ADDITIONAL TERMS AND CONDITIONS To QUOTE OFFER for Dedicated Internet Access
These Additional Terms and Conditions were last revised on August 23, 2023.
These Additional Terms and Conditions, together with the fully executed Quote Offer and any Exhibits referenced and incorporated in the Quote Offer, or these Additional Terms and Conditions are incorporated herein as an Annex(es).
1.1 “Annex” shall mean the Quote Offer mutually agreed upon and executed by Provider and Client and these Additional Terms and Conditions all of which are made a part of the Agreement defined herein.
1.2 “Party” and “Parties”. “Party” shall mean either of the identified Client in a specific Client’s fully executed Quote Agreement or Smith Bagley, Inc. as the Provider in a specific Client’s fully executed Quote Agreement when referred to individually. “Parties” shall mean the identified Client in a specific Client’s fully executed Quote Agreement and Smith Bagley, Inc. as the Provider in a specific Client’s fully executed Quote Agreement when referred to collectively.
1.3 “Testing and Closeout Date” shall mean the date that Provider has concluded all testing of services to be provided to Client are working satisfactorily and Provider has completed a Closeout checklist that is signed and dated by Provider and Client.
Client’s Agreement with Provider includes, the fully executed Quote Offer and any Exhibits referenced and incorporated in the Quote Offer and these Additional Terms and Conditions, all of which create the “Agreement” between the Client and Provider as identified in the Quote Offer.
3.1 Provider agrees to provide Client synchronous dedicated Internet access (“DIA”) to Client’s Premises. Provider shall provide the services as described in the Quote Offer and these Additional Terms and Conditions and all attachments incorporated in the Quote Offer and these Additional Terms and Conditions. For purposes of the Agreement, DIA is defined as a predictable and high bandwidth Internet connection that is always on, connects directly to the Provider’s core equipment, is proactively monitored by Provider 24/7/365 to verify uptime and availability, and is dedicated to that Client.
A. Provider’s ongoing monitoring services include the following:
(1) ICMP Testing;
(2) E-Mail Notification of unresponsive equipment;
(3) E-Mail Notification of equipment change status;
(4) Bandwidth monitoring;
(5) /30 IPSubnet; and
(6) Unlimited Data, no metering
B. If requested by Client, Provider shall provide Client monitored testing at no cost for:
(1) Ping test; and
(2) Bandwidth utilization.
4. NONPERFORMANCE – ROOT CAUSE ANAYLSIS AND REMEDIATION.
In the event of Provider’s failure to perform required services or meet agreed upon service levels or other Provider service standards as required under the Agreement, Provider shall perform an analysis of the cause of the service level problem and implement remediation steps as appropriate. Provider shall supply documentation of the analysis and the remediation steps to Client. Client shall have the right to review the analysis and approve the remediation steps, including the schedule, prior to or subsequent to the implementation. For purposes of the Agreement, Provider warrants its network to be equal to a carrier grade network of 99.99%.
5. TERM; RENEWAL TERM.
The Agreement shall remain in effect as indicated on the latest date of any fully executed Quote Offer.A term may be extended by the mutual agreement of the Provider and Client if in writing and signed by both Provider and Client.
A. Client agrees Provider is not responsible for the content of any transmissions using the services, or any other use of the services, by Client, or by any person or entity Client authorizes or otherwise permits to access the services (“User”). Client agrees that it will not permit any User to use the services for illegal purposes, or to interfere with or disrupt other network Users against inappropriate and illegal use of Internet services. Disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and using the network to make unauthorized entry to any other machine accessible via the network. This is more fully described in the Provider’s Acceptable Internet Use Policy and Provider’s Fair Use Policy located at mycelluarone.com, or upon request by Client, which are incorporated herein and made a part of the Agreement, to which Client agrees to comply.
B. To the extent deemed necessary by Client, Client shall implement security procedures necessary to limit access to the services by Client’s authorized users and shall maintain a procedure external to the services for reconstruction of lost or altered files, data or programs.
C. Client shall follow standardized filtering/access control as is customary for a K-12 educational entity as prescribed by New Mexico las and as required as a participant in the Federal ERATE program under FCC/USAC regulations and Children’s Internet Protection Act (CIPA).
D. Provider may suspend services upon notice to Client’s point of contact listed in the Quote Offer based upon evidence of substantial disruption to or illegal use of the network, and may terminate the agreement if the issue is not resolved to the satisfaction of both Parties after two (2) weeks of good faith effort to resolve the matter. Provider is responsible to provide a minimum of forty-eight (48) hours final notification prior to suspension or termination of services. Provider will prorate any billings to client in the event of suspension or termination of services.
E. Client is responsible for establishing designated points of contact to interface with In the event Client permits any User who is not an employee of Client to access the services, Client shall provide all interfaces with such User in connection with the services (except in providing services as specified by Addendum(s)).
F. Client may provide Internet access to the community as provided under:
FCC 10-175, Docket NO. 12-5, GN Docket No. 09-51. SIXTH REPORT AND ORDER Adopted: September 23, 2010, Released September 28, 2010.
[“Changing our rules to permit schools to allow use of E-rate funded services outside of school hours; supporting eligible services to the residential portion of schools that serve students with special circumstances;”
G. Client agrees to comply, and to cause any User to comply, with the United States law with regard to the transmission of technical data, which is exported from the United States using the services.
H. Client understands that Services provided under the Agreement (including Internet use) may require registrations and related administrative reports that are public in nature. Client will be advised as to any public reporting that may be allowed to approve or disapprove as required by New Mexico legal statutes regarding the release of information of a minor, State or Federal employee, in compliance with statutes or State regulations.
I. Client shall have the ability to increase its bandwidth throughout the term of the Agreement contingent on Provider’s ability to provide additional bandwidth. Any increase in bandwidth shall be in writing and signed by both Parties. Client understands that any increase in bandwidth may have a corresponding increase in cost.
J. If Client cancels or terminates services at any time during any Term in effect for any reason, through no fault of Provider, Client’s obligations herein shall continue until the end of the latest term date then in effect. In exception to the aforementioned, Client’s obligations herein may be relieved if Client renegotiates a new service agreement with Provider before the expiration of the then current term . Provider’s remedies shall be consistent with the provisions of New Mexico state procurement statutes.
K. Client understands that Provider has entered into the Agreement on the material fact and reliance that Service Provider will be providing equipment and service to Client at the Client’s Premises. If Client chooses to relocate its Client Premises during the term of the Agreement, or any extended term, Client shall be solely responsible for all costs for the relocation. Further, Client shall give Provider sixty (60) days written notice of its intent to relocate Client’s Premises. Upon receipt of written notice of Client’s intent to relocate Client’s Premises, Provider shall coordinate with Client for the relocation of Client’s Premises. In no event shall Client move, remove, relocate, or disconnect Provider’s equipment; Provider shall relocate its equipment to the new location of Client’s Premises.
7. BILLING AND PAYMENT.
A. Monthly Fees. Contained in Client’s Quote
B. Installation Fees. Contained in Client’s Quote Offer.
C. Provider shall invoice Client after the services have been connected at Client’s Premises for any one-time amounts due for installation, set-up, and hardware under the Agreement. Thereafter, Provider shall bill Client monthly for all service charges due and payable under the Agreement for the preceding calendar month. Client shall pay each such invoice within the due date indicated on the invoice. In the event of a dispute over any invoice rendered by Provider, Client shall pay the undisputed amount portion in good faith.
D. Invoices submitted for payment shall contain the same description detail as provided in the quote form, and at a minimum, shall identify all products and services, the unit price, units of quantity, extended price, service address or location of Service, and invoice total, for both paper and electronic media.
E. In the event of default, theParty not at default shall have all legal rights available to them in law or equity, including but not limited to the payment of all costs of collection including all reasonable attorney fees, court costs, repossession fees and/or collection agency fees together with interest thereon at the annual rate of eighteen percent (18%) per annum.
F. Following Client’s request and confirmation by Provider, Provider will grant a pro-rata credit to Client for each hour in excess of twenty-four (24) hours during a calendar month that Client was unable to access the services due to causes within the reasonable control of Provider, but limited to Provider’s network, but in no event due to acts of God.To avoid confusion, the following illustrates the pro-rata formula: $ [monthly fee].00 / 30 / 24 = $[total] / hr.
G. Upon Client’s request, Provider agrees to cooperate in good faith with Client to reduce cost under the Agreement based on new communication technology that may become available during the terms of the Agreement.
H. Billing disputes shall be addressed in accordance with the Billing Disputes section of the Dispute Resolution process contained herein.Provider shall work with Client, or its designee, to automate the dispute process between Provider and Client authorized computer systems. Provider shall provide a responsibility matrix identifying representatives, their phone number and email address, for questions and resolution of issues, including escalation of unresolved disputes.
The Agreement may be terminated by the applicable Party if any of the following occur:
A. If Client fails to pay any outstanding charges within ten (10) days after receipt of written notice of delinquency, Provider may, at its option, suspend the services under this Agreement until such delinquencies are paid. If such delinquencies continue unremedied for an additional ten (10) days after suspension, Provider may terminate the Agreement in addition to other available rights and remedies.
B. If Provider fails to perform or observe any material term or condition of the Agreement within thirty (30) days after receipt of written notice of such failure from Client, Client, in addition to other available rights and remedies, may terminate the Agreement at any time after the thirty (30) days have elapsed.
9. LIABILITY AND INDEMNITY.
A. PROVIDER MAKES NO WARRANTY OR GUARANTEE, EXPRESSED OR IMPLIED, WITH RESPECT TO ANY SERVICES OR PRODUCTS UNDER THIS AGREEMENT, AND PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
B. PROVIDER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS OR LOST REVENUES, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGE THAT CLIENT MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL ACT OF SERVICE PROVIDER. PROVIDER SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS BY THIRD PARTIES TO CLIENT’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, OR DESTRUCTION OF CLIENT’S NETWORK SYSTEMS, APPLICATIONS, DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THIS AGREEMENT IN ANY INSTANCE INVOLVING PERFORMANCE OR NONPERFORMANCE BY PROVIDER WITH RESPECT TO SERVICES OR PRODUCTS PROVIDED HEREUNDER. CLIENT’S SOLE REMEDY SHALL BE (1) IN THE CASE OF SERVICES, REFUND OF A PRO RATA PORTION OF THE PRICE PAID FOR SERVICES WHICH WERE NOT PROVIDED, OR (2) IN THE CASE OF PRODUCTS, REPAIR OR RETURN OF THE DEFECTIVE PRODUCT TO PROVIDER FOR REFUND, AT THE OPTION OF PROVIDER EXCEPT AS EXPRESSLY SET FORTH IN OR CONTEMPLATED BY THE AGREEMENT. IN THE CASE OF REFUND FOR LOST SERVICES, CREDIT WILL BE ISSUED ONLY FOR PERIODS OF LOST SERVICE GREATER THAN TWENTY-FOUR (24) HOURS.
C. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
D. PROVIDER SHALL NOT BE RESPONSIBLE FOR:
(1) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENT, ITS EMPLOYEES, AGENTS, SUBCONTRACTORS, SUPPLIERS, LICENSEES, OR INTEROPERABILITY OF SPECIFIC CLIENT APPLICATIONS;
(2) INABILITY OF CLIENT TO ACCESS OR INTERACT WITH ANOTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS, USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET;
(3) INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS, INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET;
(4) SERVICES PROVIDED BY OTHER SERVICE PROVIDERS, AND
(5) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET, OR NON-SERVICE PROVIDER’S FACILITIES USED BY ANY USERS TO ACCESS THE SERVICES BETWEEN THE USERS’ LOCATION AND THE PREMISES TO WHICH SERVICES ARE PROVIDED UNDER THE AGREEMENT.
E. EACH PARTY AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE OTHER PARTY FROM ALL LIABILITY, CLAIMS, LAWSUITS, AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPERT WITNESS’ FEES, ARISING OUT OF ANY CONDUCT, ACTIONS, OMISSIONS , OR NEGLIGENCE OF A PARTY FROM OR IN ANY WAY RELATING TO THE AGREEMENT.
10. INFRINGEMENT CLAIMS.
Provider shall promptly notify Client of any claims regarding claimed infringements of patents, copyrights, trademarks, trade dress, or trade secrets associated with their use of the services, equipment, or software provided by Provider. In the event any claim or suit is brought against Client on the basis of infringement for any patent, copyright, trademark, trade dress, or trade secret due to Client’s use of the services, equipment, or software supplied by Provider, subject to the limitations set forth below, Provider shall defend Client from such claim or suit, provided (i) Client promptly notifies Provider in all reasonable respects in connection with the investigation and defense of any such claim or suit; (ii) Client cooperates with Provider in all reasonable respects in connection with the investigation and defense of any such claim or suit; and (iii) Provider has sole control of such defense and all negotiations for its settlement or compromise. Client shall permit Provider to, at Provider’s option and expense: (1) procure for Client the right to continue using the allegedly infringing software, equipment or service; or (2) replace of modify the allegedly infringing software, equipment or service so that it becomes non-infringing. If a court makes an infringement determination and issues a judgement against Client for liability due to Client’s use of the services or software or equipment provided by Provider, Provider shall indemnify Client (i) for such judgment and (ii) Client’s costs associated with compliance with any such judgment. If in defending against such a claim, Provider decides to enter into a license agreement or otherwise settle the claims, Provider will pay the license or settlement fee for the allegedly infringing product. Notwithstanding anything herein to the contrary, Provider shall have no obligation or liability to Client under any provision of this paragraph to the extent that any copyright, trademark, or trade secrets infringement claim is based upon use of the allegedly infringing software or equipment in a manner that exceeds the scope of use permitted under this Agreement or upon any portion of the allegedly infringing software or equipment which has been modified by or for Client in such a way as to cause it to become infringing.
11. DEFAULTS AND REMEDIES.
A. Notwithstanding anything in the Agreement to the contrary, neither Party shall be in default under the Agreement until fifteen (15) days after receipt of written notice of a default from the other Party, or such shorter period as may be provided in the Agreement, regulations and/or guidelines (the “cure period”); provided, where any such default cannot reasonably be cured within such cure period, the Party alleged to be in default shall not be deemed to be in default under the Agreement if said Party commences to cure such default within said cure period and thereafter diligently pursues such cure to completion, provided that in no event shall the cure period extend beyond thirty (30) days.
B. In the event of either Party’s failure to comply with any material provision of the Agreement, the non-defaulting Party may, at its option, cure the default of the other Party at the expense of the defaulting Party, without affecting its right to demand, sue for, and collect all of its damages arising out of the other Party’s default, or terminate the Agreement without affecting its right to sue for any other damages to which it may be entitled.
C. The rights and remedies stated in the Agreement are not exclusive; and the Parties, in the event of a breach or a dispute hereof, are entitled to pursue any of the remedies provided herein, by law, or by equity.
D. No course of dealing between the Parties, or any delay on the part of a Party to exercise any right it may have under the Agreement, shall operate as a waiver of any of the rights hereunder, by law, or equity, nor shall any waiver of any prior default operate as a waiver of any subsequent default, and no express waiver shall affect any term or condition other than the one specified in such waiver and only for the time and in the manner specifically stated.
E. In the event either Party shall be rendered unable in whole or in part by force majeure to carry out any covenant, agreement, obligation, or undertaking to be kept or performed by such Party under the Agreement, such covenant, agreement, obligation, or undertaking insofar as the same shall be affected by such force majeure, shall be suspended during the continuance of any liability so caused, and such default shall be remedied with all reasonable dispatch.The term “force majeure” as employed in this section shall include acts of God, strikes, lockouts or other industrial disturbances, acts of a public enemy, war, blockades, riots, epidemics, pandemics, earthquakes, explosions, accidents, repairs to machinery or pipes, the delays of carriers, inability by reason of governmental regulation to obtain materials, acts of public authorities, or other causes whether or not of the same kind as specifically enumerated, not within the control of the Party claiming suspension and which by the exercise of due diligence or the payment of money such Party is unable to overcome. No Party shall be entitled to relief under this paragraph unless such Party shall have given the other Party reasonable notice after the occurrence of such event of force majeure.
F. If it is determined that Client is in default of the Agreement, Client shall be responsible for the remaining term of the Agreement in effect at time of default.
12. CLIENT CONTRACTUAL REMEDIES.
A. If Client in good faith has reason to believe that Provider does not intend to, or is unable to perform or continue performing under the Agreement, Client may demand in writing that Provider give a written assurance of intent to perform. Failure by Provider to provide written assurance within the number of days specified in the demand, but in no event less than five (5) business days, at Client’s option, be the basis for terminating the Agreement.
B. Client may, at any time, by written order toProvider, require Provider to stop all or any part of the work called for by the Agreement for a period of ninety (90) days after the order is delivered to Provider, and for any further period to which the Parties may agree. The order shall be specifically identified as a stop work order issued under this clause. Upon receipt of the order, Provider shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Notwithstanding the above, Client shall remain responsible of its obligations contained herein.
C. Materials supplied under the Agreement shall fully comply with the Agreement. The delivery of materials, or a portion of the materials, in an installment that do not fully comply constitutes a breach of contract. On delivery of nonconforming materials, Client may terminate the Agreement for default under applicable termination clauses in the Agreement, exercise any of its rights and remedies under the Uniform Commercial Code, or pursue any other right or remedy available to it.
D. Client may, by written notice to Provider, immediately terminate the Agreement if Client determines that Provider has been debarred, suspended or otherwise lawfully prohibited from participating in any public procurement activity, including but not limited to, being disapproved as a subcontractor of any public procurement unit or other governmental body.
13. DISPUTE RESOLUTION PROCESS.
Any dispute arising out of or relating to the Agreement, including the alleged breach, termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures:
A. Negotiation. Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”).
B. Mediation. If the dispute has not been resolved by negotiation in accordance with paragraph A, then the parties shall proceed to mediation unless the parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The parties shall agree on a mediator; however, if they cannot agree within 14 days then each party hall appoint one representative.The representatives for each side shall agree on a named third-party mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day, before any party has the option to withdraw from the process. The parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session. During the course of the mediation, no party can assert the failure to fully comply with paragraph A, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise. All communications, both written and oral, during Phases A and B are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator.
14. GOVERNING LAW AND FORUM.
The Agreement will be governed by and construed in accordance with the laws of the state in which the named defendant of a filed suit resides, or if the named defendant is a legal entity jurisdiction shall be in the state where the named defendant operates its business headquarters, without regard to its conflicts of laws principles. The Parties consent to submit to the jurisdiction of the federal or state courts located in the state in which the named defendant of a filed suit resides, or if the named defendant is a legal entity jurisdiction shall be in the state where the named defendant operates its business headquarters; and any action or suit concerning the Agreement or the respective rights and obligations of the Parties may only be brought by the Parties in any federal or state court with appropriate jurisdiction over the subject matter that is located in that state. The Parties will not raise, and hereby waive, any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process, or the like in any such action or suit brought in that state. The prevailing Party in any litigation will be entitled to recover its reasonable attorney’s fees and costs of suit from the losing Party.
The Agreement is personal to the original Client executing the Agreement, and the rights of Agreement hereunder will not be assigned or otherwise transferred in whole or in part by Client unless Client requests and receives Provider’s prior written consent. Provider may, with Client’s consent, transfer or assign this Agreement in conjunction with the sale of Provider’s business, any of Provider’s affiliates, subsidiaries, or the sale or transfer by Provider of all or substantially all of its assets. Provider shall include a provision in its sales contract that buyer shall acknowledge acceptance of this Agreement and that buyer is subject to the terms and conditions of the Agreement prior to close of sale.
All formal notices, requests, demands and other communications required or permitted under the Agreement shall be in writing unless otherwise specified in the Agreement and shall be deemed to have been duly made, given, and received by the Parties’ representative at the addresses listed in the Client’s Quote Offer or such different address as the Parties may designate in writing. Notices may be sent by email with a follow-up hard copy via United States first class, certified, registered, express, postage prepaid, return receipt requested mail, recognized overnight courier or by personal delivery. Notices will be deemed effective on the day received, except if received on a non-business day or after 5:00 p.m. Arizona time on a business day, in which case they will be effective on the next business day after receipt. Addresses for Notices for Client and Provider are contained in the Client’s Quote Offer. Client and Provider may change the addresses on ten (10) days prior written notice.
17. OTHER CONDITIONS.
A. Any legal action arising from or in connection with the Agreement, or any Services provided or work performed hereunder, must by brought within two (2) years after the cause of action arises.
B. Neither Party shall publish or use in any advertising, sales promotions, press releases, or other publicity the other Party’s name, logo, trademarks, or service marks, or otherwise use the other Party’s name, logo, trademarks, or service marks without the prior written approval of the other Party.
C. Nothing in the Agreement shall create or vest in Client any right, title, or interest in the services, other than the right to use the services under the terms and conditions of the Agreement.
D. If any portion of the Agreement is found to be invalid or unenforceable, the remaining portions shall remain in effect and the Parties will begin negotiations for a replacement of the invalid or unenforceable portion.
E. Provider’s performance obligations under this Agreement shall be solely to Client named in the Client’s Quote Offer and not to any third party. Other than as expressly set forth herein, the Agreement shall not be deemed to provide third parties with any remedy, claim, right of action, or other right.
F. PROVIDER SHALL NOT HAVE ANY LIABILITY FOR DAMAGES OR DELAYS DUE TO FIRE, EXPLOSION, LIGHTNING, POWER SURGES OR FAILURES, ACTS OF GOD, THE ELEMENTS, WAR, CIVIL DISTURBANCES, ACTS OF CIVIL OR MILITARY AUTHORITIES OR THE PUBLIC ENEMY, STRIKES OR LABOR DISPUTES, INABILITY TO SECURE PRODUCTS OR TRANSPORTATION FACILITIES, FUEL OR ENERGY SHORTAGES, ACTS OR OMISSIONS OF COMMUNICATIONS CARRIERS OR SUPPLIES, OR OTHER CAUSES BEYOND ITS CONTROL WHETHER OR NOT SIMILAR TO THE FOREGOING.
G. Each of the Parties represent and warrant to each other Party that the Agreement has been duly authorized by all necessary action and that the Agreement constitutes and will constitute a binding obligation of each such Party.
H. Each Party will comply with all applicable federal, state, local and other laws, regulations, rules, and ordinances applicable to the provision and use of the services under the Agreement. Provider agrees to notify Client immediately if it becomes aware of any operation related to the Agreement which is not in compliance with applicable law.
I. Provider and Client shall cooperate fully in maintaining in full force and effect during the term of the Agreement.
J. No amendment, change, modification or waiver of any of the terms of the Agreement shall be binding unless included in a written agreement and signed by Provider and Client.
K. Whenever the consent or approval of either Party is required, or a determination must be made by either Party, no such consent or approval shall be unreasonably withheld
L. Section captions herein are for convenience only and neither limit nor amplify the provisions of the Agreement. The invalidity of any portion of the Agreement shall not have any effect on the balance thereof.
M. The provisions of the Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of said Provider and Client.
N. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement.