MASTER SERVICES AGREEMENT
Updated as of September 20, 2023
THIS MASTER SERVICES AGREEMENT (this “Agreement”) is effective as of the date specified on the Order or Statement of Work, as applicable (“Effective Date”), entered into by and between Rock Solid UK LTD, an Arkansas corporation d/b/a Nuqleous®, with a place of business at 201 S Main St., Bentonville, AR 72712 (“Nuqleous”), and the customer identified on the Order or the Statement of Work, as applicable (“Customer”). “Party” or “Parties” means, individually, Nuqleous or Customer, as the context requires, and, collectively, Nuqleous and Customer.
Nuqleous is the owner and seller of software solutions. Customer wishes to purchase from Nuqleous the software solutions (the “Software”) identified on one or more order schedules entered into between Customer and Nuqleous from time to time (each, an “Order”).
In connection with Customer’s purchase of the Software, Customer may also wish to engage Nuqleous to provide certain set-up and implementation, customization, training, consulting, maintenance or support services (the “Services”) to be identified and agreed upon by the Parties on one or more statements of work entered into between Customer and Nuqleous from time to time (each, a “Statement of Work”).
All references herein to this Agreement shall be deemed to include all Orders and Statements of Work, which are hereby incorporated into and made a part of this Agreement. In the event of a conflict between the terms of this Agreement and the terms of any Order or Statement of Work, the terms of the Order or Statement of Work, as applicable, shall control. The Software and Services are collectively referred to herein as the “Solutions.”
- Grant of License. Subject to the terms and conditions of this Agreement, Nuqleous hereby grants to Customer a non-exclusive, non-sublicensable and, except as otherwise provided herein, non-transferable license to use the Software and any related specifications, user guides and training materials made available by Nuqleous online or in writing (as updated from time to time, the “Documentation”) solely for the purpose of conducting Customer’s internal business operations (“Customer’s Business”).
- Scope of Licensed Access and Use. Customer may install, use and run one copy of the Software on up to the number of computers identified in the Order. Each individual designated by Customer as authorized to use the Software (each, an “Authorized User”) shall be designated by Customer to Nuqleous, and no other person may use the Software except for such Authorized Users. Customer shall provide written notice to Nuqleous of the name of each new Authorized User, and of any individuals who are no longer Authorized Users, promptly on adding, removing or replacing any Authorized User. The total number of Authorized Users shall not exceed the number set forth in the Order, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment to the Charges.
- Services. If Customer desires to engage Nuqleous to provide services in addition to the Software (e.g., set-up and implementation, customization, training, consulting, maintenance and support services), such Services shall be described in one or more mutually executed Statements of Work and such Services shall be subject to the terms and conditions of this Agreement. If during the performance of any Services, Nuqleous personnel are on site at a Customer office or facility, Nuqleous shall take steps to ensure that such personnel comply with all Customer rules and policies applicable to such office or facility and are communicated to Nuqleous in writing at least five (5) days prior to such visit.
- Maintenance Releases. During the Term, Nuqleous may make corrective code and other updates to the Software that Nuqleous makes generally available to its other customers at no additional charge (each, a “Maintenance Release”). Each Maintenance Release will become part of the Software licensed to Customer pursuant to this Agreement. Customer shall install all Maintenance Releases as soon as practicable upon receipt from Nuqleous. Customer does not have any right hereunder to receive any new versions of the Software that Nuqleous may, in its sole discretion, release from time to time, unless purchased by Customer pursuant to a separate Order. In connection with Nuqleous’s provision of any Solutions, Customer agrees to provide and maintain Customer’s computers and systems as reasonably required by Nuqleous to provide the Solutions. Nuqleous shall not be liable hereunder for any matter that arises from or relates to Customer’s computers or systems, including the failure by Customer to timely provide and/or maintain Customer’s computers or systems, or for any matters resulting from Customer’s failure to maintain the Solutions as required by Nuqleous.
- TERM. This Agreement shall commence on the Effective Date and shall continue in full force and effect (subject to earlier termination in accordance with the provisions of this Agreement) for an initial term of twelve (12) months (“Initial Term”). Upon expiration of the Initial Term or applicable Renewal Term, this Agreement shall automatically renew for an additional twelve (12) month term (each, a “Renewal Term”), unless terminated by either Party upon written notice sent to the non-terminating Party at least ninety (90) days prior to the end of the then-current term (the Initial Term and any Renewal Terms, collectively, the “Term”).
- Charges. In consideration for the provision by Nuqleous of the Solutions, Customer agrees to pay the charges set forth in the applicable Statement of Work and Order (the “Charges”). Any increase in the Charges for any renewal will be provided for in the applicable Statement of Work or Order. Customer shall submit a purchase order to Nuqleous and grant Nuqleous access to its purchasing and payment portal, if applicable, within ten (10) business days of the Effective Date, and Nuqleous shall send an invoice to Customer upon receipt. Notwithstanding the foregoing, upon Customer’s failure to send a purchase order to Nuqleous within ten (10) business days of the Effective Date, Nuqleous reserves the right to send an invoice to Customer without having first received a purchase order. Unless otherwise set forth in a Statement of Work or Order, payment of all Charges shall be due and payable within thirty (30) days from the date of Nuqleous’s invoice.
- Taxes. All Charges are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use and excise taxes (including, but not limited to, those set forth on any invoice), and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental authority on any amounts payable by Customer hereunder, other than any taxes imposed on Nuqleous's income.
- Expenses. Customer shall reimburse Nuqleous for actual and reasonable expenses incurred by Nuqleous in the performance of Services, provided that: (i) such expenses have been approved in advance in writing by Customer; (ii) Nuqleous delivers documentation of the expense as reasonably requested by Customer; and (iii) any travel related expense complies with any Customer travel & expense guidelines, as provided in writing to Nuqleous.
- Payment Disputes. If Customer reasonably disputes any of the Charges due under any invoice (the “Disputed Amount”), it shall pay the undisputed portion of the invoice in accordance with the provisions of Section 3.a. and submit a written claim setting out the reasons for disputing the Disputed Amount. All written claims must be submitted to Nuqleous in good faith within fifteen (15) days after the date of the invoice to which the claim relates, otherwise Customer will be deemed to agree to such Charges. The Parties shall use all reasonable efforts to settle any disputes relating to Disputed Amounts.
- Late Payment. If Customer fails to make any payment when due (other than Disputed Amounts) then, in addition to all other remedies that may be available to Nuqleous: (i) Customer shall pay interest on all past‑due sums at a rate which is the lesser of one and a half percent (1.5%) per month, or the highest rate allowed by law; and (ii) if such payment failure continues for thirty (30) days following written notice thereof, Nuqleous may: (A) disable Customer's use of the Software; (B) withhold, suspend or revoke its grant of a license hereunder; and/or (C) terminate this Agreement under Section 10.a.
- USE RESTRICTIONS AND ACCEPTABLE USE.
- Use Restrictions. Customer shall not take any of the following actions with respect to the Solutions: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create, attempt to create, or permit, allow or assist others to create, the source code or the structural framework for part or all of the Solutions or otherwise disrupt the features, functionality, integrity or performance of the Solutions (including any mechanism used to restrict or control the functionality of the Solutions); (ii) cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other dissemination of the Solutions, in whole or in part, including as a service bureau, to or by any third party without Nuqleous’s prior written consent; (iii) cause or permit any change to be made to the Solutions or Documentation without Nuqleous’s prior written consent; (iv) bypass or breach any security device or protection used for or contained in the Solutions; or (v) use the Solutions for purposes of benchmarking or conducting competitive analysis of the Solutions or developing, using or providing competing software products or services. Customer shall promptly notify Nuqleous if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft or unauthorized disclosure or use of the Solutions. Customer, in connection with its use of the Solutions, shall be solely responsible and liable for all activity of each Authorized User.
- Acceptable Use. Customer shall not, and shall ensure that no Authorized Users are permitted to: (i) use the Solutions to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity or other laws, or send spam or other unsolicited messages in violation of applicable law; (ii) upload to, or transmit from, the Solutions any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component; (iii) attempt to gain unauthorized access to the Solutions, or related software or networks, or to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Solutions; (iv) use, or otherwise access in connection with Customer’s use, the Solution in any manner that is not in accordance with applicable laws and government regulations; or (v) copy the Software, except as otherwise provided for specifically in a mutually agreed upon Order or Statement of Work for archival or backup purposes.
- Suspension of Nuqleous Services. Customer acknowledges and agrees that Nuqleous may temporarily suspend Customer’s access to the Solutions for a violation of this Section 4 or a violation of any other terms of this Agreement that may have an adverse effect on the Solutions. Nuqleous shall provide advance written notice to Customer, to the extent possible under the circumstances, of its intent to suspend the Solutions. The suspension will continue until Customer has resolved any violation to Nuqleous’s satisfaction.
- INTELLECTUAL PROPERTY RIGHTS.
- Nuqleous Solutions. As between Customer and Nuqleous, Nuqleous shall retain all right, title and interest in and to the Solutions, including all Software and customizations to such Software whether such customizations are created, authored or developed pursuant to this Agreement or independently by Customer or another third party. Nothing contained herein shall be deemed to convey to Customer any title or ownership interest in the Software. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive or adversely affect any of Nuqleous’s rights or interests therein or any other Nuqleous intellectual property, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible. All rights, title and interest in and to the Solutions, including all Software, not expressly granted in this Agreement are reserved by Nuqleous.
- Customer Content. Customer shall retain all right, title and interest in and to, and all intellectual property rights in, Customer records, data and information provided by Customer in connection with the Solutions (the “Customer Content”). Customer hereby grants Nuqleous a limited, worldwide, non-exclusive license to access, use, reproduce, electronically distribute, transmit, display, store, archive and index Customer Content for the purpose of providing the Solutions to Customer and supporting Customer’s use of the Solutions. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right of use of all Customer Content, and Nuqleous shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Content due to any action by Customer or Authorized Users.
- Confidentiality Obligations. Both Parties acknowledge that each Party may receive (“Receiving Party”) Confidential Information from the other Party (“Disclosing Party”) during the Term of this Agreement, and all Confidential Information is deemed to have been received in confidence. Receiving Party may use Disclosing Party’s Confidential Information only to perform its obligations or exercise its rights under this Agreement and may disclose Disclosing Party’s Confidential Information only to Receiving Party’s employees, agents or contractors that need to know the information pursuant to this Agreement and who are required (by written agreement, written and enforceable internal policy, or legally enforceable code of professional responsibility) to maintain the confidentiality of the Confidential Information as required by this Agreement. Receiving Party must protect the Confidential Information at least as well as it does its own valuable and sensitive information of a similar nature and, in any event, with no less than a reasonable degree of care. Following termination or expiration of this Agreement, and/or if requested by Disclosing Party, Receiving Party must return or destroy all Confidential Information and, upon request, certify in writing as to having returned or destroyed all Confidential Information. The obligation of confidentiality continues for five (5) years from the expiration or termination of this Agreement; provided, however, Receiving Party must keep (i) any personally identifiable information (“PII”) confidential as required by any applicable law; and (ii) any trade secrets of Disclosing Party confidential as long as the information remains a trade secret.
- Confidential Information. “Confidential Information” includes, without limitation, (i) all information communicated by Disclosing Party that should reasonably be considered confidential under the circumstances, whether it was or was not identified as confidential at the time of disclosure; (ii) all information identified as confidential to which Receiving Party has access in connection with the subject matter of this Agreement; (iii) this Agreement, (iv) any trade secret; (v) any existing or contemplated product, service, design, technology, software, process, technical data, engineering, technique, research, development, invention, methodology and concept and any related information; (vi) information relating to any business plan, customer information, PII, customer or supplier list or requirement; and (vii) financial and accounting information.
- Exceptions. The obligations of either Party under this Section 6 do not apply to information that Receiving Party can demonstrate (i) was in its possession at the time of disclosure without confidentiality restrictions; (ii) at the time of disclosure by Disclosing Party is/was generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (iii) was received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by Receiving Party; or (iv) is independently developed by Receiving Party without reference to the Confidential Information of the Disclosing Party.
- Disclosure by Law. In the event Receiving Party is required by law, regulation, stock exchange requirement or legal process to disclose any of Disclosing Party’s Confidential Information, Receiving Party must (i) give Disclosing Party, to the extent possible, reasonable advance notice prior to disclosure so Disclosing Party may contest the disclosure or seek a protective order, and (ii) reasonably limit the disclosure to the minimum amount that is legally required to be disclosed.
- Non-Solicitation. The Parties acknowledge and agree that information about the other Party's employees, clients, technology, know-how, and the manner in which the Parties conduct business may be Confidential Information hereunder and may constitute protectable trade secret information under applicable law. Therefore, the Parties agree that during the Term and for a period of one (1) year following the expiration or termination of this Agreement, neither Party will, directly or indirectly, separately or in association with others, without the express prior written consent of the other Party, interfere with, impair, disrupt or damage the other Party’s business by soliciting, encouraging or causing others to solicit or encourage any of the other Party’s employees, contractors, subcontractors, business partners or consultants to discontinue their employment with or engagement by the other Party. The foregoing restriction does not prohibit a Party from engaging or hiring an employee, contractor, subcontractor or other party that has responded to a publicly available position or engagement announcement that was not directed specifically to such employee, contractor, subcontractor or other party.
- Customer Indemnity. Customer shall indemnify, defend and hold Nuqleous and its officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Customer’s negligence or alteration of the Solutions; (ii) Customer computers and systems and Customer Content; (iii) a claim relating to any service offered by Customer to third parties; and (iv) any breach by Customer of this Agreement.
- Nuqleous Indemnity. Nuqleous shall indemnify, defend and hold Customer harmless from any claim, suit or proceeding brought against Customer and adjudicated to a final non-appealable judgement by a court of competent jurisdiction to the extent it is based on a third‑party claim that the Solutions as delivered by Nuqleous infringe a United States copyright or a United States patent issued as of the Effective Date of this Agreement. If such a claim is or is likely to be made, Nuqleous will, at its own expense and sole discretion, exercise one or the following remedies: (x) obtain for Customer the right to continue to use the Solutions consistent with this Agreement; or (y) modify the infringing Solution so it is non-infringing and in compliance with this Agreement. If, in Nuqleous’s reasonable determination, the remedies set forth in subsection (x) and (y) are not available on commercially reasonable terms: (A) Customer shall, at Nuqleous’s request, stop using the allegedly infringing portions of the Software and return any of them (including any copies thereof) in Customer’s possession or control; and (B) Nuqleous may stop performing all allegedly infringing Services, and terminate this Agreement immediately by notice in writing to Customer. The foregoing states the entire obligation of Nuqleous, and the exclusive remedy of Customer, with respect to infringement of proprietary rights. Nuqleous shall have no indemnity obligation or other liability hereunder arising from: (i) Customer’s negligence, breach of this Agreement or alteration of the Solutions; (ii) Customer computers or systems or Customer Content; (iii) any combination of the Solutions, including any Software, with Customer systems or any materials, products or services not provided by Nuqleous; or (iv) any third‑party products or third‑party services.
- Indemnification Procedure. The Party claiming indemnification shall: (i) notify the indemnifying party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying party (if requested by the indemnifying party); and (iii) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement involves only the payment of money by the indemnifying party and in no way affects any rights of the indemnified party.
- REPRESENTATIONS AND WARRANTIES.
- Mutual Representations and Warranties. Each Party represents and warrants that (i) it has full power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement without any further ratification or approval; (ii) this Agreement constitutes the legal, valid and binding obligations of such Party; and (iii) it is in compliance in all material respects with all federal, state, local and, if applicable, foreign laws, rules and regulations, including, with respect to Customer, all such laws that pertains to Customer’s operation of its business.
- Nuqleous Warranties. Nuqleous warrants to Customer that: (i) the Software will substantially conform in all material respects to the specifications set forth in the Order and the Documentation when installed, operated and used as recommended in the Documentation and in accordance with this Agreement; and (ii) the Services will be performed in a workmanlike manner consistent with industry standards.
- Remedies. Customer must notify Nuqleous promptly, but in no event more than thirty (30) days after completion of the Services or delivery of the Software, as applicable, of any claimed breach of Section 8.b. by Nuqleous. Customer’s remedy for breach of Section 8.b.(i) shall be, at Nuqleous’s option, correction of the non-conformities or provision of an acceptable workaround. Customer’s remedy for a breach of Section 8.b.(ii) shall be, at Nuqleous’s option, re-performance of the Services or termination of the applicable Service and return of any prepaid, unused portion of the Service fees for such non-conforming Services. If Customer does not provide notice of nonconformity within the time period required under this Section 8.c., Customer shall be deemed to have accepted the Software or Services, as applicable.
- Restrictions. The warranties referenced in this Section 8 do not apply if the Solutions: (i) have been altered, except by Nuqleous; (ii) have not been installed, operated, repaired, used or maintained in accordance with instructions made available by Nuqleous; (iii) have been subject to abnormal or unusual physical or electrical stress or environmental conditions, misused or negligently handled or operated; or (iv) are acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which Nuqleous does not receive payment of any Charge.
- Disclaimer. Except for the limited warranties set forth in this Section 8, the SOLUTIONS, INCLUDING THE SOFTWARE AND SERVICES, ARE provided “as is” and Nuqleous expressly disclaims and excludes all other warranties, whether express, implied, statutory or otherwise, to the fullest extent permissible by Law, including all implied warranties of merchantability, quality, fitness for a particular purpose, or non-infringement and warranties arising from a course of dealing, usage or trade practice. Without LIMITING the foregoing, Nuqleous provides no warranty or undertaking and makes no representation of any kind, whether express, implied, statutory or otherwise, that the SOLUTION will meet Customer’s requirements, achieve any intended results, be compatible or work with any other equipment, software, applications, systems or services (except as expressly set forth in the documentation), operate without interruption, meet any performance or reliability standards or be error‑free. to the extent permitted by Law, if a warranty condition or term cannot be disclaimed, such warranty, condition or term shall be limited in duration to the applicable express warranty period.
- LIMITATIONS OF LIABILITY.
- No Consequential Damages. EXCEPT AS SET FORTH IN SECTION 9.c. BELOW, NEITHER Party WILL BE LIABLE to the other for any loss or damage, costs OR EXPENSES TO THE EXTENT THAT THE SAME IS OR CAN BE CHARACTERIZED AS (OR ARISING FROM): (I) BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF REVENUE (EXCLUDING CHARGES UNDER THIS AGREEMENT) OR COST OF COVER; (II) LOSS OF OR CORRUPTION TO DATA; (III) LOSS OF GOODWILL OR INJURY TO REPUTATION; AND/OR (IV) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL LOSS OR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT.
- Monetary Cap. EXCEPT AS SET FORTH IN SECTION 9.c. BELOW, NUQLEOUS’S total liability TO customer FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT (REGARDLESS OF THE FORM) SHALL BE limited TO the amount actually paid to NUQLEOUS by customer under the STATEMENT OF WORK OR ORDER applicable to the event giving rise to such action during the TWENTY‑FOUR (24) months preceding the relevant incident (or series thereof).
- Exclusions. The limitations of liability set forth in this Section 9 do not apply with respect to the liability of either Party for death or personal injury resulting from its own negligence; Customer’s payment obligations to Nuqleous under this Agreement; liability of either Party resulting from a Party’s gross negligence or willful misconduct; or liability arising from either party’s indemnity obligations under Section 7, to the extent such damages are recoverable by a third party.
- Termination for Cause. If a Party materially breaches any provision of this Agreement, any Statement of Work or any Order and fails to remedy the breach within thirty (30) days of receipt of written notice from the non-breaching Party, the non-breaching Party may terminate this Agreement and/or any Statement of Work or Order adversely affected by the breach.
- Termination in the Event of Bankruptcy. Either Party may terminate this Agreement upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated bankrupt; (ii) a petition in bankruptcy is filed against the other Party and the petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.
- Effect of Termination. Neither Party shall have the right to terminate this Agreement except as provided herein. Termination of this Agreement shall operate to terminate all then-outstanding Orders or Statements of Work. The termination of this Agreement shall not relieve Customer of its liability to pay Charges due to Nuqleous hereunder. Upon the termination of this Agreement, all rights and licenses granted by Nuqleous hereunder shall likewise terminate.
- Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination.
- FORCE MAJEURE. Neither Party shall be liable for delays and/or defaults in its performance (other than Customer’s obligation to pay fees for Services performed) due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of God or of the public enemy; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunications system failure; war; technology attacks, epidemic; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing (each, a “Force Majeure Event”). Upon any Force Majeure Event, the Parties shall enter into bona fide discussions as soon as reasonably practicable with a view to alleviating its effects or to agreeing upon such alternative arrangements as may be fair and reasonable. If any of the events detailed in this Section continue for more than thirty (30) days, either Party may immediately terminate this Agreement by providing the other Party with written notice to that effect.
- INSURANCE. During the Term of this Agreement, Nuqleous shall, at its own cost and expense, obtain and maintain in full force and effect insurance policies from financially sound and reputable insurers providing for the following coverage:
Commercial General Liability Insurance
$1,000,000 per occurrence; $2,000,000 in the aggregate.
Commercial Excess/Umbrella Liability Insurance
$1,000,000 for bodily injury and physical damage.
Cyber Liability Insurance
$2,000,000 in the aggregate
- GOVERNING LAW AND JURISDICTION.
- Governing Law; Jurisdiction. This Agreement shall be governed under the laws of Delaware without regard for its choice of law principles. Customer agrees that any legal action involving this Agreement in any way will be instituted in a court of competent jurisdiction located in the state or federal courts of the United States located in Benton County, Arkansas, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts.
- Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY COLLATERAL AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or Section 6 of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Assignment. Neither Party may assign, delegate or otherwise transfer this Agreement or any rights or obligations hereunder (including by merger, consolidation, dissolution or operation of law), without the other Party’s prior written consent. Notwithstanding the foregoing, Nuqleous may assign this Agreement to an affiliate or to an acquirer of all or part of Nuqleous’s business or assets, whether by merger, acquisition or otherwise. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and assignees.
- Notices. Except as otherwise provided in this Agreement, all notices, requests, claims and other communications between the Parties described in or otherwise regarding this Agreement must be in writing and be given or made (and will be effective on receipt) by (i) delivery in person (including courier service), (ii) registered or certified mail (postage prepaid, return receipt requested), or (iii) electronic mail (effective upon receipt, but followed within three (3) days by delivery pursuant to either method provided in the foregoing subsections (i) or (ii)), in each case, to a Party at its address specified herein above or at any other address of which that Party has notified the other Party in accordance with this Section.
- Waiver. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision of this Agreement or a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement shall in no way limit or restrict the rights of that Party with respect to any future breach.
- Amendment. Except as provided in Section 14.j., this Agreement may be amended or modified only by a written instrument that refers specifically to this Agreement and is signed by each Party’s authorized representative.
- Severability. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain unaffected and in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever deletion is necessary to give effect to the Parties’ commercial intention.
- No Third‑Party Beneficiaries. This Agreement is for the sole benefit of the Parties and is not intended to, nor shall it be construed to, create any right or confer any benefit on or against any third party.
- Publicity. Customer agrees to allow Nuqleous to use its name, logo and/or trademarks in connection with Nuqleous’s marketing materials for promotional and public dissemination purposes.
- Entire Agreement. This Agreement and all executed Statements of Work and Orders collectively constitute the complete integrated agreement between the Parties concerning the subject matter contained in this Agreement. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety.
- Headings. The descriptive headings in this Agreement are used solely for convenience and are not intended to affect its meaning or interpretation. A reference to a Party is to a Party to this Agreement and shall include that Party’s personal representatives, successors or permitted assignees.
- Changes to Terms. Nuqleous may make changes to the terms of this Agreement in its sole and absolute discretion. The version of this Agreement that is applicable to Customer’s Order or Statement of Work, as applicable, shall be the version of this Agreement in effect on the date of such Order or Statement of Work, which such updated version shall also apply to all prior Orders and Statements of Work entered into by Customer and supersede all earlier versions of this Agreement. Customer agrees that its continued use of the Solutions after the effectiveness of a new version of this Agreement will constitute Customer’s acceptance of such revised Agreement.
- Order of Precedence. In the event of any express conflict or inconsistency between the terms of this Agreement, the Documentation, and any Statement of Work or Order, the order of precedence shall be: (i) the Order or Statement of Work, as applicable; (ii) this Agreement; and (iii) the Documentation.
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