MASTER AGREEMENT

This Master Agreement (“Agreement”) is hereby entered into the date last signed below (“Effective Date”) by and between Valor IT, Inc., an Arizona corporation (d/b/a Valor Global Services), with a principal place of business at 13430 N Black Canyon Hwy., STE 250, Phoenix, AZ 85029 (“Valor”) and the Client (“Client”). From time to time, VALOR and Party shall collectively be referred to as “Parties,” and individually as “Party.”

  1. Scope of Engagement
    • Products and Services. This Agreement governs the Client’s purchase of certain business process outsourcing services (collectively, the “Services”), as set forth in one or more Statements of Work or Service Agreements referencing and incorporating this Agreement and duly executed by authorized representatives of each party (each referred to as a “Statement of Work” or “SOW” or a “Quote”). The Client’s purchase of various Services under this Agreement are governed by this Agreement.
    • Order of Interpretation. This Agreement includes the general terms and conditions covering all Services purchased by Client pursuant to one or more Statements of Work or Quotes. In the event of any direct conflict or in consistency between a Statement of Work and this Master Agreement, the Statement of Work will control to the extent that the provision to be modified is expressly identified in the Statement of Work and mutually agreed upon by authorized representatives of each party.
    • Executed Statement of Work. A SOW must be signed by the parties before any Services are to be performed, unless such requirement is waived by the VALOR. Each SOW shall, at a minimum, specify: (a) the Services to be provided by the VALOR to Client, (b) the timeframes for performance of the Services, and (c) the fees to be paid to the VALOR. Services shall commence on the date set forth in the applicable SOW and shall continue for the term provided in such SOW.
    • Changes. Any deviation from or modification to a Statement of Work must be pursuant to an executed change request. Changes may result in additional fees or charges, which will be specified in the change order. If Client fails to comply with its responsibilities set forth in Section 10 or in the applicable SOW, or otherwise fails to respond to reasonable requests from the VALOR, then the timeframes from the VALOR’s performance shall be extended and in addition to any rights or remedies that the VALOR may have, the VALOR may also immediately suspend Services and/or terminate the applicable SOW.
    • Nature of Relationship. The Parties’ relationship is non-exclusive. Client may obtain similar services from any Third Party, and VALOR may perform any service for any Third Party without any restriction hereunder.
  2. Term
    • The Term of this Agreement (“Initial Term”) shall commence upon the execution of this Agreement and shall continue for a period of sixty (60) months. Each executed SOW hereunder shall commence on the applicable commencement date set forth therein and shall continue for the SOW term specified in the SOW. The Term of this Agreement shall automatically renew for subsequent terms of twelve (12) months unless and until terminated by either Party upon written notification of not less than sixty (60) days prior to the completion of the then current Term (each a renewal term, and with the Initial Term, the “Term”). Notwithstanding anything to the contrary herein, any outstanding SOW or Quote in effect at expiration or termination of the Term shall remain in effect for the duration of such SOW or Quote unless otherwise terminated as set forth herein.
  3. Service Fees
    • Fees. Client shall pay the fees (the “Fees”) for the Services and/or Products ordered under this Agreement as set forth in each executed SOW or Quote. Unless otherwise expressly set forth herein or an executed SOW, all fees are non-refundable. Fees are subject to a five percent (5%) annual rate increase for “cost of living” adjustments.
    • Taxes. Client shall pay all sales, use, excise, and other similar taxes assessed as a result of the Services provided under this Agreement. Notwithstanding the foregoing, Client shall not be responsible for paying any taxes upon the real, personal, or intangible property of VALOR, its employees, or upon the income or profits of VALOR or similar taxes.
    • Payment Terms. Except as set forth in an applicable executed SOW or Quote, Client shall pay all invoiced amounts within fifteen (15) days of receipt of the invoice.
    • Suspension. VALOR reserves the right to terminate or suspend Services or shipment of Products if a payment is thirty (30) days’ past due. Such interruption shall not relieve Client from its obligation to pay the undisputed amounts due. VALOR also reserves the right to assert appropriate liens to ensure payment.
    • Automatic Payment. If Client provides VALOR with designated credit card or ACH payment information, then Client authorizes VALOR to automatically charge such designated payment method on the payment schedule indicated in the executed SOW. Client agrees to notify VALOR promptly of any changes in such designated payment information. In the event of a stop payment or failure to process payment, VALOR may immediately cease providing the Services and invoice Client for all fees due, which shall be payable within thirty (30) days of receipt of invoice.
    • Late Payments. Client’s payment for Services shall be deemed late when Client fails to remit payment, which is not being disputed in good faith, within thirty (30) days of receipt of the invoice. Any late payment shall bear interest at the rate of one-and-one-half percent (1½%) per month or the maximum rate allowed under law, whichever is lower, or fraction thereof, from the due date until paid in full. Disputed amounts, if the dispute is resolved in favor of VALOR, shall bear interest from the due date until paid.
    • Expenses. Client shall reimburse VALOR for approved reasonable, actual, documented expenses incurred by VALOR associated with the Services and identified in an applicable SOW.
    • Invoice Disputes. Should Client in good faith dispute any portion of an invoice or other claim of amount due, Client shall (a) pay all non-disputed amounts on the invoice when due, (b) notify the VALOR in writing of the disputed amounts by the date when payment would otherwise have been due, (c) cooperate with the VALOR and use its best efforts to resolve the dispute promptly, and (d) pay the agreed-upon portion of the disputed amount promptly upon resolution of the dispute.
  4. Termination
    • For Cause. In the event either Party fails to perform any of its material obligations under this Agreement or an executed Statement of Work, including paying any amount due under an executed Statement of Work or Quote, and the defaulting Party fails to substantially cure such default within thirty (30) days after receiving written notice from the non-defaulting Party specifying the nature of the default, then the non-defaulting Party may, by giving written notice to the other Party, terminate this Agreement as of the date specified in such notice of termination. Notwithstanding the foregoing, in the event Client fails to pay invoices when due and Client does not make such payment within ten (10) days after receipt of written notice from the VALOR of such failure, then the VALOR may either, in its sole discretion, suspend the performance of any Service until payment is made, or terminate this Agreement and all SOWs in their entirety on written notice to the Client. Notwithstanding the foregoing, Client shall pay VALOR for Services already performed prior to the date of termination.
    • For Insolvency. Subject to the provisions of Title XI, United States Code, if either Party becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement and all outstanding executed SOWs as of the date specified in such notice of termination.
    • Client may terminate this Agreement for any reason other than those set forth in Sections 4.1 or 4.2, provided that in such instance Client will provide VALOR the lessor of the remainder of the tenure of the contract or minimum three (3) months prior written notice; and further provided Client pays VALOR an early termination fee (“Termination Fee”) equivalent to the remaining term, based on the average of the prior three months’ invoices.  Such Termination Fee shall be VALOR’S sole remedy for Client’s termination for convenience. Any termination by Client other than under this Section that is determined to be invalid shall be deemed to have been a termination under this Section at the time of Client’s termination.
    • Payments Due. The termination of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
    • Effect of Termination. Termination of this Agreement shall terminate all executed SOWs, if any, between the parties. Notwithstanding any termination or cancellation of this Agreement as provided herein, the provisions of this Agreement will survive for the term of any outstanding SOWs. Termination of an executed SOW, shall not have the effect of terminating this Agreement or any other SOW. The exercise of the right to terminate this Agreement or any executed SOW shall be in addition to any other right and remedy provided in this Agreement or existing at law or in equity that is not otherwise excluded or limited under this Agreement.
  5. Representations and Warranties
    • By VALOR.
      • Authority and Validity. VALOR represents and warrants that: (A) it is an entity existing and in good standing under applicable state law; and (B) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
      • Services. VALOR represents and warrants that: (A) each of its employees or other personnel providing Services hereunder shall have commercially reasonable training, skill, and background; (B) VALOR shall perform all Services hereunder in a professional and workmanlike manner consistent with industry standards and practices applicable to businesses rendering services of a similar nature to the Services; (C) it shall comply with all applicable Federal, state and local laws and regulations applicable to the performance of the Services; and (D) the Services shall be performed in accordance with the provisions of this Agreement and in accordance with the specifications, if any, set forth in an executed SOW. These warranties shall exist for a period of thirty (30) days from the date of performance of the applicable Service or delivery of the applicable deliverable. These warranties are voided to the extent of any use, alterations, or modifications to the Services not authorized by VALOR.  Client must notify VALOR of any breach of these warranties promptly and in writing no later than ten (10) days after the expiration of the 30-day period. Upon VALOR’s timely receipt of such notice, VALOR shall, at VALOR’s election and expense, either (a) use reasonable efforts to re-perform or correct the alleged defect(s) in the Services or deliverables at no charge to Client, or (b) terminate performance of the applicable Service(s) or delivery of the applicable deliverable(s) and refund the Fees paid by Client to VALOR that are appropriately apportioned for and attributable to the affected Service(s) or deliverable(s). THE REMEDIES SET FORTH IN THIS SECTION SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND VALOR’s SOLE LIABILITY WITH RESPECT TO A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
      • Exception with Respect to Reliance on Data and Information Supplied by Client. VALOR will perform the Services set forth in this Agreement on the basis of data, information, and instructions furnished by Client. VALOR shall be entitled to rely upon any such data, information, or instructions provided by Client. If any error results from incorrect data, information, or instructions supplied by Client, VALOR shall not be liable for any damages or delays arising therefrom and Client shall be responsible for discovering and reporting such error and supplying the data, information, or instructions necessary to correct such error. Client is ultimately responsible for the adequacy and accuracy of all Client Data provided to VALOR by Client; provided, however, that VALOR shall maintain the adequacy and accuracy of Client Data while said Client Data is in VALOR’s possession and control. Furthermore, VALOR shall be responsible for the correction of all errors in the adequacy and accuracy of the Client Data as VALOR is notified of such errors by Client.
    • By Client. Client represents and warrants that: (i) Client is an Entity validly existing and in good standing under the laws applicable to it; (ii) Client has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; or (iii) no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement.
    • Disclaimer of Warranties. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF VALOR AND CLIENT, RESPECTIVELY, SET FORTH IN THIS SECTION 6, VALOR HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, NON-INTERFERENCE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. IN ADDITION, VALOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ENTIRELY FREE FROM ERROR OR DEFECT. VALOR DOES NOT GUARANTEE DETECTION OF ANY OR ALL SECURITY INCIDENTS IN THE PERFORMANCE OF SERVICES, AS APPLICABLE, UNDER THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT NO REPRESENTATIONS OR WARRANTIES ARE MADE BY VALOR WITH RESPECT TO ANY RESULTS OR OUTCOME FROM PERFORMANCE OF THE SERVICES. THIS DISCLAIMER SHALL APPLY EVEN IF THE EXPRESS LIMITED WARRANTIES CONTAINED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
  6. Confidentiality
    • Nondisclosure of Confidential Information. All Confidential Information supplied by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) shall remain solely and exclusively the property of the Disclosing Party. Except as expressly authorized herein, as may reasonably be required to perform the Services or by prior written consent of the Disclosing Party, which consent may be withheld in the Disclosing Party’s sole discretion, the Receiving Party shall not use or disclose to any Third Party any of the Disclosing Party’s Confidential Information and shall take commercially reasonable precautions to protect the confidentiality of the Disclosing Party’s Confidential Information using the degree of care specified in Section 6.5. The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its Affiliates, employees and their respective contractors who have a need to know it for the purposes of this Agreement and who have agreed in writing to terms substantially similar to this Section 6 regarding such Confidential Information. Each Party shall be responsible for any unauthorized use or disclosure of any the other Party’s Confidential Information received by it and its Affiliates and their respective employees, agents, representatives and consultants. The Receiving Party shall notify the Disclosing Party immediately upon the discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will cooperate with the Disclosing Party’s in every reasonable way to assist the Disclosing Party’s in regaining possession of the Confidential Information and in preventing its further unauthorized use or disclosure.
    • Required Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential Information to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided, however, that in such event, to the extent permitted by applicable law or the relevant government or court order, the Receiving Party shall notify the Disclosing Party and shall cooperate with the Disclosing Party in any attempt to contest or limit such required disclosure, at the Disclosing Party’s sole expense.
    • Explicitly-Included Information. Without limiting the generality of Confidential Information, VALOR’s information, including computer programs and software, documentation, methodologies, training aids and manuals, and procedures, belonging exclusively to VALOR shall be treated as Confidential Information and Client shall not disclose, sell, assign, lease, or otherwise make available any such information to any Third Party or entity, other than its employees who require such information to perform their duties, and shall remain the property of VALOR, eligible for reuse/resale.
    • Degree of Care. Each Party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event less than reasonable due diligence and reasonable care shall be exercised.
    • Return of Confidential Information. Promptly upon the Disclosing Party’s request, the Receiving Party shall return to the Disclosing Party all originals, copies, reproductions, and summaries of Confidential Information, or at the Disclosing Party’s option, certify destruction thereof.
    • Intellectual Property Rights. Each Party acknowledges the claim of the Disclosing Party that the Disclosing Party’s Confidential Information constitutes valuable proprietary information or trade secrets of Disclosing Party.  The Receiving Party shall provide the Disclosing Party immediate written notice of any claim of infringement of which the Receiving Party becomes aware with respect to any of the Confidential Information of the Disclosing Party. Receiving Party agrees not to use, copy, modify, transfer, download, merge, or make any translation or derivative work of Disclosing Party’s Confidential Information except as expressly permitted in this Agreement. In no event shall Receiving Party: (a) cause or permit the disassembly, reverse compilation, or other decoding of any software that constitutes Disclosing Party’s Confidential Information; or (b) remove or destroy any copyright notices, other proprietary markings, or confidentiality legends place upon or contained within Disclosing Party’s Confidential Information and shall further copy the same on all copies. Receiving Party further agrees not to impair or infringe Disclosing Party’s Confidential Information and shall maintain the same free of all liens, taking all reasonable steps to confirm proper ownership of and title in Disclosing Party’s Confidential Information.
  7. Proprietary Rights
    • Client Data. As between the Parties, Client shall remain the sole and exclusive owner of all Client Data. Following the provision of the applicable Services, Client shall be and remain responsible for changing any password provided to or provided by VALOR. Upon any termination or expiration of this Agreement, or earlier upon Client’s request, VALOR shall promptly, and at Client’s expense, provide to Client copies of Client Data in its possession or control, on media designated by Client, in the format on which it resides on the VALOR systems. VALOR will have no right to use the Client Data after the termination or expiration of this Agreement.
    • Use of Client Data. Subject to VALOR’s obligation in accordance with applicable law, Client Data shall not be: (i) used by VALOR other than in connection with providing the Services; (ii) disclosed, sold, assigned, leased, or otherwise provided to third parties by VALOR, VALOR’s Affiliates or VALOR’s subcontractors, except to the extent required to perform the Services in accordance with the terms hereof; or (iii) commercially exploited by or on behalf of VALOR, VALOR’s Affiliates or VALOR’s subcontractors.
    • VALOR Knowhow. Client acknowledges that VALOR, in the normal conduct of its business, may use concepts, skills and know-how developed while performing other contracts. Client acknowledges the benefit which may accrue to it though this practice, and accordingly agrees that notwithstanding any provision in this Agreement, VALOR may continue, without payment of a royalty, its business practice of using concepts, skills and know-how developed while performing this Agreement, in performance of the same or similar services on behalf of other clients or otherwise. Client acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, methodologies, and similar related materials or processes, or any modifications thereof, provided by VALOR (the “Knowhow”), except with respect to Client’s use of the same during the Term as part of Client’s access and use of the Services. Any intellectual property developed by VALOR in the course of performance of this Agreement shall be the proprietary property of VALOR and shall be owned exclusively by VALOR, and Client shall receive a royalty free, nonexclusive, irrevocable right and license to use such proprietary software during the term of this Agreement. Client shall have ownership of, but VALOR shall have an irrevocable, fully paid up license to use and exploit, any VALOR Knowhow included in any software or documentation developed by VALOR specifically for and at the request of Client and specifically noted as a deliverable in the applicable executed SOW. VALOR shall own all scripts, automation, and processes developed for Client except to the extent the applicable executed SOW specifically identifies such script, process, or method to be specifically paid for by Client and owned by Client.
    • Client Equipment. VALOR acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, and similar related materials or processes, or any modifications thereof, provided by Client, except with respect to VALOR’s use of the same in providing the Services during the Term. Client shall, at Client’s sole cost, take whatever action is necessary for VALOR to be provided with nonexclusive rights and/or licenses to use software provided by Client for use by VALOR in providing the Services.
  8. Limitation of Liability and Nature of Available Damages
    • LIMITATION OF LIABILITY. EXCEPT AS ARISING OUT OF AN INTENTIONAL WRONGFUL ACT OR OMISSION OR GROSS NEGLIGENCE OR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL VALOR, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES, BE LIABLE TO THE CLIENT FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT IN AN AMOUNT EXCEEDING THE FEES PAID FOR SERVICES RENDERED BY VALOR DURING THE PRECEDING TWELVE MONTHS BY CLIENT TO VALOR UNDER THE EXECUTED STATEMENT OF WORK PURSUANT TO WHICH SUCH CLAIM AROSE, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT.
    • NATURE OF AVAILABLE DAMAGES. EXCEPT AS ARISING OUT OF AN INTENTIONAL WRONGFUL ACT OR OMISSION OR GROSS NEGLIGENCE OF THE PARTY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, INDIRECT, SPECIAL, LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    • THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.  CLIENT AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL APPLY REGARDLESS OF WHETHER CLIENT HAS ACCEPTED ANY SERVICE OR PRODUCT PROVIDED BY COMPANY.  CLIENT ACKNOWLEDGES AND AGREES THAT VALOR HAS SET VALOR’S FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
  9. Indemnity
    • Indemnity by Client. Client shall defend, at its own expense, and indemnify and hold VALOR, VALOR’s Affiliates, and VALOR’s members, managers, shareholders, directors, officers, employees, and agents harmless from and against any loss, expense, suit, damage, liability, demand, or claim of or by a Third Party to the extent based on: (i) a violation by Client or its Affiliates of Federal, state, or other laws or regulations; (ii) work-related injury or death caused by Client or its Affiliates, subcontractors or service providers or any of their invitees, employees, or agents, while performing activities in connection with this Agreement; (iii) tangible personal or real property damage caused by Client or its Affiliates, subcontractors or service providers (other than VALOR and its subcontractors and service providers), or any of their invitees, employees, or agents, while performing activities in connection with this Agreement; and (iv) any claims brought by Third Parties against VALOR for infringement that is alleged to be related to intellectual property other than claims for which VALOR provides indemnification below. Client shall be responsible for any costs and expenses incurred by VALOR in connection with the enforcement of this Section 9.1, including, but not limited to, reasonable attorneys’ fees, expert witness fees, court reporter fees, court costs and all other fees, costs, and expenses of enforcement.
    • Indemnity by VALOR. VALOR shall defend, at its own expense, and indemnify and hold Client, Client’s Affiliates, and their directors, officers, employees and agents harmless from and against any loss, expense, suit, damage, liability, demand, or claim of or by a third-party or any Affiliate of VALOR to the extent based on: (i) a violation by VALOR or its Affiliates of Federal, state, or other laws or regulations; (iii) work-related injury or death caused by VALOR or its Affiliates, subcontractors or service providers, or any of their employees or agents, while performing activities in connection with this Agreement; (iv) tangible personal or real property damage caused by VALOR or its Affiliates, subcontractors or service providers, or any of their employees or agents, while performing activities in connection with this Agreement; and (v) the material breach of any representation or warranty of VALOR to Client. VALOR shall be responsible for any costs and expenses incurred by Client in connection with the enforcement of this Section 9.2, including, but not limited to, reasonable attorneys’ fees, expert witness fees, court reporter fees, court costs and all other fees, costs, and expenses of enforcement.
    • Indemnity Procedures. The indemnification obligations set forth in Sections 9.1 and 9.2 are subject to the following conditions:
      • the indemnitee Party shall promptly notify the indemnifying Party in writing of the claim of which it has notice, provided that the failure or delay to so notify the indemnifying Party shall not relieve the indemnifying Party from any liability that it may have to the indemnitee Party hereunder so long as the failure or delay shall not have prejudiced the defense of such claim and then only to the extent that the indemnifying Party is prejudiced.
      • the indemnitee Party allows the indemnifying Party to have sole control of the defense of the claim and any settlement negotiations arising out of that claim provided, however, the indemnifying Party may not, without the indemnitee Party’s prior written consent, settle or compromise any claim in a manner that: (A) does not unconditionally release the indemnitee Party and its directors, officers, employees or agents or (B) requires the indemnitee Party or any of its directors, officers, employees or agents to contribute to any settlement of the claim; and
      • the indemnitee Party shall, at the indemnifying Party’s reasonable request and expense, cooperate with the indemnifying Party. The indemnitee Party may participate in the defense and retain counsel of its own choice and expense.
  1. Dispute Resolution
    • Equitable Relief. Either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by either Party of the provisions contained in Section 6 (Confidentiality) would cause irreparable harm to the other non-breaching Party not adequately compensable by monetary damages. Thus, in addition to other relief, the Parties agree that temporary and permanent injunctive relief is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms. The prevailing party in an action for injunctive relief under this Section shall be entitled to recover its costs of enforcement, including reasonable attorneys’ fees.
    • Party Representatives. Except for certain emergency judicial relief authorized in accordance with applicable law, which may be brought at any time, the Parties agree that upon receipt of a written notice from either Party of the existence of a dispute between them, the Parties shall submit the dispute for informal resolution to their designated senior management who are not legal personnel. Any dispute remaining unresolved after a period of thirty (30) days after the receipt of such written notice of a dispute by the other Party may be submitted to any court having competent jurisdiction in accordance with Section 10.4.
    • Choice of Law. The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of Arizona.
    • Venue and Jurisdiction. All actions or proceedings initiated by VALOR and arising out of or from or related to this Agreement shall be litigated only in a federal or state court having situs within the County of Maricopa, State of Arizona. All actions or proceedings initiated by Client and arising out of or from or related to this Agreement shall be litigated only in a federal or state court having situs within the County of Maricopa, State of Arizona. Each Party hereby consents and submits to the jurisdiction of such designated courts and each Party hereby waives any right it may have to remove, transfer or change the venue of any litigation brought in accordance with this paragraph.
  2. Non-solicitation of Employees
    • Client agrees that the personnel of VALOR and any of its subcontractors are critical to VALOR’s and its subcontractor’s ability to provide its Services. Accordingly, Client will not, either directly or indirectly solicit, hire, or contract with any VALOR employee during the term of this Agreement and for a two (2) year period following termination thereof, or, in the alternative, if any reviewing court finds two (2) years to be overbroad in duration and unenforceable, for a one (1) year period following termination hereof (hereafter the "Non-solicitation Term"). In the event that Client desires to directly hire or engage in any manner any VALOR employee or contractor during the Non-solicitation Term, Client must first seek consent from an authorized executive-level employee of the VALOR’s to directly hire or engage the employee or contractor and to speak with the VALOR employee or contractor about the employment opportunity. In the event that VALOR grants Client the option to directly hire or engage in any manner a VALOR employee, and the VALOR employee accepts an offer of employment from Client, the parties shall discuss issues related to the employee's transition to Client. The employee's start date will be mutually agreed upon by Client and VALOR in writing. Provided the parties agree to the VALOR employee’s transition terms, Client shall pay VALOR a placement fee of 20% of offered salary prior to the VALOR employee commencing work as an employee of Client. If Client hires a VALOR employee without first obtaining the consent of VALOR, Client shall pay VALOR a liquidated damage equal to 100% of the employee’s fair market annual salary, as determined by VALOR in its sole discretion. This provision is considered a material term that allows for accelerated termination rights under Section 5 of this Agreement.
  3. Business Continuity
    • Disaster Recovery. Except as set forth in an executed SOW, Client is responsible for all backup, nonstandard data protection, hot site, disaster recovery and other similar services designed to protect Client’s systems, software or data.
    • Force Majeure. Notwithstanding any provision contained in this Agreement, neither Party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; pandemics, federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not (each, a “Force Majeure Event”). This clause shall not apply to the payment of any sums due under this Agreement by either Party to the other, and it shall not extend the time periods under any disaster recovery plan entered into between the parties hereto in the event the Services are affected as a result of the foregoing events.
  4. Security and Privacy
    • Security Procedures. VALOR is not in the business of hosting, processing, or storing Client Data. To the extent that Client transfers Client Data to VALOR, VALOR agrees that it shall establish and perform security procedures with respect to Client Data provided to VALOR by Client under the terms of this Agreement in accordance with accepted industry practices and procedures, which shall be no less comprehensive and vigorous than those set forth in the security policies developed and enhanced by VALOR from time to time to maintain commercial industry practices and procedures with respect to technology security.
    • Physical and Logical Security.
      • At VALOR Site. VALOR shall use commercially reasonable efforts to restrict logical access to equipment and/or media on VALOR’s site containing Client Data to authorized individuals as required in the applicable executed SOW. VALOR shall perform commercially reasonable measures to limit physical access to Client Data in its custody or control, which, in the discretion of the VALOR, may include use of electronic access control, video surveillance, and intrusion detection systems; implementing visitor entry control procedures; securing offices, rooms, and facilities; protecting against external and environmental threats; and controlling all access points including delivery and loading areas.
      • At Client Site. Except as stated in an executed SOW, Client shall be responsible for using commercially reasonable efforts to restrict physical and logical access to equipment and/or media on Client’s site. VALOR is not responsible for the unauthorized access of your system, premises, or equipment.
    • Software and Virus Protection. Each Party shall regularly review and update, as necessary, all software, firmware, firewalls and hardware used on such Party’s systems in accordance with industry practice. Each Party shall notify the other Party promptly in the event of becoming aware of the actual or potential transmission of any identified computer virus by such Party to the other Party. Each Party shall install and maintain commercially reasonable anti-virus software on its systems and update such anti-virus software on a regular basis in accordance with relevant industry practice.
    • Data Security Breaches and Notification. VALOR shall, within twenty-four (24) hours of discovery, notify Client of any Data Security Breach or any other unauthorized access, disclosure, acquisition, or use of the Client Data provided to it by Client or Client’ Clients. As soon as possible thereafter, VALOR shall provide Client full details of the unauthorized access, disclosure, acquisition, and/or use. VALOR will cooperate with Client in a commercially reasonable manner to investigate the incident and will exert commercially reasonable efforts to (i) terminate the unauthorized access, disclosure, acquisition, and/or use and (ii) prevent the reoccurrence thereof. VALOR shall provide reasonable assistance to Client to regain possession of and terminate any unauthorized access, disclosure, acquisition, and/or use of the Client Data. VALOR shall reasonably cooperate with Client in the conduct of any investigation of or litigation involving third parties related to said incident. VALOR shall assist and cooperate with Client concerning any disclosures to affected parties, government or regulatory bodies, and other remedial measures as reasonably requested by Client or as required under any applicable privacy or data protection law.
  5. Miscellaneous
    • Entire Agreement. This Agreement, together with the executed SOW, Quote, and any other attached and incorporated documents entered into hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, and undertakings, whether written or oral, between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing referencing this Agreement and executed by the Parties or their permitted assignees. Notwithstanding anything to the contrary, any additional purchase orders or other documents provided by Client hereunder shall have no cause and effect other than for the price and quantity set forth therein. Handwritten or other terms added to this Agreement shall not be binding and shall not form part of this Agreement unless signed by an authorized representative of both parties.
    • References. In this Agreement, “include” and “including” shall mean respectively, “includes, without limitation” and “including, without limitation.”
    • Interpretation. In the event of a conflict between this Agreement and the terms of any amendment or executed SOW, the terms shall be controlling in this order: (i) amendment(s) in reverse chronological order, but solely with respect to the subject matter of such amendments, (ii) this Agreement and (iii) each executed SOW, provided, however, that an executed SOW shall control to the extent the Parties explicitly reference this Section of the Agreement by title (i.e. “Interpretation” or “Section 16.3”) in such executed SOW that the executed SOW shall control over this Agreement in such instance.
    • Assignment. Neither Party may assign this Agreement or any rights, obligations, or benefits under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, provided, however, that either Party may freely assign this Agreement without the prior written consent of the other Party (i) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets, stock, or securities, or (ii) to any Entity which is a successor to all or substantially all of the assets or the business of the applicable Party. Any assignment in contravention of this Section 16.4 shall be void. This Agreement shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns. No Third Party shall be considered a beneficiary of this Agreement or entitled to any rights under this Agreement.
    • Relationship of Parties. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Client or VALOR joint ventures, principals, partners, agents, or employees of the other. No officer, director, employee, agent, affiliate, or contractor retained by VALOR to perform work on Client’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Client. Neither Party shall have any right, power or authority, express or implied, to bind the other. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state, and local personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies, or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees.
    • Notices. Except as otherwise specified in the Agreement, all notices, requests, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by i) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or ii) U.S. express mail, or other, similar overnight courier service to the address of the other Party as indicated in the introductory section of this Agreement. Notices shall be deemed given on the day actually received by the Party to whom the notice is addressed.
    • Publicity. VALOR shall be entitled to use the Client’s name and/or tradename(s) in promotional or marketing materials, or on any listing of its Clients, partners, vendors, and/or business affiliations, including but not limited to press releases or other public statements regarding the relationship between the Parties or this Agreement without the prior written consent of the other Party. Any such publicity shall not negatively impact or reflect upon such other Party or reveal any proprietary information of such other Party.
    • Section Headings. Section headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement nor be construed as part of this Agreement.
    • Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original document, but all such counterparts together shall constitute one binding agreement.
    • Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the Party waiving its rights.
    • Severability. If any provision of this Agreement is held for any reason by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect and the provision found to be contrary to law shall be deemed modified to the most limited extent required in order to cause such provision to be in accordance with applicable law while most fully carrying out the intent of the applicable provision as set forth herein.
    • Survival. Any Section of this Agreement shall survive to the extent required for the performance of such provision in accordance with the terms hereof.
    • No Third-Party Beneficiaries. Each Party intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of, any person or entity other than the Client and VALOR.
    • Attorneys’ Fees. If it becomes necessary for either Party to institute any legal action against the other Party, the prevailing Party in such action shall be entitled to its reasonable attorneys’ fees and costs.
    • Causes of Action. No action, regardless of form, arising from this Agreement may be brought by either party more than two (2) years after delivery of the services that would be the subject matter of such action.
    • Construction. VALOR and Client each acknowledge that the limitations and exclusions contained in this Agreement have been the subject of active and complete negotiation between the Parties and represent the Parties’ agreement based upon the level of risk to Client and VALOR associated with their respective obligations under this Agreement and the payments to be made to VALOR and the obligations to be incurred by the Parties pursuant to this Agreement. The Parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against either Party because each Party had the opportunity to review and negotiate the terms hereof. For the avoidance of doubt, Client agrees that the terms set forth in this Agreement constitute reasonable terms applicable to each executed SOW entered into by the Parties.
    • Insurance. Each Party shall maintain a “Commercial General Liability Insurance” policy with limits of not less than $1,000,000 each occurrence, $2,000,000 general aggregate covering injuries or damage to any person or property which results from their operations or activities under this Agreement. Client shall maintain property/casualty insurance with limits not less than the replacement value of any equipment or assets in the facilities, or under the control, of VALOR, covering damage to any such equipment or assets. VALOR shall also maintain a “Professional Liability” insurance policy to cover its errors and omissions with limits of not less than $1,000,000 each occurrence/claim, $2,000,000 in the aggregate. If VALOR will be conducting any of its activities onsite at a Client location, VALOR shall also maintain the following coverage: (A) “Workers’ Compensation Insurance” to fully comply with all applicable laws of the state(s) where such work or services is to be performed; (B) “Employer’s Liability Insurance” with a limit of not less than $1,000,000 for each incident; and (C) “Automobile Liability Insurance” covering all owned or hired automobiles with a combined single limit of not less than $1,000,000 for each accident. Insurance procured by VALOR shall be with an insurer with an AM Best rating of at least A- IX or AM Best equivalent in foreign jurisdictions. Upon request, each party will provide to the other certificates of insurance evidencing the foregoing insurance coverage.
  6. Definitions

As used in this Agreement and the attachments hereto (collectively, the “Documents”), the following terms shall have the following meanings with such definitions to be applicable to both the singular and plural use of the terms.

  • “Affiliate” shall mean, with respect to a Party, any Entity at any time Controlling, Controlled by, or under common Control with, such Party, but only as long as such Entity meets these requirements.
  • “Client Data” shall mean any and all data and information of any kind or nature submitted to VALOR by Client, or received by VALOR on behalf of Client, in connection with the Services or otherwise.
  • “Confidential Information” shall mean, with respect to either Party, this Agreement, together with all business or technical information or materials of such Party; provided, however, that Confidential Information shall not include information or materials that the Receiving Party can demonstrate: (i) was known to the Receiving Party prior to the Effective Date free of any obligation of nondisclosure; (ii) was generally known or available to the public prior to the date of disclosure to the Receiving Party or subsequently became generally known or available to the public through no fault of the Receiving Party; (iii) was lawfully received by the Receiving Party from a Third Party free of any obligation of nondisclosure; or (iv) is or was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
  • “Control” shall mean the direct or indirect ownership of 50% or more of the capital stock, or other ownership interest if not a corporation, of any Entity or the possession, directly or indirectly, of the power to direct the management and policies of such Entity by ownership of voting securities, by contract, or otherwise. “Controlling” shall mean having Control of any Entity and “Controlled” shall mean being the subject of Control by another Entity.
  • “Data Security Breach” shall mean an unauthorized act or omission by or on behalf of the VALOR that directly results in the unauthorized disclosure of Client Data.