During the term of the lease, by signing the Lease to Own Agreement, the Customer (also known as “Lessee” during the lease period) and Vita Inclinata (also known as “Vita” or “Lessor” during the lease period) agrees to the following conditions:
- Confidentiality. Purchase and rental price quotes, services charges and other contract terms (specifically including, but not limited to, product specifications) shall be confidential information of Seller and shall be used only for purposes of this Agreement. No such confidential information shall be disclosed by Customer without the prior written consent of Vita.
- Place of Payment. All payments of rent are due in advance and are payable at the Vita's Office Address or to such other person and/or other place as the Vita may from time to time designate in writing.
- Customer's Right of Inspection. The Customer shall inspect the Equipment within four (4) business days after arrival at the site of the last truck loaded with the Equipment. Unless the Customer within such period of time gives written notice to Vita, specifying any defect in or other proper objection to the condition of the Equipment, the Customer shall be conclusively presumed to have inspected the Equipment and to be satisfied with the same.
- Vita's Right of Inspection. Vita shall at any and all times have the right to enter upon the Equipment Location where the Equipment is located for the purpose of inspecting the same or observing its use. The Customer shall, at the request of Vita, provide Vita with written authorization from the owner and any tenant of the Equipment Location confirming Vita's right of inspection hereunder.
- Risk of Loss and Damage; Value of Equipment; Prepayment Premium. The Customer hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause. No loss or damage to the Equipment, or any part thereof, shall impair any obligation of the Customer under the Agreement which shall continue in full force and effect, including, but not limited to, the obligation of the Customer to make rental payments. Customer shall immediately report to Vita, and any other applicable government authority, any circumstance or occurrence in which all or any part of the Equipment is lost, stolen, destroyed or damaged. If all or any part of the Equipment is determined by Vita to be lost, stolen, destroyed, or damaged beyond repair, the Customer shall pay Vita therefor in cash either of the following as Vita may determine to be applicable in Vita's sole discretion: (a) the Value of the Equipment, minus any salvage value of the Equipment as determined by Vita, or (b) the value of any Equipment components, minus any salvage value of such Equipment components as determined by Vita. Such payment shall be due within five (5) business days within Vita's determination of the salvage value, if any, of the Equipment. Upon such payment by Customer, the payment by the Customer of any rent due, and the Customer' s return of the remaining Equipment, if any, to the Customer's Storage Facility, this Agreement shall terminate and the Equipment shall be and remain the sole and exclusive property of Vita.
- Insurance. The Customer shall keep the Equipment insured against all risks of loss or damage from every cause for not less than the Value of Equipment and shall carry public liability, contractual liability, and property damage insurance covering the Equipment, its operation and use, in the minimum combined single limit amount of $10,000,000 plus the Value of Equipment, which shall be on a primary and non-contributory basis. All said insurance shall be in form and amount and with companies approved by Vita and shall name Vita as an additional insured on a primary and non-contributory basis. In addition, Customer shall provide a lender's loss payee endorsement naming Vita on a primary and non-contributory basis. On or before the commencement of the Term, the Customer shall pay the insurance premium and deliver the certificates/policies/endorsements or duplicates thereof to Vita. Each insurer shall agree, by endorsement upon the policy or policies issued by it or by independent instrument furnished to Vita, that it will give Vita thirty (30) days' prior written notice before the policy in question shall be altered or cancelled. Additionally, at the direction of Vita, Customer shall cause to be added to the additional insureds and loss payee under such policies, any institutional lender providing financing for or secured by the Equipment. Any policy provided by the Customer against claims for liability for injury to persons or property shall include a waiver of subrogation to any right of recovery which Customer may have against Vita. The proceeds of insurance, at the option of the Vita, shall be applied:
(a)toward the replacement, restoration, or repair of the Equipment, or
(b)toward payment of the obligations of the Customer hereunder.
In the case of insurance policy renewals, evidence of such renewal shall be delivered to Vita at least ten (10) days prior to expiration of the then current policy. If, within ten (10) days following notice by the Vita to the Customer, that Vita has failed to receive policies, endorsements or certificates of insurance in accordance with this Paragraph together with such summaries of coverage and other information reasonably requested by Vita, or, if the insurance required hereunder has lapsed for any reason, Vita shall, at Vita's option, have the right to procure such insurance and any sums so expended by Vita shall thereafter be reimbursed by the Customer to Vita immediately upon demand by Vita. Customer shall also maintain, at all times, appropriate amounts of workman’s compensation insurance covering all of its employees.
- Liens, Taxes, Assessments, and Licenses. The Customer shall keep the Equipment free and clear of all levies, liens, and encumbrances and shall pay all license fees, registration fees, assessments, charges, and taxes (municipal, state, and federal) which may now or hereafter be imposed upon the ownership, leasing, renting , sale, possession, or use of the Equipment, excluding, however, all taxes on or calculated based on Vita's income. The Customer shall also obtain, and maintain in full force and effect during the Term, all permits and licenses, if any, necessary for the installation and operation of the Equipment or any parts thereof. Upon request by Vita, Customer will provide complete documented evidence of Customer's compliance with its obligations under this Paragraph. Vita may maintain a lien on the Equipment to insure timely performance of this Agreement by Customer.
- Customer's Payment. If Customer shall fail to pay the required fees, assessments charges, and taxes, Vita may pay the same. In that event, the cost thereof shall become additional rent and shall be due and payable to Vita on the next rental payment date or within ten (10) days of the date on which Vita pays such fees, assessments, charges, duties and taxes, whichever date is sooner.
- Encumbrances and Breakages. The Lessee shall not lease, sublease, mortgage, or otherwise encumber, remove, or suffer to be removed from the Equipment Location or part with possession of, the Equipment or any part thereof, and shall pay to the Lessor as additional rent (on the next rental payment date or within ten (10) days, whichever date is sooner) any charges that may be due to cover replacement, broken, or missing parts or service if the Lessor shall, at its sole option, elect to make repairs or replacement.
- Technical Services. Upon at least fifteen (15) business days ' prior notice, Lessor agrees to provide the Included Services at the Equipment Location.
- Indemnification. The Lessee shall fully defend and indemnify the Lessor, its agents, employees, shareholders and directors against, and shall hold the Lessor and such other parties harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages (from whatsoever cause, except Lessor's Fault), and liabilities, including reasonable attorneys' fees, costs, and all expenses, arising out of, connected with or resulting from the Equipment or the use thereof, including, without limiting the generality of the foregoing, the unloading, installation, erection, maintenance, possession, use, operation, reloading and return of the Equipment. The indemnification set forth in this Paragraph 18 shall survive the termination of this Lease.
- Default. If the Lessee fails to pay any rent or other amount herein provided when the same shall become due and payable, or if the Lessee fails to observe, keep or perform any other provisions of this Lease required by it to be observed, kept, or performed, or if any execution or other writ or process shall be issued in any action or proceeding against the Lessee, whereby the Equipment may be taken or detained, including, without limitation, a succession, termination or liquidation of Lessee's business, or if there shall occur a material adverse change in the financial condition or creditworthiness of the Lessee in the reasonable judgment of the Lessor, the Lessor may exercise any one or more of the following remedies; provided, if the applicable circumstance is curable, Lessor shall provide Lessee notice and five (5) business days to cure such circumstance:
(a)To immediately terminate this Lease as to any or all items of Equipment;
(b)To declare a default immediately upon which the Rental Amount payable hereunder shall be doubled until all items of Equipment are returned by Lessee to Lessor's Storage Facility in accordance with Paragraph 12;
(c)To sue for and recover all rents, and other payments, then accrued or thereafter accruing, with respect to any or all items of Equipment;
(d)To take possession of any or all items of Equipment, without demand or notice, wherever the same shall be located, without any court order or other process of law. The Lessee hereby waives any and all damage occasioned by such taking of possession. Any such taking of possession shall not constitute a termination of this Lease as to any or all items of Equipment unless the Lessor expressly so notifies the Lessee in writing; and
(e)To pursue any other remedy at law or in equity.
Notwithstanding any such repossession or any other action that the Lessor may take, the Lessee shall remain liable for the full performance of all obligations on its part to be performed under this Lease; provided, however, that if the Lessor obtains any moneys for the Equipment from re-rental or sale thereof, said moneys, less expenses, shall be credited to the last payments of the Lessee's obligation. If Lessor exercises any remedies pursuant to this Paragraph 19, the Lessee's rent obligations are accelerated.
- Bankruptcy. Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any proceeding under any bankruptcy law is commenced by or against the Lessee, or if the Lessee is adjudged insolvent, or if the Lessee makes any assignment by the benefit of his creditors, or if a writ of attachment or execution is levied on any item or items of Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action, to which the Lessee is a party, with authority to take possession or control of any item or items of the Equipment, this Lease shall, without further notice, automatically and immediately terminate and shall not be treated as an asset of the Lessee.
- Concurrent Remedies. No right or remedy conferred upon or reserved to the Lessor is exclusive of any other right or remedy in this Lease or by law or in equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by status or otherwise, and may be enforced concurrently therewith or from time to time.
- Lessor's Expenses. The Lessee shall pay the Lessor all costs and expenses, including attorneys' fees, incurred by the Lessor in exercising any of its rights or remedies under this Lease or enforcing any of the terms, conditions, or provisions hereof. Such amounts shall be payable on demand.
- Assignment; Binding Effect. The Lessee shall not (a) assign, transfer, pledge, or hypothecate this Lease, the Equipment or any part thereof, or any interest therein or (b) sublet or lend the Equipment or any part thereof, or permit the Equipment or any part thereof to be used by anyone other than the Lessee or the Lessee's employees. Subject always to the foregoing, this Lease inures to the benefit of, and is binding upon, the heirs, legatees, personal representatives, successors, and assigns of the parties hereto.
- Lessor's Assignment. All rights of the Lessor hereunder may be assigned, pledged, mortgaged, transferred, or otherwise disposed of, either in whole or in part without notice to the Lessee. If the Lessor assigns this Lease or the rentals due or to become due hereunder or any other interest herein, whether as security for any of its indebtedness or otherwise, no breach or default by the Lessor under this Lease or pursuant to any other agreement between the Lessor or the Lessee, if any, shall excuse performance by the Lessee of any provision hereof. No assignee of Lessor shall be obligated to perform any duty, covenant or condition required to be performed hereunder by the Lessor. Lessee agrees to provide prompt and full cooperation with the requirements of Lessor's lenders, including, without limitation, executing such forms of lease subordination, estoppel, UCC financing statements and other documents as may be required by Lessor's lender within three (3) business days of when requested. Failure of Lessee to perform its obligations under this Paragraph 24 shall be considered a Default under this Lease.
- Interest. If the Lessee shall fail to pay any part of the rent herein reserved, or any other sum required by the Lessee to be paid to the Lessor, within ten (10) days after the due date thereof, the Lessee shall pay to the Lessor interest on the delinquent payment from the expiration of said ten days until paid at the rate of eighteen percent (18%) per annum.
- No Offsets. The Lessee expressly waives any and all offsets against any rent or other payments due under this Lease and agrees to pay the full amount of rent and other amounts hereunder regardless of any offset or claim which may be asserted by the Lessee or on its behalf.
- Nonwaiver. No covenant or condition of this Lease may be waived except by the written consent of the Lessor. Forbearance or indulgence by the Lessor in any regard whatsoever shall not constitute a waiver of the covenant or condition to be performed by the Lessee to which the same may apply. Until complete performance by the Lessee of said covenant or condition, the Lessor shall be entitled to invoke any remedy available to the Lessor under this Lease or by law or in equity despite said forbearance or indulgence.
- Notices. All notices to be given under this Lease shall be made in writing and sent either electronically or by mail to the other party at its address set forth herein, or at such address as such party may provide in writing from time to time. Any notice mailed to such address shall be effective when deposited in a United States mail depository duly addressed and with postage prepaid.
- Multiple Lessees. If there is more than one Lessee named in this Lease, the liability of each shall be joint and several.
- Relationship of the Parties. The relationship between Vita and Customer is one of independent contractors and not of principal and agent, nor of legal partners. Neither Party shall represent itself as the agent or legal partner of the other Party nor perform any actions that might result in other persons believing that it has any authority to bind or to enter into commitments on behalf of the other.
- Counterparts. This Lease may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
- Waivers and Consents. LESSEE WAIVES ANY AND ALL RIGHTS TO NOTICE AND TO A JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF THE EQUIPMENT BY THE LESSOR IN AN EVENT OF DEFAULT HEREUNDER BY LESSEE. LESSEE([) CONSENTS, AT LESSOR'S ELECTION AND WITHOUT LIMITING LESSOR'S RIGHT TO COMMENCE AN ACTION IN ANY OTHER JURISDICTION, TO THE EXCLUSIVE JURISDICTION AND VENUE OF ANY COURTS (FEDERAL, STATE OR LOCAL) SITUATED IN COLORADO; (ll) WAIVES ANY OBJECTION TO IMPROPER VENUE AND FORM NON CONVENIENS; AND (III) CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL, POSTAGE PREPAID TO LESSEE AT ITS ADDRESS AS SET FORTH HEREIN, WHICH SERVICE SHALL BE DEEMED COMPLETED WITHIN FIVE (5) DAYS AFTER THE DATE OF MAILING THEREOF TO THE LESSEE'S ADDRESS. IF ANY PROVISION OF THIS LEASE SHALL CONTRAVENE OR BE INVALID UNDER APPLICABLE LAW OR REGULATIONS SUCH CONTRAVENTIONS OR INVALIDITY SHALL NOT AFFECT THE ENTIRE LEASE, THE PROVISIONS HELD TO BE INVALID OR TO BE DEEMED DELETED OR MODIFIED AND THE LEASE INTERPRETED AND CONSTRUED AS THOUGH SUCH INVALID PROVISION OR PROVISIONS WERE NOT A PART HEREOF OR CONFORMED THERETO.
Upon the purchase of the asset at the time and under the terms set out, by the signed Lease to Own Agreement, the Customer (also known as “Lessee” upon the sale of the Equipment) and Vita Inclinata (also known as “Vita” or “Seller” upon the sale of the Equipment) agrees to the following conditions:
- Products, Purchase Price and Payments. The Purchase Price does not include sales, use, or excise taxes or any other duty including port handling, import, or export fees presently in force or imposed in the future. Any such taxes or duties shall be assumed and paid by Customer without deduction from the fees and charges due to Seller. Additionally, Customer shall reimburse Seller for any payments made by Seller for fees for which Customer is responsible. All products shall be shipped to Customer, FOB Seller’s place of manufacture. Without limitation to its rights or remedies, Seller shall have the right to halt its Services or delay any Product delivery until payment is received on past due invoices. Past due invoices shall bear interest at the rate of eighteen percent (18%) per annum. Customer shall be responsible for all collection costs, court costs, and reasonable attorney’s fees in connection with recovery of any delinquent accounts.
- Sales Limitation. Customer shall not rent, lease, or license any Products without express written permission from Seller.
- Changes. Customer shall not rent, lease, or license any Products without express written permission from Seller.
- Title. Seller shall retain full ownership of product(s) until full payment has been received. Customer represents and warrants that any products received by it will be fully insured until the purchase price is paid in full. Notwithstanding Seller retention of ownership, Customer shall incur all risks associated with loss or destruction of products. Seller shall have the right and authority to repossess products, at Customer’s expense, if the purchase price is not paid when due.
- Ownership. Seller has created, acquired, or otherwise has rights in various concepts, ideas, methods, methodologies, procedures, know-how, and techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general-purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems. Nothing herein shall alter such ownership. Customer shall provide Seller with reasonable opportunity to collect data from the Equipment during any rental period or for the duration of time in which Customer receives Services from Seller following a purchase. Seller shall own any and all data collected by the Equipment or Customer’s employees, agents, and representatives during any and all operations of the Equipment in perpetuity, which relate to the operation of the Equipment and associated equipment. Seller may use this data for updates and modifications of the Equipment or any other use, which Seller deems appropriate or necessary.
- Intellectual Property Rights. Seller shall own all Intellectual Property associated with the Equipment and any derivative works thereto without regard to the party who may have developed such derivative works. This shall include, but not be limited to, concepts, technology or techniques developed in connection with the installation or use of any products or the provision of any Services hereunder. Seller shall own all rights, title to, and interest in the copyright to works of authorship created by Customer or its employees or contracted employees, as it is related to Seller’s products and systems and Customer shall execute any documents required to establish Seller’s ownership of such copyright.
- Intellectual Property Indemnification. Seller shall indemnify and hold harmless Customer and its affiliates, subsidiaries, customers, and subsequent purchasers or users from any losses or damages arising from any potential or actual claim alleging infringement or violation of intellectual property rights or licenses delivered or performed in connection with this Agreement. Seller shall supersede Customer in defense of any claim, and assume and conduct the defense at Seller's sole discretion, in such an event, Customer shall be released from any obligation to pay for attorney’s fees and court costs, but shall not be released from any obligation to pay for settlement or damages, and any such release is expressly conditioned on Customer’s complete cooperation with Seller in Seller’s defense of such claim at Seller’s expense. Customer shall not enter into any settlement without Seller’s prior written consent.
- Software License Except as provided below, upon full and final payment to Seller, Seller grants Customer and its corporate affiliates, a royalty-free paid-up, worldwide, non-exclusive, perpetual, license to use the software delivered to Customer as a result of the Services and Seller’s related technology incorporated into such software. Such license may not be sublicensed without Seller’s prior written consent and may be revoked should Customer breach any of the terms of this Agreement.
- Third-Party Software Liability. Seller has no liability with respect to any claims relating to or arising from the use by Customer of Third-Party Software or any other third-party products.
- Limited Warranty. Seller warrants, for a period of twelve (12) months after acceptance of the products by Customer (the “Warranty Period”), that all products provided hereunder shall be: (i) free from defects in material and workmanship; and (ii) manufactured in accordance with the applicable Specifications. This limited warranty is limited to the repair or replacement of any defective product. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER SHALL CREATE A WARRANTY.
- Pass Through of Third-Party Warranties. To the extent assignable by Seller, all manufacturer warranties for any products (including software) procured by Seller on Customer’s behalf in connection with the products or services provided hereunder shall be passed through to Customer and Seller shall have no liability for same.
- Limitation of Liability. Seller, its affiliates, and each of their officers, directors, stockholders, members, managers, employees, and agents shall not be liable for any loss or damage caused by delay in providing the products or services provided hereunder, to the extent that such delay is attributable to delay by Customer or caused by a Force Majeure Event. UNDER NO CIRCUMSTANCES SHALL SELLER, ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, STOCKHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOST DATA OR CONTENT, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL), WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER OR AS A RESULT OF THIS AGREEMENT OR THE SERVICES OR PRODUCTS PROVIDED HEREUNDER, IRRESPECTIVE OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The parties hereby agree that the limitations on liability set forth herein are independent of any exclusive or limited remedies, and shall survive and apply even if such remedies are found to have failed of their essential purpose. No action, regardless of form, arising out of the transactions under this Agreement may be brought by Customer more than one (1) year after the events which gave rise to the cause of action occurred.
- Limitations of Warranty
a.The limited warranties set forth above shall not apply if the Product(s) or Service(s) upon which Customer's claim is based is:
i.not used in accordance with the documentation provided by Seller relating to the Products or Services;
ii.has been modified without Seller’s express authorization;
iii.fails to function due to a malfunction of Customer's or any third-party equipment;
iv.fails to function as a result of Customer's misuse, abuse, negligence, or unreasonable use in any way as determined by Seller.
v.causally related to any violation of any applicable national, state, and/or local law(s), ordinance(s), and/or regulation(s).
- Aviation Specific Requirements. Customer shall be solely responsible for conformance to all governmental regulations and certifications related to its aircraft, operations, operators, and other project-specific requirements as those regulations and certifications relate to Products provided by Seller.
- Compliance with Laws Seller and Customer shall comply with all applicable national, state, and local laws, ordinances, and regulations applicable to their respective performance hereunder. Customer shall immediately notify Seller if Customer is suspended, disbarred, or restricted from doing business with the U.S. Government. Any such prohibition shall constitute a termination of the Agreement. Customer shall notify Seller in writing immediately, following the filing of formal charges, alleging Customer has committed fraud or corrupt practice in any federal, state, or foreign governmental criminal proceeding.
- Cooperation. Customer shall cooperate with Seller in the performance by Seller of its Services hereunder, including without limitation, providing Seller with reasonable facilities and timely access to all relevant data, information, and personnel of Customer. Customer shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Seller for purposes of the performance by Seller of its Services hereunder.
- Technical Publications. Upon Customer’s request, Seller shall deliver technical publications.
- Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement for any failure or delay in fulfilling or performing any terms, when and to the extent such failure or delay is caused by: (a) acts of God; (b) flood, fire, explosion or chemical contamination; (c) epidemic, pandemic, quarantine restriction or plague; (d) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (e) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (f) national, regional, or local emergency; (g) damage to or failure of any facility from which the affected Party operates or upon which the affected Party relies for the operation of its business or any material portion thereof other than damage to or failures caused by the affected Party; or (h) national or regional shortage of adequate power, telecommunications, or transportation facilities (each of the foregoing, a "Force Majeure Event"), in each case, provided that (i) such event is outside the reasonable control of the affected Party; and (ii) such event cannot, despite the exercise of Commercially Reasonable Efforts by the affected Party, be controlled, prevented, avoided or removed the affected Party. The Party claiming excused performance by reason of a Force Majeure Event will provide reasonable notice of such claim to the other Party. A Party may unilaterally terminate this Agreement with immediate effect if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) Business Days or more. Unless otherwise agreed to by both Parties, lack of financial resources will not be considered an event beyond the reasonable control of the afflicted Party.
- Inspection and Audit. Seller shall maintain complete inspection records for all Products which shall be available to Customer for six (6) months after the final payment, or final resolution of any dispute involving the Products delivered.
- Security of Customer’s information. Customer and Seller acknowledge and agree that all information communicated to either Customer or Seller by the other Party in connection with the performance by a Party under this Agreement, including but not limited to purchase price, rental price, and other contract terms shall be received in confidence, shall be used only for purposes of the associated agreement, and no such confidential information shall be disclosed by the respective parties or their agents or personnel without the prior written consent of the other Party. Except to the extent otherwise required by applicable law or professional standards, the Parties' obligations under this paragraph do not apply to information that:
i.is or becomes generally available to the public other than as a result of disclosure by Customer or Seller,
ii.known to either Customer or Seller or had been possessed by Customer or Seller without restriction against disclosure at the time of receipt thereof by Customer or Seller,
iii.was independently developed by Customer or Seller without violation of this paragraph, or iv. Customer and Seller agree from time to time to disclose.
c.Each Party shall be deemed to have met its nondisclosure obligations under this paragraph as long as it exercises the same level of care to protect its own confidential information, to the extent that applicable law or professional standards impose a higher requirement. Seller may retain, subject to the terms of this paragraph, copies of Customer's confidential information required for compliance with applicable professional standards or internal policies.
d.If either Party receives a subpoena or other validly issued administrative or judicial demand requiring it to disclose the other Party's confidential information, such Party shall, within five (5) days of receipt of the demand, provide written notice to the other Party of such demand in order to permit such other Party to, at its own expense, seek a protective order. So long as the notifying Party gives notice as provided herein, the notifying Party shall thereafter be entitled to comply with such demand to the extent permitted by law, subject to any protective order or the like that may have been entered in the matter.
- No Waiver. No failure of any Party to exercise any right hereunder, or to require compliance with this Agreement, shall constitute a waiver by such Party of its rights contained in this Agreement. No concession, latitude or waiver allowed by either Party to the other at any time shall be deemed a concession, latitude, or waiver with respect to any rights unless and only to the extent expressly stated in writing, nor shall it prevent such party from enforcing any rights in the future under similar circumstances.
- Entire Agreement. This Agreement constitutes the entire agreement between Seller and Customer with respect to the subject matter hereof and supersede all other oral and written representation, understandings, or agreements relating to the subject matter hereof.
- Amendments. No amendment to this Agreement will be effective unless it is in writing and signed by both Parties.
- Assignment. Except as provided below, neither Party may assign, transfer, or delegate any of the rights or obligations hereunder without the prior written consent of the other Party. Seller may assign its rights and obligations hereunder to an affiliate or successor in interest to all or substantially all of the assets or business of the relevant Seller’s practice without the consent of Customer.
- Notices. All notices and other communications called for shall be in writing and shall either be delivered by hand, electronically, mailed via first-class mail with postage prepaid, or sent via nationally recognized overnight courier capable of providing evidence of delivery. Notices shall be sent to the address listed on the signature page of this Agreement or upon any other address agreed to, in writing, by the Parties.
- Relationship of the Parties. The relationship between Seller and Customer is one of independent contractors and not of principal and agent, nor of legal partners. Neither Party shall represent itself as the agent or legal partner of the other Party nor perform any actions that might result in other persons believing that it has any authority to bind or to enter into commitments on behalf of the other.
- Dispute Resolution. Parties shall attempt to resolve any disputes related to this Agreement through voluntary mediation; the mediator will be agreed upon by both Parties and paid for by the Party bringing the dispute unless a different arrangement is agreed upon during mediation. If mediation does not resolve the dispute, Parties shall engage in binding arbitration. The arbiter, which will be agreed upon by both Parties, and the arbitration fees will be equally shared by both Parties unless a different arrangement is agreed upon or ordered by the arbiter. Arbitration shall be conducted by the Judicial Arbiter Group in Denver, Colorado. If Judicial Arbiter Group is not available, arbitration shall be through a similar private arbitration firm. Each Party shall continue performing its obligations under an order pending resolution of a dispute. The dispute resolution procedures set forth in this Agreement do not supersede, delay or otherwise affect any rights of termination that are expressly set forth in this Agreement.
- Duty to Proceed. Except as expressly authorized in writing by Seller, no failure of Seller and Customer to reach an agreement regarding a dispute shall excuse Customer form proceeding.
- Survival. All rights, obligations, and duties contained in this Agreement shall survive the expiration or termination of this Agreement.
- Severability. In the event that any term or provision of this Agreement shall be held to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected, impaired, or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.