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.
1.2 Customer agrees that BCT's entire liability to you under
this Agreement, 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 9 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 applicable Statements of
Work or related agreements. 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 60 days after the applicable due date is a material
breach of this Agreement.
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.
The Parties acknowledge that BCT's Privacy Policy is posted on BCT's Web site
at www.brocotec.com/legal (or such other location as BCT may specify). BCT will notify Customer of any changes to
the Privacy Policy that may materially impact the terms of this Agreement.
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 concerning unsolicited bulk email.
3.3 Legal Compliance.
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 reasonably determines is harmful to its servers, systems, network,
reputation, good will, other BCT customers, or any third party. BCT
acknowledges that some Customers are law firms and in the business of handling
lawsuits and other legal disputes and evaluating circumstances in order to
provide legal advice to clients, and stipulates that data, documents,
communications, pleadings, evidence, and public statements made, sent, stored,
or received in the ordinary course of such law practice shall not be considered
to violate this Section 3.3 or Sections 3.4 or 3.5.
3.4 Compliance Examples.
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 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 applicable laws regarding online conduct and content
and the transmission of technical data exported out of the United States.
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
software developed by ("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 The Provision of any BCT software free-of-charge to
Customer at any time shall not preclude BCT from charging for such BCT software
or upgrades to the same at a later time, consistent with this Agreement and
related Statement(s) of Work and or other related agreements.
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 in connection with Customer's business. 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, agents,
witnesses, litigation experts or consultants, allied counsel or other persons
working with them in the ordinary course of litigation or other legal
advisement or representation, 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 recommend, install, and/or manage third-party
software for Customer as provided in a Statement of Work or other related
agreement. The license conditions governing Customer's use of third-party
software may differ from BCT's own software licenses. Customer understands that
it is bound by the conditions of applicable licenses pertaining to such
third-party software. THE FUNCTIONALITY OR AVAILABILITY OF THIRD-PARTY SOFTWARE
MAY FROM TIME TO TIME BE AFFECTED BY OUTAGES, SOFTWARE BUGS, OR OTHER ADVERSE
CIRCUMSTANCES OUTSIDE OF BCT'S CONTROL. BCT DOES NOT WARRANT OR GUARANTEE THAT
THIRD PARTY SOFTWARE WILL BE UNAFFECTED BY SUCH CIRCUMSTANCES.
4.9 In the event of termination of this Agreement, 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; (d)
Customer will be financially responsible for the Customer's use of the
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) Subject to the caveat that Customer in the ordinary course
of its business may handle lawsuit-related documents, code, or information in
legal disputes in which asserted violation of intellectual property or other
laws is at issue in the dispute, customer's content 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. Customer Data includes material or
information maintained or generated by Customer or its personnel on Customer's
computer systems. Customer Data belongs to Customer, and BCT makes no claim to
any right of ownership in it.
5.4 BCT must keep Customer Data confidential. If BCT suffers
an actual or suspected security incident affecting Customer Data, BCT will
promptly report such information to the Customer.
5.5 BCT may access Customer Data only as strictly 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 Customer Data, including any individual personal data for
purpose of applicable data security laws, 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 and take
reasonable and necessary action 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 any laws. BCT must take care to avoid
undue surprise or unnecessary business interruption with respect to any such
action. 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 thereby be obligated to 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, 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 to appropriate law
enforcement officials or regulators as required by law.
7. CYBER INSURANCE
Throughout the duration of this Agreement, Customer shall maintain cyber
liability insurance with limits and coverage terms that have been evaluated
with assistance from an insurance broker or risk manager that regularly deals
with such insurance.
8. DISCLAIMED WARRANTIES
No computer system can be completely free of the risk of
hardware or software failure. EXCEPT AS
OTHERWISE PROVIDED IN THIS AGREEMENT OR RELATED WORK ORDERS OR AGREEMENTS, BCT
DISCLAIMS ANY WARRANTY AGAINST FAILURE OF PERFORMANCE, INCLUDING FAILURE
BECAUSE OF COMPUTER HARDWARE, SOFTWARE, OR COMMUNICATION SYSTEMS.
9. LIMITATION AND EXCLUSION OF LIABILITY
9.1 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.
9.2 Interruption of Service.
BCT and its suppliers are 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).
10. INDEMNIFICATION.
Each Party releases and holds harmless, and agrees to
indemnify, each other and its affiliates and suppliers (and their respective
employees, partners, 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).
11. 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 a Party has in any manner violated or
threatened to violate the other's intellectual property rights, a Party may
seek injunctive or other appropriate relief in any state or federal court in
Harris County, Texas, and the Parties consent 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. A Party shall be entitled to collect its
attorney's fees, costs and other expenses for successfully compelling
compliance with this arbitration and forum selection clause, regardless of
whether it prevails on the merits in the action. The parties shall attempt to
negotiation in good faith regarding any dispute relating to or concerning this
Agreement prior to commencing arbitration or other legal proceedings.
12. MISCELLANEOUS PROVISIONS.
12.1 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 related Agreements between the Parties.
12.2 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.
12.3 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.
12.4 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 ACCORDANCE WITH SECTION 11 OF THIS AGREEMENT.
12.5 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.
12.6 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.
12.7 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.
12.8 No Waiver. A Party's failure to enforce the strict
performance of any provision of this Agreement does not constitute a waiver of its
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
a Party's warranties, intellectual property rights, confidentiality obligations,
limitation and exclusion of liability, indemnification obligations and payment
obligations will survive the termination or expiration of the Agreement.