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For Self-Serve Accounts
RECITALS
WHEREAS, Nivati desires to provide Services to Client as outlined in this Agreement;
WHEREAS, Client desires to purchase Services from Nivati as referenced in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
DEFINITIONS
For purposes of this Agreement, the following capitalized terms shall have the respective meanings as follows:
“Affiliate” shall mean a subsidiary or third-party controlled by, controlling, or under common control with, a Party. The term “control” in relation to any entity means the ability to vote more than fifty percent (50%) of the voting securities of that entity or otherwise the ability to direct the management and policies of that entity.
“Business Day” shall mean any day other than (i) a Saturday or a Sunday; (ii) or obligated by law or executive order to be closed in the State of Utah or obligated by law or executive order to be closed.
“Calendar Day” shall mean any day contained within a standard month.
“Change Order” shall mean a document that governs any change in the scope or delivery of Services.
“Client” shall mean Client or any respective entity, Affiliate, unit, partner, or agent of Client.
“Execution Date” shall mean the Calendar Day inscribed on the signature block of this Agreement.
“Intellectual Property” shall be defined and include without limitation; programming documentation, materials, products, concepts, technical ideas, patents, trade secrets, trade names, domain name rights, mask work rights, know-how, processes, methodologies, inventions, reports, algorithms, user interfaces, techniques, designs, mappings, routings, templates, and know-how.
“Invoice” shall mean a list of goods sent or services provided, with a statement of the sum due for these - a bill.
“Services” shall mean any performance of certain employee assistance programs and related wellness services, to be performed by Nivati for Client under this Agreement.
“Subcontractor” shall mean any other third-party person employed by Parties to complete certain services or responsibilities under this Agreement.
1. RELATIONSHIP OF THE PARTIES
1.1 No Partnership. Nothing herein contained shall constitute a partnership or joint venture between the Parties or constitute such on any officer or agent of the Parties. No Party shall hold itself out contrary to the terms of this section and no Party shall become liable by any representation, act, or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such Party whether referred to herein or not.
1.2 Non-Solicitation. During the term of this Agreement, and for a period of twelve (12) months following the termination of the Agreement, the Parties, nor any of the Parties’ current or future members, will not actively solicit for employment those members or subcontractor members of the other. However, this restriction does not apply to members or ex-members who respond to and are hired through a general job posting or public advertisement made in the ordinary course of business.
1.3 Nivati Personnel. Nivati personnel and members performing under this Agreement may perform similar services for others, and this Agreement shall not prevent Nivati from providing services or developing materials that are competitive with those developed or provided under this Agreement, regardless of any similarity between such services or materials.
1.4 Subcontractors. At times and in specifically designated instances, Nivati may choose, at their sole discretion, to use Subcontractors, whether by a third party or offshore entity to provide Services. Nivati will notify Client prior to engagement with any Subcontractor on the Services. Each Subcontractor will be held to the same standards as Nivati and bound by all terms of this Agreement.
2. FINANCIAL OBLIGATIONS
2.1 Fees. Client shall pay Nivati the charges as detailed by Nivati. Services can be modified by Client at the end of each Term, or by an as mutually agreed upon by both Parties
2.1.1 Pay by Credit Card. Payment for the Services by means of a credit card, regardless of the card lending institution or type, an additional three percent (3%) fee will be added to the standard Fees applicable to the invoice.
2.2 Invoicing. Unless otherwise agreed between the Parties, Client shall receive an Invoice from Nivati at least every thirty (30) Calendar Days for Services completed. Client agrees to review the invoice and notify Nivati within ten (10) Business Days of any questions, discrepancies, or disputes with the provided invoice, otherwise, all invoices will be deemed accurate and accepted.
2.3 Late Payments. Any payments not received or returned as insufficient funds or declined through the credit card service provider shall be considered delinquent and Nivati reserves the right to suspend or terminate any or all of the Services until such delinquency is cured.
2.4 Taxes. The fees accumulated in fulfillment of this Agreement are exclusive of taxes and other similar charges as may be required under applicable State and Federal laws. Client shall be responsible for and shall pay or reimburse Nivati for, all taxes, duties, and like charges arising out of the Services contemplated by this Agreement. In the event Client withholds applicable income taxes on the amounts payable to Nivati, Client shall remit such withholding taxes to the tax authorities and provide a certificate of withholding to the Nivati as required under applicable law.
3. INTELLECTUAL PROPERTY
3.1 Intellectual Property of Nivati. Nivati retains any and all of its rights in any Intellectual Property, and all Intellectual Property rights therein owned or controlled prior to the date of this Agreement or acquired or developed after the date of this Agreement. Nothing in this Agreement grants Client a license to own or use Intellectual Property beyond that which is agreed to.
4. CONFIDENTIALITY
4.1 Protection of Confidential Information.
a. As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the information, Intellectual Property, business and marketing plans, technical information, product designs, and business processes, or methodologies. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third-party without breach of any obligation owed to Disclosing Party
b. Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind and manner (but in no event using less than reasonable care). The receiving Party shall promptly notify the Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of the Disclosing Party's Confidential Information.
c. If the Receiving Party is compelled by law to disclose any Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.
d. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information, and upon request, return to the Disclosing Party, or (at the Disclosing Party's election) destroy, all materials containing such Confidential Information. Notwithstanding the foregoing, the Receiving Party shall be entitled to retain archival copies of the Confidential Information for legal, regulatory, or compliance purposes, and nothing shall require the erasure, or destruction of backup media made in accordance with the Receiving Party’s document-retention procedures.
e. The restrictions contained in this Section 6.1 are considered by the parties hereto to be fair, reasonable, and necessary for the protection of the legitimate business interests of each Party. In the event either Party is in breach, or threatens to breach any such covenants of this Agreement, each Party acknowledges and agrees that the other will be greatly damaged and such damage(s) will be irreparable and difficult to quantify; therefore, the non-breaching Party will be entitled to injunctive or other equitable relief to restrain such breach or threat of breach, without impairing, invalidating, negating or voiding the non-breaching Party’s rights to relief in either law or equity. In the event that any or all of the covenants hereunder are determined by a court of competent jurisdiction to be invalid or unenforceable, by reason that the breadth of restrictions is too great or for any other reason, these covenants shall be modified and interpreted to extend over the maximum geographic area, period of time, range of activities or other restrictions to which they may be enforceable.
5. REPRESENTATIONS & WARRANTIES
5.1 Representations and Warranties of the Parties. Each Party, as a condition to the consummation of this Agreement, hereby makes the following representations and warranties to, and agreements with, the other Party as follows:
a. Due Organization and Authority. Parties are duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization and have all licenses necessary to carry on its business, and no demand for such licensing or qualification has been made upon the Party by any such State, and in any event, each Party is in compliance with the laws of any such state to the extent necessary to ensure the enforceability of the terms of this Agreement.
b. No Conflicts. Neither the execution and delivery of this Agreement, the responsibilities by each Party, nor the transactions contemplated hereby, will conflict with or result in a breach of any of the conditions or provisions of the Party’s organizational documents or any legal restriction or any agreement or instrument to which each Party is now liable or by which it is bound, or constitute a default or result in a breach or an acceleration under any of the foregoing or any material contract, agreement or other instrument to which each is a Party or which may be applicable to the Parties or its assets, or result in the violation of any law, rule, regulation, order, judgment or decree to which each Party is subject.
c. No Untrue Information. To a Party’s knowledge, neither this Agreement nor any statement, report, or other document furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of fact or omits to state a fact necessary to make the statements contained therein not misleading.
5.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NIVATI HEREBY DISCLAIMS ALL WARRANTIES (WHETHER IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO THE SERVICES AND DELIVERABLES PROVIDED UNDER THIS AGREEMENT AND/OR STATEMENTS OF WORK ISSUED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NIVATI DOES NOT REPRESENT OR WARRANT THAT SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO ANY SOFTWARE, WILL BE ERROR OR BUG-FREE, THAT SOFTWARE WILL FUNCTION WITHOUT INTERRUPTION, OR THAT ANY OF THE SERVICES OR DELIVERABLES ARE DESIGNED TO MEET Client’S BUSINESS REQUIREMENTS.
6. INDEMNIFICATION
6.1 Nivati Indemnification. Nivati shall defend and hold harmless Client and its officers, directors, members, Affiliates, stockholders, agents, successors and assigns (for purposes of this Section 8.1, collectively, the “Indemnitees” and individually, an “Indemnitee”) in and against all actions and claims, and indemnify all such Indemnitees from and against any and all losses, claims, damages, liabilities, expenses, reasonable attorney fees and/or court costs (including the fees and expenses of enforcing the contractual and indemnification obligations under this Agreement) (“Losses”) incurred by, or imposed against, any such Indemnitee arising from such actions and claims and related to: (i) Nivati’s breach of any term or condition, or of any of its representations or warranties, contained in this Agreement; (ii) Nivati’s gross negligence, bad faith or intentional misconduct; (iii) personal injury (including death) or property damage caused by Nivati’s personnel at Client’s facilities; and/or (iv) Nivati’s violation of applicable law.
6.2 Third-Party Claims. For any third-party infringement claim or such third party's valid copyright or patent (in the jurisdiction where the Deliverables are being provided for use in) by a Deliverable. Nivati shall have sole control and authority over the defense and/or settlement of such a claim, suit or action, including the right, at its sole discretion to (i) procure for Client the right to use the infringing Deliverable, (ii) replace the infringing Deliverable with a non-infringing, functionally equivalent one, (iii) suitably modify the infringing Deliverable so that it is non-infringing, or (iv) accept return of the infringing Deliverable and refund a pro-rata portion (based on a five-year straight-line depreciation commencing upon delivery) of any fees paid by Client to Nivati with respect to such Deliverable. The indemnity is conditional upon Client giving Nivati prompt written notice of, and cooperating with Nivati in connection with, the defense of any such claim, suit, or action, including appeals and negotiations. This indemnity shall not extend to any claim of infringement to the extent resulting from: (i) Client’s specifications or requirements, (ii) third-party software, where the Nivati’s use of such software has been in accordance with relevant licensing terms (iii) modification of the Deliverables unless made by Nivati, (iv) use or incorporation of the Deliverables in a manner for which they were not designed; or (v) use or combination of the Deliverables with items not provided by Nivati. THE INDEMNITY SET FORTH IN THIS SECTION STATES NIVATI’S ENTIRE OBLIGATION AND LIABILITY, AND Client’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE DELIVERABLES.
6.3 Client Indemnification. Client shall defend and hold harmless Nivati, and its officers, directors, members, Affiliates, stockholders, agents, successors and assigns (for purposes of this Section, collectively, the “Nivati Indemnitees” and individually, an “Nivati Indemnitee”) in all third-party actions and claims, and indemnify Nivati from and against all Losses incurred by Nivati arising from such actions or claims and caused by: (i) Client’s Technology’s infringement of such third-party’s Intellectual Property Rights; (ii) Client’s breach of any of its representations or warranties set forth herein; (iii) Client’s gross negligence, bad faith or intentional misconduct; (iv) Client’s violation of applicable law, (v) performance of Services at any Location, including without limitation, any use or damage incurred by Nivati’s operations at a Location; and/or (vi) any determination that the Services constitutes significant care in the nature of medical care or treatment and/or a group health plan being offered by the Customer for any purpose.
6.4 Exceptions. Notwithstanding the foregoing, no Party shall be required to indemnify the other Party to the extent that any such Losses resulted from: (1) the bad faith, gross negligence, or willful misconduct of such other Party; or (2) such other Party’s breach of any of its representations or warranties set forth in this Agreement or of any term or condition set forth herein. The provisions of this Section 8.1 shall survive the termination of this Agreement.
7. LIMITATIONS ON LIABILITY
7.1 THE TOTAL, CUMULATIVE LIABILITY OF NIVATI AND ITS AFFILIATES UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE AVERAGE AMOUNTS PAID BY CLIENT TO NIVATI DURING EACH CONSECUTIVE TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE. NIVATI’S LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL OF NIVATI’S EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE ABOVE LIMIT. THE EXISTENCE OF CLAIMS OR SUITS WILL NOT ENLARGE OR EXTEND THE LIMIT.
7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWSOEVER CAUSED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL OR REPUTATION, OR LOSS OF PROFITS HOWSOEVER CAUSED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS AGREEMENT ARE A MATERIAL PART OF THE BARGAIN AGREED BETWEEN THE PARTIES IN RELATION TO THE SUBJECT MATTER OF THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT NIVATI WOULD NOT BE WILLING TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS. EACH PARTY ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS OF LIABILITY PROVISIONS SHALL APPLY WHETHER OR NOT THE REMEDIES ALLOWED UNDER THIS AGREEMENT ARE DEEMED ADEQUATE AND WHETHER OR NOT SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
7.4 THE NIVATI’S LIABILITY TO Client IS REDUCED TO THE EXTENT (IF ANY) THAT Client CAUSES OR CONTRIBUTES TO THE RELEVANT LOSS OR FAILS TO ACT REASONABLY TO MITIGATE ITS LOSS.
8. INFORMATION SECURITY AND DATA PROTECTION
8.1 Security. Parties have complied and will continue to comply, with their respective obligations arising from the data protection and privacy laws in force, from time to time, to the extent that those obligations are relevant to the Party. Client acknowledges and understands that compliance with applicable laws may require the subsequent execution of a Data Privacy Addendum (“DPA”) or Standard Contractual Clauses (“SCC”), outlining the processing and responsibilities of the Parties. Such addendum will form part of this Agreement upon execution. The Parties agree to maintain network and application security that, at a minimum, includes: network firewall provisioning, intrusion detection, software and subsequent updates, upgrades, and remains secure from those vulnerabilities. Likewise, Parties agree to maintain network security that conforms to generally recognized industry standards and best practices. The Parties further agree that any and all electronic transmission or exchange of system and application data with the other, and/or any other parties expressly required, shall take place via secure means.
8.2 Data Privacy and Notification. The Parties agree to comply with all applicable laws that require notification in the event of unauthorized release of information. In the event of a breach of any security obligation, or other event requiring notification under applicable law, the Parties agree to: a) Notify the other by telephone and e-mail of such an event within forty-eight (48) hours of discovery, and b) assume responsibility for informing all such other individuals in accordance with applicable law, and c) indemnify, hold harmless and defend the other Party and its trustees, officers, and members from and against any claims, damages, or other harm related to such security breach.
8.3 Sensitive Confidential Information. In addition to and without limiting Section 6 (Confidential Information), if, in the course of performing Services for Client, Nivati has access to, or possession of, “Sensitive Confidential Information” (meaning Confidential Information that includes (alone or among other Confidential Information) PII, PHI and Cardholder Data) of Client or its Clients, Nivati will comply with all applicable laws and regulations, including the Payment Card Industry security standards, as it pertains to the access, use, disclosure and processing of such information. “Personally Identifiable Information” or “PII” means information that reasonably can be used, either by itself or in conjunction with other information, to identify, contact, or locate a single individual person. “Protected Health Information” or “PHI” means information about health status, provision of health care, or payment for health care that can be linked to a specific individual. “Cardholder Data” means the primary account number (or full magnetic strip) of a payment card (credit card, debit card, etc.) plus either the cardholder’s name, expiration date, or service code.
8.4 GDPR. The Parties warrant that they will duly observe all their respective and applicable obligations under Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (“GDPR”) (and any amendments thereto), and any subordinate legislation implementing GDPR which may apply (“Local Data Protection Laws”). For the purposes of this Agreement, “Personal Data,” “Controller,” and “Processor” shall have the meanings given in GDPR and/or Local Data Protection Laws. Client remains responsible in its capacity as Controller for: (i) determining the purposes and general means of Nivati’s processing of Client’s Personal Data under this Agreement subject to Client’s responsibility for determining and implementing the technical and organizational means of the processing envisaged by this Agreement and (ii) complying with its personal data security obligations prescribed by Local Data Protection Laws for Controllers.
8.5 Required Disclosure. If either Party is required to provide information to a third party and to any public authority regarding Client’s Personal Data, all parties will reasonably cooperate in providing such information and the parties acknowledge that Client is responsible for responding to third-party requests for or about Client’s Personal Data. Before complying with any such third-party request for or about Client’s Personal Data, Nivati will, to the extent allowed by law: (a) promptly notify Client of its receipt of a third-party request; (b) comply with Client’s reasonable requests regarding the processing of third-party requests; and (c) provide Client with the information required for Client to respond to third-party requests. If Client is identified as the source of the information sought by the third-party request, Nivati will direct the requester to deal directly with Client.
8.6 Nivati as Processor. In its sole capacity as a Processor of Client’s Personal Data, Nivati will: (i) only deal with and process Client’s Personal Data for the purposes described in this Agreement and in compliance with, and subject to, the instructions received from Client and in compliance with this Agreement and will not use or process Client’s Personal Data for any other purpose whatsoever. Nivati will maintain reasonable operating standards and security procedures in accordance with industry-standard security risk management practices designed to protect from security incidents and to preserve the security, integrity, and confidentiality of Personal Data.
8.7 Audit Rights. Upon reasonable advance notice by Client (and no more often than once every twelve (12) months, or more frequently if required to satisfy legal or regulatory requirements), Nivati agrees to submit its data processing facilities and/or any locations from which Client’s Personal Data can be accessed for audit to verify compliance with this Agreement, which audit shall be carried out, with reasonable notice and during regular business hours and under a duty of confidentiality, by Client and/or by a third-party appointed by Client subject to the security and access guidelines applicable to such facility and, where the facility is owned or managed by a third-party, the consent of such third-party.
9. TERM and TERMINATION
9.1 Termination for Convenience. Either party may terminate this agreement for convenience by providing 60 days written notice to the other party. Upon Client invoking such termination for convenience rights, Client shall be obligated to pay the, then current, and entire balance for, Term.
9.2 Termination for Cause. This Agreement shall be terminable in accordance with this section if a Party is subject to any of the following events of default (each, an “Event of Default”):
a. Failure by such Party to duly observe or perform in any material respect any other of the covenants or agreements set forth in this Agreement which continues unremedied for a period of thirty (30) days after the first date on which written notice of such failure is received;
b. Such Party is subject to a decree or order of a court or government agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, including marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, and such decree or order shall have remained in force undischarged or un-stayed for a period of sixty (60) days
c. In the event that Client files a petition for voluntary relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) or an order for relief is entered in a bankruptcy case (or converted bankruptcy case) in which Client is the subject debtor and debtor in possession, then promptly following the entry of the order for relief, Client shall file and prosecute a motion (the “Critical Nivati Motion”) seeking bankruptcy court authority, pursuant to section 105 of the Bankruptcy Code, to treat Nivati as a “Critical Nivati” as such term is generally used in the administration of cases under the Bankruptcy Code. Client, as debtor in possession, shall use all good faith efforts in prosecuting the Critical Nivati Motion;
d. Such Party attempts to assign or delegate all, or substantially all, of their rights and duties to this Agreement without prior written consent of the other Party; or
e. Without prejudice to Section 11, if Client fails to pay in accordance with Section 4 and remains in default not less than 60 days after being notified in writing to make such payment, then Nivati shall be entitled to:
(i) suspend performance or reduce its rate of performance until such payment is made and Client shall be liable for any costs of such suspension or reduction in rate of performance and Nivati shall be entitled to an extension of time; or
(ii) terminate this Agreement with immediate effect
Upon termination for cause pursuant to this section, the breaching Party, or other successors and assigns, shall be obligated to reimburse, pay, or comply with any court-ordered remedies.
9.2 Term. This Agreement and all rights and obligations of the parties shall commence on the date of acceptance or execution, and shall renew annually (every 12 months) thereafter, until terminated pursuant to this Section.
9.3 Renewal. Unless notice is provided by Client 30 days prior to the end of the Term, and notwithstanding the foregoing, the Term of any subscription agreement shall automatically renew and be extended for successive one-year periods.
10. MISCELLANEOUS PROVISIONS
10.1 Severability Clause. Any part, provision, representation, or warranty of this Agreement, which is prohibited, or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
10.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous written or oral communications between the parties. Except as expressly set forth herein, no other prior or contemporaneous covenants, promises, representations, or warranties of any kind, whether written or oral, have been made or can be relied on by either Party as an inducement to enter into this Agreement, whether relating to the tools, resources, practices or otherwise of any Party hereto.
10.3 Incorporation of Exhibits. Any exhibits attached to this Agreement, whether in template or complete form, shall hereby be incorporated into this Agreement and hold the same weight and effect for breach and remedy.
10.4 Governing Law. FOR THE UNITED STATES OF AMERICA AND CANADA, THIS AGREEMENT AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
The parties hereby acknowledge and agree that the following provisions shall not apply to this Agreement and each party hereby waives any and all rights arising under these provisions: (i) the United Nations Convention on Contracts for the International Sales of Goods; and (ii) the Uniform Computer Information Transactions Act (“UCITA”) to the extent enacted in any state having jurisdiction over this Agreement
10.5 Client Name. This Agreement allows Nivati to include Client’s name in a general listing of Nivati Clients with Client’s written permission. The general listing will not include any details about specific projects. Client further agrees to allow Nivati to use Client’s logo, and trademarks in any marketing materials, documents, websites, blog articles, and promotional materials; so long as Client remains an active Customer of Nivati’s Services, and has not requested specific restrictions to marketing@nivati.com.
10.6 Amendment. This Agreement may be amended from time to time by the mutual written agreement signed by the Parties; provided that all expenses incurred by the remaining Parties in connection with any such amendment (including, without limitation, reasonable attorneys’ fees) will be paid by the Party requesting such amendment.
10.7 Successors and Assigns; Assignment of Agreement. This Agreement shall bind all Parties and their respective successors and assigns, with the exception of any merger or acquisition by any industry competitor. Notwithstanding anything to the contrary in this Agreement, neither Party shall retain the right to assign its equity or interests in this Agreement, except to an Affiliate, without the written consent of the other Party.
10.8 Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, acts of terrorism, malicious acts of third parties, acts of governmental agencies, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. For added certainty, this Section shall not operate to change, delete, or modify any of the parties’ obligations under this Agreement (e.g., payment), but rather only to excuse a delay in the performance of such obligations.
11. ARBITRATION and LEGAL DISPUTE
11.1 Arbitration of Disputes. Any Dispute Resolution and Arbitration: In the event of any dispute arising out of or in connection with this Agreement issued hereunder, the parties will attempt in good faith to resolve such dispute through negotiations between them. Where the parties are unable to resolve a dispute by means of negotiation, the dispute shall be finally settled by arbitration conducted in accordance with the rules of the United Nations Commission and International Trade Law (UNCITRAL) in effect on the Effective Date (the "UNCITRAL Rules"). Such disputes will be resolved by a majority decision of three (3) arbitrators as determined under the UNCITRAL Rules. Each party will appoint one (1) arbitrator within thirty (30) days of a request by the other party for arbitration pursuant to this Agreement. The third arbitrator will be appointed by the arbitrators appointed by the parties within thirty (30) days of the selection of the second arbitrator. The third arbitrator will serve as chairman of the arbitration. The seat of arbitration will be New York, New York/. The language of the arbitration will be English. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrators may, in their discretion, award costs and fees to the prevailing party. Judgment upon the award may be entered in any court having jurisdiction over the award or over the applicable party or its assets.
11.2 Attorneys’ Fees and Costs. In the event that any legal or other action is necessary to enforce this Agreement, the prevailing Party shall be entitled to its costs and expenses, including reasonable attorney’s fees, incurred in connection with such action.
IN WITNESS WHEREOF, Nivati and Client have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date written.
Last Updated 12/2024
