applicable to the Indemnifying Party’s employees or permitted subcontractors; or (v) infringement of any patent, copyright, trademark, trade secret or other intellectual property, or other rights of a third party arising out of the Services or work product (collectively, a “Claim”).
b. Procedures. The Indemnified Party shall give the Indemnifying Party prompt written notice of any Claim. Such notice shall not diminish the Indemnifying Party’s indemnity obligations hereunder unless and only to the extent that the Indemnifying Party is materially and adversely affected by the Indemnified Party’s failure or delay to give notice. The Indemnifying Party shall control the defense or settlement of any Claim. The Indemnified Party shall reasonably cooperate (at the Indemnifying Party’s expense) with the Indemnifying Party in the defense of such claim. Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not to be unreasonably withheld (except that any settlement requiring the Indemnified Party to make any admission of liability or requiring an injunction or restriction on the Indemnified Party’s actions shall be subject to the Indemnified Party’s approval in its sole discretion). The Indemnified Party also has the right to retain its own counsel at its own expense in connection with such claim.
c. Limitation of Liability. EXCEPT IN THE CASE OF WILLFUL MISCONDUCT, FRAUD, GROSS NEGLIGENCE OR BREACH OF CONFIDENTIALITY, INDEMNIFICATION, REPRESENTATIONS OR WARRANTIES SET FORTH HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT. IN NO EVENT SHALL CRISIS24’S OBLIGATIONS FOR DAMAGE OR LOSS EXCEED THE TOTAL OF ALL PAYMENTS MADE BY CLIENT TO CRISIS24 WITHIN THE PRECEDING TWELVE (12) MONTHS.
9. INSURANCE
a. General. Prior to the start of any Services, Crisis24 shall, at its own expense, procure and maintain during the Term of this Agreement commercially reasonable insurance covering its activities, including a comprehensive general liability policy with commercially reasonable terms, any specific coverage and limits as may be required, and Workers’ Compensation insurance as required by law. Crisis24 will promptly notify Client if there is any termination, non-renewal, cancellation or material change in coverage or deductible amounts. All insurance coverage shall be carried with responsible insurance companies of recognized standing which are authorized to do business in the state in which the Services are rendered and are rated A-VIII or better by A.M. Best.
b. Client Vehicles. In the event Crisis24 personnel are required to operate any vehicle owned or leased to Client (or any affiliate of Client), Client agrees that the owner/lessee of such vehicle has in force adequate insurance coverage providing for liability to others and property damage to Client’s vehicle, that such insurance shall be the only insurance applicable to any such liability to others or damage to Client’s vehicle, that Crisis24 does not provide any insurance covering the liability for operation of, or property damage to, any vehicle not owned by Crisis24 and Client agrees to defend, indemnify and hold Crisis24 and its employees harmless from and against any claims, liabilities, or damages, except those caused by the gross negligence or willful misconduct of Crisis24 or its employee.
10. CRISIS24 PERSONNEL
a. On-Site Services. Upon written request and for any lawful reason, Client may ask for the removal of Crisis24 personnel and Crisis24 shall use commercially reasonable efforts to comply with such request, subject to applicable local, state, and federal law.
b. Background Checks. Crisis24 shall conduct thorough background checks on all personnel in advance of hiring, including verification of the accuracy of information provided during the application process (e.g., education, employment history, criminal records, driving records, etc.) and confirmation of authorization to work in assigned country and locale. Personnel retained and/or assigned by Crisis24 outside of the United States will undergo background screening, receive training, and deploy equipment in conformance with the laws imposed by the country in which Services are provided. Crisis24 will not be liable for any loss attributable to limitations upon screening, training, or equipment imposed by foreign countries.
c. Subcontractors. Personnel may include Crisis24 employees or subcontractors, provided that Crisis24 shall (a) remain solely responsible for the proper performance of the Services and this Agreement, and (b) be solely responsible for engaging and paying all personnel.
11. GENERAL TERMS
a. Independent Contractors. The Parties are independent contractors with respect to each other. Each Party is not and shall not be deemed to be an employee, agent, partner, joint venture partner, or legal representative of the other for any purpose and shall not have any right, power, or authority to create any obligation or responsibility on behalf of the other Party. Employees supplied or used by Crisis24 shall not be considered employees, agents, or subcontractors of Client. Crisis24 assumes full responsibility for the actions of all such personnel and permitted subcontractors while performing Services under this Agreement and for the payment of their compensation and required contributions.
b. Employee Referrals.
i. In consideration of the recruitment, training, education, experience, and investment of time, materials, and resources by Crisis24 in making Personnel available and fit for employment with Client, in the event that Client wishes to directly employ any Crisis24 employee assigned to Client within the previous twelve (12) months, Client hereby agrees to notify Crisis24 and pay to Crisis24 a “Referral Fee”. This Referral Fee shall be the greater of (i) 125% of the former Crisis24 employee’s first year gross annual salary paid by Client or (ii) $100,000.00USD. The Referral Fee represents a reasonable and fair approximation of the investment by Crisis24 in the training and education and costs incurred by Crisis24 and is not intended as a penalty.
ii. The Referral Fee shall be deemed fully earned upon completion of the first business day that Client directly employs the Crisis24 employee and shall be payable in full within thirty (30) days of that date.
iii. Client hereby agrees that Client shall not elicit or attempt to elicit any trade secret, proprietary, or confidential information relating to the operations and business of Crisis24 from any Crisis24 employee whom Client directly employs.
c. Client Affiliates. The rights granted to Client under this Agreement shall extend to all Client affiliates, including any entity that directly or indirectly controls, is controlled by, or is under common control with Client.
d. Survival. The provisions of this Agreement which by their explicit terms or their manifest intent are to survive, including without limitation those which relate to confidentiality, data protection, intellectual property ownership, indemnification, limitation of liability, and all other provision that by their sense and context are intended to survive the expiration of this Agreement, will continue in full force and effect notwithstanding termination.
e. Notices. Any legal notices will be in writing, delivered by a commercially recognized overnight carrier, personal delivery, facsimile or electronic mail, and deemed effective upon receipt. Notices will be addressed to the parties at the addresses set forth below, or to any changed address which is given by notice complying with this Section.
Address for Legal Notices:
Client:
Address:
City: State: Zip:
Attn:
Fax:
Email:
Crisis24:
Address: 2000 Corporate Blvd NW
City: Boca Raton State: Florida Zip: 33431
Attn: Brian Leek, Jeff Marquart
Email: [email protected]
f. Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the parties and their respective heirs, permitted successors and permitted assigns. Neither party shall assign this Agreement or any rights hereunder without the other party’s prior written consent. Notwithstanding the foregoing, (i) Crisis24 may assign this Agreement or rights hereunder without consent to any entity that directly or indirectly controls, is controlled by or is under common control with Crisis24, and (ii) either party may assign this Agreement or rights hereunder without consent to an entity which has acquired all or substantially all of its assets or business, whether by merger or acquisition; provided that any such assignment is conditioned upon the assignee’s assumption of all obligations and liabilities of the assignor under this Agreement. Any assignment in violation of this subsection will be void.
g. Force Majeure. Neither party shall be liable for any delays or other non-performance resulting from fire or other casualty, act of God, war, terrorism or other violence; provided that such party has informed the other party of such force majeure event promptly upon occurrence (including a reasonable estimate of the additional time required for performance to the extent determinable) and such party uses commercially-reasonable efforts to affect the required performance as soon as reasonably practicable. The provisions of this section shall not apply to Services subject to service level agreements in an SOW.
h. Publicity. Neither party may issue a press release or advertise, market, or otherwise make known to others any information relating to the existence of this Agreement or the relationship between the parties without the prior written consent of the other Party.
i. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Delaware, excluding its conflict of law provisions.
j. Severability. If any provision of this Agreement is found to be invalid or unenforceable to any extent, then the invalid portion shall be deemed conformed to the minimum requirements of law to the extent possible. In addition, all other provisions of this Agreement shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
k. Waiver. No waiver of any provision of this Agreement shall be valid unless in writing signed by the party to be charged. No waiver with respect to any provision on one occasion shall be deemed a waiver of such provision on any other occasion.
l. Amendment. Any modification or amendment of this Agreement (including any SOW) must be in writing and signed by both parties.
m. Entire Agreement; Interpretation. This Agreement, together with any SOW executed by both parties and any other document that an SOW references as being expressly incorporated by reference, sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes any other agreements, discussions, proposals, representations or warranties, whether written or oral between the parties with respect to the subject matter hereof.
n. Remedies. A party’s exercise of any right or remedy under this Agreement or under applicable law is not exclusive and shall not preclude such party from exercising any other right or remedy that may be available to it. If either party seeks monetary damages from the other party, and a final judgment is entered entirely in favor of the party defending the monetary damages claim, then the party who brought such monetary claim shall reimburse the defending party for its reasonable attorney’s fees and costs. Otherwise, each party shall bear its own fees and expenses unless otherwise provided by statute.
o. Third Party Beneficiaries. This Agreement is for the sole benefit of the parties and is not intended to, and shall not be construed to, create any right or confer any benefit on, or against, any third party, except as expressly provided in this Agreement.
p. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument.