SECTION 13 – GENERAL.
13.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement, together with all rights and obligations hereunder, to any successor in interest upon written notice to the non-assigning Party in the event of a sale of all or substantially all of a Party’s voting rights or assets. Any attempted or purported assignment without such required consent shall be void and a material breach of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties hereto.
13.2 Survival. The obligations of the Parties set forth in Sections 3, 4, 5, 6, 7, 9, 11 and 13 shall survive termination or expiration of this Agreement.
13.3 Choice of Law; Jurisdiction. This Agreement, all SOWs issued pursuant thereto, and all matters arising out of or relating to this Agreement or any SOW, are governed by, and shall be construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any suit, action, or proceeding arising out of or relating to this Agreement or any SOW issued pursuant thereto shall be instituted in the federal court or state court located in Norfolk County in the Commonwealth of Massachusetts. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13.4 Attorneys’ Fees and Costs. If any Party institutes any suit, action, or proceeding (“Action”) against the other Party arising out of or relating to this Agreement or any SOW executed pursuant thereto, including, but not limited to, contract, equity, statutory, and tort claims, the prevailing Party in such Action shall be entitled to receive, and the non-prevailing Party shall pay, in addition to all other damages or remedies to which the prevailing Party may be entitled, the costs incurred by the prevailing Party in conducting the Action, including reasonable attorneys’ fees and court costs. This also includes fees relating to costs of collection of unpaid invoices.
13.5 No Solicitation. During the term of this Agreement and for twelve (12) months thereafter, neither Party shall, directly or indirectly, for such Party’s benefit or on behalf of any other person or business entity, solicit, recruit, entice or persuade any employee, former employee or contractor of the other Party who had contact with the first Party or is or has been, directly or indirectly, involved in providing Services to Client hereunder. An employee or contractor of a Party shall be deemed covered by this Section while so employed or under contract and for a period of twelve (12) months thereafter. Recognizing that compensatory monetary damages resulting from a breach of this Section would be difficult to prove, the Parties agree that such breach will render the breaching Party liable to the non-breaching Party for liquidated damages in the amount of two hundred fifty thousand dollars ($250,000.00) for each such individual.
13.6 Force Majeure. Neither Client nor Eighty8networks shall be liable to the other for any failure to fully or partially perform or for interruption of Services resulting from acts of God, labor strike, civil disorder, terrorism, disaster, interruption of transportation services, governmental actions or regulation, other emergency making it unsafe, commercially unreasonable or illegal to perform under the Agreement, or any other cause beyond the reasonable control of the Party affected. In such event, the time for performance shall be extended for any period during which performance is so prevented.
13.7 Independent Contractor. Eighty8networks is an independent contractor of Client and nothing herein shall be construed to establish the Parties as partners, joint ventures, or agents of each other in any way whatsoever. Neither Party shall have the authority to make any warranties or representations, or assume or create any obligations, on the other’s behalf. Each Party shall be solely responsible for the actions of its respective employees, agents and representatives.
13.8 Amendment; Waiver. Neither this Agreement nor any SOW may be modified, waived, supplemented or amended except in a writing duly signed by authorized representatives of each Party. A waiver with respect to one event shall not be construed as a continuing waiver with respect to the subject matter thereof, or as a bar to or waiver of any right or remedy as to subsequent events.
13.9 Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be reformed in a manner that reflects the intentions of the Parties without further action by the Parties to the extent necessary to make such provision valid and enforceable, and no other provisions hereof shall be affected or impaired thereby.
13.10 Notices. Any notices to be given hereunder to a Party shall be delivered in person, by email or by a nationally recognized overnight courier to such Party’s address given below. Each Party may change its address and representative for notice by giving notice of such change in the manner provided in this Section 13.10. Notice shall be deemed given when delivered to or refused at the address above or such other address as a Party may give notice of from time to time.
13.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A manual signature on this Agreement, which image is transmitted electronically, will constitute an original signature for all purposes. The delivery of this Agreement, including signature pages, by any electronic means intended to preserve the original graphic and pictorial appearance of a document, including sending in portable document format (“PDF”), will have the same effect as physical delivery of the paper document bearing the original signature. Further, the parties agree that this Agreement and any Order Form may be signed by means of an electronic signature, provided that such signature and any related signing process comply fully with all applicable laws (including without limitation the U.S. federal ESIGN Act and any applicable state laws).