Effective June 1, 2024
This Agreement sets forth the terms and conditions governing the relationship between Adar, Inc. d/b/a Rhodian Group (hereinafter referred to as “Rhodian Group”) a Delaware corporation, whose principal place of business is located at 7358 N. Lincoln Avenue, Suite 100, Lincolnwood, IL 60712 and the customer identified in the applicable Service Order or Statement of Work (collectively, the “Order”) or other agreement (“Customer” or “you”) relating to the services provided by Rhodian Group (the “Services”). As used in this Agreement, “Party” means either Customer or Rhodian Group, as appropriate, and “Parties” means Customer and Rhodian Group.
Terms have their normal or common meaning or the meaning given them in the Service Exhibits, except as defined in this Agreement:
(a) Affiliate is a legal entity that controls, is controlled by, or is under common control with a Party. “Control” means the ability to affect, directly or indirectly, the policies, management and operations of an entity through ownership of voting securities, by contract, or otherwise.
(b) Agreement means this Master Services Agreement, including incorporated, addenda, Service Orders and other documents attached hereto and made a part hereof, as well as any written amendments to this Agreement executed by the authorized representatives of the Parties.
(c) Emergency Maintenance means maintenance which, if not accomplished promptly by Rhodian Group, could result in damage to Rhodian Group’s data center or a degradation or loss of Service to Customer, its End Users or other Rhodian Group customers.
(d) End User means an end of Customer’s services that incorporate or include the Services provided by Rhodian Group to Customer, including but not limited to Customer’s third party customers.
(e) Service means Rhodian Group-provided hosting or related managed service or other affiliated services performed by Rhodian Group, as further described in the applicable Services Addendum.
(f) Service Order Addendum means an attachment to this Agreement containing product-specific terms and conditions for a particular Service, including any schedules and attachments thereto.
(g) Service Request Date is the date requested by Customer for service availability as indicated on a Service Order.
(h) Start of Service Date for a Service shall be the date Rhodian Group notifies Customer that the Service is available for Customer use. Notwithstanding the above, the Start of Service Date shall never be later than the date Customer or an End User begins to use the Service.
(i) Taxes are amounts Rhodian Group is required by federal, state or local taxing authorities to collect from Customers in connection with its furnishing Service.
2.1 Services and Service Orders. Rhodian Group shall provide to Customer the Services Customer has specifically contracted for pursuant to this Agreement. The Parties may add additional Services by mutual execution of Service Order(s) and entering into additional Service Order Addendums. If Customer orders Services or features not governed by existing Service Orders executed under this Agreement, then those Services or features will be provided pursuant to the Parties amending this Agreement to address such Services or features.
2.2 Resale of Services.
(a) Customer is the customer-of-record for all Service(s) acquired under this Agreement. If Customer resells Service or incorporates Service into services it provides to End Users, Customer will be solely responsible for interfacing with its End Users with respect to all matters pertaining to its services including, without limitation, service provisioning, billing and collection, dispute resolution and crediting. Rhodian Group will have no obligation to interact with Customer’s End Users, nor will Rhodian Group incur any liability to them for its performance under this Agreement. Customer is responsible for the payment of all charges for Service furnished to Customer, or provided by Customer to its End Users. This responsibility is not diminished or otherwise affected by any: (1) use, misuse, fraud or abuse by Customer, its employees, its customers, End Users, or other members of the public of Service or of Customer-provided systems, equipment, facilities or services interconnected to Service; or (2) Customer inability to collect payments or charges from its End Users, or others.
(b) Customer is solely responsible for: (1) applying and enforcing all applicable provisions of this Agreement on its End Users; and (2) any liability arising from a violation by Customer or its End User(s) of a Customer obligation under this Agreement.
2.3 Change Requests.
Customer may request a change to any Service, provided by Rhodian Group or under an applicable Service Order Addendum (“Change Request”) at any time in writing to Rhodian Group. The Change Request must describe in reasonable detail the proposed modification(s) to the Services and identify the priority of the request. By submitting a Change Request, Customer gives its authorization for Rhodian Group to perform the required work to make the change. Rhodian Group reserves the right to review and approve all Change Requests and also to determine if the requested change is within the scope of the Services covered by an existing Service Order Addendum. As soon as possible after making such a determination and before undertaking such Services, Rhodian Group shall give written or electronic notice to Customer of each determination made by Rhodian Group that a requested change is outside of the scope of the Services covered by an existing Service Order Addendum. Any out-of-scope Change Request accepted by Rhodian Group will incur a time and materials (“T&M”) charge at Rhodian Group’s then current hourly rate. If Customer owes Rhodian Group a past due undisputed amount for Services, products and/or software, Rhodian Group may, in its discretion, cease to accept or process any Change Requests. Alternatively, Rhodian Group may, in its sole discretion, require pre-payment from Customer to cover the cost of performing any Change Request. These rights are in addition to all others provided for in this Agreement or at law or in equity.
2.4 Rights to Access and Use.
Rhodian Group hereby grants to Customer, subject to all the terms and conditions of this Agreement, a non-exclusive, non-transferable (except as permitted in the Agreement), non-sub licensable license to access the Services as specified in the applicable Service Order Addendum(s) for the duration of the Term, and to use the Services solely for Customer’s internal business purposes, or to provide Customer’s services, data, or software to its End Users, and for the purposes contemplated hereunder.
2.5 Access Restrictions.
Customer shall not itself nor allow any end user to, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover (if applicable) any trade secrets or source code to software or services provided by Rhodian Group; (ii) modify, translate, or create derivative works of the Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer the rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) (if applicable) remove any proprietary notices from the Services; (vi) publish or disclose to third parties any evaluation of the Services without Rhodian Group’s prior written consent; or (vii) create any link to the Services or frame or mirror the content contained on, or accessible from, the Services.
3.1 Billing.
(a) Monthly Recurring Charges (“MRC’s”) are billed in advance. If Service is made available on a day other than the first day of a monthly billing period, or if Service is discontinued on a day other than the last day of a monthly billing period, the MRC will be prorated for that monthly billing period. Billing for a Service will begin on the Start of Service Date unless otherwise agreed to in writing between the parties. Consumption, volume, or usage-based charges in excess of any mutually agreed upon amount of MRC are billed in arrears for the preceding month.
(b) Penetration Testing Services, Vulnerability Scanning Services, Subscription Services of any type (e.g. Dark Web Monitoring, Phishing Service, Email Security monitoring, etc.), Cybersecurity Consulting Projects are billed in advance of work beginning. Any Consulting Service provided is subject to an accounting of all hours spent on the project and a final bill or refund will be provided to Customer within 30 days of project completion.
3.2 Payment. Except as set forth in Section 3.4, Customer shall pay all invoiced charges for Service without deduction, setoff or delay for any reason. Customer agrees to pay for the Services within thirty (30) days from the date of the invoice (“Payment Period”) by either (i) check sent to the address provided on the invoice, (ii) wire transfer sent in accordance with applicable instructions provided by Rhodian Group, or (iii) other method approved by Rhodian Group.
3.3 Late Payments. Except for invoiced amounts disputed in good-faith by Customer in accordance with Section 3.4 below, Rhodian Group will charge a late payment fee equal to 0.75% (or the maximum allowed by law, if less) of all invoiced amounts not paid within the Payment Period (the “Late Payment Fee”). The Late Payment Fee will be applied on a compounded basis to any past due balances carried forward to subsequent monthly billing periods.
3.4 Billing Disputes. If Customer disputes a charge in good faith, it may withhold payment of that charge so long as Customer (a) makes timely payment of the undisputed charges; and (b) on or before the Payment Period, provides Rhodian Group with written notice including an explanation of the reasons for Customer’s dispute of the charges. The parties will cooperate to resolve any disputed charges within thirty (30) days from Rhodian Group’s receipt of Customer’s notice. If a disputed amount is determined by the Parties to be a legitimate charge, Customer must pay the total amount due and owing (with no penalty) within five (5) business days of receiving notice of such determination from Rhodian Group. No charges may be disputed more than ninety (90) days after the date such charges are invoiced, and if not disputed within that time, all such charges shall be deemed valid and undisputed by Customer. Payment shall not prejudice Customer’s right to dispute charges, so long as they are disputed in good faith in the manner and within the timeframes specified in this Article.
3.5 Consequences of Non-Payment. If Customer does not make payment of all undisputed invoiced charges in accordance with the provisions herein, Rhodian Group may pursue one or more of the following remedies: (i) alter Customer’s billing or payment arrangements (i.e. by requesting financial assurances such as a deposit or bond, or requiring weekly payments), or (ii) suspend any and all Service provided by Rhodian Group under this Agreement or any other service agreement upon written notice to Customer. Following suspension of Services for non-payment, Rhodian Group will not be required to reinstate Services to Customer until: (1) Customer has paid in full all charges then due, including any late fees, interest charges, collection costs and any cost of reinstating Services; and (2) Customer provides to Rhodian Group satisfactory assurance as requested by Rhodian Group (such as a deposit, bond, or requirement of weekly payments) of Customer’s ability to pay for Service for the remainder of the applicable Service term(s). If Customer fails to cure the non-payment within ten (10) days from the date of Service suspension, Customer will be deemed to have terminated the affected Services as of the effective date of Service suspension. If Customer has not paid an invoice within the Payment Period and Rhodian Group owes any amounts to Customer, Rhodian Group may offset respective payments by first applying such amounts owed by Rhodian Group to the full balance due from Customer and the remaining amounts owed by Rhodian Group, if any, will be remitted in the normal course of business. A payment default that results in termination of Services shall entitle Rhodian Group to collect from Customer all fees committed to as part of any Service Order Addendum in addition to pursuing all other available remedies, including but not limited to reporting of Customer’s non-payment to one or more credit reporting agencies, as permitted by law any early termination charges as set forth in the applicable Service Exhibit, in addition to pursuing all other available remedies, including but not limited to reporting of Customer’s non-payment to one or more credit reporting agencies, as permitted by law.
4.1 Applicability. Service charges do not include Taxes or Governmental Charges to be invoiced to Customer, as applicable, in connection with the furnishing of Service.
4.2 Payment and Other Obligations. Customer must pay existing and future Taxes and comply with new or revised terms and conditions imposed by Rhodian Group as a result of Governmental Activity.
4.3 Exemption Certificate. If Customer believes itself to be exempt from any Taxes or Governmental Charges, it will provide Rhodian Group with a certificate demonstrating its eligibility for exemption. If the certificate is accepted, Rhodian Group will cease imposing the applicable Taxes or Governmental Charges and, if such charges previously had been imposed and collected, Rhodian Group will credit Customer in an amount equal to the charges paid by Customer during the ninety (90) day period immediately preceding the delivery of the accepted certificate, unless otherwise required by law or regulation.
4.4 Survival. Customer’s obligation to pay Taxes and Governmental Charges under this Article 4 will survive the expiration or any termination of the Agreement.
5.1 Agreement Term. The Agreement shall commence on the effective date of the first Service Order Addendum entered into by the parties and shall remain in effect until the expiration or termination of all outstanding Service Order Addendum.
5.2 Service Term. The term for any Service shall be as set forth in the applicable Service Order Addendum
5.3 Termination.
(a) Procedure. In addition to the termination rights of either party under Article 7, Customer may terminate the Agreement or an applicable Service Order Addendum for any reason, upon providing Rhodian Group with written notice thereof in accordance with Article 5.3 Section (c). For discontinuation of Service, Customer must provide Rhodian Group with written notice addressed to Rhodian Group at such location as Rhodian Group shall specify from time to time. A purported termination or discontinuation employing any other form of communication, will be ineffective, and Customer will remain fully obligated to Rhodian Group. An end of term notice must be provided within the timeframe designated in the Service Order Addendum.
(b) Early Termination or Discontinuation. Customer may be liable for early termination charges under this Agreement for discontinuing Service prior to the expiration of a Service Term if set forth in the applicable Service Order Addendum. All termination fees and any billing arrears must be paid prior to offboarding being completed.
(c) Notices. Notices under this Agreement shall be in writing and delivered by overnight courier (e.g., Federal Express, DHL) or certified mail, return receipt requested, to the persons whose names and business addresses appear below and such notice shall be effective on the date of receipt by the receiving Party:
If to Rhodian Group: | Rhodian Group, LLC 7358 N. Lincoln Avenue, Suite 100 Lincolnwood, IL 60712
|
If to Customer: | Company Name Street Address City, State Zip Attn: Contact name, Title |
A Party may change its address and point of contact by notifying the other Party in accordance with this Article.
(d) Return of Property. No later than thirty (30) days after the expiration or termination of this Agreement, and earlier if requested by Customer at any time, Rhodian Group shall deliver to Customer at Customer’s own expense or otherwise dispose of according to Customer’s request (and will not keep in Rhodian Group’s possession or deliver to anyone else) all of Customer’s Confidential Information (as defined below) or other property of Customer (including, without limitation, all devices, records and data) in Rhodian Group’s possession.
6.1 The Parties. Each Party represents and warrants to the other Party (i) that it is an entity, duly organized, validly existing and in good standing under the laws of the place of its origin, with all requisite power and authority to enter into and perform its obligations under this Agreement in accordance with its terms, and (ii) that it has and will continue to comply with all applicable anti-corruption laws, including but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”).
6.2 RHODIAN GROUP. Rhodian Group represents and warrants that: (a) it possesses the training, skills and expertise necessary to perform the Service(s) in a competent and professional manner, and that it will provide the Service(s) in a professional manner, using that degree of care and skill ordinarily exercised by and consistent with the standards of competent service providers performing comparable services, (b) its Cloud Services are designed, installed, provided, and maintained in compliance with applicable legal requirements; and (c) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its services to Customer.
6.3 Customer. Customer represents and warrants that Customer’s use of Service(s) is and at all times during the term will be in compliance with applicable legal requirements and those established in this Agreement.
6.4 Exclusion of Other Warranties. THE WARRANTIES SET FORTH IN SECTIONS 6.1-6.3 ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE, AND NON-INFRINGEMENT.
7.1 Breach Events. A Party is in Breach under this Agreement if any of the following occurs:
(a) a Party violates any legal requirement relating to the provision or receipt of Service, and the violation is not remedied within five (5) days of receipt of written notice of the violation; or
(b) a Party fails to perform a material obligation under this Agreement, and the failure is not remedied within thirty (30) days of receipt of written notice of the failure, (except for payment defaults for which no cure periods shall be available in addition to those described in Article 3.5 above).
7.2 Termination for Breach. In addition to remedies available at law or in equity, the non-breaching Party may terminate this Agreement (including its Service Exhibits and Service Orders, both implemented and pending), in whole or in part, for a Breach.
Customer will not itself and will not allow any End User to: (1) use Services for fraudulent, unlawful or destructive purposes; including, but not limited to, unauthorized or attempted access, alteration, abuse or destruction of information; (2) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services or another’s computer; (3) not to post, promote or transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; (4) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; or (5) use Services in such a manner that causes interference with Rhodian Group’s or another’s use of Rhodian Group’s Services. Customer will promptly cooperate with Rhodian Group to prevent unauthorized access by third parties of the Services. Customer acknowledges and agrees that Rhodian Group neither endorses the contents of any Customer or End User communications nor assumes any responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising there from or any crime facilitated thereby. Rhodian Group may remove any violating content posted on the Services or transmitted through the Services, without notice to Customer, in its commercially reasonable discretion and without liability to Rhodian Group.
If any Service, provided by Rhodian Group, becomes, or if Rhodian Group reasonably believes it may become, the subject of a suit, proceeding or other claim by third party (not a party to or an Affiliate of a party to this Agreement) alleging that the Service directly infringes such third party’s U.S. patent, trademark or copyright rights of such entity, Rhodian Group at its own expense and option will: (a) procure the right to continue to provide the Service materially as contemplated by the Agreement; or (b) modify or replace the Service with a different one having substantially similar functionality; or (c) if neither of the foregoing is commercially reasonable, discontinue the affected Service and, as appropriate, refund to Customer a pro-rata portion of charges prepaid by Customer for the Service Term remaining after the effective of Service discontinuance. The foregoing sets forth the entire liability and obligations of Rhodian Group, and Customer’s sole and exclusive remedies, with respect to third party claims of intellectual property infringement under this Article 9.
10.1 As used in this Agreement, “Confidential Information” means information not generally known to the public, and maintained by the party disclosing it (“Disclosing Party”) as confidential, whether of a technical, business or other nature that relates to the provisioning of or receipt of Services, and that should reasonably have been understood by the Receiving Party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary and confidential to the Disclosing Party. Confidential Information may be disclosed in written or other tangible form (including information in computer software or held in electronic storage media) or by oral, visual or other means. For purposes of this Agreement, “Disclosing Party” includes controlled Affiliates of a Party who disclose Confidential Information to the Receiving Party regarding the provisioning of Services under this Agreement. The “Receiving Party” to this Agreement is the party receiving confidential information from the Disclosing Party.
10.2 Use of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, shall not disclose the Disclosing Party’s Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party shall safeguard and protect such Confidential Information from unauthorized access, use or disclosure by or to others, including but not limited to, maintaining appropriate security measures and providing access on an as-needed basis only. The Parties will treat Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. The Receiving Party shall not use Confidential Information for any purpose other than with respect to this Agreement.
10.3 Exceptions. The provisions of this Article 10 shall not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the Receiving Party without confidentiality restrictions at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third Party who did not acquire or disclose such information by a wrongful or tortious act, or in breach of a confidentiality restriction; (iv) can be shown by documentation to have been independently developed by the Receiving Party without reference to any Confidential Information; or (v) is identified by the Disclosing Party as no longer proprietary or confidential.
10.4 Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information, the Receiving Party shall give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective order or other appropriate remedy, and shall, to the extent practicable, consult with Disclosing Party in an attempt to agree on the form, content, and timing of such disclosure. Notwithstanding the preceding sentence, notification to the Disclosing Party shall not be required if such notification is not permitted by law or would interfere with applicable law enforcement activities.
10.5 Export Control. The Receiving Party acknowledges that the Confidential Information governed by this Agreement is subject to U.S. export laws and regulations and that any use or transfer of the Confidential Information or products incorporating the Confidential Information must be authorized under those laws and regulations.
10.6 Remedies. The Receiving Party acknowledges that Confidential Information is unique and valuable, and that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or be an inadequate remedy. Therefore, the Parties agree that in the event of a breach or threatened breach of confidentiality, the Disclosing Party may be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
11.1 Rhodian Group’s Indemnification of Customer. Rhodian Group will defend and indemnify Customer, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an third party (not a party to or an Affiliate of a party to this Agreement) that is caused by, arises from, or relates to (a) damage to real or tangible personal property or personal injuries (including death) arising out of the negligence or willful act or omission of Rhodian Group in the provision of professional services, (b) Rhodian Group’s infringement of any patent, copyright, trademark, trade secret or intellectual property right, (c) Rhodian Group’s violation of any federal, state or local statute, regulation or ordinance, and (d) Rhodian Group’s breach of any representation or warranty.
11.2 Customer’s Indemnification of Rhodian Group. Customer will defend and indemnify Rhodian Group, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an third party (not a party to or an Affiliate of a party to this Agreement) that is caused by, arises from, or relates to: (a) damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or willful act or omission of Customer in connection with its purchase or use of the Service; (b) Customer’s representations regarding the nature of Customer’s traffic; (c) any unauthorized use or resale of Service by Customer; (d) the placement or transmission by Customer or End Users of any content or through Rhodian Group -provided Service; and (e) Customer provided designs, specifications, or modifications to the Service; or combination of the Service or components thereof with Customer hardware, software, or other materials or services provided by Customer.
11.3 Procedure. If a claim covered by this Article 11 is made against Rhodian Group or Customer, the Party in receipt of the claim (“Indemnified Party”) will notify the other Party (“Indemnifying Party”) in writing no later than sixty (60) days after receipt of such notification of a potential claim. The Indemnifying Party will be entitled to assume sole control of the defense of the claim and all related settlement negotiations. The Indemnified Party will provide the assistance, information and authority reasonably necessary to assist the Indemnifying Party. A Party may not settle any such claim without the other’s consent if the settlement would impose an obligation on, or require any admission by, the other Party. Failure of the Indemnified Party to provide notification of a claim will not relieve the Indemnifying Party of its obligations under this Agreement except to the extent the delay prejudices the Indemnifying Party’s ability to defend or settle the claim.
11.4 Survival. The indemnification obligations set forth in this Article 11 will survive this Agreement.
12.1 Consequential Damages. Except to the extent damages are part of a claim for which indemnification is due under Sections 11.1 and 11.2 herein, neither Party is liable to the other Party for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever including, without limitation, any lost profits, lost revenues, lost savings, or any other business loss including goodwill, loss of use of property, loss of data, cost of substitute equipment or services, downtime costs and claims for damages or harm to business, regardless of foreseeability or whether damages are caused by the willful misconduct, negligent acts or omissions, or wrongful acts arising from or related to this Agreement.
12.2 Service Credits and Liability Limits. Customer’s sole remedy for Service failure, installation delays, or Rhodian Group’s inability to provide Service is the right to receive credits or other remedies as set forth in this Agreement and the Service Order Addendum hereto. RHODIAN GROUP’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO RHODIAN GROUP FOR SERVICE DURING THE PREVIOUS Two (2) MONTHS IMMEDIATELY PRECEDING A CLAIM, AND THE REPLACEMENT COST OF ANY CUSTOMER PROPERTY THAT WAS DAMAGED OR DESTROYED, IF ANY.
12.3 The foregoing limitations apply to all causes of action and claims of any kind, including, without limitation, breach of contract, breach of warranty, strict liability, negligence, misrepresentation, or any other tort; provided, however, that the foregoing limitations shall not apply to the indemnification obligations of a Party hereunder or to damages resulting from a Party’s breach of its confidentiality obligations hereunder.
In no event shall a Party have any claim or right against the other Party for any failure of performance (other than the obligation to make payments due hereunder) due to causes beyond its control, including but not limited to: acts of God, fire, explosion, vandalism, cable or fiber cuts, labor difficulties, supplier failures, shortages, or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected Party.
14.1 Litigation Election. The Parties agree to use the dispute resolution procedures set forth in this Article 14 with respect to any controversy or claim arising out of or relating to this Agreement or its breach, except that either Party may elect to litigate the following types of controversies or claims: (i) an action seeking equitable relief; (ii) a suit to compel compliance with this dispute resolution process; or (iii) non-compliance with a Party’s publicity obligations. Rhodian Group may also elect to litigate billing or payment disputes or collections matters.
14.2 Mediation. The Parties may elect to engage in non-binding mediation as a first alternative to arbitration or litigation. Such an election must be mutual and reflected in a writing signed by both Parties. Each Party will bear its own costs in mediation and all third party mediation costs will be shared equally between the Parties, unless otherwise agreed.
14.3 Arbitration.
(a) Upon ten (10) days written notice, either Party may submit disputes to binding arbitration by a single arbitrator with a professional arbitration service selected by the Parties. If the Parties cannot agree on an arbitration service, such services shall be provided pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration Rules and Mediation Procedures. The costs of arbitration, including the fees and expenses of the arbitrator, shall be paid equally by the Parties. Each Party will bear the cost of preparing and presenting its case. The arbitration will be conducted in Chicago, Illinois at a site acceptable to the Parties.
(b) The Parties agree that this Article 14 and the arbitrator’s authority to grant relief are subject to the Federal Arbitration Act, 9 U.S.C. §§ 1-16, et seq. (“FAA”), the provisions of this Agreement, and the AAA Code of Ethics for Arbitrators in Commercial Disputes. The Parties agree that the arbitrator may not award punitive or exemplary damages or damages otherwise limited or excluded in this Agreement. The arbitrator’s decision shall be final and binding. The award may, as necessary, be confirmed and enforced in any court of competent jurisdiction. All post-award proceedings shall be governed by the FAA.
15.1 Assignability. Customer may not assign this Agreement without the prior written consent of Rhodian Group, which consent will not be unreasonably withheld, provided the following conditions are met: (a) assignee agrees in writing to assume all responsibilities and obligations under this Agreement; (b) assignee must be at least as creditworthy as Customer (as determined by Rhodian Group in its reasonable discretion); (c) Customer must deliver to Rhodian Group documents executed by Customer and assignee that are acceptable to Rhodian Group establishing the terms of the assignment; and (d) Customer’s account is current (i.e., no balance older than thirty (30) days) at the time of the assignment. Customer shall remain responsible for all charges incurred prior to the effective date of the assignment. Rhodian Group may not assign this Agreement without the prior written consent of Customer, which consent will not be unreasonably withheld.
15.2 Prior Agreement. If this Agreement is assigned by Customer to any other party, by assignment, operation of law or otherwise, which Party, prior to the assignment, has an agreement (the “Prior Agreement”) with Rhodian Group or any of its Affiliates for the provision of services, the services being provided shall continue to be governed by the Prior Agreement, and the Services provided hereunder shall continue to be governed by this Agreement, each without reference to the other.
16.1 Rhodian Group Facilities, Equipment and Software. Rhodian Group ‘s facilities, including equipment and software used to provide Service shall remain the sole and exclusive property of Rhodian Group or its assignee, and nothing contained herein shall give or convey to Customer any right, title or interest whatsoever in such facilities, equipment or software, which shall at all times be and remain personal property.
16.2 Agency; Partnership; and Third Parties. This Agreement does not render either Party the agent or legal representative of the other Party and does not create a partnership or joint venture between the Parties. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This Agreement confers no rights of any kind upon any third party, including without limitation, Customer’s End Users.
16.3 Waiver. No waiver of any of the provisions of this Agreement shall be binding unless it is in writing and signed by the waiving Party. The failure of either Party to insist on the strict enforcement of any provision of this Agreement shall not constitute a waiver of any provision and all terms shall remain in full force and effect.
16.4 Amendment. No amendment or modification concerning the Services or this Agreement shall be effective or binding unless it is made pursuant to Section 2.3 or otherwise made in writing and executed by authorized representatives of the Parties. Neither e-mail nor instant messaging (IM) shall be considered a “writing” sufficient to change, modify, extend or otherwise affect the terms of the Agreement.
16.5 Entire Agreement. This Agreement, together with any applicable Service Order Addendum(s), sets forth the entire understanding of the Parties and supersedes any and all prior or contemporaneous agreements, arrangements or understandings relating to the subject matter hereof. written, oral or otherwise. The Service Order Addendum(s) and other documents referred to herein are integral parts hereof and are hereby made a part of this Agreement.
16.6 Severability. If any provision of this Agreement is found to be invalid or unenforceable under applicable law, it will be ineffective only to the extent of such invalidity and will not affect the remaining provisions of this Agreement.
16.7 Applicable Law and Venue. This Agreement is made pursuant to and shall be construed and enforced in accordance with the laws of the State Of Illinois, without regard to its choice of law principles. Without limiting the dispute resolution procedure set forth in Article 14 above, any action arising out of or related to this Agreement that is brought in a court shall be brought in the state or Federal courts located in Cook County, Illinois and Customer consents to the exclusive jurisdiction and venue of such courts.
16.8 Non-Exclusivity. This Agreement is non-exclusive. Nothing in this Agreement shall prevent Customer or Rhodian Group from entering into similar arrangements with, or otherwise providing Services to, any other person or entity.
16.9 Publicity. Neither Party shall issue a news release, public announcement, advertisement, or other form of publicity concerning the existence of this Agreement or the supplies or Services to be provided hereunder without obtaining the prior written approval by an authorized representative of the other Party.
16.10 Survival. The terms of this Agreement which, by their usage and context, are intended to survive this Agreement including, without limitation, the obligation to make payments for Service, will survive its expiration or termination.
16.11 Headings. The Article and Section headings in this Agreement, including all its incorporated documents, are for convenience only and may not be considered in interpreting the provisions in which they appear.
16.12 Additional Terms. For KnowBe4 subscription services, Client hereby agrees to the KnowBe4 subscription and license agreement located at https://www.knowbe4.com/Legal. For GreatHorn subscription services, Client hereby agrees to the GreatHorn Terms and Conditions located at https://www.greathorn.com/terms-and-conditions/
Our experience with hundreds of businesses across diverse industries provides us with the expertise to understand your unique challenges.
Our experience with hundreds of businesses across diverse industries provides us with the expertise to understand your unique challenges.