Master Services Agreement
THIS MASTER SERVICES AGREEMENT (this “Agreement”), made and entered into this DATE, by and between STN Incorporated, a California corporation, (hereinafter “STN”), and Client Legal Name (hereinafter “CLIENT”):
BY INDICATING YOUR ASSENT TO ENTER THIS MASTER AGREEMENT, YOU SUBMIT TO STN, INC. AN OFFER TO OBTAIN THE RIGHT TO ACCESS AND USE THE PRODUCTS OR SERVICES DESCRIBED BELOW UNDER THE PROVISIONS OF THIS MASTER AGREEMENT (THE “AGREEMENT”) AND HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO ACCESS AND USE SUCH PRODUCTS AND SERVICES LISTED ON THE WRITTEN OR ELETRONIC QUOTATION, ESTIMATES, STATEMENT(S) OF WORK, ORDER FORM(S) AND/OR OTHER DOCUMENTS (EACH AN “ORDER FORM”) WHICH WE PROVIDE TO CUSTOMER. THE TERMS OF EACH ORDER FORM WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND CUSTOMER OR YOU OR CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, STN, INC. IS UNWILLING TO PROVIDE THE PRODUCTS OR SERVICES TO CUSTOMER, AND YOU SHOULD DISCONTINUE THE ORDER AND/OR REGISTRATION PROCESS.
1. Ordering.
Pursuant to this Agreement, Customer may order from STN, Inc. (a) licenses to access and use a STN, Inc. proprietary cybersecurity portal to be hosted and made available by STN, Inc. on a software-as-a-service basis (the “Hosted Service”); (b) project-based assessment, engineering and/or other professional services (collectively, “Professional Services”); (c) ongoing managed and/or monitored services (collectively, “Managed Services”); and/or (d) certain third party hardware, software and/or services (collectively, “Third Party Products”). All Order Forms are incorporated herein by reference.
2. Hosted Service.
1. Access to Hosted Service.
1. License Rights. During the applicable Subscription Term (as defined in Section 7.1 below), unless otherwise set forth in the Order Form, STN, Inc. hereby grants to Customer a limited, worldwide, non-exclusive, non-transferable license to: (a) access and utilize the Hosted Service in accordance with any usage limitations set forth in the applicable Order Form; and (b) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by STN, Inc. that describes functionality of the Hosted Service, if any (collectively, the “Documentation”), in each case solely for Customer’s internal business purposes.
2. Access Rights and Requirements. The Hosted Service will include a restricted-access interface component to allow employees or specific independent contractors designated by Customer (“Users”) to access and use the Hosted Service for Customer’s benefit and each User will be provided applicable access credentials. Customer shall be responsible for all Users and ensuring the security and confidentiality of all such credentials. Customer is solely responsible for (i) obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Hosted Service, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith, (ii) ensuring that such equipment or ancillary services are compatible with the Hosted Service and (iii) procuring all necessary rights from applicable third parties to any related third party product(s) not provided by STN, Inc. that may be necessary for Customer to fully utilize any Hosted Service.
3. Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Hosted Service or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Hosted Service (or any portion thereof) to third parties, including, but not limited to, making such Hosted Service available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Hosted Service (or any element thereof) into applications of Customer or third parties; (d) create modifications to or derivative works of the Hosted Service; (e) reproduce the Hosted Service or Documentation; (f) use the Hosted Service in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, or (g) in any way access, use, or copy any portion of the Hosted Service (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Hosted Service. The Hosted Service is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Hosted Service is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
2. Delivery, Support, and Security.
During the applicable Subscription Term, subject to Customer’s payment of all related Fees (as defined in Section 6.1 below), STN, Inc. or its third party hosting provider will (a) set-up and host the Hosted Service, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Customer to access and use the Hosted Service in accordance with this Agreement; (b) manage and install all updates and upgrades that STN, Inc. makes generally available to its customers for the Hosted Service within the Hosting Infrastructure; and (c) provide technical support services to Customer regarding Customer’s operation and use of the Hosted Service. STN, Inc. shall (i) establish and maintain appropriate technical and organizational measures to protect against accidental damage to, or destruction, loss, or alteration of, Customer Data (as defined in Section 5.1 below); (ii) establish and maintain appropriate technical and organizational measures to protect against unauthorized access to the Customer Data; and (iii) establish and maintain network and internet security procedures, protocols, security gateways and firewalls with respect to the Hosted Service. STN, Inc. is not responsible for the security of Customer Data while in transit over the Internet. STN, Inc. agrees to notify Customer within twenty-four (24) hours of the discovery of the actual or suspected untended access of any STN, Inc. system that may access, process, or store Customer Data or Confidential Information, including any compromise by a computer worm, search engine web crawler, password compromise or access by an unauthorized individual or automated program.
3. Professional Services and Managed Services.
1. Generally.
In the event that Customer requires Professional Services or Managed Services, the parties will execute one or more Order Forms. Subject to Customer’s compliance with Section 3.2 below and any assumptions set forth in each applicable Order Form, STN, Inc. will provide (a) all Professional Services and related deliverables (“Deliverables”) in accordance with the specifications and schedule, if any, set forth in such Order Form; and/or (b) all Managed Services and related Deliverables during the applicable Subscription Term in accordance with the specifications set forth in such Order Form. If Customer notifies STN, Inc. in writing within thirty (30) days after any Deliverables are made available to Customer that STN, Inc. is not in compliance with the foregoing covenant with respect to such Deliverables, then STN, Inc. will, as Customer’s sole and exclusive remedy and STN, Inc.’s sole liability, use commercially reasonable efforts to cause the Deliverables to conform to such covenant at no additional cost to Customer.
2. Customer Obligations.
Customer acknowledges that the timely and successful performance of Professional Services and Managed Services and delivery of the Deliverables requires good faith cooperation by Customer. Therefore, Customer shall (a) furnish all information reasonably requested by STN, Inc., (b) provide access to Customer personnel, working space, facilities, platforms, documentation, source libraries, test systems and test data that STN, Inc. or its personnel may reasonably request, and (c) timely perform all obligations set forth in an Order Form as necessary to permit STN, Inc. to provide the applicable Professional Services or Managed Services. In the event that any failure by Customer to comply with the provisions of this Section 3.2 results in any failure to perform the Professional Services or Managed Services by STN, Inc., STN, Inc. shall not be deemed in breach of this Agreement for such failure and Customer shall be responsible for any costs incurred by STN, Inc. in addressing and remedying such delay. In addition, Customer shall assign an employee or representative to be present at its facility for any after hours or weekend Professional Services or Managed Services to be provided by STN, Inc.; provided that in the event that Customer fails to assign an employee or representative to be present during such hours, Customer hereby waives any and all claims for any property damage or loss that occurs during such time.
3. Detection Services.
In the event that an Order Form includes security scanning, penetration testing, assessment, or remediation Professional Services or Managed Services (collectively, “Detection Services”), Customer acknowledges and agrees that (a) STN, Inc. may use various methods and software tools to probe network resources for security-related information and to detect actual or potential security flaws and vulnerabilities; (b) such Detection Services could possibly result in service interruptions or degradation regarding the Customer’s systems; (c) Customer shall provide all necessary consents and authorizations to allow STN, Inc. to provide any or all of such Detection Services; (d) it is Customer’s sole responsibility for restoring its network computer systems to a secure configuration following any such testing.
4. Assessment Services.
In the event that an Order Form includes compliance testing or assessment or other similar compliance advisory Professional Services or Managed Services that may relate to legal issues, Customer acknowledges and agrees that (a) STN, Inc. does not provide legal advice or legal services and no such services shall be deemed to constitute legal advice; (b) Customer is solely responsible for retaining its own legal counsel to provide any such legal advice; and (c) no written summaries or reports provided by STN, Inc. as Deliverables shall be deemed to constitute legal opinions or be relied upon as proof, evidence or any guarantee or assurance as to Customer’s legal or regulatory compliance.
5. Hardware.
As set forth in an Order Form, certain Managed Services may include STN, Inc.’s provision of certain hardware components (“Hardware”) for use by Customer during the applicable Subscription Term in connection with such Managed Services. For purposes of clarification, Customer acknowledges and agrees that Customer (a) shall be responsible for obtaining adequate insurance with respect to any such Hardware; and (b) shall return all such Hardware to STN, Inc. in the same condition (reasonable wear and tear excepted) upon the earlier of the conclusion of the applicable Subscription Term or any earlier termination of this Agreement.
4. Third Party Products.
STN, Inc. will pass through and make available to Customer all warranties, indemnities and support and maintenance terms offered by applicable third party providers in connection with applicable Third Party Products (the “Third Party Terms”), which such Third Party Terms shall be provided by STN, Inc. to Customer upon request. Subject to the foregoing, STN, Inc. shall have no liability in connection with any Third Party Products.
5. Customer Data.
1. Customer Data.
1. Responsibility. Customer: (a) is solely responsible for any and all transactional data, including personally identifiable data (“Customer Data”), that may be collected or utilized by Customer through its use of the Hosted Service or otherwise provided by Customer to STN, Inc. in connection with any Professional Services or Managed Services; (b) acknowledges that STN, Inc. has no control over and will not monitor the content of the Customer Data; and (c) agrees that Customer will be solely responsible for obtaining all necessary consents of third parties to the provision of any Customer Data to STN, Inc. in connection with STN, Inc.’s performance of its obligations hereunder.
2. Usage Data. STN, Inc. shall fully own and retain all rights to anonymous usage data derived from Customer Data (“Usage Data”) as aggregated with usage data from STN, Inc.’s other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of STN, Inc.’s services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular customer or end-user of Customer.
6. Fees.
1. Fees.
Subject to the terms and conditions below, all one-time and recurring fees for, as applicable, the Hosted Service, Professional Services, Managed Services and/or Third Party Products (collectively, the “Fees”) will be set forth on the applicable Order Form.
2. Payment Terms.
Unless otherwise agreed to in writing by the parties, Customer will pay to STN, Inc. all undisputed Fees owed within twenty (20) days, or such other period as may be specified in the Order Form, after STN, Inc.’s issuance of an invoice pertaining thereto. If applicable, payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on STN, Inc.’s income). Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement. In cases where Customer fails to make payment under this Agreement, Customer shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
7. Term and Termination.
1. Term of Agreement.
This Agreement shall continue in effect until terminated as set forth herein. The initial subscription term for the Hosted Service and/or Managed Services purchased by Customer will be as set forth in the applicable Order Form and subject to any renewal as set forth in Section 7.2 below (collectively, the “Subscription Term”).
2. Subscription Terms; Adjustment; Renewal.
Each Subscription Term will commence on the date that both parties have executed the applicable Order Form, unless a later commencement date is expressly set forth on such Order Form, and will continue for the initial Subscription Term. Thereafter, each Subscription Term will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for a period of the same duration as the prior Subscription Term and (ii) at the same Fees applicable during the immediately preceding term (based upon the latest applicable pricing tier) unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.
3. Termination.
This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2 or 9), or (b) as set forth in Section 11. Additionally, a particular Order Form may be temporarily suspended or terminated by STN, Inc. in the event that Customer fails to pay applicable Fees when due or otherwise violates any of the use restrictions set forth herein.
4. Effect of Termination.
Upon any termination of this Agreement or an Order Form, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.1.3, 4, 5, 6, 7.4, 8, 9, 10.3, 11, 13, 14 and 15 shall survive termination, (b) Customer will promptly delete and destroy all copies of any Documentation in its possession or control, and (c) Customer shall pay to STN, Inc. any outstanding Fees that have accrued under the Agreement and/or Order Form prior to the date of termination.
8. Proprietary Rights.
As between the parties, (i) STN, Inc. will retain all ownership rights in and to the Hosted Service, all updates and/or upgrades thereto, Hardware, the Deliverables, Documentation, and other derivative works of the foregoing that are provided by STN, Inc., and all intellectual property rights incorporated into or related to the foregoing; (ii) Customer will retain all ownership rights in and to the Customer Data, and all intellectual property rights incorporated into or related to the foregoing; and (iii) Customer’s rights to any Third Party Products shall be solely as set forth in applicable Third Party Terms. STN, Inc. hereby grants to Customer a fully paid, royalty free, perpetual, non-exclusive and non-transferable right and license to use the Deliverables as contemplated by the terms of the applicable Order Form solely for its internal business purposes. The trademarks and service marks and other STN, Inc. logos and product and service names are trademarks of STN, Inc. (the “STN, Inc. Marks”). Likewise, the trademarks and service marks and other logos and product and service names of Customer are trademarks of Customer (collectively “Customer Marks”). Without the other party’s prior written permission, the parties agree not to display or use in any manner, the STN, Inc. Marks or Customer Marks, as applicable. All rights not expressly licensed by STN, Inc. and Customer under this Agreement are reserved.
9. Confidential Information.
All confidential information provided by a party pursuant to this Agreement shall be governed by the terms of the Non-Disclosure Agreement between the parties as of the effective date of this Agreement (the “NDA”).
10. Representations and Warranties; Disclaimer.
1. Mutual.
Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
2. By STN, Inc.
STN, Inc. warrants that (a) the Hosted Service shall conform in all material respects to the Documentation; (b) all Professional Services, Managed Services and Support Services shall be provided in a professional, competent and workmanlike manner in accordance with the prevailing industry standards; and (c) STN, Inc. will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Hosted Service that are intentionally designed to permit unauthorized access to or use of either the Hosted Service’s or Customer’s computer systems (“Viruses”). In the event of any breach of the warranties in subsections (a) or (b), STN, Inc. shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Professional Services, Managed Services Support Services and/or Hosted Service to not conform to such warranties promptly after its receipt of written notice from Customer.
3. Disclaimers.
THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, STN, INC. PROVIDES NO WARRANTY OR GUARANTEE OF THE OUTCOME OF ITS TESTING, ASSESSMENT, OR REMEDIATION METHODS AND DOES NOT WARRANT THAT CUSTOMER’S USE OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. IN ADDITION, STN, INC. SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND RELATED TO ANY THIRD PARTY PRODUCTS.
11. Indemnification, Limitation of Liability.
1. Indemnification.
STN, Inc. will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Hosted Service or any Deliverable infringes any United States copyright or misappropriates any trade secret rights and STN, Inc. will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Customer will defend at its own expense any action against STN, Inc. brought by a third party to the extent that the action is based upon a claim that the Customer Data infringes any United States copyright or misappropriates any trade secret rights or that Customer has otherwise failed to comply with applicable law and Customer will pay those costs and damages finally awarded against STN, Inc. in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of such action, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense. If the Hosted Service or any such Deliverable (or any component thereof) becomes, or in STN, Inc.’s opinion is likely to become, the subject of an infringement claim, STN, Inc. may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Hosted Service or any such Deliverable so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options is, in STN, Inc.’s reasonable opinion, commercially reasonable, STN, Inc. may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, STN, Inc. will have no obligation under this Section 11.1 or otherwise with respect to any infringement claim based upon (i) Third Party Products; (ii) other third-party components (including in combination or as integrated with the Hosted Service or a Deliverable) not provided by STN, Inc.; (iii) unauthorized use or use of the Hosted Service or a Deliverable other than in accordance with the Documentation or Order Form or (iv) Viruses introduced by Customer or its agents. This Section 11.1 states STN, Inc.’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
2. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE HOSTED SERVICE, PROFESSIONAL SERVICES, MANAGED SERVICES, DELIVERABLES, THIRD PARTY PRODUCTS AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO STN, INC. BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
12. Publicity.
During the term of this Agreement, unless otherwise set forth in the applicable Order Form, Customer hereby agrees that STN, Inc. shall have the right, but not the obligation, to include Customer’s name and logo as a customer who uses the Hosted Service or other STN, Inc. services on the STN, Inc. website and in other materials promoting the Hosted Service or other such services.
13. Injunctive Relief.
The parties acknowledge that the Hosted Service, Deliverables and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of each party’s Confidential Information, the Hosted Service, Deliverables, or any information or data contained therein.
14. Nonsolicitation.
Customer shall not directly or indirectly (including through any subsidiary or affiliate) solicit, hire or contract with any of STN, Inc.’s current or former employee(s) or contractor(s) who provided Professional Services or Managed Services to Customer hereunder during the term of this Agreement and for one (1) year after termination or expiration; provided that the foregoing will not prevent Customer from hiring or otherwise engaging anyone who responds to a general advertisement or job posting on the Internet or elsewhere, or submits an unsolicited. In the event of a breach of this Section 14, Customer shall pay STN, Inc. the greater of (a) $100,000 or (b) two hundred percent (200%) of the annual salary or fees paid by STN, Inc. to such employee or contractor so hired. The parties agree that said amount is a reasonable estimate of the costs and expenses that STN, Inc. will incur as a result of training and replacing such employee or contractor. Customer is responsible for all reasonable expenses (including attorneys’ fees) incurred by STN, Inc. in collecting any amounts due under this Section 14.
15. Miscellaneous.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of California, without regard to California conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Alameda County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Order Forms agreed to by the parties in writing and all expressly referenced documents (i.e., the NDA). Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by STN, Inc. The terms on any purchase order or similar document submitted by Customer to STN, Inc. will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth within the applicable Order Form.
