Advertiser MSA
Ringlab Advertiser Master Service Agreement
This Master Service Agreement, along with any Insertion Orders (IOs) attached or executed under it (collectively referred to as the “Agreement”), is effective as of the start date of any active Insertion Order (IO) (the “Effective Date”) and is entered into by and between Ringlab Media, LLC (“Ringlab”) and LEGAL ENTITY NAME AS SPECIFIED IN THE IO (“Client”). Ringlab and the Client may be referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, Ringlab is in the business of generating marketing leads and providing marketing services to its Clients;
WHEREAS, Client desires to engage Ringlab to perform Services (as defined in Section 1) for it in accordance with the terms and conditions of this Agreement (including one or more Insertion Order (IO’s), each of which, upon full execution by the Parties, shall be incorporated into this Agreement by this reference);
WHEREAS, Ringlab agrees to perform the Services as described in this Agreement and any Insertion Order (IO’s) entered into by the Parties;
NOW, THEREFORE, in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
1. Select Definitions.
Capitalized terms used in this Agreement but not otherwise defined herein have the meanings set forth below.
1. 1. A “Call” shall mean and refer to a situation where a caller, by his or her own initiative, is connected to a dedicated phone number for Ringlab and/or Client (as set forth in the Insertion Order (IO)) and ultimately
terminated with Client that meets the minimum duration and/or any other requirements as set forth in the Insertion Order (IO).
1.2. “Claim” means any demand, claim, regulatory action, proceeding or lawsuit, regardless of the cause or alleged cause, whether the allegations are groundless, fraudulent, false, or lack merit, and the theory of
recovery.
1.3. “Creative” shall mean and include materials provided by Client for use by Ringlab in generating Calls, such as scripts or advertising content.
1.4. “Intellectual Property” means any trade name, domain name, logo, trade dress, trademark, service mark, patent, copyright, trade secret, right of privacy, right of publicity or other intellectual property right.
1.5. “Law” means any applicable international, foreign, or domestic law (whether federal, state or local) including any treaty, statute, or common law, judicial decision, order, rule, regulation or ordinance (or equivalent
in foreign countries).
1.6. “Services” means the services to be performed by Ringlab for the benefit of Client as set forth and described in this Agreement and such Insertion Order (IO), if any, as may be issued from time to time, together
with all other services incidental to such services.
1.7. “Insertion Order (IO)” means a written project order, executed by both Ringlab and Client , specifying services to be performed by Ringlab under this Agreement.
2. Provision of Services.
2.1. Services. Ringlab will provide Services, which may include generating and/or providing Calls to Client , pursuant to the terms of the Insertion Order (IO). All Services to be provided by Ringlab to Client shall be on a non-exclusive basis. The Parties agree that, as between the parties, Ringlab shall be the sole arbiter in determining Call times, as well as in determining the fees owed to Ringlab, as set forth in the Insertion Order (IO).
2.2. Insertion Order (IO). The Services, including Calls, will be provided on a per-campaign basis. For each campaign, the Parties will execute a separate Insertion Order (IO), which will outline all fees, budgets, start dates, and other campaign-specific terms. In the event of any conflict between the terms of this Agreement and the Insertion Order (IO), the terms of the Insertion Order (IO) will govern matters specific to the associated campaign, while this Agreement will govern all other matters.
2.3. Subcontractors. Client acknowledges and agrees that Ringlab may engage subcontractors, publishers, and/or affiliates in the performance of the Services. Ringlab assumes all liability for and will indemnify and hold harmless Client against the acts and/or omissions of any subcontractor, publisher, or affiliate providing Services to Ringlab, and all references to Ringlab herein shall be interpreted to mean and include such third parties.
2.4. Tracking. Both parties (Ringlab and Client) are responsible for ensuring that all Calls are routed through the dedicated phone number assigned to Ringlab for the purpose of tracking Calls and associated fees.
2.5. Audit Rights. Ringlab may, at its own expense, on prior notice, inspect and audit Client’s records with respect to matters covered by this Agreement. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two (2) years after the termination or expiration of this Agreement.
3. Creative.
3.1. Ringlab Media shall provide the Client upon with all creatives for approval prior to the start of the campaign. The Client shall have the right to approve or reject any creative upon request before it goes live,
ensuring that all materials meet the Client ‘s standards and expectations.
3.2. Client acknowledges that Ringlab will not be held liable for the performance, effectiveness, or perceived quality of the creative materials, and any dissatisfaction with the creative work shall not constitute grounds
for claims against Ringlab.
3.3. No Assignment or Transfer of Intellectual Property. Neither Party will acquire any ownership interest in the other’s Intellectual Property.
4. Term & Termination.
4.1. Term. The term of this Agreement shall commence on the Effective Date and shall remain in effect until the termination of all active Insertion Orders (IOs) (the “Term“). Upon termination of the final active IO, this
Agreement shall immediately terminate. The termination of individual IOs shall not terminate this Agreement as a whole; the Agreement will remain in effect until all active IOs have been terminated.
4.2. Termination. This Agreement and/or any Insertion Order (IO) may be terminated as follows:
4.2.1. Ringlab may terminate this Agreement or any active Insertion Orders (IOs) at any time, for any reason, with written notice to the Client. Such notice may be given via email or other written communication.
The Client must provide Ringlab with at least sixty (60) days’ prior written notice, including via email, to terminate this Agreement or any active Insertion Orders (IOs). The termination will take effect at the
end of the 60-day notice period, unless both Parties agree otherwise in writing.
4.2.2. Either Party may terminate this Agreement if the other Party materially breaches any of its obligations, by providing prior written notice that includes the grounds for termination. The Party receiving the
notice will have one to three (1-3) business days to remedy the material breach. If the breach is not resolved within this period, the Agreement will terminate. However, issuing the termination notice does not
waive any rights to damages or other remedies the notifying Party may have due to the breach. If the breach involves a violation of state, federal, or applicable international laws, termination will be
immediate.
4.2.3. By either Party immediately upon written notice if the other Party violates applicable Law.
4.2.4. By mutual written agreement of the Parties.
4.2.5. The rights and obligations in Sections 3.4, 6-8, and 10-14 to this Agreement, in addition to any outstanding payment obligations of Client as of the termination date, shall survive termination.
5. Legal Compliance. While the Services are anticipated to result primarily in inbound Calls to be forwarded/supplied to Client, each Party agrees to abide by and be in compliance with all applicable Laws, including without
limitation, the Federal Trade Commission Act (the “FTC Act”), the FTC’s Endorsement Guides, the Telephone Consumer Protection Act (the “TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Telemarketing Sales Rule (“TSR”).
6. Fees and Payment. The terms of payment are as follows:
6.1. Fees. As consideration for the performance of Services and provision of the Calls, Client shall pay Ringlab the fees set forth in the applicable Insertion Order (IO). In the event that this Agreement or any
applicable Insertion Order (IO) is terminated prior to Ringlab’s full performance of Services, an amount consistent with the Services rendered and Calls that have been received by Client shall be paid.
Notwithstanding the foregoing, all amounts that are due for any Calls shall be due and payable by Client. All fees are due and payable in U.S. Dollars. Such payments to Ringlab shall be non-refundable.
6.2. Payment Terms. Payment Terms will be specified in the applicable Insertion Order (IO). In the event Client does not pay Ringlab any undisputed amounts as set forth in this Section and pursuant to due date and
other terms in the applicable Insertion Order (IO), such payment shall be considered past due and shall accrue interest at the rate of the lesser of two percent (2%) per month, or the maximum rate permitted by
law, until paid in full.
6.3. Taxes. Client is responsible for and will pay any applicable sales, use or other similar tax due as a result of delivery of the Services, excluding any tax due on the income of Ringlab.
6.4. Disputes. Either Party shall provide prompt written notice of any billing disputes within thirty (30) days after the Services or Call(s) in dispute, or the fees assessed for such Services or Call(s) shall be deemed to be correct and binding. Parties will engage in a resolution period of no more than fourteen (14) days thereafter, with Ringlab having the final decision in the event such resolution cannot be reached.
7. Representations and Warranties; Disclaimers.
7.1. Mutual. Each Party represents and warrants that: (i) it has full power and authority, and has taken all actions necessary to execute and delivery this Agreement and it is an entity, validly organized and existing and
in good standing under the laws of its state (or country) of formation and is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the
assets or properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary; (ii) its making and performance of this Agreement does not and will not violate the rights of any third party or any law or regulation applicable to it, or any other agreement to which it is a party or by which it is bound; (iii) this Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms hereof; (iv) all approvals, authorizations, licenses or other actions by, or filings with, any governmental authority or other person or entity necessary for the validity or enforceability of its obligations under this Agreement have been or will be obtained and it is in possession of all franchises, grants, authorizations, licenses, registrations, permits, easements, consents, waivers, qualifications, certificates, orders and approvals, necessary to own, lease and operate its assets and properties and to carry on its business as it is now being
conducted.
7.2. By Ringlab. Ringlab represents and warrants that: (i) it has full and complete authority to provide the Services and Calls, (ii) all Services shall be performed by competent personnel with appropriate skills and
experience in a professional and workmanlike manner and in accordance with the applicable Insertion Order (IO), generally accepted industry and legal standards and all Laws.
7.3. Client Representations and Warranties. Client represents and warrants that its use of the Calls will comply with all applicable laws and regulations and align with standard industry practices. Client is authorized to
acquire the Calls, and by executing this Agreement, it does not breach any other agreement to which it is a party or is bound. Client further represents and warrants that: (i) all Call data provided by Ringlab to Client pursuant to this Agreement shall be used solely for legal purposes and in accordance with the Client’s privacy policy, which must be clearly and conspicuously disclosed to consumers, providing adequate notice, disclosure, and choices regarding the collection, use, and disclosure of consumer information; (ii) Client fulfills all commitments made to consumers in a timely manner, complying with all applicable laws, rules, and regulations; (iii) the pricing for the Client’s products or services is within a reasonable fair market value; (iv) Client follows the refund/cancellation policies stated on its website or otherwise communicated to consumers; (v) the provision of Creative by Client shall not infringe upon or misappropriate any intellectual property rights belonging to a third party; and (vi) the Advertiser’s customer support practices are reasonable and effective. If applicable, any agency or broker executing this Agreement on behalf of Client represents and warrants that it has the authority to bind Client to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement. Nothing herein will release Client from any obligation or liability, and Ringlab may look to Client for the performance of all obligations under this Agreement.
7.4. Data Ownership. Ringlab owns all rights, title, and interest in any user data collected and derived through the activities of Client pursuant to this Agreement. Any data derived by data mining tools embedded in links by Ringlab shall be the sole property of Ringlab. If Ringlab shares such data with Client to track or help optimize the quality of Calls generated by the Publisher, Client agrees that this data will be used solely
for the purposes for which it is provided and will not be shared with any other third party or entity without the written approval of Ringlab. Additionally, Client acknowledges that all non-public information, data, and
reports received from Ringlab, including all personal information about any person who makes a Call delivered from Ringlab as part of the Services, are proprietary to and owned by Ringlab or its Publisher.
Client will maintain appropriate physical, technical, and organizational measures to protect all non-public personal information, sales, registration, or data provided by or about a Call against accidental loss or unauthorized access, use, disclosure, alteration, or destruction. Client will notify Ringlab immediately in writing of any security breach regarding such data.
7.5 Disclaimers. THE SERVICES PROVIDED BY RINGLAB, THE USE OF THE SERVICES, AND THE RESULTS OF SUCH USE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, RINGLAB MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. RINGLAB DOES NOT WARRANT OR GUARANTEE A BALANCED DELIVERY SCHEDULE, ACTION QUALITY, THE LEGALITY OF ANY CAMPAIGN, CREATIVE OR CUSTOM CREATIVE, CAMPAIGN PERFORMANCE, CONVERSION RATES, RESPONSE RATES, ABILITY TO CONVERT ANY CALLS INTO SALES OR ACHIEVEMENT OF ANY OTHER Client BUSINESS GOAL(S). RINGLAB WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. RINGLAB MAKES NO WARRANTIES OR GUARANTEES WITH RESPECT TO THE DELIVERABILITY OR PERFORMANCE OF CALLS TO Client OR ITS DESIGNATED SERVICE PROVIDERS. RINGLAB DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR APPLICABLE DELIVERABLES WILL BE ERROR FREE.
8. Indemnification.
8.1. Mutual. Each Party (“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, its parent, subsidiaries, and affiliates, and its and their respective employees, agents, officers, directors, managers, and their respective successors and assigns (“Indemnified Party”) harmless from and against any and all third-party Claims and all resulting damages, liabilities, obligations, costs, and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses“) arising out of or resulting from: (i) any breach by such Party of any representation, warranty, covenant, or obligation contained in this Agreement, (ii) violation of any Laws or regulations, including without limitation, violation of the TCPA, or other consumer protection laws and regulations, or (iii) negligence or willful misconduct.
8.2. By Client. Without limiting the foregoing, Client acknowledges that it is responsible to indemnify Ringlab and its employees, agents, officers, directors, and managers, against any Losses arising from (i) Client ’s use of any Calls it receives, (ii) the use of any Creative that Client furnishes or approves for inclusion in advertising or scripts used in generating or conducting Calls, (iii) the execution of any campaign in accordance with instructions from Client, (iv) any dealings Client may have with a person following interaction with that person in a Call, and/or (v) any injury to persons or property or other harm arising from the of any products or services offered by Client.
8.3. Procedure. The Indemnifying Party shall give the Indemnified Party prompt notice of any Claim for indemnification, and the Indemnifying Party shall have the right to control the defense; provided that no settlement affecting the rights of the Indemnified Party (other than payment of money covered by the Indemnifying Party) shall be entered into without the consent of the Indemnified Party, which consent will not be unreasonably withheld. The Indemnified Party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Indemnifying Party hereunder.
9. Publicity. Neither Party will, without the other Party’s prior written consent, use the name or Intellectual Property of the other Party for any publicity purposes; provided, for avoidance of doubt, Ringlab and its subcontractors shall have the right to use the name and Intellectual Property of Client as part of any advertising, call center script and/or transfer authorization language, as applicable, during the Term of this Agreement and any applicable Insertion Order (IO) as may be necessary for provision of the contemplated Services.
10. Limitation of Liability.
10.1. EXCLUSIVE OF THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS, DAMAGES THAT RESULT FROM A BREACH OF CONFIDENTIALITY OR COMPLIANCE OBLIGATIONS, OR INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD BY A PARTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR SPECIAL DAMAGES SUCH AS, BY WAY OF EXAMPLE AND NOT LIMITATION, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES. EXCLUSIVE OF THE PARTIES PAYMENT OBLIGATIONS, RESPECTIVE INDEMNIFICATION OBLIGATIONS, DAMAGES THAT RESULT FROM A BREACH OF CONFIDENTIALITY OR COMPLIANCE OBLIGATIONS, OR INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD BY A PARTY, EACH PARTY’S TOTAL LIABILITY FOR ANY OR ALL LOSSES OR INJURIES FROM ITS ACTS OR OMISSIONS UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE AMOUNT PAID OWED BY CLIENT TO RINGLAB UNDER THIS AGREEMENT FOR THE APPLICABLE INSERTION ORDER (IO). THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. RINGLAB SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF ITS SUBCONTRACTORS OR MARKETING PARTNERS. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THEM. THE CALLS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
10.2. Except as provided for elsewhere in this Agreement, in no event shall either Party request or bring any action relating to the payment of any monies more than one (1) year after the corresponding Services have been rendered.
11. Confidentiality; Rights in Data.
11.1. Confidential Information. Each Party may receive from the other Party non-public information that relates to the other Party’s business, research, development, or trade secrets, including but not limited to the Call data, other data, products, customers, suppliers, affiliates, third party contractors and sub-contractors, mailing lists, and marketing plans (“Confidential Information”). Confidential Information shall also include the terms of this Agreement; including, but not limited to, fees. Confidential Information shall not include, information of the other Party which (a) the receiving party rightfully possessed before it received such information from the other party; (b) subsequently becomes publicly available through no fault of the receiving party; (c) is subsequently furnished to the receiving party by a third party without restrictions on disclosure; or (d) is required to be disclosed by law, provided that the receiving party will use reasonable efforts to notify the other party prior to disclosure.
11.2. Non-Disclosure. Each Party agrees to use at least the same degree of care, but not less than reasonable care, to prevent disclosing to other persons the Confidential Information of the other Party. Each Party further agrees not to disclose or permit any other person or entity access to the other Party’s Confidential Information, except such disclosure or access shall be permitted to an employee, agent, representative, sub-publisher, or independent contractor of such Party requiring access in order to perform his or her employment or services as they relate to the Call data and any other data or Confidential Information provided herein. A Party shall immediately notify the other Party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information by any person or entity other than those authorized by the Agreement. Upon the expiration or termination of this Agreement, each Party shall, upon written request of the other Party, return or destroy all Confidential Information of the other Party, other than such information which the receiving Party is required by law to maintain. In the case of destruction, the receiving Party shall certify such destruction to the disclosing party within thirty (30) days following request for such certification. Both Parties acknowledge that, if a Party breaches (or attempts or threatens to breach) its obligations under this Section, the non-breaching Party may suffer irreparable harm. Accordingly, the Parties agree that the non-breaching Party shall be entitled to seek injunctive relief against the breaching Party, its officers or employees and such other rights and remedies to which the non- breaching Party may be entitled to at law, in equity or under this Agreement for any violation of this Section.
11.3. Consumer Personal Information. For avoidance of doubt, all personal information about any person who makes a Call delivered to Client pursuant to any Insertion Order (IO) shall be, as between the Parties
hereto (and any subcontractors of Ringlab) solely the property of Client, and neither Ringlab nor any of its subcontractors will use any such personal information for any purpose other than to deliver the Services to Client as contemplated herein. To the extent Ringlab or any subcontractor(s) may have access to any such personal information, they do so solely as “service providers” within the meaning of the California Consumer Privacy Act, and they shall (a) use appropriate physical, technical and organizational measures to protect such personal information against accidental loss or unauthorized access, use, disclosure, alteration, or destruction, (b) notify Client promptly in writing of any security breach regarding such personal information, and (c) cooperate reasonably with Client in complying with any requests from consumers for disclosure, correction and/or deletion of such personal information. In the case of campaigns involving outbound Calls, subcontractors may use lists of leads which the subcontractors retain the right to use for purposes beyond generating Calls for Client hereunder; Client will be advised of this situation, when applicable, in the Insertion Order (IO) for any such campaigns.
This Section 11 shall survive termination and/or expiration of this Agreement.
12. Non-Circumvention. During the Term of this Agreement, it is expressly agreed that non circumvention applies to both the Company and Client and that the identities of any individual or entity and any other third parties discussed, introduced, and/or made available by Ringlab to Client constitute Confidential Information, and Client, or any affiliated or associated entity or individual, shall not, without the prior written consent of Ringlab: (i) directly or indirectly contact, initiate, solicit, negotiate, contract or enter into any business transactions, agreements or undertakings with any such third party identified or introduced by Ringlab; or (ii) seek to by-pass, avoid or circumvent Ringlab from business opportunity by utilizing any Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information. The Parties mutually acknowledge and agree that any violation of this Section 12 would result in irreparable harm to Ringlab that would be very hard to measure. Accordingly, in addition to any other remedies that may be available to Ringlab, violation of this Section 12 shall entitle the Ringlab to the following relief: (a) injunctive relief to halt any actual or threatened breach without need for further proof of harm or posting of any bond. This Section 12 shall survive termination and/or expiration of this Agreement for any reason.
13. Relationship of the Parties. The Parties are independent contractors to one another, and nothing contained in this Agreement shall be deemed or interpreted to constitute the relationship between the Parties as a legal partnership, agency, joint venture, or any other relationship in which either Party is responsible for or shall incur liability to third parties as a result of the actions or omissions of the other Party. Neither Party is authorized to enter into any agreement with a third-party that binds the other Party.
14. Miscellaneous.
14.1. Necessary Rights. Each Party represents and warrants that it has all necessary permits, licenses, and clearances to enter into and perform its obligations under this Agreement, and that its undersigned representative is authorized to enter into and bind the Party to this Agreement.
14.2. Notices. Any notices to be given hereunder to any either Party, including any notice of a change of address, shall be in writing and shall be deemed validly given if: (a) delivered personally; (b) sent by overnight or second day express delivery service; (c) sent by registered or certified mail, postage prepaid, return receipt requested; and addressed to such Party at the address indicated in the most recent Insertion Order (IO) or at such other address as a Party may indicate in a written notice to the other Party; or (d) sent by electronic email with confirmed receipt from the recipient party. Notice shall be deemed given as of the date received.
14.3. Assignment and Binding Effect. Neither Party may assign its rights and obligations under this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Each of the covenants, terms, provisions, and agreements contained in this Agreement shall be binding upon, and inure to the benefit of, the Parties hereto and, to the extent permitted hereunder, their respective heirs, legal representatives, transferees, successors, and assigns.
14.4. Amendment or Waiver. No amendment of this Agreement shall be valid unless it is in writing and signed by both Parties. No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the Party making the waiver. Any waiver of a breach or observance of any provision of this Agreement shall not be construed as a waiver of any subsequent breach.
14.5. Force Majeure. Neither Party shall be responsible for any failure to perform (except for payment obligations) due to unforeseen circumstances or to causes beyond its control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, earthquakes, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials or failures of telecommunications or electrical power supplies. A Party whose performance is affected by a force majeure event shall be excused from such performance to the extent required by the force majeure event so long as such Party takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed. Both Parties shall use all reasonable efforts to overcome or work around the force majeure event as soon as reasonably practicable. A force majeure event may not include the failure to pay monies to the other Party.
14.6. Governing Law; Venue and Jury Trial Waiver. This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by and construed in accordance with the laws of the State of Arizona, with venue in Maricopa County. In the event of any dispute arising out of or relating to this Agreement, the parties agree to first attempt to resolve the dispute through mediation. The mediation shall be conducted virtually via a Zoom video conference, or another mutually agreed-upon platform, within 30 days of the request for mediation. The parties shall share the costs of mediation equally.
If the dispute is not resolved through mediation, the parties agree to submit the dispute to binding arbitration. The arbitration shall be conducted virtually via Zoom, in accordance with the rules of [specific arbitration association or rules, e.g., American Arbitration Association (AAA)] applicable to the dispute. The arbitration shall be held within 90 days of the conclusion of mediation. The arbitrator’s decision shall be final and binding, and judgment on the award may be entered in any court having jurisdiction. The costs of arbitration, including the fees of the arbitrator, shall be shared equally by the parties, unless the arbitrator decides otherwise.
Any actions to enforce the arbitration award or any other actions under this Agreement shall be brought in a federal or state court of competent jurisdiction located in Maricopa County, Arizona.
14.7. Attorneys’ Fees. In the event of any action at law or equity to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, court costs and collection costs in addition to any other relief to which such Party may be entitled.
14.8. Headings. The paragraph headings contained in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement.
14.9. Severability. If any provision of this Agreement shall be determined by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, which shall be construed as if such invalid or unenforceable provision had never been a part of this Agreement but in a manner so as to carry out as nearly as possible the Parties’ original intent.
14.10. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. No promises or representations in connection herewith shall be binding upon either Party, nor shall this Agreement be modified in any manner except by amendment in writing executed by the Parties hereto. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument
IN WITNESS WHEREOF, the Parties have executed this Agreement at the date of mutual execution of an associated Insertion Order (IO), constituting a legally binding and enforceable agreement between Ringlab and Client.
THIS AGREEMENT (AS MAY BE AMENDED FROM TIME-TO-TIME)
IS INCORPORATED INTO ALL APPLICABLE INSERTION ORDERS (IO’s)