Sunstate Terms & Conditions

These Terms of Service, together with the executed Quote/Agreement is entered into by and between Sunstate Technology Group, a wholly owned subsidiary of Smith Bagley, Inc. (“Sunstate”) and the company that has signed the Quote/Agreement (“Client”), which incorporates this Agreement by reference. The terms of the Quote/Agreement and any Exhibits referenced and incorporated in the Quote/Agreement executed by Client, and these Terms of Service form the overall Agreement between Sunstate and Client, collectively called (the “Agreement”).

1. INTRODUCTION

Description of Services. Sunstate is a network management provider that provides a wide range of IT products and services to small, medium and large businesses. The actual Services and Products Sunstate provides to Client is set forth in the Client Quote/Agreement and any referenced and incorporated Exhibits to the Quote/Agreement. These Terms of Service are written to encompass the wide range of products and services offered by Sunstate. Certain provisions contained herein may only be applicable to particular products and services. Sunstate reserves the right to determine, in its sole and reasonable discretion, when a provision contained herein is not applicable to the products and services being provided to Client. Sunstate may, but is not obligated to, advise Client when a particular provision contained herein is not applicable to the products and services being provided to Client. Unless stated otherwise in the Client/Quote/Agreement all the provisions of these Terms and Conditions are applicable. These Terms of Service, the Quote/Agreement and Exhibits incorporated therein, form the entire Agreement between Client and Sunstate. By Sunstate providing the Services and Products, Client agrees to be bound by the Agreement.

Scope of Agreement. This Agreement constitutes legally binding terms and applies to Client’s use of the Service or Products provided. Client is authorized to use the Service and Products only if Client agrees to abide by all applicable laws, rules and regulations (“Applicable Law”) and the terms of the Agreement.

Additional Terms. In some instances, both the Agreement and separate guidelines, rules, or terms of Service, use or sale setting forth additional or different terms and/or conditions will apply to Client’s use of the Services and Products, collectively “Additional Terms”. To the extent there is a conflict between the Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Privacy Policy (as defined below), as they also apply.

Acceptance. By receiving and/or using the Services and Products, Client agrees, without limitation or qualification, to be bound by and to comply with the Agreement, Additional Terms and Applicable Laws. If Client does not agree to be bound by the Agreement (and any other Additional Terms) and to abide by all Applicable Laws, then Client is not authorized to use the Services and must immediately discontinue use and permanently delete any software components in Client’s possession that were provided by Sunstate in relation to the Services and Products.

Use of the Service on Behalf of an Organization. If Client is using the Services and Products on behalf of an organization: (i) Client is agreeing to the Agreement for that organization and represents and warrants to Sunstate that Client has the authority to bind that organization to the Agreement (in which event, “Client” will refer to that organization) unless that organization has a separate contract in effect with Sunstate, in which event the terms of that contract will govern Client’s use of the Services and Products; (ii) Client may use the Services and Products only in compliance with the Agreement and only if Client has the power to form a contract with Sunstate and is not barred under any Applicable Laws from doing so; and (iii) Client’s use of the Services and Products shall be governed by the Agreement, except where any separate agreement is made between Client and Sunstate governing Client’s account expressly supersedes or prevails over the Agreement.

If, after acceptance of the Agreement, Sunstate finds that Client does not have the legal authority to bind such organization, Client will be personally responsible for the obligations contained in the Agreement.

2. INTERPRETATION

2.1 Eligibility. Use of the Services and Products is void where prohibited. By using the Services, Client represents and warrants that: (a) all information Client submits to Sunstate is truthful and accurate; (b) Client will maintain accuracy of such information; and (c) Client’s use of the Services and Products does not violate any Applicable Law.

2.2 Modification of the Agreement. Sunstate, in its sole and absolute discretion, may change or modify the Agreement and any of the Additional terms, at any time, and such changes or modifications shall be effective immediately upon posting to the Website. Except with respect to changes required in order to comply with Applicable Law, Sunstate will not change or modify the Agreement, any of the Additional Terms in a manner which diminishes Client’s rights hereunder. Client acknowledges and agrees that: (i) Sunstate may notify Client of such changes or modifications by posting them to the Website or by e-mail; and (ii) Client’s use of the Services and Products after such changes or modifications have been made (as indicated by the “Last Revised” date at the top of this page) shall constitute Client’s acceptance of this Agreement as last revised. If Client does not agree to such amended or modified Agreement, then Client must immediately stop using the Services and Products and terminate the Agreement in accordance with Sections 6 and 12 herein.

3. OWNERSHIP AND RESERVATION OF RIGHTS

All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property or proprietary rights in or related to the Services and Products are and will remain the exclusive property of Sunstate or its licensors, whether or not specifically recognized or perfected under local law. Client will not acquire any rights in the Services and Products except the limited use right specified in the Agreement. The Services and Products are confidential and proprietary information of Sunstate or its licensors. Client agrees to take commercially reasonable steps to protect the Services and Products from unauthorized disclosure or use.

4. THE SERVICES AND PRODUCTS

4.1 Rights to Use the Services and Products. Provided Client complies at all times with the Agreement, pays all applicable fees, and otherwise remains subject to the terms and conditions of this Agreement, Sunstate hereby grants Client, and Client hereby accepts from Sunstate, a personal, non-exclusive, non-assignable, non-transferable, revocable, limited right to (i) use the Services and Products; and (ii) to use certain components for the sole purpose of enabling Client to use the Services and Products in the manner permitted by the Agreement.

4.2 Acceptable Use. Client shall not use the Services and Products in any fashion except as expressly permitted by the Agreement. Without limiting the generality of the foregoing, Client shall not, and shall not encourage or assist any third party to, directly or indirectly, do any of the following acts: (i) use the Services and Products in any manner or for any purpose other than as expressly permitted by the Agreement, or Additional Terms; (ii) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to Client with respect to the Services and Products to any third party; (iii) remove, obscure or alter any proprietary rights notice pertaining to the Services and Products; (iv) access or use the Services and Products in a way intended to improperly avoid incurring fees; (v) use the Services and Products to engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery; (vi) utilizing robocalling, autodialing, predictive-dialing or other software or technologies for illegal means, (vii) cause, in Sunstate’s sole discretion, inordinate burden on the Services and Products or Sunstate’s system resources or capacity; (viii) access or use the Services and Products in order to build a competitive Service or Product, or copy any features or functions of the Services and Products; (ix) circumvent or modify, attempt to circumvent or modify, or encourage or assist any other party in circumventing or modifying any security technology or software that is part of the Services and Products; (x) impersonate or attempt to impersonate Sunstate or its employees (including, without limitation, the use of e-mail addresses associated with any of the foregoing); (xi) violate any Applicable Law. Client acknowledges and additionally agrees that Sunstate reserves the right to stop any conduct that restricts or inhibits other Users of the Services and Products from fully utilizing and enjoying the Services and Products.

5. FEES; TAXES; TERM

5.1 In consideration for providing the Services to Client, Client shall pay Sunstate in accordance with Sunstate’s fee schedule and fee policies that are applicable to the Services and Products and that are in effect at the time that Client purchases the Services and Products, unless otherwise agreed upon by Client and Sunstate in writing and in advance. Fees are based on the Services and Products purchased and not actual usage. Payment obligations are non-cancellable and fees paid are non-refundable. For the avoidance of doubt, any fees that have been pre-paid by Client for Services and Products that are unused due to any early termination of this Agreement shall not be refundable. The base subscription fee for the Services and Products is payable in advance, and any billable items over what is included in the monthly recurring charges are payable in arrears.

5.2 Where Client pay fees by means of a credit card, Client authorizes Sunstate to automatically charge Client for any and all fees incurred by Client for Services and Products. If Client’s credit card is rejected for any reason, Client will be responsible for any fees and charges associated with such rejection. The foregoing shall not limit Sunstate’s ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable hereunder.

5.3 If Client fails to pay any amount due under the Agreement within thirty (30) days of such payment becoming due and payable, in addition to any other rights and remedies available to Sunstate, Sunstate shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment. Client shall also be responsible for paying for all reasonable fees and costs incurred by Sunstate, including legal fees, in collecting any overdue amounts or enforcing any provision of the Agreement.

5.4 Client is responsible for, and shall pay all taxes relating to the Agreement, excluding any taxes based on Sunstate’s net income. Unless otherwise indicated, all amounts payable by Client under the Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Service and Product, the execution of the Agreement or otherwise. If Client is required to withhold any taxes from payments owed under the Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to Sunstate shall equal the amount invoiced or otherwise due.

5.5 The Monthly Base Rate set forth in Client’s Quote/Agreement covers the cost of the Services and Products. Charges for additional Services and Products, if any, requested or required by Client will be determined by agreement of Client and Sunstate or, in the absence of agreement, will be charged at Sunstate’s standard rate, $120 per labor hour, in effect at the time Service and Product is provided. The Base Rate does not include the cost of any hardware, software, equipment, or supplies or any out-of-pocket expenses incurred by Sunstate unless specifically identified as included in the Quote/Agreement.

5.6 Payment of the Monthly Base Rate is due on the first day of each month during the term of this Agreement and shall be considered delinquent if unpaid within thirty (30) days of the due date. Client shall pay invoices for any additional amounts due to Sunstate within thirty (30) days after receipt. Sunstate shall have the right to suspend the Services and Products and to terminate this Agreement, or to recover equipment Sunstate has supplied to Client in performance of the Services and Products if Client fails to make payment within the time permitted for doing so under the Agreement. Client shall have the right to terminate the Agreement in the event that Sunstate fails to meet the Required Performance Standard established in Client’s Quote/Agreement; provided, however, that Client shall not terminate the Agreement pursuant to this provision without first giving Sunstate written notice of deficiencies in performance and a reasonable opportunity (not less than thirty (30) days) to meet and maintain the Required Performance standard. Any cancellation request shall be effective sixty (60) days after receipt of written notice.

5.7 Sunstate shall have the right to implement an adjustment to the Monthly Base Rate, as provided in Client’s Quote/Agreement, in the event of equipment purchases, substantial changes in the demand for the Services and Products initiated by Client, or material increases in costs to Sunstate. When an adjustment occurs, an addendum detailing the change will be signed by both Client and Sunstate and attached to Client’s Quote/Agreement. Additionally, the Monthly Base Rate will increase by three percent (3%) on January 1st of each contract year of the initial term, and upon commencement of all subsequent auto renewal periods.

5.8 The Initial Term, the Effective and Expiration dates of this Agreement is stated on Client’s Quote/Agreement. At the expiration of Client’s Initial Term this Agreement shall automatically renew for an additional Term (“Renewal Term”) identical to the Initial Term unless Client provides Sunstate written notice of Client’s intent not to renew not less than ninety (90) days prior to the expiration of the Initial Term or any Renewal Term.

6. TERMINATION

6.1 Sunstate may immediately suspend or terminate Services and Products provided to Client if:

(a) Client fails to cure a default of the payment terms in the Agreement;

(b) If Client vacates the premises to which the Services and Products are provided;

(c) Client fails to cure any other material breach of the Agreement within thirty (30) days after receiving Sunstate’s written notice;

(d) Client provides false or deceptive information establishing, using, or paying for Services and Products or if Client engages in false, deceptive, fraudulent, illegal, or harassing activities when establishing, using or paying for Services and Products;

(e) Client fails to comply with applicable law or regulation and Client’s noncompliance prevents Sunstate’s performance under the Agreement; or

(f) Client resells the Services and Products as prohibited by these Terms of Service.

6.2 If Sunstate terminates the Agreement under this Section, Client will be liable for any Services and Products provided up to the date of termination, whether or not invoiced by the termination date, as well as any applicable early termination liabilities.

6.3 Client may terminate this Agreement if Sunstate fails to cure after Client provides Sunstate with written notice of the failure and a reasonable opportunity to cure within thirty (30) days from receipt of notice. If Sunstate fails to cure within thirty (30) days of receipt of notice Client may terminate the affected Services and Products without early termination liability thirty (30) days after Sunstate’s receipt of Client’s written notice to terminate. Sunstate’s material failure does not include a failure caused by circumstances outside Sunstate’s sole control, a failure caused by a third-party access provider, a Force Majeure event, or software or equipment provided by Client or another provider.

6.4 If Client terminates a particular Service or Product, in whole or in part, before expiration of the term stated on Client’s Quote/Agreement (unless due to Sunstate’s material failure) or Sunstate terminates a Service and Products as permitted under the Agreement, Client will pay the following early termination charges, which represents Sunstate’s reasonable liquidated damages and not a penalty:

(a) A lump sum equal to: (i) seventy-five percent (75%) of the applicable monthly charges, multiplied by the number of months remaining in the Term, as stated in Client’s Quote/Agreement, plus (ii) a pro rata amount of any waived installation charges, any credits issued (excluding any service level credits issued for any service outages), and initialized fees waived based upon the number of months remaining on Client’s Quote/Agreement at the time of termination.

(b) Any liabilities imposed on Sunstate by third parties, and nonrecoverable costs incurred by Sunstate as a result of ordering facilities required to operate a Service or Product, as a result of Client’s early termination.

7. USE OF SOFTWARE / HARDWARE

Authorization to use any software or hardware provided by Sunstate to Client provides a personal, non-exclusive, limited, non-transferable and temporary license. All rights are reserved by the Sunstate. Client may not re-publish, transmit, or distribute any software /hardware, or make any unauthorized use of Sunstate’s materials. Modification of such materials or the use of such materials for any purpose not authorized by Sunstate is prohibited. Any equipment provided to Client by Sunstate shall remain the property of Sunstate unless explicitly stated otherwise. Client shall have no right, title or interest in the equipment, except as explicitly set forth in Client’s Quote/Agreement. The Equipment is and shall remain personal property and shall not become a fixture or realty. Client shall affix to the equipment any labels supplied by Sunstate indicating Sunstate as the owner. Sunstate (or Sunstate vendors, if applicable) retain title and property rights to Sunstate-provided software and equipment (excluding products sold to Client under the Agreement), including copies, and any related patents, copyrights, trademarks, or IP addresses assigned to Client. Upon termination or expiration of the Agreement, Client will surrender and immediately return the Sunstate-provided equipment and software, including all copies, to Sunstate or will provide Sunstate access to reclaim such equipment and software. All replacement hardware listed in Exhibit D will be covered / replaced by Consultant. All other hardware will be covered / replaced by Client.

8. INSTALLATION OF PRODUCTS/SERVICES

Client will reasonably cooperate with Sunstate or its agents to install the Services and Products. Client is responsible for damage to Sunstate-owned Services and Products located on Client’s premises, excluding reasonable wear and tear or damage caused by Sunstate. Sunstate may refuse to install Services and Products or may discontinue and disconnect Services and Products without notice, if any condition on Client’s premises is unsafe or likely to cause injury to any person using the Services and Products.

9. CONFIDENTIALITY AND PRIVACY

9.1 Under this provision Client and Sunstate may be referred to individually as a “Party” or collectively as the “Parties”. If Client and Sunstate have not executed a mutual nondisclosure agreement, this provision will govern the exchange of information. Neither Party will disclose any Confidential Information (defined below) received from the other Party, or otherwise discovered by the receiving Party, to any third party, except as expressly permitted in the Agreement. This obligation will continue until two (2) years after the Agreement expires or terminates. Confidential Information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing Party’s technology, business affairs, trade secrets, development and research information, and marketing or sales plans (collectively the “Confidential Information”). The receiving Party may disclose Confidential Information to its subsidiaries, Affiliates, agents and consultants with a need to know, if they are not competitors of the disclosing Party and are subject to a confidentiality agreement at least as protective of the disclosing Party’s rights as this provision. The Parties will use Confidential Information only for the purpose of performing under the Agreement or for the provision of other Sunstate Services and Products. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (a) is in the possession of the receiving Party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (b) is or becomes publicly known, through no wrongful act or omission of the receiving Party; (c) is received without restriction from a third party free to disclose it without obligation to the disclosing Party; (d) is developed independently by the receiving Party without reference to the Confidential Information, or (e) is required to be disclosed by law, regulation, or court or governmental order. The Parties acknowledge that the receiving Party’s unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of the Agreement, the disclosing Party may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not limit any other remedies available to either Party. The Party who breached or threatened to breach its nondisclosure obligation under the Agreement will not raise the defense of an adequate remedy at law. Sunstate will not be deemed to have accessed, received, or be in the possession of Client’s or Client’s customer’s Confidential Information solely by virtue of the fact that Client or Client’s customers transmits, receives, accesses or stores such information through its use of Sunstate’s Services and Products.

9.2 Sunstate’s privacy policy, as amended from time to time, is available at http://sunstatetech.com/privacy-policy. The privacy policy includes information about Sunstate’s customer information practices and applies to the provisioning of Services and Products.

10. INSURANCE

Client shall obtain and maintain for the Term of the Agreement (and any Renewal Term), at Client’s own expense, (a) “all risk” insurance against loss or damage to the equipment, (b) commercial general liability insurance (including contractual liability, products liability and completed operations coverage) reasonably satisfactory to Sunstate, and (c) such other insurance against such other risks of loss and with such terms, as shall in each case be reasonably satisfactory to or reasonably required by Sunstate (as to carriers, amounts and otherwise). The amount of the “all risk” insurance shall be greater than or equal to the Stipulated Loss Value of all Equipment outstanding under the Lease Line Schedule of the Quote/Agreement, and must otherwise be reasonably satisfactory to Sunstate as of each annual anniversary date of this Agreement. Any increase in the amount of such insurance coverage, other than “all risk”, reasonably requested by Sunstate shall be put into effect on the next succeeding renewal date of such insurance. Each “all risk” policy shall: (i) name Sunstate as sole loss payee with respect to equipment, (ii) provide for each insurer’s waiver of its right of subrogation against Sunstate and Client, and (iii) provide that such insurance shall not be invalidated by any action of, or breach of warranty by Client of a provision of any of its insurance policies, and shall waive set-off, counterclaim or offset against Sunstate.

11. OWNERSHIP OF WORK PRODUCT

Any (a) work of authorship fixed in any tangible medium of expression that is the subject matter of a copyright or potential application for registration therefore (including, but not limited to, object codes and source codes), (b) unpatented inventions, including but not limited to, physical parts or components, processes, techniques, programs or methods, (c) non-trademarked or non-service-marked distinctive symbols, pictures or words, (d) trade secrets, or (e) any other copyrightable, patentable and/or trademark able intellectual property rights, whatsoever, associated with any ideas, symbols, marks, phrases, writings, drawings, inventions, machines, designs, concepts, techniques, methods, know-how, processes or works of authorship developed or created by: (i) Sunstate and/or Sunstate personnel; and/or (ii) through collaborative efforts of Sunstate (including Sunstate personnel) and Client and/or any director, officer, shareholder, member, manager, employee, agent, independent contractor or representative of Client (“Client’s personnel”) during the term of the Agreement, or any Renewal Term, (collectively, the “Work Product”) shall belong to Sunstate; provided that Client shall retain a perpetual, non-exclusive, royalty-free license to use the Work Product in Client’s day to day business operations so long as Client does not disclose, sell or assign, in any capacity, its rights in said Work Product, to any third party (including Sunstate personnel and Client’s personnel) without the express, written consent of Sunstate, which consent may be withheld. Upon Sunstate’s request, Client shall, if necessary, take such actions, and shall cause Client’s personnel to take such actions, including execution and delivery of any and all instruments of conveyance, necessary to grant title in and to the Work Product to and in the name of Sunstate.

12. NOTICE

Where Sunstate requires that Client provide an e-mail address, Client is responsible for providing Sunstate with Client’s most current e-mail address. In the event that the last e-mail address Client provided to Sunstate is not valid, or for any reason is not capable of delivering to Client any notices required/permitted by the Agreement, Sunstate’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Client consents to receive all communications including notices, agreements, disclosures, or other information from Sunstate electronically. Sunstate may provide all such communications by e-mail. Client must send notices of a legal nature to Sunstate’s office headquarters as stated on Client’s Quote/Agreement. Nothing herein shall limit Sunstate’s right to object to subpoenas, claims, or other demands, and Sunstate also reserves the right to provide Client with notices by other means, such as by mail, courier or facsimile.

13. NON-DIVERSION

Client agrees that during the term of the Agreement, and any Renewal Term, for a period of one (1) year following the termination of the Agreement, Client will not recruit or hire any employee, agent, representative or subcontractor of Sunstate or its parent company (collectively “Personnel”), nor will Client directly or indirectly contact or communicate with Personnel for the purpose of soliciting or inducing such Personnel (a) to accept employment with, or perform work for any person, firm, or entity other than Sunstate; or (b) to provide services to Client or any other person, firm or entity except as an employee or representative of Sunstate. Client agrees that, in the event of a breach or threatened breach of this provision, in addition to any remedies at law, Sunstate, without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available.

14. DISCLAIMER OF WARRANTIES

The Services and Products furnished under the Agreement are provided “as is” and, unless otherwise expressly stated herein, without representations or warranties of any kind, either express or implied. To the fullest extent permitted by law, Sunstate disclaims all warranties, express, implied or statutory, including, but not limited to, implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose. Sunstate does not warrant that use of software or products furnished by Sunstate will be uninterrupted, error-free, or secure, that defects will be corrected, or that Services and Products, or the server(s) to which access is provided are free of viruses or other harmful components.

15. INDEMNITY

At Sunstate’s request, Client will defend, hold harmless, and indemnify Sunstate and its directors, officers, employees, agents, subsidiaries, affiliates, parent company and each of their successors from and against all third party claims, actions, demands, proceedings, damages, costs and liabilities of any kind (collectively, “Claims”) to the extent that the Claims arise out of or relate to Client’s use of the Services and Products, or Client’s breach of Client’s warranties or obligations under the Agreement.

16. LIMITATION OF LIABILITY

Under no circumstances will Sunstate and/or its licensors or representatives (including directors, officers and employees) of its affiliates or parent company be liable for any consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable, (including, but not limited to, claims for loss of data, goodwill, profits, loss of business revenue or earnings, damages caused by delays, failure to realize expected savings, or use of the services, interruption in use or availability of data, stoppage or other work or impairment of other assets), arising out of this agreement, including breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, except only in the case of personal injury where and to the limited extent that applicable law requires such liability. Some jurisdictions do not allow the limitation of exclusion of liability for indirect, special, incidental, or consequential damages so the above limitation or exclusion may not apply to client. In addition, in no event will Sunstate’s cumulative or aggregate liability to client or any other party for damages of any kind or nature in connection with the services and products or otherwise under the agreement exceed one hundred dollars (usd $100.00).

17. COMPLIANCE WITH LAWS

Sunstate shall comply with Applicable Laws. In addition, Sunstate reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Sunstate to disclose the identity of any of Client’s customers, personnel, including management, business records as they pertain to Sunstate, that violate the Agreement or any Applicable Law. Client acknowledges and agrees that Sunstate may investigate any violations of law and may cooperate with law enforcement authorities in this regard.

18. ACTIONS; GOVERNING LAW; VENUE

No action, regardless of form (including in contract, tort or otherwise), arising in connection with the performance of this Agreement may be brought by either Client or Sunstate more than one (1) year after the date of the occurrence on which the action based. The Agreement shall be construed in accordance with and governed by the laws of the State of Arizona without regards to conflict of laws principles. The Parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the State of Arizona.

19. MISCELLANEOUS

Sunstate and Client expressly assume an obligation to act in good faith toward one another in the performance of their respective obligations under the Agreement. These Terms of Service, the Quote/Agreement with incorporated Exhibits and any Additional Terms, contains the entire agreement between Client and Sunstate and supersedes any previous agreement on the same subject matter between Client or Sunstate. No amendments or variations of the terms and conditions of this Agreement shall be valid unless the same are in writing and signed by both Client and Sunstate. Sunstate is an independent contractor and nothing herein shall be construed as inconsistent with that relationship or status. If any one or more of the provisions contained in the Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions hereof and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein. Sunstate shall not be liable to Client for any failure or delay caused by events beyond Sunstate’s control, including, without limitation, Client’s failure to furnish necessary information, sabotage, failures or delays in transportation or communication, failures or substitutions of equipment, labor disputes, accidents, shortages of labor, fuel, raw materials, or equipment, or technical failures, or accessibility to work site. The headings contained herein are for convenience or reference only and are not to be used in interpreting this Agreement.