Published: December 22, 2021
Effective: January 01, 2022
THESE SYSTEMS X CORPORATION DATA PROCESSING TERMS AND CONDITIONS (THESE “SERVICES TERMS”) GOVERN THE SERVICES (AS DEFINED BELOW) TO BE PROVIDED BY SYSTEMS X CORPORATION (“SYSTEMS X”) TO THE CUSTOMER (“CUSTOMER”) UNDER A WORK ORDER (AS DEFINED HEREIN). BY EXECUTING A WORK ORDER ("PROPOSAL"), THE CUSTOMER IS ACCEPTING AND AGREEING TO THESE SERVICES TERMS AND THE TERMS OF SUCH WORK ORDER, WHICH UPON EXECUTION BECOME PART OF AND SUBJECT TO THESE SERVICES TERMS. THESE SERVICES TERMS AND EACH WORK ORDER EXECUTED BY THE CUSTOMER TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SYSTEMS X (COLLECTIVELY, THIS “SERVICES AGREEMENT”). EACH WORK ORDER EXECUTED BY THE CUSTOMER SHALL BE EFFECTIVE AS OF THE DATE SPECIFIED THEREIN OR, IF NO SUCH DATE IS SPECIFIED, THE DATE CUSTOMER EXECUTED THE WORK ORDER. SYSTEMS X AND CUSTOMER MAY BE REFERRED TO HEREIN COLLECTIVELY AS THE “PARTIES”.
Affiliate refers to a controlled company under common control or controlling a party or entity during the period of such authority. For the services agreement, "control" means ownership, directly or indirectly, of more than 50% of a party or entity's voting securities.
Services refer to the technical, implementation, or professional services and any related deliverables provided or to be provided by Systems X for Customer under a work order describing such services and these services terms. The services performed under a work order may be referred to as “Professional Services” or “Technical Services”, as applicable, based on the nature and type of such services.
Deliverable refers to all property, reports, source code, analyses, recommendations, data, databases, specifications, software, documentation, items, videos, recordings, and other materials provided, created, developed, and delivered according to and described in a work order.
Law refers to any local, state, national, administrative, and foreign laws, treaties, regulations, and orders applicable to a party.
Work Order refers to a written or electronic (a) work order, (b) statement of work, (c) Proposal, or (d) other ordering documents incorporating these services terms and all exhibits or other documents attached to or incorporated by reference (“Attachments”) therein, describing the services purchased by Customer and executed by the parties or Customer alone, as applicable.
Work Product refers to all software, authorship, or work developed for Customer in providing the services, including any deliverables produced in connection therewith, whether created solely or jointly with others.
3. PROVISION OF SERVICES
Subject to the payment by Customer to Systems X of the applicable fees (as defined in Section 4.1), Systems X will provide the services under the work order. Any scheduling required for the services to be performed or delivered will be described in the work order. Systems X will not be responsible for providing any services, tasks, or items that are not included in the description of services in the work order as such services, tasks or items shall be deemed out of scope for such work order and will require the execution of an additional work order with associated fees. Systems X reserves the right, in its sole discretion, to use, assign and remove personnel in performing the services. If the services are made available to any Customer Affiliate(s) according to the terms of this services agreement, then the term “Customer” shall also include such Customer Affiliate(s) identified in a work order. Systems X will provide services under this services agreement only to Customer’s (or a Customer Affiliate’s).
4.1. Invoice and Payment
The fees for Customer’s services are determined under the terms of the applicable work order covering such services. Any other amounts due under this services agreement (collectively, the “fees”) are quoted and payable in United States dollars. Unless otherwise provided in the applicable work order, all fees (except for any disputed fees then subject to a billing dispute under Section 4.6) shall be due and payable within thirty (30) days of the invoice date. Customer shall provide Systems X with complete and accurate billing and contact information, including a valid email address for receipt of invoices. All fees and payment obligations for services under any work orders are non-cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased.
4.2. Incidental and Project Expenses
Customer shall reimburse Systems X for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in the services’ performance and provision. If Systems X incurs any additional of the preceding or additional costs or expenses in providing the services, such expenses may be invoiced separately.
4.3. Overdue Payments
Without limiting the rights and remedies available to Systems X under this services agreement or by Law, any fees not paid by Customer (except for any disputed fees then subject to a billing dispute under Section 4.6) within thirty (30) days of the invoice date shall accrue late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses and fees for collection (including attorneys’ fees and court and administrative costs).
The fees are exclusive of all shipping costs and federal, state, and local sales, value-added taxes, goods and services taxes, use, excise, service, transaction, gross receipts or similar taxes imposed on the services (collectively, “Taxes”), all of which Customer agrees to pay, excluding taxes assessable against Systems X on its income, property, and employees. Customer shall make all payments required without deduction of any Taxes, except as required by law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Systems X receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Suppose Customer is exempt from paying any applicable taxes. In that case, Customer shall promptly provide written evidence reasonably satisfactory to Systems X of its tax-exempt status, and Systems X will not include such Taxes in Customer’s invoices.
4.5. Suspension of Services for Non-Payment
If Customer’s account is more than thirty (30) days past due (except for any disputed fees then subject to a billing dispute under Section 4.6), in addition to any other rights or remedies it may have under this services agreement or by Law, Systems X reserves the right to cease providing any or all services currently being performed or to be performed for Customer, without liability to Systems X for such suspension. Such services shall only be resumed if Customer pays the full amount of such invoiced fees (except for any disputed fees then subject to a billing dispute under Section 4.6) are paid in full.
4.6. Billing Disputes
Any dispute involving invoiced fees (a “billing dispute”) must be in writing and submitted to Systems X within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed fees as well as the reasonable and good faith bases for why a credit or refund is being requested (a “billing dispute notice”). Customer shall cooperate with Systems X to promptly address and attempt to resolve any billing dispute submitted in accordance herewith. Customer acknowledges and agrees that in the event Customer does not present a billing dispute notice in accordance with the foregoing, Customer waives all rights to dispute such invoice, and all fees outlined in such an invoice will be considered correct and binding on Customer. Notwithstanding any dispute of invoiced fees commenced in accordance with this Section 4.6, Customer shall remain obligated to pay all undisputed fees within thirty (30) days of the invoice date.
5. PROPRIETARY RIGHTS; OWNERSHIP
5.1. Systems X Property
In performing the services, Systems X may use products, materials, information, ideas, concepts, know-how, techniques, tools, templates, models, software, procedures, documentation, technology, interfaces, data and databases, reports, processes, best practices, and methodologies owned or licensed by, or developed on behalf of, Systems X or any of its partners or suppliers (collectively, the "Systems X property"). Subject to the limited rights expressly granted hereunder, Systems X and its licensors reserve and retain all right, title, and interest in and to the services and the Systems X property, respectively, including all patents and applications, therefore, copyrights, trademarks, domain name rights, trade secret rights and all other intellectual property rights (collectively, “intellectual property rights”) therein. No Systems X property shall be deemed to be a work product. Systems X may modify or improve any Systems X property at any time. Such Systems X property and Systems X’s rights (including all intellectual property rights) will consist of all enhancements, modifications, adaptations, and derivative works therein and thereto (whether made by Systems X, Customer, a third-party or jointly Except as expressly set forth herein, Customer is not granted any right, title or interest in or to any Systems X property or any other equipment, supplies or materials owned, leased or licensed by or to Systems X, whether related to the performance of the services, use or operation of the deliverables or otherwise. All Systems X property is deemed to be Systems X confidential information.
5.2. Systems X Ownership of Work Product
Systems X shall own and retain all the rights, title, and interest (including all Intellectual property rights) in and to all work product as well as all recommendations, ideas, techniques, know-how, designs, programs, development tools, processes, integrations, enhancements, and other technical information and any modifications or adaptations to, and derivative works from, the foregoing, whether developed by Systems X in the course of performing or providing any services or co-developed by the parties under any work order(s). No work product shall be deemed a “work made for hire”. Suppose any work product is delivered to Customer in connection with providing the services (including any work product included as a deliverable or portion thereof). In that case, Systems X hereby grants to Customer a non-exclusive, worldwide (subject to export laws), royalty-free, fully paid-up, limited right to access and use the work product only. Such rights shall not be sub-licensable, assignable, or transferable, except in connection with Customer’s assignment of these services terms and all work orders hereunder.
Nothing in this services agreement will: (a) prohibit or limit Systems X’s use of ideas, concepts, know-how, methods, techniques, skill, knowledge, and experience that were used, developed, and gained in connection with Systems X’s provision of any services under these services terms or any work order; or (b) preclude Systems X from marketing, developing or using for any other purpose, any services or products for the benefit of Systems X or any other party. Systems X will continue to be free to use and exploit the services and any work product to undertake the same or similar services and provide the same or similar products to other customers and entities.
6.1. Confidential Information; Exceptions
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. Systems X confidential information includes the Systems X property and work product; Customer confidential information consists of the Customer data; and confidential information of each party includes the terms and conditions of these services terms and all work orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. 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 before 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.
The receiving party will use the same degree of care that it uses to protect the confidentiality of its confidential information of like kind (but not less than reasonable care) to (a) not use any confidential information of the disclosing party for any purpose outside the scope of this services agreement; and (b) except as otherwise authorized by the disclosing party in writing, limit access to confidential information of the disclosing party to those of its and its Affiliates’ employees, advisors, contractors and third parties (collectively, “Representatives”) who need access for purposes consistent with this services agreement and who have signed confidentiality agreements with the receiving party containing protections, or have ethical duties to the receiving party, not materially less protective of the confidential information than those herein. Each party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other party’s confidential information. Each party may confidentially disclose the terms of this services agreement to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Systems X may disclose the terms of these services terms and any applicable work order to a subcontractor or third party provider to the extent necessary to perform Systems X’s obligations to Customer under this services agreement, under terms of confidentiality materially as protective as those set forth herein.
6.3. Compelled Disclosure; Retention
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 or limit the extent of the disclosure through a protective order or other legal measures. If the receiving party is compelled by law to disclose the disclosing party’s confidential information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that confidential information. Notwithstanding anything to the contrary contained herein, receiving party (a) will be entitled to retain copies of confidential information for internal record-keeping purposes and compliance with laws and industry standards or to defend or maintain litigation, and (b) will not be obligated to erase confidential information that is contained in its archived data storage.
6.4. Internal Record Keeping
Notwithstanding anything to the contrary contained in this services agreement, the receiving party will (a) be entitled to retain copies of the disclosing party’s confidential information for internal record-keeping purposes and compliance with applicable regulations and industry standards or to defend or maintain litigation; and (b) not be obligated to erase confidential information that is contained in its archived data storage.
7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
7.1. Service Warranty
Systems X warrants that the services shall be professionally performed by qualified personnel, consistent with industry standards. Customer’s sole and exclusive remedy for breach of this warranty will be for us to promptly correct the defective services at no cost or expense to Customer, which remedy shall apply and be available so long as Customer notifies Systems X in writing of any such breach within thirty (30) business days of when such services were provided by Systems X. Systems X does not otherwise warrant, expressly or implicitly, the results, performance, or quality of the services or any work product furnished under this services agreement or any work order and Systems X has no obligation to provide any updates or upgrades for any work product.
Customer acknowledges that Systems X relies upon information (including data, records, specifications, descriptions, and documentation) provided by Customer. As a result, the accuracy and results of any work product services and provision are dependent upon the timeliness, accuracy, and completeness of the information furnished to Systems X by Customer and Customer’s employees, agents, and contractors. Systems X’s obligations to provide the services are expressly conditioned upon Customer’s cooperation and timely: (a) performance of tasks, responsibilities, and reviews under the work order (including any project plans developed thereunder); (b) provision of approvals and information (including data, records, specifications, descriptions, and documentation) under the work order; and (c) access to Customer’s personnel, resources, facilities and systems reasonably required for Systems X to perform the services as well as Customer meeting any responsibilities outlined in this services agreement (collectively, “Customer responsibilities”). Any delays due to Customer’s failure to satisfy or comply with the Customer responsibilities may result in delays in providing the services (including the work product) and additional fees. Customer shall be responsible for the content of all material, information, data, records, specifications, descriptions, and documentation provided by Customer to Systems X (collectively, the “Customer Data”). Customer shall not provide to Systems X any material, information, data, records, specifications, descriptions, and documentation that infringes, misappropriates, or violates the intellectual property rights or privacy rights of any third party or is otherwise unlawful.
EXCEPT FOR ANY WARRANTIES EXPRESSLY CONTAINED IN THIS SERVICES AGREEMENT, ALL SERVICES AND WORK PRODUCT PROVIDED BY SYSTEMS X HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SYSTEMS X SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SYSTEMS X DOES NOT WARRANT THAT THE SERVICES, WORK PRODUCT, AND ANY DELIVERABLE WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF ANY SERVICES, WORK PRODUCT, AND DELIVERABLE. SYSTEMS X SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ALL OF SYSTEMS X’S WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND FOR NO OTHER ENTITY OR THIRD PARTY.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Systems X
Systems X shall defend and hold Customer, its officers, directors, employees and contractors harmless against any third party claims, demands, suits, or proceedings (“claims”) against Customer arising out of or relating to (A) personal injury (including death) to any persons or damage to any tangible personal property (excluding any Customer data) arising out of any negligent act, error, or omission of Systems X and Systems X’s employees, agents, or contractors; or (B) any work product infringing a copyright, a U.S. patent issued as of the effective date, or a trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim and shall pay all fees and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim; provided, however, that Customer: (i) promptly gives written notice of the claim to Systems X; (ii) gives Systems X sole control of the defense and settlement of the claim (provided that Systems X may not settle any claim or enter into any order or stipulated judgment that purports to bind Customer unless it unconditionally releases Customer of all liability); and (iii) provides to Systems X, at Systems X’s cost, all reasonable assistance. If (a) Customer is enjoined from using the work product; or (b) the work product becomes, or Systems X believes the work product will likely become, the subject of an infringement claim, Systems X shall have the right, in its sole discretion, to (i) obtain for Customer the right to continue the use of the affected work product; or (ii) replace or modify the affected work product so that it is no longer infringing. Suppose in Systems X’s sole reasonable discretion, neither of the foregoing options is reasonably available to or commercially feasible for Systems X. In that case, Systems X will request that Customer return and no longer use the affected work product and, upon Customer’s compliance with such request, Systems X’s sole liability will be to refund the fees paid by Customer for the affected services and work product. Systems X’s foregoing indemnification obligation shall not apply to any claim based on or caused by (v) any design specifications, requirements, documentation, materials, instructions, and directions prepared by Customer and provided to Systems X under these services terms or any work order; (w) any work product or services being modified by any party other than Systems X, but solely to the extent the alleged infringement is caused by such modification; (x) any work product or services being combined with other non-Systems X products, services, and processes not authorized by Systems X in writing but solely to the extent the alleged infringement is caused by such combination; (y) any unauthorized use of any work product or services; (z) any third party deliverables or components not provided by Systems X that are contained within any work product or services; or Systems X’s use of any Customer Data per this services agreement.
THIS SECTION 8.1 SETS FORTH SYSTEMS X'S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY CONCERNING ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
8.2. Indemnification by Customer
Customer shall defend and hold Systems X, its officers, directors, employees, and contractors harmless from any claims against Systems X alleging that any Customer data infringes the rights of, or has caused harm to a third party, or violates any law, and shall pay all costs and damages finally awarded against Systems X by a court of competent jurisdiction as a result of any such claim; provided, however, that Systems X: (a) promptly gives written notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim or enter into any order or stipulated judgment that purports to bind Systems X unless it unconditionally releases Systems X of all liability), and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS; (B) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS SERVICES AGREEMENT, IN NO EVENT SHALL (I) EITHER PARTY OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, OR FOR ANY LOSS OF BUSINESS, REVENUE, ANTICIPATED SAVINGS, PROFITS, USE, AND/OR LOSS OR CORRUPTION OF ANY DATA AND/OR COST OF DATA RECONSTRUCTION OR PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS, SERVICES, INVENTORY OR EQUIPMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY CLAIM ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICES AGREEMENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (II) EITHER PARTY’S ENTIRE AND MAXIMUM LIABILITY FOR ALL CLAIMS IN ANY MANNER RELATED TO THESE SERVICES TERMS AND/OR THE APPLICABLE WORK ORDER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO SYSTEMS X BY CUSTOMER UNDER THE WORK ORDER WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE FOR ALL CLAIMS IN ANY MATTER RELATED TO THIS SERVICES AGREEMENT AND IS NOT PER INCIDENT.
9.2. Commencement of Actions; Mitigation of Damages.
No party may commence any action under these services terms or a work order more than one (1) year after the breach or event giving rise to the claim for damages and indemnification. The claiming party shall use commercially reasonable efforts to mitigate and avoid any damages.
10. TERM; TERMINATION
10.1. Work Orders
Unless otherwise provided in a work order, the term of each work order shall expire on the earlier of (a) the date of expiration of such work order or cessation of such services, as specified therein; or (b) Systems X’s completion of the services described therein (the “term”).
10.2. Applicability of these Services Terms
The term of these services commences as of the date these services terms are accepted by Customer under the terms herein and shall remain in effect and apply to each work order executed by the parties until all work orders have expired or been terminated hereunder.
(a) Either party may terminate a work order or, at the election of the terminating party, this services agreement (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event 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. If this services agreement is terminated, these services terms and all work orders are simultaneously terminated. Notwithstanding any terms to the contrary in this services agreement, if any amounts owed by Customer (except for any disputed fees then in dispute under Section 4.6) are not fully paid when due following Section 10.3 herein, Customer shall be in material breach of this services agreement and, in addition to its other rights and remedies at law or in equity, Systems X may terminate this services agreement and cease providing all services, effective immediately upon delivery of the written notice to Customer.
(b) If Customer terminates this services agreement or any work order before the expiration of the end of the Term for Systems X’s uncured breach, Customer shall be entitled to a refund of all pre-paid fees for the services paid for but not provided by Systems X beyond the effective date of termination. If prior to the expiration of the Term, (i) Customer terminates this services agreement or any work order before the completion of all services purchased hereunder and such termination is not due to Systems X’s uncured breach; or (ii) Systems X terminates this services agreement or any work order due to Customer’s uncured breach (collectively, a “Customer early termination”) and Customer has not already paid in advance the full amount of all fees due under each work order for the services purchased in accordance with the terms herein, Customer shall pay Systems X an early termination charge equal to all fees, including all applicable Taxes, outlined in each work order which would otherwise be due through the end of the entire Term of such work order (the “early termination fee”). The parties agree that the actual damages resulting from a Customer early termination are difficult to ascertain, and the early termination fee is a reasonable estimate of anticipated actual damages and not a penalty. Customer agrees and acknowledges that the early termination fee shall apply even if Customer terminates this services agreement or any work order prior to Systems X commencing performance of any services under this services agreement. The early termination fee shall be due and payable within ten (10) days of the effective date of termination, and any prepaid fees will be applied towards the amount of the early termination fee.
11. MODIFICATIONS AND AMENDMENTS TO SERVICES TERMS
11.1. Modifications and Amendments.
Systems X may, at any time and in its sole discretion, amend these services terms, if any such amendment(s) does not adversely and materially affect the quality of services provided by Systems X to Customer or change the rates quoted in any work order. The revised services terms will become effective as to Customer on the earlier of (a) the first day after Customer and Systems X sign a new work order that incorporates the revised version of the services terms by reference; or (b) thirty (30) days following Systems X’s written notice to Customer that a revised version of the services terms has been posted at https://www.sytems-x.com/en-us/psa.
11.2. Customer’s Rights.
If Customer’s compliance with the revised or amended version of the services terms would materially or adversely affect Customer’s use of the services or any work product provided under a work order and Customer gives written notice of its objection to the revised services terms no later than ten (10) business days following the date that the revised services terms would otherwise have become effective as to Customer, Systems X will not enforce the revision(s) to such services terms as to Customer until thirty (30) days following the date the revision(s) would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version of the services terms. During the thirty (30) day period, Customer may elect to terminate the work order on these grounds by giving written notice to Systems X, which must be received by Systems X during such thirty (30) day period, or such termination right shall be deemed to be waived by Customer. Systems X will not charge Customer an early termination fee for a termination on these grounds. Suppose Customer does not elect to terminate the work order during the thirty (30) day period. In that case, the revised version of the services terms will become effective as to Customer and apply to the work order (and all other work orders) as of the end of the thirty (30) day period. If Customer elects to terminate the work order in accordance with the terms of this Section 11.2, Systems X, in its sole discretion, may elect to waive application of the revised services terms as to Customer and continue to apply, for the remainder of the term of the work order, the version of the services terms that was in effect prior to the date that the revised version of the services terms was posted at https://www.sytems-x.com/en-us/psa.
12. GENERAL PROVISIONS
12.1. Export Compliance
The services and other technology Systems X makes available, and derivatives thereof may be subject to e United States and other jurisdictions’ export laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any of the services in a U.S. embargoed country or violate any U.S. export law or regulation.
12.2. Employee Solicitation
While this services agreement is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor, or consultant) any Systems X employee or subcontractor who was involved in providing the services. An employee’s or subcontractor’s response to a general, non-targeted advertisement for employment shall not be deemed a solicitation for this services agreement.
All provisions survive termination or expiration of this services agreement except those requiring performance only during the term of this services agreement and work order, as applicable.
12.4. No Third-Party Beneficiaries
This services agreement does not create any right enforceable by any person or entity that is not a party hereto.
12.5. Entire Agreement; Order of Precedence
This services agreement is the entire agreement between Customer and Systems X regarding the services. It supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials, and representations concerning its subject matter and the services. There are no representations, understandings, or agreements that are not fully expressed. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this services agreement will be effective unless outlined in writing and signed by the party against whom the modification, amendment, or waiver is asserted. The parties agree that any term or condition stated in Customer’s purchase order or any Customer’s other order documentation (excluding work order) is void. Headings contained in this services agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this services agreement. Terms for which meanings are described in this services agreement shall apply equally to the singular and plural forms of the terms defined. Unless otherwise indicated, the word “including” shall mean “including, without limitation” or words of similar effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) these services terms; and (b) the applicable work order (unless and to the extent expressly stated therein that a specified term therein shall take priority over an analogous or conflicting term in these services terms).
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this services agreement in its entirety (together with all work orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of this services agreement (including all work orders) and, in the case of an assignment by Customer, all past due fees (except for any disputed fees then subject to a billing dispute under Section 4.6) are paid in full. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this services agreement upon written notice. In the event of such termination, Systems X will refund to Customer any prepaid fees for the services allocable to the remainder of the Term for the period after the effective date of such termination. Subject to the foregoing, this services agreement will bind and inure to the parties’ benefit, their respective successors, and permitted assigns.
12.7. Relationship of the Parties
The parties are independent contractors. This services agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries under this services agreement.
12.8. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees or contractors), service disruptions affecting hardware, software or power systems, not within such party’s possession or reasonable control, and denial of service attacks.
No failure or delay by either party in exercising any right under this services agreement will constitute a waiver of that right or any other right. Any waiver of any right or remedy under this services agreement must be in writing and signed by each party. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. Except as otherwise expressly stated in this services agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.10. Governing Law; Venue
This services agreement and any claim, controversy, right, obligation, or dispute arising under or related to this services agreement (including any work order), the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties shall be governed by and construed in accordance with the laws of the State of Michigan, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on contracts for the international sale of goods do not apply to this services agreement. The parties irrevocably consent to the state courts’ exclusive jurisdiction and venue in Macomb County, Michigan, or federal courts in the Eastern District of Michigan, U.S. The parties waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to this services agreement.
Unless otherwise provided in this services agreement, all notices (except for routine business communications, e.g., scheduling of meetings or calls; requests for information; status reports, etc.) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Systems X shall be addressed to the Director of Client Services, with a copy to the Legal Department, and sent to Systems X Corporation, 50801 East Russell Schmidt Blvd., Chesterfield, Michigan 48051. Except as otherwise specified in a work order, notices to Customer shall be addressed to Customer’s signatory to the work order and sent to Customer’s principal place of business.
Suppose any provision of the services agreement is held by a court of competent jurisdiction contrary to law. In that case, the provision will be deemed null and void, and the remaining provisions of this services agreement will remain in effect.
Systems X may use the services of subcontractors for the performance or provision of any services or work product under any work order, provided that Systems X remains responsible for the (a) compliance by any such subcontractor with the terms of this services agreement; and (b) the overall performance of the services.
12.14. Counterparts; Electronic Signatures
Any work order may be executed and delivered in counterparts by facsimile, emailed PDF, or electronic signature through a service provider designated by Systems X, each of which will be deemed an original and all of which together will constitute the same instrument and, notwithstanding the date of execution, shall be considered to be effective as of the effective date (unless such document expressly provides otherwise).