Master Services Agreement
Updated April 27, 2022
This Master Services Agreement (“Agreement”) is made and entered into by and between NoBrainerMarketers Inc. a Delaware corporation (“IPO Architects”), and the company that is executing this Agreement (hereinafter “Customer”) with IPO Architects and this Agreement shall govern the Services (as defined below) provided by IPO Architects for the Customer as referenced herein. In the event of any inconsistencies between this Agreement and any verbal or email correspondence, this Agreement shall prevail.
In consideration of the mutual agreements below, and intending to be legally bound, the parties agree as follows:
1.1 The following terms and conditions govern all access and use of IPO Architects' website and all content, services, and products available at or through the website (collectively, the "Website Services"). IPO Architects shall perform the professional services set forth in any duly executed Proposal ("Professional Services"), as applicable. The Website Services and Professional Services shall collectively be referred to herein as the "Services".
1.2 Customer is engaging IPO Architects to provide the Services as described in the relevant, duly executed proposals accompanying this Agreement (“Proposal”). Neither party will have any obligation with respect to any draft Proposal unless and until it is fully executed (signed by both parties). IPO Architects makes no promises or representations whatsoever as to the amount of business Customer can expect at any time under this Agreement or an applicable Proposal. Except as otherwise provided herein, if any of the terms and/or conditions of this Agreement conflict with any of the terms and/or conditions of any Proposal, the terms and/or conditions of such Proposal will control solely with respect to the Services covered under such Proposal, unless the Proposal explicitly states that it is intended to modify the conflicting terms of this Agreement.
1.3 Subject to Customer purchasing the right to access and/or use the Services and using such Services in accordance with the terms and conditions set forth herein and in the applicable Proposal, IPO Architects grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable license to access and/or use the Services during the term set forth in the applicable Proposal for internal use in accordance with said Proposal(s) and the terms and conditions set forth herein. Holistically, this shall be referred to as the ‘Subscription,” and said Subscription is not for resale or further distribution, unless otherwise agreed to by the parties in writing. Except as otherwise explicitly provided herein, or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize any third party to: (i) modify, and/or make derivative works of, disassemble, reverse compile and/or reverse engineer any part of the Services, or reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Services or any other compiled software provided or made available by IPO Architects hereunder; (ii) copy, reproduce, distribute, republish, download, distribute, disclose, encumber, time-share, license, sell, distribute, display, post and/or transmit any part of the Services in any form and/or by any means use or permit the use of, reproduce or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, sell, distribute, assign, rent, lease, or transfer any Services, any portion thereof, or any of Customer’s rights thereto; (iii) frame and/or utilize framing techniques to enclose any trademark, logo, and/or other portion of the Services (including images, text, page layout, and/or form); (iv) use any metatags and/or other “hidden text” using IPO Architects' name and/or trademarks; (v) use any manual and/or automated software, devices and/or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” and/or download data from any pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such); (vi) use and/or access the Services in order to build a similar and/or competitive website, product, and/or service; (vii) remove, obliterate, or cancel from view any copyright, trademark, or other proprietary or confidentiality notice or legend appearing on or in the Services or any materials provided or made available by IPO Architects hereunder, or fail to reproduce any such notice or legend on any copy made of any such materials; (viii) intentionally hold IPO Architects and/or their employees and/or directors up to public scorn, ridicule and/or defamation; (ix) promote and/or provide information about illegal activities and/or harm and/or injury to any group, individual, institution and/or property; (x) take any action that materially interrupts or interferes with, or that might reasonably have been expected to materially interrupt or interfere with, the Service, IPO Architects business operations or other customer; (xi) run any form of auto-responder and/or “spam” on the Services or use the Services to otherwise send “spam” to any third-party; (xii) use the Services in any unlawful way or for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Services provided; (xiii) circumvent or disable any security or technological features or measures of the Services; and/or (xiv) use the Services to conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, or unsolicited e-mail or multi-level marketing campaigns. Any rights not expressly granted herein are reserved by IPO Architects
1.4 Notwithstanding anything herein to the contrary, IPO Architects reserves the right, without liability to the Customer, to disable or suspend the Customer’s access to the Services in the event: (i) of any breach or anticipated breach of this Section 1; (ii) Customer use of the Services disrupts or poses a security risk to the Services or any other customer, may harm IPO Architects' systems, or any IPO Architects of any third-party services, or may subject IPO Architects or any third-party to liability; (iii) Customer is using the Services for fraudulent or illegal activities; or (iv) IPO Architects' continued provision of any of the Services to the Customer is prohibited by applicable law.
2. Customer Property
2.1 All products, data, business plans, information, specifications, drawings, or other Customer property furnished by Customer to IPO Architects (the “Customer Property”) shall remain the exclusive property of the Customer. Such Customer Property will be used for no purpose other than the performance of Services. Upon termination or expiration of this Agreement, all Customer Property shall be immediately returned to Customer.
3. Limited Warranty & Representations & Warranties
3.1 Professional Services: IPO Architects represents and warrants to Customer that the Professional Services shall be performed in a professional, and workmanlike manner in accordance with the requirements of this Agreement and the requirements and time schedules of any applicable Proposal in all material respects, and in accordance with any applicable commercial standards generally observed in the industry for similar professional services. IPO Architects further represents and warrants to Customer that the performance of the Professional Services by IPO Architects shall not violate any proprietary rights of third parties, including, without limitation, patents, copyrights or trade secrets, and that IPO Architects’s rendering of the Professional Services to Customer under this Agreement shall not violate any applicable law, rule, regulation or judicial order, or violate any contractual obligations or confidential relationships which IPO Architects may have to or with any third party.
3.2. Mutual Representations of the Parties: Each party hereby represents and warrants to the other that:
3.2.1. Authority. It has full power and authority to enter into this Agreement and to perform its obligations hereunder for and on behalf of Customer.
3.2.2. No Claims. There is no action, suit, proceeding, or material claim or investigation pending or threatened against such party in any court, or before any governmental department, commission, agency, or the like, or before any arbitrator which, if adversely determined, might adversely affect such party’s ability to fulfill its obligations or exercise the rights granted hereunder.
3.2.3. No Conflict. Performance of this Agreement shall not violate any governmental laws, rules, ordinances, or regulations (including without limitation all applicable import or export regulations and all licensing or permitting requirements), or breach any other Agreement in which either party is bound.
3.3 Customer Property Representations: Customer represents and warrants that it has all necessary rights, licenses and permissions to furnish IPO Architects with and to authorize IPO Architects’s use of the Customer Property and any other content and/or materials furnished by Customer, in connection with the performance of the Services.
3.4 NO OTHER WARRANTIES: EXCEPT AS SET FORTH IN THIS SECTION 3, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER WITH RESPECT TO THE SERVICES, DELIVERABLES OR OTHER SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY EXCLUDES ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, AND INFRINGEMENT. IPO ARCHITECTS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING CUSTOMER’S USE OR RESULTS OBTAINED FROM USE OF THE SERVICES.
4.1 Scope and Process: Each party shall defend, indemnify, and hold the other party harmless from and against any and all claims, injuries, damages, obligations, liabilities, causes of action, judgments and costs, including reasonable attorneys’ fees and court costs, arising out of or in connection with (i) such party’s breach of the warranties set forth in Section 3 above. The party claiming indemnification under this section (“Claiming Party”) shall notify the other party (“Indemnifying Party”) promptly and in writing of any claims subject to indemnification under this Section 4, and the Indemnifying Party shall have sole control of the defense, settlement, or trial thereof. The Claiming Party shall provide to Indemnifying Party, at Indemnifying Party’s request and expense, all reasonable assistance and all information reasonably available to Claiming Party for such defense
5. Limitation Of Liability And On Damages
5.1 TOTAL LIABILITY: IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY HEREUNDER EXCEED THE NET AMOUNTS RECEIVED BY IPO Architects UNDER ANY PROPOSAL(S) DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY UNDER SUCH PROPOSAL(S) (IT BEING UNDERSTOOD THAT IF THE ALL OR A PORTION OF THE NET AMOUNTS RECEIVED BY IPO Architects, IN THE FORM OF SECURITIES, THAT THE PARTIES SHALL USE THE FAIR MARKET VALUE FOR SUCH SECURITIES AS DETERMINED IN GOOD FAITH BY THE PARTIES). THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE THEORY OF RECOVERY INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR BASED ON THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER LAW.
5.2 NO INDIRECT DAMAGES: EXCEPT WITH RESPECT TO AMOUNTS FOR WHICH EITHER PARTY IS LIABLE UNDER SECTION 4 ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY (A) COST OF COVER OR SUBSTITUTE GOODS OR SERVICES OR (B) ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTIONS, LOSS OF DATA OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER LAW.
6.1 In consideration of the performance of the Services, Customer agrees to pay IPO Architects the fees set forth in the applicable Proposal in accordance with the terms and conditions set forth in the applicable Proposal, and all fees for any applicable add-on services, as Customer may elect to use from time to time (“Fees”). All additional add-on services (as defined in the Proposal) added during the Proposal term will be added for the remainder of the Proposal term. “Fees” are exclusive of taxes, levies and duties (“taxes”). Both parties acknowledge and agree that to the extent any services provided by IPO Architects may be subject to any sales or other applicable tax, Customer shall pay these taxes, assessable by any jurisdiction, except as specifically delineated below. Customer shall include payment of taxes in its submission of Fees and expenses to IPO Architects in U.S. dollars. All amounts due and payable by Customer to IPO Architects under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.
Exceptions: Customer shall bear no responsibility for taxes based on IPO Architects’s net income, assets, payroll, property and employment, to include IPO Architects’s own status as an Independent Contractor under Section 9.7.
6.2 Customer shall pay IPO Architects for the Fees and applicable taxes due hereunder via check, wire transfer, ACH, or credit card. If Customer elects to pay via credit card, Fees and taxes shall be deducted from a credit card account designated by Customer. In such event, Customer authorizes IPO Architects to automatically charge the credit card account for the Fees and taxes in advance or as otherwise agreed to by the parties in writing without any further authorization from Customer. Customer acknowledges that the authorization will remain in effect until Customer cancels such authorization by providing written notice to IPO Architects. If Customer’s credit card account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Customer shall immediately update Customer’s credit card account or supply a new payment account, as appropriate. If Customer is unable to update its credit card account with appropriate information, then IPO Architects will send an invoice to Customer detailing the amount due. Customer must pay the amount due in full within seven (7) days after the date of the invoice. Customer shall pay simple interest on any late unpaid balance at three (3%) (non-compounding) percent over the Wall Street Journal Prime Rate or the highest rate allowed under the law, whichever is lower. Customer agrees to notify IPO Architects in writing of any changes to Customer’s account information or termination of its authorization at least thirty (30) days prior to the next billing date. In the event payment dates fall on a weekend or holiday, Customer understands that the payments may be executed on the next business day.
6.3 IPO Architects may, without liability to Customer, disable the password, account, and/or access to all or part of the Services if any Fees and applicable taxes are not paid within forty-five (45) days of such Fees and taxes first becoming due and payable under this Agreement. In the event of the foregoing, IPO Architects shall not be obligated to provide any or all of the Services until such Fees and applicable taxes are paid in full.
6.4 Fee Dispute Process
i. If Customer has a bona fide dispute in relation to any portion of the Fees invoiced, Customer must pay all invoiced Fees and taxes and shall provide notice to IPO Architects in writing within thirty (30) days from the date of the invoice. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed Fees within five (5) calendar days of the date of the notice.
ii. When the dispute is resolved, (a) if a payment is owed to IPO Architects, such payment shall be made within ten (10) business days of the resolution of such dispute or (b) if an amount is owed to Customer, IPO Architects, in its sole discretion, shall either: (i) credit such amount to Customer’s account within twenty (20) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed upon by the parties in writing); or (ii) apply a pro-rated credit amount to Customer’s account for the remainder of the then-current term.
iii. For avoidance of doubt, all negotiations pursuant to this Section 6.4 shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.
iv. Customer waives the right to dispute any Fees not disputed within thirty (30) calendar days after the date of the applicable invoice.
7.1 Cause: Either party may terminate this Agreement upon written notice to the other in the event of a breach of any material obligation hereunder by such other party which is not cured within thirty (30) days of written notice of such breach having been given to such other party.
7.2 Bankruptcy, etc.: Either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; if the other party makes an assignment for the benefit of creditors; if a receiver, trustee or similar agent is appointed with respect to any property or business of Customer.
7.3 Effect of Termination: Solely in the event of termination under Sections 7.1 and 7.2, each Proposal executed between the parties shall terminate on the effective date of termination of this Agreement and Customer shall promptly pay, but in no event more than thirty (30) days after the effective date of termination, IPO Architects for the Services, or portion thereof, properly performed up through the effective date of termination. Termination under Section 7.1 shall not be construed to be an election of remedies or a waiver thereof.
7.4 For Convenience: Any other provision of this Agreement notwithstanding, either Party shall have the right, within its sole discretion, to terminate the Agreement or any applicable Proposal without further liability hereunder for any reason whatsoever upon ninety (90) days prior written notice to the other Party, except that termination under this provision shall not result in the termination of any applicable Proposal(s), which any and all such Proposal(s) shall terminate per their own applicable termination provisions.
8. Intellectual Property Rights
8.1 Existing Intellectual Property: Each party hereby retains and shall own all right, title and interest in and to their respective Existing Intellectual Property. For purposes of this Agreement, the term “Existing Intellectual Property” means any and all technology, know how, show how, software, data, ideas, formulae, processes, charts, Confidential Information and any other materials or information and any and all worldwide intellectual property rights therein and thereto (a) owned or controlled by either party on the Effective Date or (b) developed by either party outside the scope of this Agreement and which does not rely or use (i) the other party’s Existing Intellectual Property or (ii) Confidential Information.
8.2 No Other License: Except as set forth in this Agreement, including as may be provided in any Proposal with respect to any Deliverable, neither party shall be deemed to have any license with respect to the other party’s Existing Intellectual Property hereunder and each party reserves all rights therein and thereto not so granted.
8.3 Customer Marks: IPO Architects hereby acknowledges and agrees that (i) any license to use any Customer trademarks, brands, logos, banner advertising, etc. (collectively, the “Customer Marks”) shall be limited to IPO Architects’s performance of the relevant Proposal; (ii) the Customer Marks are owned solely and exclusively by Customer, (ii) except for any license grant in an Proposal, IPO Architects has no right, title or interest in or to the Customer Marks and (iii) all use of the Customer Marks by IPO Architects shall inure to the benefit of Customer. IPO Architects agrees not to apply for registration of the Customer Marks (or any mark confusingly similar thereto) anywhere in the world.
9.1 Disputes: The parties hereto agree that they shall comply with the GDPR with respect to this Agreement and the Proposal. Before initiating a lawsuit against the other relating to a dispute or claim herein, Customer on and IPO Architects agree to first work in good faith to resolve between themselves such dispute or claim arising out of or relating to this Agreement. To this end, either party may request that each party designate an officer or other management employee with authority to bind the party to meet to resolve the dispute or claim. If, after meeting, the parties are still unable to resolve the dispute or claim, then the parties agree to submit the matter to mandatory mediation. During this resolution process, each party shall honor the other’s reasonable requests for non-privileged and relevant information. This paragraph shall not apply if: (i) the expiration of the statute of limitations for a cause of action is imminent; or (ii) injunctive or other equitable relief is necessary to mitigate damages.
9.2 Excusable Delay: Neither party shall be liable for any failure or delay in performing any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, war, strike, lockout, epidemic, destruction of production facilities, riot, or insurrection. Each party hereby excludes the application of this Section 9.2 from (i) the obligation to make payments hereunder and (ii) the ability of the Company to terminate this Agreement and the Proposal for Cause pursuant to the Proposal. However, notwithstanding the foregoing, “Excusable Delay” shall in no event include any circumstances stemming from, derived from, or otherwise arising from any type of pandemic event, including but not limited to “COVID -19”.
9.3 Survival of Terms: Regardless of the circumstances of termination or expiration of this Agreement or any Proposal, the provisions of Sections 3 (“Warranty”), 4 (“Indemnification”), 5 (“Limitation of Liability”), 8 (“Intellectual Property Rights”) and 9 (“General”) shall survive the termination or expiration and continue according to their terms.
9.4 Confidentiality: IPO Architects acknowledges that in the course of providing the Services hereunder, IPO Architects, or its employees or consultants, may be supplied with or come into possession of information which is proprietary to the Customer including without limitation, the material terms of this Agreement and information about a party’s customers, sales, costs and other unpublished financial information, business plans, projections, marketing data and trade secrets. IPO Architects agrees that any Customer information received by IPO Architects or its representatives during any furtherance of IPO Architects 's obligations hereunder will be treated by IPO Architects in full confidence and will not be revealed to any other person, firm, organizations or entity except to IPO Architects 's agents, employees, and representatives in connection with the Services to be performed on behalf of Customer: (i) who will be informed of the confidential nature of the Information; (ii) who will treat such Information in full confidence and shall not reveal any Information to any other person, firm, organization or entity; and (iii) IPO Architects shall undertake reasonable efforts to maintain its representatives’ compliance with this Section 9.4.
9.5 Publicity: Customer hereby consents to the use and publication of Customer’s name, trademarks and corporate logos by IPO Architects solely for use for specific performance under this Agreement or Proposal. In addition, except as required by law, neither party shall issue any press release, announcement or other public disclosure relating to the subject matter of this Agreement without the prior written approval of the other party. Such consent shall not be unreasonably withheld. Customer reserves the right to (A) review in advance of publication or distribution any and all sales, marketing and other materials which incorporate Customer’s name, trademarks or corporate logos, and (B) disapprove the use of such materials if Customer determines, in its sole and absolute discretion, that such materials or IPO Architects’s use of such materials are objectionable or otherwise unsuitable.
9.6 Records & Audit: In the event that IPO Architects is to earn pay-for-performance or equity based on performance milestone, pursuant to any applicable Proposals, Customer shall maintain accurate and legible records, including but not limited to accounting records, related to the Services during the term of this Agreement (inclusive of any records pertaining to the milestone based compensation) and for a period of not less than two (2) years thereafter or that period prescribed by applicable law or regulation. During the foregoing period, IPO Architects shall have the right, not more than once per six (6) month period, upon at least seven (7) Business Day’s written notice thereof to Customer, to conduct, at its sole expense and during the normal business hours of Customer, an audit of such records through an independent third party auditor, other than on a contingent fee basis, to verify Customer’s payment and/or remittance of amounts due under this Agreement. IPO Architects shall use reasonable efforts to not disrupt or impede Customer’s business operations in the course of conducting any such audit.
9.7 Independent Contractors: The parties shall be deemed for all purposes to be independent contractors. Nothing in this Agreement or in the activities contemplated by the parties pursuant to this Agreement shall be deemed to create an agency, partnership, employment or joint venture relationship between the parties. Each party shall be deemed to be acting solely on its own behalf and, except as expressly stated, neither party shall have the right or authority to bind or incur any liability or obligation of any kind on behalf of the other. IPO Architects shall be solely responsible for all materials and work. Acceptance by Customer shall have no direction (except in the results to be obtained) or control of IPO Architects, or any person employed by or contracted for by IPO Architects.
9.8 Amendments; Waivers: No waiver of any term or condition is valid unless in writing and signed by authorized representatives of both parties, and shall be limited to the specific situation for which it is given. No amendment or modification to this Agreement shall be valid unless set forth in writing and signed by authorized representatives of both parties.
9.9 Governing Law; Arbitration; Venue: This Agreement (together with any and all modifications, extensions and amendments of it) and any and all matters arising directly or indirectly here from shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware applicable to agreements made and to be performed entirely in such state, without giving effect to the conflict or choice of law principles thereof. For all matters arising directly or indirectly from this Agreement (“Agreement Matters”), the parties hereby (a) irrevocably consent and submit to the sole exclusive jurisdiction of the federal and state courts in Delaware, in connection with any legal action, lawsuit, arbitration, mediation, or other legal or quasi legal proceeding (“Proceeding”) directly or indirectly arising out of or relating to any Agreement Matter; provided that a party to this Agreement shall be entitled to enforce an order or judgment of any such court in any United States or foreign court having jurisdiction over the other party, (b) irrevocably waives, to the fullest extent permitted by law, any objection that either party may now or later have to the laying of the venue of any such Proceeding in any such court or that any such Proceeding which is brought in any such court has been brought in an inconvenient forum, (c) irrevocably waives, to the fullest extent permitted by law, any immunity from jurisdiction of any such court or from any legal process therein, (d) irrevocably waives, to the fullest extent permitted by law, any right to a trial by jury in connection with a Proceeding, (e) the parties covenants that they will not, directly or indirectly, commence any Proceeding other than in such courts and (f) agrees that service of any summons, complaint, notice or other process relating to such Proceeding may be effected in the manner provided for the giving of notice as set forth in this Agreement.
9.10 Notices: All notices permitted or required to be given under this Agreement shall be in writing and delivered to the parties at their respective addresses set forth below by (i) hand delivery, (ii) nationally recognized overnight courier (with tracking and receipt verification capabilities), (iii) certified or registered mail, postage prepaid, (iv) regular mail, or (v) facsimile transmission with a confirmation of receipt. Any such notice shall be deemed to be effective on the earlier of (a) the day of delivery by hand or overnight courier, (b) the day of transmission if sent by facsimile, (c) three days after mailing if sent by mail or courier in the manner set forth above, or (d) upon receipt:
If to Customer:
To the address Customer provided when signing up for the Services.
If to IPO Architects:
8 The Grn, Ste 11012, Dover, DE 19901
With a copy to:
Riveles Wahab LLP, 60 Broad Street, Floor 25, New York, NY 10004
And a copy to:
Each party may change its respective address or facsimile number by submitting written notice to the other party in accordance with this paragraph.
9.11 Severance: Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is found to violate a law, it shall be severed from the rest of the Agreement and ignored and a new provision deemed added to this Agreement to accomplish to the extent possible, the intent of the parties as evidenced by the provision so severed. The headings used in this Agreement have no legal effect.
9.12 Non-Exclusive: Unless otherwise specified in an Proposal, nothing in this Agreement shall require Customer to purchase from IPO Architects all of its requirements for services that are the same or similar to the Services provided hereunder, and Customer may purchase similar or identical services from others. Similarly, nothing in this Agreement shall preclude or limit provision of services similar to the Services to third parties, subject to the security and non-disclosure obligations set forth herein.
9.13 Third Party Contractors: IPO Architects shall be free to use third party contractors in the provision of the Services to Customer hereunder, provided that IPO Architects shall remain directly liable to Customer under this Agreement with respect to any Services performed delivered through the use of any such third party subcontractors or agents.
9.14 Non-Solicitation; Non-Circumvention. Each party agrees that, during the term hereof and for a period of two (2) years thereafter, neither party will, directly or indirectly, (i) induce, attempt to induce or knowingly encourage any employee or contractor of the other party to reduce or terminate its relationship with the other party or in any way knowingly interfere with the relationship between the other party and such persons, or (ii) solicit for employment or hire any such person (including as a contractor or consultant). To the extent that Customer is introduced to any third parties, entities, and or persons (including, without limitation, investors, service IPO Architects, vendors, consultants, etc.) the Customer hereby undertakes, during the term hereof and for a period of two (2) years thereafter, to not disintermediate, circumvent, or otherwise intervene in the relationship between the IPO Architects and such party, whether directly or indirectly including, without limitation, individually or through any person or entity, and the Customer understands and agrees that any and all communications and/or transactions which any and all such third parties shall be conducted by and through the IPO Architects and not in a fashion calculated intentionally or unintentionally to circumvent the IPO Architects, without the IPO Architects’s prior written consent in each instance. Customer hereby represents and affirms that the foregoing undertakings by the Customer are a material inducement for the IPO Architects to enter into this Agreement.
9.15 Assignment: This Agreement may not be assigned by either party without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed, it being understood that in the scenario whereby the Customer is making an assignment of this Agreement in connection with any Customer merger, sale, acquisition, or other “change of control” event, that the acquiring and/or successor party shall be obligated to undertake all obligations of the Customer under this Agreement in writing, to the reasonable satisfaction of the IPO Architects. Notwithstanding the foregoing, each party may assign this agreement by operation of law or otherwise in the context of a merger or stock or asset sale, without such prior written consent. Any attempted assignment contrary to the preceding shall be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of each party’s permitted successors and assigns.
9.16 Entire Agreement: This Agreement and each Proposal and each of their respective attached Addenda, Exhibits, Attachments, and Schedules, as so designated, set forth the entire agreement and understanding of the parties relating to the subject matter contained herein, and merges all prio discussions and agreements, both oral and written, between the parties. Each party agrees that use of pre-printed forms, including, but not limited to email, purchase orders, acknowledgements or invoices, is for convenience only and all pre-printed terms and conditions stated thereon, except as specifically set forth in this Agreement, are void and of no effect. Unless otherwise expressly set forth in an Proposal, as so designated, in the event of conflict between this Master Services Agreement and any Proposal, the terms of this Master Services Agreement shall prevail.