9.1 Entire Agreement. The parties have incorporated all representations, warranties, covenants, commitments, and understandings on which they have relied in entering into this Agreement. This Agreement, with the attachments, (a) constitutes the entire agreement and understanding between the parties with regard to the matters with which it deals, and there are no promises, representations, conditions, provisions, or terms related thereto other than those set forth in this Agreement, and (b) supersedes all previous undertakings, agreements, and representations between the parties, written or oral, with regard to the matters with which it deals. No course of dealing between the parties, no usage of trade, and no outside evidence of any nature shall be used to modify, interpret or supplement any provision of this Agreement.
9.2 Assignment. The benefits and obligations of the parties under this Agreement are personal in nature. This Agreement shall not be assigned without the prior written approval of the other, with the exception that StratusLIVE may assign this Agreement or any of its rights or obligations hereunder, to its Affiliates or to any purchaser of, or other successor to, substantially all the business and assets of StratusLIVE. In addition, StratusLIVE may assign the right to receive payments hereunder to any party. This Agreement shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
9.3 Severability. In the event that a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable for any reason, such provision or part thereof shall be considered separate from the remaining provisions of this Agreement, which shall remain in full force and effect. Such invalid or unenforceable provision shall be deemed revised to effect, to the fullest extent permitted by law, the intent of the parties as set forth therein.
9.4 Waiver. Any failure of either party to insist upon the performance of a provision of this Agreement shall not constitute a waiver of any other right of either party that the party may have under this Agreement. Any such waiver can only be made in a writing signed by the party against whom enforcement of such waiver is sought.
9.5 Notice. Any notice required or permitted pursuant to this Agreement or any SOW shall be in writing and shall be either (a) hand-delivered, (b) sent by certified mail, return receipt requested, postage pre-paid, (c) sent by a recognized over-night courier service, fee pre-paid, or (d) or sent by facsimile (with the original sent by U.S. mail, postage pre-paid) provided that confirmation of receipt of the facsimile is obtained by the sender. All notices shall be effective upon delivery to the intended recipient at the appropriate address or facsimile number in accordance with this Section 9.5. Each party may change its address or facsimile number for receipt of notices by giving written notice thereof in accordance with this Section 9.5 to the other party. Subject to the foregoing, the addresses and facsimile numbers to which notices may be given under this Agreement are included on the Order Form.
9.6 No Partnership or Joint Venture. The parties shall be independent contractors. Nothing herein shall be construed as creating a relationship of partnership, joint venture, agency, or employment, and neither party shall have the power to obligate or bind the other in any manner whatsoever.
9.7 Subcontractors. StratusLIVE may engage subcontractors to deliver and install the StratusLIVE Service.
9.8 Controlling Law; Venue; Legal Expenses.
- The interpretation and enforcement of this Agreement shall be governed by the laws of the Commonwealth of Virginia, as it applies to a contract executed, delivered and performed solely in such state, and without regard to any conflict of law provisions.
- Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against either of the parties only in the courts of the Commonwealth of Virginia, City of Norfolk or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Virginia, Norfolk Division, and each of the parties consent to the exclusive jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and hereby irrevocably waives any objection to such jurisdiction and venue. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
- In the event any litigation is commenced by either StratusLIVE or Subscriber against the other, the prevailing party will be entitled to recover its reasonable expenses incurred in such litigation, including reasonable attorneys’ fees, from the non-prevailing party.
- Both parties agree to comply fully with all relevant laws, including the export laws and regulations relating to use of the Service in its place of business, regardless of country or jurisdiction. However, Subscriber’s use of the data supplied by the Service is at Subscriber’s own risk. Without limiting the foregoing, Subscriber will be solely responsible for usage of contact information (e.g. names, phone and facsimile numbers, e-mail addresses and physical addresses) in compliance with relevant laws and regulations. Subscriber may not: (I) send spam or unsolicited messages in violation of relevant laws, including concerning privacy, data protection, telemarketing, the CAN-SPAM Act or other commercial email laws, wireless domain suppression lists, and “Do-Not-Call” lists; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate third party privacy rights; or (iii) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. StratusLIVE also reserves the right to use or disclose information provided if required by law or if StratusLIVE reasonably believes that use or disclosure is necessary to protect StratusLIVE’s’ rights and/or to comply with a judicial proceeding, court order, or legal process.
- Except for actions for non-payment, breach of confidentiality or indemnities under Section 6, 7 and 8, no action, regardless of form, arising out of or related to this Agreement may be brought by either party more than 2 years after the accrual of the cause of action.
9.9 Publicity. Subscriber agrees (a) to allow their name, likeness and any relevant information regarding their relationship as a client of StratusLIVE, to appear in any and all StratusLIVE marketing materials and/or media including but not limited to, websites, podcasts, brochures, case studies, etc., and (b) to serve as a formal client reference for StratusLIVE, from the initial signing of this Agreement following the selection process, throughout the completion of the project and thereafter, provided Subscriber remains a client in good standing.