This Master Services Agreement (hereinafter "Agreement") is by and between "Customer" and BroCoTec, LLC (hereinafter "BCT") (each individually referred to as a "Party" and collectively as the "Parties"). In consideration of the mutual representations, warranties, covenants and other terms and conditions in this Agreement, the Parties agree, as follows:
This Agreement governs transactions by which Customer purchases Hardware or acquires Services from BCT.
1. GENERAL
1.1 Acknowledgement.
This Agreement governs the Customer's purchase Hardware and use of all services, (collectively, the "Services"), that Customer ordered and BCT accepts. Customer must accept the terms of this Agreement in order to use the Services. BY ELECTRONICALLY SIGNING, AND /OR REGISTERING FOR AND USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS WELL AS ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. BCT may modify any of the terms and conditions of any policy or guideline incorporated by reference, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on the BCT Web site.
1.2 Modification by BCT.
BCT may post modifications to referenced policies and guidelines. Customer will be given at least ten (10) business days' notice via email to the address specified on page one of this Agreement. The Customer's continued use of the Services following BCT's notice and posting of any modifications constitutes Customer's acceptance of the modifications. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF ANY MODIFICATION, THEN CUSTOMER MUST NOT CONTINUE TO USE THE SERVICES AND IMMEDIATELY NOTIFY BCT OF CUSTOMER'S TERMINATION OF THIS AGREEMENT IN THE MANNER DESCRIBED IN SECTION 2.2 (Termination Policy) LISTED BELOW.
1.3 You agree that BCT's entire liability to you under this Agreement, and your only remedy, in connection with any service provided by BCT, to you under this Agreement, and for any breach of this Agreement by BCT shall be limited as outlined in Section 8 of this Agreement.
2. SERVICES: TERM AND PAYMENT
2.1 Term.
Details pertaining to the "Initial Term" and each service ordered by Customer (the "Service") are set forth in this agreement. Upon the expiration of the Initial Term, this Agreement will be automatically renewed for an additional term ("Renewal Term") equal to the Initial Term, unless the Customer provides BCT with notice of termination at least 30 days before the end of the Initial Term or Renewal Term, whichever is then applicable.
Customer must provide BCT with a notice of termination by sending via mail a letter, on Customer's official letterhead, to the BCT Billing Department indicating a cancellation of service request with sufficient customer identification information so that BCT may properly identify Customer and Customer's account. Any notice of termination will be effective upon BCT's receipt of notice and verification of request, which will take place in a reasonable amount of time (or five business days, whichever is shorter), with main point of contact on file with BCT. If Customer has purchased any part of the Service by purchasing the Service directly on BCT'S web site, Customer may terminate the Service at any time after Customer has paid for the time requested whether that be hourly or monthly. This does not apply to Service that is purchased for a term shorter than one month.
2.2 Termination Policy.
If Customer terminates the Services before the end of the Initial Term or the Renewal Term, whichever is then applicable: BCT will not refund to Customer any fees paid in advance of termination, and Customer will be required to pay 100% of the monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement. Customer must submit Customer's termination request to BCT in the manner described in Section 2.1. If BCT terminates this Agreement due to Customer's violation of ANY provision of this agreement, whichever is then applicable: BCT will not refund to Customer any fees paid in advance of termination, and Customer will be required to pay 100% of the monthly charge for each month remaining in the term, unless otherwise expressly provided in this Agreement.
2.3 Liability and Obligations on Termination.
If the Agreement expires or is terminated for any reason, BCT is not liable to Customer because of the expiration or termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with Customer's business, or for any other reason whatsoever flowing from the termination or expiration. If Customer terminates this Agreement, BCT will not relieve Customer of any obligations to pay fees and costs accrued before the termination date or any other amounts Customer owes to BCT under this Agreement. BCT will not interfere with Customer's reasonable efforts to retrieve Customer's data from BCT's servers.
2.4 Charges.
Customer will pay all charges for Customer's use of the Services at the then current BCT prices, which will be exclusive of any applicable taxes. Customer is responsible for paying all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services, other than taxes based on BCT's net income. Customer agrees and warrant that all applicable taxes have been paid or will be paid in full by Customer when due regarding all businesses and employees associated with Customer's use of the Services and that no taxing authorities shall have any claim against BCT or any persons affiliated therewith for the payment of such taxes. If Customer is located in an EU country, it is Customer's responsibility to assess and pay VAT to the appropriate authority.
2.5 Payment.
Customer will pay all charges for Services in advance according to the then current price for the Services. When registering for Services, Customer must choose to pay for the Services either by credit card or upon Customer's receipt of an invoice. If Customer chooses to pay by credit card when registering for Services, Customer authorizes BCT to charge Customer's credit or debit card to pay for any charges that may apply to Customer's account. Customer must notify BCT of any changes to Customer's card account (including, applicable account number or cancellation or expiration of the account), Customer's billing address, or any information that may prohibit BCT from charging Customer's account. If Customer chooses to be invoiced for Services, BCT will send an invoice to Customer for the Services for the period for which Customer has registered for the Services. BCT may also send periodic invoices to Customer for any applicable Supplemental Charges associated with Customer's use of the Services. Customer will pay to BCT the amount indicated in each invoice by the due date reflected on the invoice. If Customer fails to pay any fees and taxes within 10 days from the applicable due date for credit card or invoice payments, BCT will assess late charges equal to the lesser of 1.5% per month or the maximum allowable under applicable law. Customer's failure to fully pay any fees and taxes within 30 days after the applicable due date is a material breach of this Agreement, justifying BCT in suspending its performance, terminating this Agreement, and forwarding the account to a collection agency. If BCT terminates for Customer's material breach, Customer must still pay all costs due as described in Section 2. The Customer is responsible for any costs BCT incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees (except where prohibited by law). If Customer reinstates Services, Customer must pay any fees associated with reinstating Services.
2.6 Annual Fee Increase.
In order to account for rising operating costs, cost of inflation and price increases by our vendors and suppliers, the Monthly Recurring Charge is subject to an annual increase of 5% each calendar year, on the anniversary of the signing of this Agreement. A change in Monthly Recurring Charge as described in this paragraph shall not serve as grounds for terminating this Agreement.
3. USE OF SERVICES
3.1 Applicable Policies and Guidelines.
This Agreement governs the general policies and procedures for use of the Services. BCT's Privacy Policy governs how BCT collects, stores, processes and uses information associated with Customer's use of the Services. The Privacy Policy is posted on BCT's Web site at www.brocotec.com/legal (or such other location as BCT may specify) and may be updated from time-to-time.
3.2 Commercial Advertisements via E-Mail.
Customer will not use BCT services, Customer's account or server to send or facilitate in any way the transmission of unsolicited bulk email in large quantities to an indiscriminate set of recipients (SPAM). BCT will enforce substantial penalties, including charging Customer for related network costs and terminating Customer's account, for violations. Customer agrees to comply with all U.S. regulations.
3.3 Transmission, distribution, sale or storage of any material in violation of any applicable law, regulation, ordinances, or these guidelines is prohibited. BCT reserves the right to restrict or prohibit any and all uses of the Services that BCT determines in its sole discretion is harmful to its servers, systems, network, reputation, good will, other BCT customers, or any third party.
3.4 The following non-exhaustive list details the kinds of illegal or harmful conduct and content that is prohibited under this Agreement: (a) nudity, pornography, anything of a sexual, lewd, indecent or of obscene nature, (b) violations of any copyright or any other right of any third party, including, without limitation, material protected copyright, trademark, patent, trade secret, or other intellectual property right used without proper authorization, (c) threatening, abusive, harassing, harmful, defamatory, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable, (d) promotion of illegal activities (info on hacking, cracking, making illegal devices, etc.), (e) information, instructions, or software containing or about any kind of virus, (f) hate speech or hate propaganda, (g) content that links to content that violates this Agreement in any way, (h) misrepresentation of user's identity, or the impersonation of anyone, including BCT personnel, (i) collection of personal information for illegal purposes.
3.5 Export Violations and CISG.
BCT does not permit the posting or sending of software or technical information in violation of U.S. export laws, including, without limitation, the Export Administration Act and the Export Administration Regulations maintained by the Department of Commerce.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement.
Customer agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, Customer agrees to comply with all applicable laws regarding the transmission of technical data exported out of the United States or the country in which you reside.
3.6 Customer is responsible for maintaining the confidentiality of Customer's passwords and account access. Customer is fully responsible for all activities that occur under Customer's passwords accounts. Customer agrees to immediately notify BCT of any unauthorized uses or any other breaches of security. BCT cannot and will not be liable for any loss or damage from Customer's failure to comply with this security obligation. Customer acknowledges and agrees that under no circumstances will BCT be liable, in any way, for any acts or omissions by Customer, including any damages of any kind incurred as a result of such acts or omissions.
3.7 Non-Solicitation of Personnel; No hire. Customer agrees that during the term of this Agreement and for a period of twelve (12) months thereafter, it will not directly or indirectly solicit, recruit, or hire any employee or contractor of BCT who was involved in providing the Services under this Agreement, without prior written consent.
4.0 SOFTWARE
4.1 BCT may, in its sole discretion, provide Customer with BCT Software in combination with Services. Upon payment of all fees due and owing to BCT under this Agreement, BCT hereby grants, and Customer hereby accepts, a nontransferable, revocable, non-sub licensable, and non-exclusive license to use BCT Software and all related documentation for Customer's own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for BCT. Source code or other information pertaining to the logic design of the BCT Software is specifically excluded from the license granted hereunder.
4.2 Although the BCT Software may be provided free of charge, BCT reserves the right to charge for the software or any upgrades.
4.3 Customer recognizes that BCT Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of BCT Software at Customer's home or office, are proprietary, and that all rights thereto, including copyright, are owned by BCT. Customer further acknowledges that Customer has been advised that BCT Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of BCT, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to BCT, and that its use and disclosure must be carefully and continuously controlled.
4.4 BCT shall at all times retain title to all the BCT Software and all related information, including all updates, improvements, modifications and enhancements, furnished to Customer hereunder.
4.5 Unless provided otherwise in the specifications for Customer's Services, BCT Software supplied hereunder is for personal or business use. Customer shall not permit any third party to use BCT Software or allow access to BCT Software from sites outside of Customer's home or business premises except as specifically authorized in writing by BCT. BCT Software is to be used only for the purposes specified in this Agreement.
4.6 While this Agreement is in effect, or while Customer has custody or possession of any of the Software, Customer will not: (a) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of BCT Software, whether such BCT Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for use in Customer Web Site pursuant to this Agreement, nor; (b) provide or make the BCT Software available to any person or entity other than Customer employees or agents who have a need to know consistent with Customer's use thereof under this Agreement, nor; (c) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to Customer under this Agreement, nor; (d) copy for Customer's own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of BCT. In order to protect BCT's trade secrets and copyrights in BCT Software, Customer agrees to reproduce and incorporate BCT's trade secrets or copyright notice in any copies, modifications or partial copies.
4.7 Customer agrees to notify BCT forthwith if Customer obtains information as to any unauthorized possession, use or disclosure of any BCT Software by any person or entity, and further agree to cooperate with BCT at BCT's expense, in protecting BCT's proprietary rights.
4.8 BCT may provide Customer with the ability to obtain certain third-party software ("Third Party Software"), depending on the services ordered. The license conditions governing the use of Third-Party Software may differ from BCT's own software licenses. Customer is bound by the conditions of all licenses pertaining to such Third-Party Software and should make themselves familiar with their terms and conditions. THE PROVISION AND OFFERING OF SUCH THIRD-PARTY SOFTWARE BY BCT DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD-PARTY SOFTWARE, NOR CAN BCT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD-PARTY SOFTWARE.
4.9 In the event of termination of this Agreement, or upon any act which shall give rise to BCT's right to terminate, or upon the expiration of the license for BCT Software which is subject to a limited-duration license, any and all licenses granted under this Section 4 shall terminate automatically, and Customer will remove, erase or destroy the BCT Software and documentation and all copies thereof, wherever located, without demand or notice.\
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Customer's Warranties and Representations to BCT.
Customer warrants, represents, and covenants to BCT that: (a) Customer or its representative is at least 18 years of age; (b) Customer possesses the legal right and ability to enter into this Agreement; (c) Customer will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; (d) Customer will be financially responsible for the use of Customer's account; (e) Customer has acquired or will acquire all authorization(s) necessary for hypertext links to third-party Web sites or other content; (f) Customer's content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
5.2 BCT Materials and Intellectual Property. All materials, including any computer software (in object code and source code form), data or information that BCT or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes BCT uses to provide the Services to Customer, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain BCT's or its suppliers' sole and exclusive property. BCT will also maintain and control ownership of all Internet protocol ("IP") numbers and addresses that BCT may assign to Customer. BCT may, in its sole discretion, change or remove any and all IP numbers and addresses.
5.3 Data Ownership. The Customer Data belongs to Customer, and BCT makes no claim to any right of ownership in it.
5.4 BCT must keep the Customer Information confidential in accordance with Section 9 of this Agreement. Specifically, if BCT suffers an actual or suspected security incident affecting Customer Information, BCT will promptly report such information to the Customer.
5.5 BCT must use the Customer Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. Similarly BCT must ensure that the data center containing the Customer Data meets the following physical and electronic security requirements: (a) main access monitored with additional access for emergency purposes only; (b) surveillance cameras in facility; (c) Biometric Access Control Security; (d) Advanced Smoke Detection and Fire Prevention System; (e) access only to BCT Personnel and persons BCT expressly approves; (f) 24/7/365 Monitoring by BCT Personnel; (g) BCT shall use due care and follow industry standard practices in securing Customer data when and where it is in BCT's direct control. Customer shall use due care and follow industry standard practices in securing Customer data when and where it is in Customer's direct control.
5.6 BCT must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access according to industry standard practices; and, must deal with the information only in accordance with Customer's instructions, provided they are reasonable and lawful.
6. ENFORCEMENT
6.1 Investigation of Violations.
BCT may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. BCT will not access or review the contents of any e-mail or similar stored electronic communications except as is necessary to maintain or support the systems or as required by applicable law or legal process.
6.2 Actions. BCT may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If BCT becomes aware that Customer has possibly violated this Agreement, any related policies or guidelines, third party rights or laws, BCT may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating the Service, (c) restricting or prohibiting any and all uses of content hosted on BCT's systems, and (d) disabling or removing any hypertext links to third-party Web sites, any of Customer's content distributed or made available for distribution via the Services, or other content not supplied by BCT that, in BCT's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes BCT to civil or criminal liability or public ridicule. It is BCT's policy to terminate repeat infringers. These rights of action, however, do not obligate BCT to monitor or exert editorial control over the information made available for distribution via the Services. If BCT takes corrective action because of a violation, BCT will not refund to Customer any fees Customer paid in advance of the corrective action.
6.3 Disclosure Rights. To comply with applicable laws and lawful governmental requests, to protect BCT's systems and customers, or to ensure the integrity and operation of BCT's business and systems, BCT may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on BCT's servers and systems. BCT may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of BCT's On-line Privacy Statement and BCT's right to disclose under this section, BCT's right to disclose under this section will control.
7. DISCLAIMED WARRANTIES
BCT exercises no control over, and accepts no responsibility for, the content of the information passing through BCT's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND BCT'S APPLICABLE SERVICE LEVEL AGREEMENT.
8. LIMITATION AND EXCLUSION OF LIABILITY
8.1 Limitations.
IN NO EVENT WILL BCT OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES AS A RESULT OF CUSTOMER'S NEGLIGENCE.
BCT SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BCT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR CUSTOMER TO DISCONTINUE CUSTOMER'S USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL BCT, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM CUSTOMER'S USE OF OR OTHERWISE RELATING TO BCT SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES OR JURISDICITONS, BCT'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, BCT DOES NOT ENDORSE, WARRANT OR GAURANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING BCT SERVICES, AND BCT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTIONS BETWEEN CUSTOMER AND ANY THIRD PARTIES. CUSTOMER HEREBY RELEASES BCT FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF BCT FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY CUSTOMER TO BCT IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $150,000.
8.2 Interruption of Service.
BCT and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, BCT is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, labor disputes, governmental actions, terrorist actions, communications or third-party supplier failure).
9. INDEMNIFICATION.
Each Party releases and holds harmless, and agrees to indemnify, each other and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by each other or its suppliers, arising out of or relating to: (a) Either Party's violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline; (b) Either Party's improper or illegal provision or use of the Services; or (c) Either Party's violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or right of a third party (including but not limited to defamation, libel, violation of privacy or publicity).
10. DISPUTE RESOLUTION.
Any and all disputes as to the interpretation of this Agreement, and/or which arise out of or in any way relate to this Agreement, shall be submitted to confidential arbitration in Houston, Texas, except that, to the extent Customer has in any manner violated or threatened to violate BCT'S intellectual property rights, BCT may seek injunctive or other appropriate relief in any state or federal court in the state of Texas, and Customer consents to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Customer agrees that BCT shall be entitled to collect its attorney's fees, costs and other expenses in the event that BCT acts to enforce this arbitration and forum selection clause, regardless of whether BCT prevails in the underlying action. CUSTOMER AGREES TO NEGOTIATE WITH BCT IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT. ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINEED BY BINDING ARBITRATION IN HOUSTON, TEXAS IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. The final award in such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of Texas and the federal law of the United States of America.
11. MISCELLANEOUS PROVISIONS.
11.1 Entire Agreement.
This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between Customer and BCT with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.
11.2 No Fiduciary Relationship; No Third-Party Beneficiaries. BCT is not the agent, fiduciary, trustee or other representative of Customer. Except for the rights of BCT's suppliers under sections 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.
11.3 Amendments. Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the Parties.
11.4 Choice of Law and Forum. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF TEXAS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN HOUSTON, TEXAS, AND CUSTOMER IRREVOCABLY CONSENTS TO THE JURISDICTION OF THESE COURTS.
11.5 Personnel. The Customer and BCT are responsible for the supervision, direction, control, and compensation of our respective personnel. BCT reserves the right to determine the assignment of its personnel. BCT may subcontract a Service, or any part of it, to subcontractors selected by BCT.
11.6 Compliance with Laws. BCT and Customer will comply with all applicable laws and regulations and will indemnify and save each other harmless from the other's failure to so comply. Each party will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.
11.7 Non-Assignment. Customer may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without BCT's prior written consent, which will not be unreasonable withheld. BCT may assign its rights and obligations under this Agreement and may utilize affiliates and agents in performing its duties and exercising its rights, without Customer's consent. This Agreement is binding on, inures to the benefit of, and is enforceable against the Parties and their respective successors and assigns.
11.8 No Waiver. BCT's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of BCT's right to subsequently enforce the provision or any other provisions of this Agreement.
11.9 Severability. If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.
11.10 Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.
11.11 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for next-business-day delivery by a nationally recognized overnight carrier to the addresses listed at the start of this Agreement.
11.12 Survival. All provisions of this Agreement relating to Customer's warranties, intellectual property rights, limitation and exclusion of liability, Customer indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.
Effective as of November 2024