Master Services Agreement

GMTM, Inc.

Form last revised: November 13th, 2019

This Agreement is effective between the Customer and GMTM, Inc  as of the Effective Date. This Agreement governs the purchase and use of the Services by Customer. By causing this Agreement or any Service Order to which this Agreement is attached or into which this Agreement is incorporated by reference to be executed or otherwise accepted, Customer agrees to be bound by this Agreement. The person executing or accepting this Agreement or any Service Order on behalf of the Customer represents to GMTM, Inc that it has the legal authority to bind the Customer to this Agreement or such Service Order.

1. Definitions; Construction

1. Definitions.

“Agreement” means this Master Services Agreement.

“Customer Data” means electronic data and information submitted by or for Customer to the Services.

“Effective Date” means the date on which this Agreement or the Service Order to which it is attached or into which this MSA  is incorporated by reference is executed or otherwise accepted by both GMTM, Inc and Customer.

“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“GMTM, Inc” means GMTM, Inc, Inc., a Delaware Corporation.

“GMTM, Inc Technology” means the computer software applications, tools, application programming interfaces (APIs), connectors, programs, networks and equipment that GMTM, Inc uses to make its services available to its customers.

“Service Order” means an ordering document or online order, whether or not designated a "Service Order", to which this MSA is attached or into which this MSA is incorporated by reference.

“Services” means the GMTM, Inc service offerings to which Customer subscribes, as specified in the applicable Service Order.

“Users” means an individual who is authorized by Customer to use the Services, for whom Customer has purchased a subscription, and to whom Customer (or, when applicable, GMTM, Inc at Customer's request) has supplied a user identification and password

1. Construction. This Agreement applies to the provision of all Services. The parties will enter into one or more Service Orders that contain additional terms and conditions applicable to the provision of certain Services. Upon execution by the parties, each Service Order will be incorporated into this Agreement.

1. Services

1. Services.GMTM, Inc  will (a) make the Services available to Customer and Customer's Users pursuant to this Agreement and any applicable Service Orders, (b) provide applicable standard support for the Services at no additional charge (or such other level of support specified in a Service Order), (c) use commercially reasonable efforts, using applicable current industry practices, to ensure that the Services do not contain or transmit any Malicious Code, and (d) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime (of which GMTM, Inc  will give advance notice) and other unavailability caused by circumstances beyond GMTM, Inc 's reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike, Internet service provider failure or delay, or denial of service attack.
2. Subscriptions. Unless otherwise provided in the applicable Service Order, (a) Services are purchased as subscriptions, (b) additional subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3. Customer Responsibilities. Customer will (a) be responsible for the compliance of its Users with this Agreement and each Service Order, (b) be responsible for the accuracy, quality and legality of the Customer Data, the means by which the Customer obtained the Customer Data and Customer's use of the Customer Data with the Services, (c) use reasonable efforts to prevent unauthorized access to or use of Services, and provide prompt notice to GMTM, Inc  of any unauthorized access or use, and (d) use the Services only in accordance with this Agreement, any applicable Service Orders and applicable laws and government regulations.
4. Restrictions. Customer will not (a) make any of the Services available to anyone other than Users or use any Services for the benefit of anyone other than Customer and its Users, unless expressly stated otherwise in a Service Order, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit any data subject to the Health Insurance Portability Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), General Data Protection Regulation of the EU (GDPR), Family Educational Rights and Privacy Act (FERPA) or any similar laws respecting personal data, (e) use the Services to store or transmit Malicious Code, (f) interfere with or disrupt the integrity or performance of the Services, (g) attempt to gain unauthorized access to the Services or its related systems or networks, (h) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Services, other than framing on Customer’s own intranets or otherwise for Customer’s own internal purposes, (j) disassemble, reverse engineer, or decompile the Services, (l) systematically download or store content (other than Customer Data) from the Service or (m) permit any of its Users to access or use the Services from any location outside the United States.
5. Modifications to Services. The Services may be modified by GMTM, Inc  from time to time as it deems necessary to address changes in technology and the needs of its customers, provided that any such modification will not degrade the functionality of the Services in any material manner, unless required by applicable law. GMTM, Inc  will notify Customer in advance of any material changes.
6. Third Party Services. The Services may permit Customer and its Users to access services or content provided by third parties through the Services. GMTM, Inc  is not responsible for, and makes no warranty respecting, any such third party services or content.

1. Proprietary Rights and Licenses

1. Limited License to Use Services. Subject to the terms and conditions of this Agreement, GMTM, Inc  hereby grants to Customer a non-exclusive, non-transferable, limited, royalty-free license, without right to sub-license, for the term of each Service Order, to access and use, and to permit its Users to access and use, the Services, solely for Customer’s operations in its ordinary course of business.
2. Limited License to Use Customer Materials. Customer hereby grants to GMTM, Inc  a non-exclusive, non-transferable, limited, royalty-free license, without right to sub-license (except to its sub-processors, as required for the provision of the Services), to use the Customer Data, solely as necessary to perform the Services and as otherwise may be agreed in writing by Customer.
3. Reservation of Rights. No rights or licenses are granted except as expressly set forth herein. Without limited the foregoing, subject to the limited rights expressly granted in this Section 3, all right, title and interest (including all related Intellectual Property Rights) in and to (a) the Services and the GMTM, Inc  Technology is retained by GMTM, Inc, and (b) the Customer Data is retained by Customer.
4. Feedback. Customer grants GMTM, Inc a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services and the GMTM, Inc Technology any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Users relating to the Services, the GMTM, Inc Technology or any content made available through the Services.
5. Federal Government Use. If the Services or the GMTM, Inc  Technology are made available to a federal government end user, for ultimate federal government end use, technical data and software rights related to the Services include only those rights customarily provided to the public as specified in this Agreement.

1. Fees

1. Fees. Customer will pay GMTM, Inc all fees specified in a Service Order. Except as otherwise specified in this Agreement or in a Service Order Form, (a) fees are based on subscriptions purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.
2. Taxes. The fees set forth in each Service Order do not reflect any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer's purchase and use of Services, excluding any taxes based upon GMTM, Inc’s personal property ownership or net income. If GMTM, Inc has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.2, GMTM, Inc will invoice Customer for, and Customer will promptly pay, the amount of such Taxes unless Customer provides GMTM, Inc with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Overdue Charges. Any invoiced amount that is not received by GMTM, Inc when due will be subject to a late payment fee of 1.5% per month or the maximum rate permitted by law, whichever is lower.
4. Suspension of Services. If any amount owing by Customer is more than 30 days overdue, GMTM, Inc may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
5. Payment Disputes.GMTM, Inc will not exercise its rights under Section 4.3 or 4.4 so long as Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

1. Confidentiality

1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) 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. Customer's Confidential Information includes its Customer Data. GMTM, Inc Confidential Information includes the Services. The Confidential Information of each party includes the terms and conditions of this Agreement and all Service Order (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
2. Obligations. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less protective of the Confidential Information than those herein.
3. Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
4. Equitable Relief. The parties recognize and agree that there is no adequate remedy at law for breach of the provisions of the confidentiality obligations set forth in this Section 5, that such a breach would irreparably harm the Disclosing Party and that the Disclosing Party is entitled to seek equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at law or in equity.

1. Customer Data

1. Data Protection.GMTM, Inc will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by GMTM, Inc personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by applicable law, or (c) as Customer expressly permits in writing. Customer acknowledges and agrees that it is commercially reasonable for GMTM, Inc to rely upon the security processes and measures utilized by GMTM, Inc's cloud infrastructure providers.
2. Certification.GMTM, Inc will remain in compliance with its SOC-2 statement or similar independently audited controls throughout the subscription term. GMTM, Inc will cause its SOC-2 or similar certification auditors to verify the adequacy of the controls that GMTM, Inc applies to the Services at least annually. GMTM, Inc will provide Customer with copies of its SOC-2 or similar certifications applicable to the Services, if any, upon request by Customer. Such copies and certifications are GMTM, Inc’s Confidential Information. GMTM, Inc will provide such information regarding its information security systems, policies and procedures as Customer may reasonably request.
3. Data Breach Notification.GMTM, Inc will notify Customer of unauthorized access to, or unauthorized use, loss or disclosure of Customer Data within custody and control (a “Security Breach”) within 72 hours of GMTM, Inc’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach. Except to the extent required otherwise by applicable law, Customer will have approval rights on notifying its Users and any third party regulatory authority of the Security Breach.
4. Data Export, Retention and Destruction. Customer may export or delete Customer Data from the Services at any time during the subscription term, using the existing features and functionality of the Services. Customer is solely responsible for its data retention obligations with respect to Customer Data. If and to the extent Customer cannot export or delete Customer Data stored on GMTM, Inc's systems using the then existing features and functionality of the Services, GMTM, Inc will, upon Customer's written request, make the Customer Data available for export by Customer or destroy the Customer Data. Except as otherwise required by applicable law, GMTM, Inc will have no obligation to maintain or provide any Customer Data more than thirty (30) days after the end of the subscription term.
5. Anonymized Data. Unless otherwise specified in the applicable Sales Order, GMTM, Inc may use Customer’s and its Users’ usage history and statistics (collectively, “Statistical Data”) for GMTM, Inc’s internal analytical purposes, including the improvement and enhancement of the Services and GMTM, Inc's other offerings. GMTM, Inc may make information derived from its analysis of Statistical Data publicly available, provided that the information does not include any Statistical Data that has not been aggregated and anonymized. For the purposes of this Agreement, aggregated and anonymized Statistical Data means Statistical Data that (i) has been aggregated with other data, and (ii) does not contain information that identifies Customer or its Users. For the sake of clarity, aggregated and anonymized data is not Confidential Information of Customer.

1. Term; Termination

1. Term of Agreement. Subject to earlier termination as provided below, this Agreement begins on the Effective Date and continues until all subscriptions for Services have expired or have been terminated.
2. Termination for Breach. A party may terminate this Agreement or any Service Order (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Subscription Term and Renewal. The term of each subscription for Services will be as specified in the applicable Service Order. Except as otherwise specified in a Service Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. GMTM, Inc will provide Customer notice of any increase in pricing for the Services at least 60 days prior to the beginning of each applicable renewal term.
4. Effect of Termination. Upon termination of this Agreement for any reason, Customer and its Users will cease all use of the Services and, except for GMTM, Inc's right to receive accrued but unpaid fees and as provided in Section 11.2 (Survival), all rights and obligations of the parties hereunder will automatically cease. Notwithstanding the foregoing, termination will not affect or prejudice any right or remedy that a party possesses with respect to any breach of this Agreement occurring on or before the date of termination. If this Agreement is terminated by Customer in accordance with Section 7.2, GMTM, Inc will refund to Customer any prepaid fees covering the remainder of the subscription term of all Service Orders after the effective date of termination.
5. Suspension.GMTM, Inc may suspend Customer’s or any User’s right to access or use any portion of the Services if GMTM, Inc determines that Customer’s or Users’ use of the Services (i) poses a security risk to the Services, GMTM, Inc or any third party, (ii) may adversely impact the Services, or the networks or data of any other GMTM, Inc customer, business partner or service provider, (iii) does not comply with this Agreement or applicable law, or (iv) may subject GMTM, Inc or any third party to liability. GMTM, Inc will endeavor to provide as much notice as is reasonably practicable under the circumstances, and to reinstate the Services as soon as reasonably practicable following correction of the issue.

1. Representation and Warranties; Disclaimers

1. GMTM, Inc. GMTM, Inc represents and warrants that (a) it has the full power and authority to enter into this Agreement, to perform its obligations under this Agreement, and to grant the licenses and rights granted to Customer in this Agreement; (b) this Agreement is the legal, valid, and binding obligation of GMTM, Inc, enforceable against it in accordance with the terms hereof, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity) (c) it will comply with all applicable laws relating to its performance and/or obligations under this Agreement; (d) this Agreement does not conflict with any other contract or obligation to which it is a party or by which it is bound, and (e) it will perform the Services in a timely, professional and workmanlike manner.
2. Customer. Customer represents and warrants that (a) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; (b) this Agreement is the legal, valid, and binding obligation of Customer, enforceable against it in accordance with the terms hereof, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); (c) this Agreement does not conflict with any other contract or obligation to which it is a party or by which it is bound; and (d) it will comply with all applicable laws relating to its performance and/or obligations under this Agreement.
3. Remedies. If the Services fail to conform to the warranty set forth in Section 8.1 and Customer provides written notice of the non-conformance to GMTM, Inc within the applicable subscription term then, as Customer’s exclusive remedy and GMTM, Inc’s sole obligation, with respect to such failure, GMTM, Inc will correct the failure or, if GMTM, Inc is unable to correct the failure within 30 days of receipt of such written notice from Customer, Customer may terminate the applicable Service Order, and GMTM, Inc will refund to Customer a pro-rata amount of any fees prepaid to GMTM, Inc that are applicable to the unutilized portion of the applicable subscription term.
4. Disclaimer of Implied Warranties. THE WARRANTIES SET FORTH IN SECTION 8.1 AND 8.2 ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY GMTM, Inc AND CUSTOMER, HEREUNDER, RESPECTIVELY. EACH OF GMTM, Inc AND CUSTOMER AND EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OPERATION, UNINTERRUPTED ACCESS, THAT THE SERVICES]ARE SECURE, OR THAT THE SERVICES WILL BE AVAILABLE CONSTANTLY AND IN AN UNINTERRUPTED MANNER AND ANY OTHER IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

1. Indemnification

1. By GMTM, Inc. GMTM, Inc will defend Customer from and against claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s Intellectual Property Rights, provided GMTM, Inc is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement. The foregoing obligations do not apply with respect to any infringement resulting from the modification of the Services or combination of the Services with software, hardware, data, or processes not provided by GMTM, Inc, the continued use of the Services by Customer after being notified of the infringement or after being informed of modifications that would have avoided the infringement, or Customer’s use of the Services in violation of this Agreement or the applicable Service Order.
2. By Customer. Customer will defend GMTM, Inc from and against claim, demand, suit or proceeding made or brought against GMTM, Inc by a third party alleging that any Customer Data infringes or misappropriates such third party's Intellectual Property Rights, provided GMTM, Inc is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement. The foregoing obligations do not apply with respect to any infringement resulting from the the continued use of the Customer Data by GMTM, Inc. after being notified of the infringement by Customer. or.
3. Mitigation. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by GMTM, Inc to be infringing, GMTM, Inc may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.
4. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.

1. Limitation of Liability.

1. Exclusion of Certain Claims. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, COST OF COVER, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING LOSS OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Limitation of Liability. In no event will GMTM, Inc’s aggregate liability under this Agreement exceed the sum of all amounts actually paid under the relevant Service Order to GMTM, Inc by Customer in the 12 month period preceding the date of the event initially giving rise to such liability.
3. Exceptions. Sections 10.1 and 10.2 do not apply to losses or liability arising from infringement or misappropriation of any Intellectual Property Rights. Section 10.2 does not apply to liability for a breach of Section 6 (Data Protection) by GMTM, Inc, provided, however, that, except to the extent of such liability is attributable to the willful misconduct or gross negligence of GMTM, Inc, the maximum aggregate liability for a breach of Section 6 will not exceed two times (2X) the fees paid by Customer to GMTM, Inc under the affected Service Order in the 12 month period immediately preceding such breach.

1. General Provisions

1. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties. Any additional, supplementary or conflicting terms supplied by either party (whether in hard copy or electronic form), including those contained or referenced in any invoice, purchase order or policies, are expressly rejected by each party.  In the event of any conflict between the provisions of this Agreement and any Service Order, the provisions of this Agreement will prevail.
2. No Waiver. Neither any failure nor any delay by any party in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. A party may waive a breach of this Agreement by the other party only by a writing executed by the party or parties against whom the waiver is sought to be enforced. A waiver once given is not to be construed as a waiver with respect to any future occasion.
3. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with GMTM, Inc’s prior written consent. Subject to the foregoing, this Agreement and any rights, interests or benefits will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. Any attempted assignment in violation of the provisions of this Section 11.3 will be void.
4. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
5. Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
6. Publicity. Unless otherwise provided in the applicable Sales Order, GMTM, Inc may identify Customer as one of its customers and use Customer’s logo for such purposes, subject to any trademark usage requirements specified by Customer.
7. No Third Party Beneficiaries. This Agreement is made for the benefit of GMTM, Inc and Customer (and their respective [Indemnified Parties]) and not for the benefit of any other third parties.
8. Governing Law; Venue; Litigation Costs. This Agreement will be governed by the laws of the State of Florida without regard to conflicts-of-laws principles. Any legal proceeding arising out of or relating to this Agreement may be brought in the state or federal courts situated in Orange County, Florida and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum. In the event of legal proceedings in connection with the enforcement or interpretation of this Agreement, the prevailing party will be entitled to recover from the other party all of its costs and expenses incurred in connection with such proceedings, including reasonable attorneys’ fees, through the date of final collection.
9. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.  All notices will be given using the contact information with respect to each party set forth in the applicable Service Order or such other contact information as may be designated by a party by giving written notice to the other party pursuant to this Section 11.9.
10. Force Majeure. Neither party will be liable for failure to perform its obligations hereunder, except the obligation to make payment, to the extent that such failure is the result of strikes, riots, fires, explosions, acts of God, war, governmental action, labor conditions, or any other cause beyond the reasonable control of such party.  If such failure continues for a period of more than 30 days, either party may terminate each affected Service Order without liability.
11. Electronic Signatures; Counterparts. Signatures and other express indications of agreement sent by electronic means (facsimile or scanned and sent via e-mail or signed by electronic signature service where legally permitted) will be deemed original signatures. This Agreement may be signed in multiple counterparts, each of which will be deemed an original and which will together constitute one agreement.
12. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, acknowledgements and reservations of proprietary rights, confidentiality obligations, warranty disclaimers, and limitations of liability.