Terms and Conditions

Chelsea and Rachel Co Terms and Conditions


Thank you for working with Chelsea and Rachel Co! 

To be eligible to use Chelsea and Rachel Co’s service (as defined below), you must review and accept these Terms of Service (this “Agreement” or these “Terms”) by clicking on the “Buy Now” or “Checkout” button or other mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE TO THESE TERMS AND CONDITIONS WITH CHELSEA AND RACHEL CO. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT THE TERMS AND CONDITIONS” BUTTON AND YOU SHOULD NOT USE THIS SERVICE.

In this Agreement, “you,” “your”, “Client” and “Customer” will refer to you. If you are electing to purchase services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Chelsea and Rachel Co. that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms “you”, “your”, “Client” and “Customer” will refer to that entity or organization).

MASTER SERVICES AGREEMENT

 

THIS AGREEMENT DEFINES THE TERMS AND CONDITIONS OF CHELSEA AND RACHEL CO.’S RENDERING OF ANY SERVICES TO CLIENT. THE SPECIFICS OF EACH PROJECT WILL BE DEFINED IN AN ORDER FORM (“ORDER”) WHICH IS COLLECTIVELY INCORPORATED INTO THIS AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND THE TERMS OF A ORDER, THE TERMS OF SUCH ORDER SHALL GOVERN CONCERNING THE SERVICES DESCRIBED THERETO.

  1. SERVICES

    1.1 Services.  Chelsea and Rachel Co. will provide Client with the services (“Services”) specified in the Order, defined below.  Subject to the terms of this agreement (“Agreement”), Chelsea and Rachel Co. grants to Client a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the Services identified in any and all Order executed under this Agreement during the Term of Service (as defined in section 10.2). This Agreement consists of all of the terms and conditions set forth in this Agreement and the related Order, which define the Services to be provided hereunder and are executed by the Parties from time to time, and provides the terms and conditions applicable to all Orders.  Any modification of this Agreement will apply only to that Order in which the modification is set forth.  All capitalized terms in this Agreement shall have the same meanings ascribed to them in the Order unless otherwise specifically defined herein.  Unless otherwise indicated by Client, Chelsea and Rachel Co. will automatically display a listing or respective client logo on its website which will link back to Client’s website.  This listing or logo will reside within Chelsea and Rachel Co. client list on chelseaandrachel.com.

    1.2 Services Outside of the Order.  Chelsea and Rachel Co. is not responsible for completing tasks, projects, or work beyond the services explicitly listed in an Order. If work is requested by the Client and performed by Chelsea and Rachel Co. outside of the Order, such work will be subject to Chelsea and Rachel Co.’s standard hourly rate.  

    1.3 Cooperation.  Client acknowledges that the Services will be performed in cooperation with Client personnel.  Client will furnish to Chelsea and Rachel Co. (a) descriptions, specifications, materials, content and related metadata (“Content”), data and other information (collectively, “Client Information”), (b) cooperation, technical assistance, resources and support and (c) access to Client’s equipment, systems and networks, all as reasonably necessary or appropriate to perform the Services.  Client hereby grants to Chelsea and Rachel Co. a non-exclusive license to access, use, reproduce, distribute, transmit and display images, graphics and video for Client Information in connection with the Services.  Nothing in this Agreement is intended to grant to Chelsea and Rachel Co. any rights in or to the Client Information (other than those expressly granted herein).

    1.4 Revision Requests.  Unless otherwise provided for in an SOW, the Client may request up to two (2) revisions for any deliverable. All revision requests must be received within 3 (3) business days of being notified that the deliverable is ready for your review. We may deem the work approved if revision requests are not received within three (3) business days. Any revision requests beyond the two (2) revision requests, or after the work has been approved, or deemed approved, shall be subject to additional charges.

    1.5 DELIVERY TIMELINES.  ANY TIMELINES FOR DELIVERY OUTLINED ON CHELSEAANDRACHEL.COM, STATEMENT OF WORK (“SOW”) OR ORDER FORM ARE ESTIMATES ONLY AND NOT A GUARANTEE OF COMPLETION OF SERVICES. TIMELINES MAY DEPEND ON FACTORS BEYOND OUR CONTROL, INCLUDING, BUT NOT LIMITED TO, THE CLIENT’S TIMELY RESPONSE TO ANY REQUESTS AND INQUIRIES, ILLNESS, PANDEMIC, OR OTHER ACTS OF GOD, AND UNEXPECTED ISSUES.

 

  1. SOFTWARE

    2.1 Software.  If Chelsea and Rachel Co. provides Client with any software (which shall be provided, if at all, in object code form), including, if applicable and without limitation, any patch, update or new version thereof (collectively, “Software”), to enable Client and/or Client’s website users (“Users”) to take advantage of the Services, then, subject to all terms and conditions of this Agreement, Chelsea and Rachel Co. grants to Client a nonexclusive, nontransferable (except as expressly provided below) right and license to, as applicable, use or distribute and sublicense such Software to Users without modification solely for personal and non-commercial use in connection with the Services.  Whenever possible, Chelsea and Rachel Co. will provide Client with advance notice of any modifications, upgrades, new versions or other changes in the Software or Services, including cancellation.  Client acknowledges that some Services and Software are provided to Chelsea and Rachel Co. by third parties and Chelsea and Rachel Co. shall have no liability for any modifications, upgrades, new versions or other changes to these Services or Software, including cancellation of Services or Software. 

    2.2 Restrictions.  Except as specifically permitted in this Agreement, Client shall not directly or indirectly (a) use any Confidential Information (as defined in Section 4.1) to create any software that is similar to the Software, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Software (except as expressly permitted under this Agreement), (d) use the Software for the benefit of any third party (e.g., time-share or service bureau arrangement), (e) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software, (f) alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, (g) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction, or (h) permit any third party to engage in any of the foregoing proscribed acts.  Client shall be responsible for any and all breaches of this Agreement by Users.  

    2.3 Username and Password.  Some of the Services require Chelsea and Rachel Co. or its third-party licensors to issue Client a username and password to access such Services.  Client agrees that Client is solely responsible for keeping that password confidential and shall not disclose it to third parties.  Any misuse of the Services requiring access to Chelsea and Rachel Co.’ or its third-party licensors’ servers or the knowledge database resulting from the use of the user name and password shall be considered as attributable to the Client (unless due to the negligence or fraud of Chelsea and Rachel Co. or its third party licensors) and shall be considered as a material breach of this Agreement.  Client will not make any Services available for timesharing with any third party, application service provider or service bureau use. Client will comply with all applicable laws and regulations in use of and access to the data of all Services requiring access to a server other than Client’s server. 

 

  1. PAYMENTS

    3.1 Costs and Expenses. Client will pay Chelsea and Rachel Co. in accordance with the Order.  Chelsea and Rachel Co. may amend its pricing plan and hourly rate at any time by updating the pricing plan on its website located at chelseaandrachel.com (“Site”). Client is responsible for checking the Site for any updates to the applicable pricing plan. Except as specifically provided in this Agreement, each Party is responsible for all costs and expenses incurred in connection with its performance hereunder.

    3.2 Payment Terms.  All fees are due and payable upon purchasing a Service through the Order form. Except as otherwise mutually agreed upon in writing, (a) fees are quoted and payable in United States dollars, and (b) payment obligations are non-cancellable and non-pro ratable for partial months, and fees paid are non-refundable, expect as expressly set forth herein.

    3.3 Late Fees and Collection Costs.  Amounts not received when due shall draw interest at the rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less. In addition, Client shall be liable for all costs and expenses incurred by Chelsea and Rachel Co. to collect past due amounts, including, without limitation, reasonable attorneys’ fees and court costs, and the hourly charge of any Chelsea and Rachel Co. employees engaged in collection activities.  If the Client’s account is more than 5 days past due after Client’s receipt of notice (including email) that payment is due, Chelsea and Rachel Co may restrict or suspend Client’s Service, and the Client may be charged a fee each month, until the account is paid in full.

    3.4 Taxes.  Except for Chelsea and Rachel Co.’s income taxes, Client shall pay, reimburse, and/or hold Chelsea and Rachel Co. harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed because of the performance of the professional services under this Agreement.

 

  1. CLIENT’S RESPONSIBILITIES.

    The client will provide photos, copy (written content needed on web pages), videos (if any), domain, hosting server, temporary credentials (typically includes FTP, SSH, and hosting control panel), and any other account access needed to perform Services. Client agrees to perform all tasks assigned to Client as outlined in any Order or SOW, and to provide all assistance and cooperation to Chelsea and Rachel Co. to complete timely and efficiently the Services. Chelsea and Rachel Co. shall not be deemed in breach of this Agreement, and Order or SOW, or any milestones if Chelsea and Rachel Co. fail to meet its responsibilities and time schedules is caused by Client’s delay or failure to meet its responsibilities and time schedules set forth in any Order or SOW. In the event of any such failure or delay by Client, all of Chelsea and Rachel Co.’s timeframes, milestones, and/or deadlines shall be extended by the product of the number of days of Client’s failure or delay and two (2). Client shall continue to make timely payments to Chelsea and Rachel Co. as outlined in this Agreement and any Order or SOW as if all timeframes, schedules, or deadlines had been completed by Chelsea and Rachel Co.

  1. CONFIDENTIALITY

    5.1 Each Party agrees that all business, technical, financial and other non-public information it obtains from the other Party is and shall be treated as the confidential information of the disclosing Party and/or its licensors (“Confidential Information”). For the sake of clarity, all Software is Confidential Information. Confidential Information shall not include information that:  (a) is previously rightfully known to the receiving Party without restriction, (b) is or hereafter becomes known to the general public, through no act or omission on the part of the receiving Party, (c) is rightfully disclosed to the receiving Party without restriction by a third party, or (d) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.

    5.2 Except as expressly allowed herein, the receiving Party shall not use or disclose the Confidential Information of the disclosing Party except as expressly permitted herein, and shall hold in confidence the Confidential Information using the same degree of care as it holds its own confidential information, but no less than a reasonable degree of care.

    5.3 Upon the expiration or termination of this Agreement, all of the Confidential Information (including, without limitation, any copies or extracts thereof) shall be returned to the disclosing Party, or, at the option of the disclosing Party, destroyed, and the receiving Party shall make no further use of such information.

    5.4 If the receiving Party is required by law, regulation or order of any government, government agency or court, to disclose the Confidential Information of the disclosing Party, the receiving Party shall give written notice thereof to the disclosing Party prior to disclosure of the Confidential Information so as to permit the disclosing Party to intervene and to request protective orders or other confidential treatment therefor.  In addition, either Party may provide a copy of this Agreement and the related Order or SOWs or otherwise disclose their terms in connection with any financing transaction or due diligence inquiry.

    5.5. Injunctive Relief. The Receiving Party acknowledges and agrees that it would be difficult to fully compensate the Disclosing Party for damages resulting from the breach or threatened breach of the foregoing provisions and, accordingly, that the Disclosing Party will be entitled to seek injunctive relief, including without limitation temporary restraining orders, preliminary injunctions and permanent injunctions, to enforce such provisions.  However, this provision concerning injunctive relief will not diminish the Disclosing Party's right to claim and recover damages.

    5.6 The obligations under this section shall survive the termination of this Agreement or any provision thereof.

 

  1. INTELLECTUAL PROPERTY

    6.1 Ownership by Chelsea and Rachel Co.  Chelsea and Rachel Co. and its licensors will own all right, title and interest in and to any and all Inventions (as defined below) and all Intellectual Property Rights (as defined below) appurtenant thereto, that Chelsea and Rachel Co. or its affiliates conceive, reduce to practice, make, develop or acquire in connection with their business generally (before or after the effective date of this Agreement), including, without limitation, the Software, product features, menus and functionality that are not specific to Client (collectively, “Chelsea and Rachel Co. Technology”).  For purposes of this Agreement, “Invention” means any idea, concept, discovery, invention, development, technology, work of authorship, trade secret, software, firmware, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, layout, algorithm, program, code, documentation or other material or information, tangible or intangible, whether or not it may be patented, copyrighted or otherwise protected (including, without limitation, all versions, modifications, enhancements and derivative works thereof); and “Intellectual Property Rights” means any and all patent rights, copyrights, trademarks, service marks, trade names, domain names, trade secrets, sui generis database rights and all other intellectual and industrial property rights of any sort throughout the world (including, without limitation, any applications or registrations therefor).

    6.2 Ownership by Client.  Client and its licensors shall maintain their rights in or to the Client Information and the Intellectual Property Rights appurtenant thereto.  In addition, subject to Chelsea and Rachel Co.’s rights in and to the Chelsea and Rachel Co. Technology and also subject to any rights of its third party licensors, work product made, developed or acquired specifically for the Client in providing Services hereunder (such as the graphical user interface, Client trademarks and encoded Content) (collectively, “Deliverables”) are works made for hire to the extent allowed by law, and Chelsea and Rachel Co. hereby makes and agrees to make all assignments necessary to accomplish the foregoing ownership.  To the extent that the Deliverables incorporate or cannot be reasonably used without using or violating intellectual property rights owned or licensed by Chelsea and Rachel Co. with respect to the Chelsea and Rachel Co. Technology, Chelsea and Rachel Co. hereby grants to Client a nonexclusive right and license to use the Chelsea and Rachel Co. Technology solely in support of Client’s use of the Deliverables during the term of this Agreement.

    6.3 Trademarks.  During the term of this Agreement and subject to all terms and conditions herein, Client grants to Chelsea and Rachel Co. a nonexclusive right and license to use Client trademarks, service marks, trade names and logos, solely in connection with provision of the Services.

    6.4 No Implied Licenses.  Nothing in this Agreement is intended to grant any rights to either Party with respect to any Intellectual Property Right of the other Party, nor shall this Agreement grant either Party any rights in or to the Confidential Information of the other Party, except as expressly set forth herein.

 

  1. WARRANTIES AND DISCLAIMERS

    7.1 Warranties. Each Party represents and warrants to the other Party that (a) it will perform its obligations under this Agreement in a professional and workmanlike manner, (b) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has all requisite power and authority to enter into this Agreement, and (c) it has all necessary power and authority to grant the rights and licenses granted hereunder.  In addition, Client represents and warrants to Chelsea and Rachel Co. that (i) Client Information is not infringing, misappropriated, defamatory, obscene or otherwise violates the privacy or other rights of any third party, and (ii) Content complies with all applicable federal, state and local laws and regulations.

    7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CHELSEA AND RACHEL CO.’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS, AND MAKES NO WARRANTIES TO CLIENT WITH RESPECT TO THE SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT, AND CHELSEA AND RACHEL CO. HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.  CHELSEA AND RACHEL CO. DOES NOT WARRANT THAT THE CHELSEA AND RACHEL CO. TECHNOLOGY, SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED.  SOME SERVICES ARE PROVIDED TO CLIENT THROUGH CHELSEA AND RACHEL CO. BY THIRD PARTY LICENSORS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CHELSEA AND RACHEL CO. EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, LIABILITIES AND CAUSES OF ACTIONS ARISING FROM OR RELATED TO THE SOFTWARE AND SERVICES PROVIDED BY THIRD PARTY LICENSORS.

 

  1. INDEMNIFICATION

    8.1 By Chelsea and Rachel Co.  Chelsea and Rachel Co. agrees to defend, indemnify and hold harmless Client and its officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, arising from any claim or allegation by a third party that the Services (except Services provided by third party licensors) or Chelsea and Rachel Co. Technology infringes or misappropriates a valid United States patent, copyright or trade secret right of such third party.  If any of the Services or Chelsea and Rachel Co. Technology becomes or, in Chelsea and Rachel Co.’s opinion, is likely to become the subject of an injunction, Chelsea and Rachel Co. may, at its option, (a) procure for Client the right to continue using such Service or Chelsea and Rachel Co. Technology, (b) replace or modify such Service or Chelsea and Rachel Co. Technology so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not reasonably available to Chelsea and Rachel Co., then (c) terminate this Agreement in respect of the allegedly infringing Service or Chelsea and Rachel Co. Technology.  The foregoing states the entire liability of Chelsea and Rachel Co. with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights.  The foregoing obligations shall not apply to:  (i) Services or Chelsea and Rachel Co. Technology modified by any party other than Chelsea and Rachel Co., if the alleged infringement relates to such modification, (ii) Services or Deliverables combined or bundled with any non-Chelsea and Rachel Co. products, processes or materials where the alleged infringement relates to such combination, (iii) Services or Chelsea and Rachel Co. Technology created to the specifications of Client, (iv) infringement or misappropriation of any proprietary right in which Client has an interest, Chelsea and Rachel Co. shall have no obligations to indemnify whatsoever.

    8.2 By Client.  Client agrees to defend (with counsel chosen by Chelsea and Rachel Co.), indemnify and hold harmless Chelsea and Rachel Co. and its members, managers, officers, directors, employees and agents from and against any and all third party claims, liabilities, penalties, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court, arising from (a) any claim or allegation by a third party relating to the Client Information, including, without limitation, that the Client Information is infringing, misappropriated, defamatory, obscene or otherwise violates the publicity, privacy or any other right of a third party, or (b) a breach of this Agreement by Client.

 

  1. LIMITATION OF LIABILITY

    NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CHELSEA AND RACHEL CO. SHALL HAVE NO LIABILITY TO CLIENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING, WITHOUT LIMITATION, ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM, AND ANY FAILURE BY ITS LICENSORS TO FULFILL THEIR CONTRACTUAL OBLIGATIONS), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID OR PAYABLE TO CHELSEA AND RACHEL CO. BY CLIENT DURING THE PREVIOUS TWELVE (12) MONTHS OF THIS AGREEMENT, EVEN IF CHELSEA AND RACHEL CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

  1. TERM AND TERMINATION

    10.1 Term. Unless earlier terminated as provided below, this Agreement shall commence on the effective date of the Order and shall continue in effect until the expiration or termination of the Order.  Some Services provided through Chelsea and Rachel Co.’ Licensors maybe subject to early termination.  In such instances, Chelsea and Rachel Co. shall have no liability for the early termination of such Services and Client shall only be responsible for payment for these Services during the time period in which such Services are received.

    10.2 Term of Service. The Term of Service is defined in all associated Order forms or SOWs incorporated herein by reference.

    10.3 Termination for Breach or Bankruptcy. Either Party may terminate this Agreement (a) if the other Party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party, or (b) immediately upon written notice, if the other Party makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party's property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within sixty (60) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

    10.4 Month-To-Month Extension. Should the Client not auto-renew this Agreement and elect to receive service on a month-to-month basis, Chelsea and Rachel Co. will continue to provide service to the Client on a month-to-month basis with a minimum equal to, but not less than, the minimum defined within the SOW.  This new fee only pertains to month-to-month extensions when the Client is outside the term of the Agreement with Chelsea and Rachel Co. 

    10.6 Effect of Termination. Upon any termination or expiration of this Agreement, all rights, obligations and licenses hereunder shall cease, except that:  (a) all obligations that accrued prior to the effective date of termination or expiration and any remedies for breach of this Agreement shall survive any termination or expiration; (b) Client shall promptly return or destroy all Software and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media; (c) Client’s liability to pay for Services performed (and non-cancelable service terms and/or expenses incurred) prior to the termination or expiration date shall not be extinguished, and shall become due and payable on the termination or expiration date; (d) upon request, Chelsea and Rachel Co. shall return to Client all Content provided that Client has paid in full all amounts owed to Chelsea and Rachel Co. (Client acknowledges and agrees that Chelsea and Rachel Co. will delete all Client Content sixty (60) days after termination); and (e) the provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and this Section 10.6 shall survive any termination or expiration of this Agreement.

 

  1. GENERAL PROVISIONS

    This Agreement (including all Orders and SOWs) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the Parties about the subject matter hereof.  No waiver, consent or, except as expressly provided herein, modification of this Agreement (including all Orders and SOWs) shall bind either Party unless in writing and signed by the Party against whom enforcement is sought.  The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.  If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflicts of law provisions.  The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Denver County, Colorado, and both Parties consent to the jurisdiction of such courts with respect to any such action.  In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.  This Agreement and the rights and obligations hereunder are personal to each Party, and may not be subcontracted, delegated, assigned or otherwise transferred, in whole or in part, without the other Party’s prior written consent; provided that either Party may assign this Agreement to a successor to all or substantially all of the assets or business of such Party to which this Agreement relates, whether by merger, sale of stock, sale of assets or other similar transaction.  Any attempt to do otherwise shall be void and of no effect.  This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the Parties.  The Parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either Party as the agent or representative of the other Party, or both Parties as joint venturers or partners for any purpose.

  1. INTERPRETATION.

    The Parties have freely negotiated this Agreement. Both Parties understood in negotiating this Agreement that they were not required to sign it and had the right to request that any of its provisions be changed or deleted. Accordingly, any ambiguities in this Agreement shall not be interpreted against either Party as the drafter of this Agreement.
  2. SEVERABILITY.

    If any term, covenant, condition, or provision in this Agreement is held in whole or in part to be invalid, void, or unenforceable for any reason, the remainder of that term, covenant, condition, or provision and of the entire Agreement will be severable and continue in effect without being impaired or invalidated in any way.
  3. FORCE MAJEURE.

    Except about payment obligations, either Party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the Party, including, but not limited to default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
  4. NO THIRD-PARTY BENEFIT.

    This Agreement is intended to benefit only the Parties hereto; no other person or entity other than successors in interest and assigns has or shall acquire any rights hereunder.
  5. WAIVER.

    The failure of either Party to enforce at any time any of the provisions of this Agreement, or to exercise any option or right herein provided, or to require at any time performance by the other Party of any provisions hereof, shall in no way be construed to be a waiver of such provision(s), nor in any way to affect the validity of this Agreement or any part thereof, or the right of the Party to enforce every such provision after that.
  6. NOTICES.

    Whenever notice is required or demanded under this Agreement, it shall be in writing and sent by registered mail, electronic email, certified mail, personal delivery, overnight commercial carrier, or other guaranteed delivery to the other Party at the address provided by the other Party. Each Party may change the address by written notice by this paragraph. Notices will be deemed communicated (a) as of the date of delivery if the notice is sent by personal delivery, electronic email, overnight commercial courier, or other guaranteed delivery, or (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.