Terms & Conditions
MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement’) is entered into by and between Fundingo, Inc., a California corporation having its principle place of business at 15250 Ventura Blvd., Suite 1111, Sherman Oaks, CA 91403 (“Fundingo”), and the entity agreeing to these terms (“Client”). Fundingo and Client shall collectively be referred to as the “Parties” and each individually as a “Party”.1
WHEREAS, Fundingo is a consulting company specializing in providing implementation and integration of Salesforce.com software and related services;
WHEREAS, Client desires that Fundingo provide services in connection with the customization of the Salesforce.com customer relationship management software, as more particularly described in each SOW (each an “SOW”) and the Project Details (“Project Details”), in order to enhance the quality of the services the Client provides to its customers and its competitive advantage in the marketplace. Annexed hereto and made a part hereof is the initial SOW and the Project Details as Exhibit “A” and Exhibit “B” respectively; and
WHEREAS, This Agreement together with each SOW, Change Order (as defined herein) and the Project Details shall provide the terms and conditions upon which Fundingo will provide Client with the completed Application and the Services and Project Deliverables described each SOW or Change Order, as applicable.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
“Application” shall mean the completed, live and fully operational applicable Salesforce.com application package, which contains the embedded Licensed Software and is comprised of each of the various Project Deliverables.
“Confidential Information” shall mean any and all written or oral information, belonging to a party, that a party designates as being confidential or which, under the circumstances of its disclosure, should reasonably be regarded by the other Party (“Recipient”) as confidential. In addition, Confidential Information, shall include, without limitation: (a) the terms of any agreements executed between the Parties, including this Agreement, each SOW, each Change Order, the Project Details and the substance of any discussions between the Parties; (b) all materials, information, reports, studies, object and source code, flow charts, diagrams and other tangible and intangible material of any nature whatsoever; (c) the Licensed Software and the underlying source code for the Application developed or prepared for the Client by Fundingo under this Agreement and/or pursuant to any SOW or Change Order; (c) the Parties respective customer names and other information related to customers, cost and price data, marketing information and other data and information relating to existing or planned business, or any other confidential information or trade secrets respecting the business affairs or property of either party that the other party may acquire or develop in connection with or as a result of the performance of the Services and delivery of the Project Deliverables hereunder.
“Intellectual Property Rights” means any and all patents, patent applications and like protections including, without limitation, improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same (collectively the “Patents”); any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, whether published or unpublished, registered or unregistered, and whether or not the same also constitutes a trade secret, now or hereafter existing, created, acquired or held (collectively the “Copyrights”); any and all trademark and service mark rights, slogans, trade dress, and trade names, trade styles, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Fundingo connected with and symbolized by the trademarks (collectively the “Trademarks”); any and all licenses or other rights to use any of the Copyrights, Patents, or Trademarks, and all license fees and royalties arising from such use to the extent permitted by such license or rights, (collectively the “Licenses”) and any and all, trade secrets, know-how and any other proprietary intellectual property rights in connection with any of the foregoing (collectively the “Trade Secrets”).
“Licensed Software” means any and all computer related-software programs and related products developed by Fundingo and embedded in the Application and each Project Deliverable, including any updates, modifications, revisions, copies, documentation and design data relating thereto.
- “Services” means the services, resources described in each SOW.
“SOW(s)” means the Statement of Work(s) describing the Services and Project Deliverables. Each SOW shall contain the following: (i) the terms and conditions on which Fundingo will provide Client with the Services and a description of the Services; ii) a list of the Project Deliverables developed for the Client including a breakdown of the significant features to be completed, any acceptance test procedures and any specifications, templates and/or formats to which the Project Deliverables are required to materially conform; (iii) a listing of any data or other information to be submitted by the Client to Fundingo, including any applicable submission dates and any instructions, specifications, templates and/or formats governing the submission of such data or other information; (vi) the Professional Services Rate, Professional Services Estimated Hours, Estimated Investment Summary, Total Estimated Investment, the Managed Package Cost, other cost and fees associated with the Services and Project Deliverables and other appropriate pricing terms and (v) any other information or provisions the Parties agree to include. The effective date of each SOW shall be the date set forth on the applicable SOW (“SOW Effective Date“).
2.1. Overview. This Agreement together with each executed SOW, Change Order and the Project Details provides the terms and conditions on which Fundingo will perform the Services and provide Client with the Project Deliverables and the Application. Each SOW and related Change Order executed pursuant to this Agreement will be a part of this Agreement as if fully included in the main body of this Agreement. In the event of any conflict between the main body of this Agreement and any SOW or related Change Order, the terms and conditions of the SOW and related Change Order shall take precedence with respect to the work described therein; provided, however, the SOW and related Change Order will be construed to give effect to the provisions of the main body of the Agreement to the fullest extent possible.
2.2. Performance of Services and delivery of Project Deliverables. Fundingo agrees to supply and deliver the Project Deliverables and perform the Services specified in each SOW and Change Order executed by the Parties in a professional and workmanlike manner in accordance with this Agreement, the applicable SOW, Change Order and the Project Details. The Client acknowledges that Fundingo’s ability to perform the Services and deliver the Project Deliverables requires the Client to timely perform certain tasks and provide certain tangible and intangible items as specified in each SOW, Change Order and the Project Details. Fundingo shall be responsible only for delivering those Project Deliverables and performing those Services set forth in each SOW and Change Order executed by the Parties. Client will provide, and cause its employees, contractors and agents to provide, such cooperation and assistance as may be requested by Fundingo or otherwise deemed to be reasonably required by Fundingo in the performance of the Services. Such assistance includes the furnishing to Fundingo in a timely manner of all relevant materials in current, accurate and complete form, and the taking of such actions as shall be specifically required under the terms of each executed SOW, Change Order and the Project Details. Fundingo shall be excused from any failure to deliver the Services or the Project Deliverables that is directly attributable to any failure by the Client to perform its obligations under this Agreement, the Project Details or under an SOW or Change Order executed by the Parties.
2.3. Acceptance Testing. Following execution of each SOW and Change Order, Client and Fundingo shall agree upon those objective criteria pursuant to which each such Services and/or Project Deliverable will be assessed and accepted prior to completion (the “Specifications”). Client and Fundingo shall work together in a joint effort to accomplish the objectives set forth in the Specifications. Acceptance testing shall be performed in accordance with the terms of the SOW or Change Order as applicable to verify that the Services and/or Project Deliverables substantially conform to the Specifications in all material respects. Unless another period is specified in the SOW, the Client will have ten (10) calendar days after completion of the Services or delivery of the Project Deliverables, as the case may be, to assess and test the Services or Project Deliverables to determine that they have been provided or delivered in accordance with Specifications. The failure by the Client to reject any Services or Project Deliverables in accordance with this Section 2.3 shall constitute deemed acceptance by the Client. If written notice of rejection is given, Client shall detail in writing its grounds for rejection and Fundingo shall use its best efforts to identify the means to remedy the discrepancy, to include estimate of time (days and number of hours needed) to perform such corrective action in order for the Services or Project Deliverables to conform substantially to the Specifications within five (5) days of receipt of such notice from the Client. The hours spent by Fundingo to remedy any discrepancy shall be billed on a time and materials basis based on the Professional Services Rate in the SOW or Change Order, as applicable. The corrected Service or Project Deliverables shall be deemed accepted upon redelivery unless the Client notifies Fundingo of any further deficiency in the Service or Project Deliverable within five (5) calendar days following redelivery. Except as otherwise agreed in advance in writing by Fundingo, any continuing use by the Client of the Services and/or Project Deliverables for the purposes intended shall constitute deemed acceptance by the Company.
2.4. Change Orders. Client acknowledges and agrees that the delivery dates specified in any SOW are estimates and may vary depending on deviations in the scope of the project and Client’s evolving requirements. Without limiting the foregoing, the Client may from time to time request changes to the Project Deliverables, and/or Services by proposing the same in writing (each a “Change Order’). No Change Order shall take effect, if at all, until mutually agreed upon and executed by the parties in writing, whereupon said Change Order shall constitute an amendment to the applicable SOW. If the proposed changes set forth in the Change Order in the opinion of Fundingo will require additional time, delays or additional expenses to Fundingo in order to provide the Project Deliverables and Services as modified by the Change Order, then Fundingo and Client shall confer and Client may elect either to (i) withdraw its proposed Change Order or (ii) require Fundingo to carry out the proposed Change Order subject to the delay and or additional fees and expenses billed to Company based upon the Professional Services Rate set forth in the SOW related to the Change Order. Client expressly acknowledges and agrees that all work performed in connection with a Change Order will be billed on a “time and materials” basis based upon the Professional Services Rate set forth in SOW relating to the Change Order.
2.5. Enhancements to the Managed Package. From time to time, Fundingo will develop and roll out modification and additions that materially change the utility, efficiency, functional capability, or application of the Managed Package (each an “Enhancement(s)”). Client shall have the option to purchase such Enhancements at the current charges and rates then offered by Fundingo. Notwithstanding the foregoing, regularly scheduled ongoing updates to the Managed Package will be provided at no additional charge to the Client, however Client shall be required to pay Fundingo’ based on the Professional Services Rate for the time spent by Fundingo installing the new updates in Client’s Salesforce environments, as well as the time spent testing the updates and Client training.
3. Disclosure and Assignment of Work.
3.1. Proprietary Rights. Except with respect to Fundingo Proprietary Software (as herein defined) and third party software, and unless otherwise specified herein, all work performed under this Agreement and/or pursuant to any SOW and all materials, information, reports, studies, object and source code, flow charts, diagrams and other tangible and intangible material of any nature whatsoever, Project Deliverables developed or prepared for the Client by Fundingo under this Agreement and/or pursuant to any SOW, are the property of the Client and all title and interest therein shall vest in Client and shall be deemed to be a “work made for hire” and made in the course of the services rendered hereunder. All such materials shall belong exclusively to the Client, with the Client having the right to obtain and to hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.
3.2. Fundingo Proprietary Software. In the event that a Project Deliverable consists of software or a managed package in which Fundingo has a proprietary interest in (“Fundingo Proprietary Software”), Fundingo grants to the Client a non-exclusive, irrevocable, royalty free license to use and maintain the Fundingo Proprietary Software, subject to the terms hereof. The term of such license shall begin on the date of delivery of the Fundingo Proprietary Software to the Client as set forth on any SOW or Change Order, and shall be perpetual.
4. Fees and Payment.
4.1. Fees and Taxes. In consideration of the Application, Services and the Project Deliverables to be delivered pursuant to this Agreement, the Project Details, each SOW and each Change Order, Client shall pay to Fundingo those fees and associated expenses set forth in the applicable SOW or Change Order, exclusive of taxes based upon the Professional Services Rate.
4.2. Payment Terms. Payment for all work performed by Fundingo shall be made in accordance with the payment schedule and method set forth in the applicable SOW or Change Order. All invoices shall be payable in full within fifteen (15) days from the date of the applicable invoice and will be sent to Client on a semi-monthly basis. Fundingo reserves the right to charge a monthly late payment fee equal to the rate of two percent (2%) per month, on the unpaid balance of any invoice not timely paid in full, computed from fifteen (15) days after the invoice date until payment. If any amounts owed on account of the Services and Project Deliverables are not paid when due, Client agrees to pay all costs of collection, including, but not limited to, all reasonable attorney’s fees, and all expenses incurred in connection with any action to collect the late payment.
4.3. Time and Materials. The Services and the Project Deliverables (with the exception of the Managed Package (as defined below) are provided on a “time and materials basis” and the fees will be calculated as provided in the applicable SOW or Change Order and shall be based upon the actual hours expended by Fundingo personnel in performing the Services and shall include, approved travel time, and time spent by Fundingo personnel in preparing reports for Client but shall not include time spent for preparing estimates for work hereunder.
4.4. span style=”text-decoration: underline;”>Managed Package. Client shall pay, and Fundingo shall accept as full and complete payment for the Managed Package the fixed price assigned to the Managed Package and set forth initial SOW executed by the Parties and attached hereto as Exhibit A.
5.1. Acknowledgement; Disclaimer. Each Recipient hereby acknowledges and agrees that in connection with Recipient’s performance hereunder and pursuant to each executed SOW or Change Order between the Parties, a Recipient may receive or be exposed to the Confidential Information of the other party regardless of whether Recipient affirmatively requests, or the other Party affirmatively approves, such receipt or exposure. Other than as expressly provided herein, each Party shall retain full ownership of its Confidential Information, and nothing herein shall be construed as an assignment of any Confidential Information to a Recipient.
5.2. Confidentiality Restrictions. Each Party hereto agrees to treat as strictly confidential the Confidential Information of the other Party received hereunder. Accordingly, except as may be expressly permitted hereunder or pursuant to an executed SOW, a Recipient shall not: (i) use any portion of the other Party’s Confidential Information in any way; (ii) disclose any portion of the other Party’s Confidential Information to any third party; or (iii) sell, lease, rent, license, assign, or otherwise transfer any portion of the other Party’s Confidential Information, or any products or services embodying or utilizing any such portion. Each Recipient agrees to strictly maintain the confidentiality of the other Party’s Confidential Information using at least the same degree of care customarily used by Recipient to protect its own Confidential Information, but under no circumstances less than a reasonable degree of care.
5.3. Use and Disclosure of Confidential Information. A Recipient may use the other Party’s Confidential Information solely in furtherance of Recipient’s performance hereunder and for no other purposes whatsoever. A Recipient may only disclose portions of the other Party’s Confidential Information to Recipient’s employees and independent consultants who require knowledge of such portion to assist with Recipient’s performance hereunder and/or pursuant to an executed SOW between the Parties. Each Recipient shall assume responsibility that its employees, sublicensees and assignees will similarly preserve the Confidential Information. The provisions of this clause shall survive termination of this Agreement any executed SOW(s).
5.4. Confidentiality Exclusions. The following information will not be subject to Section 5.1, 5.2 and 5.3: (a) information that is in the public domain or that enters the public domain through no fault of a Recipient to keep the information confidential; (b) information independently developed by a Recipient, without any use of information disclosed by the other Party; (c) information rightfully disclosed to a Recipient by a third party without continuing restrictions on its use; and (d) information known to a Recipient prior to the Effective Date of this Agreement which was not obtained from the disclosing Party hereto.
5.5. Remedies. Client and Fundingo each acknowledge and agree that the restrictions contained in Sections 5.1, 5.2., 5.3 and 5.4 are reasonable and necessary to protect the legitimate interests of the Parties and their respective affiliates and that each Party would not have entered into this Agreement in the absence of such restrictions. Client and Fundingo each acknowledge that any breach by a Party of the provisions of Sections 5.1, 5.2., 5.3 and/or 5.4 will cause continuing and irreparable injury to the other Party for which monetary damages would not be an adequate remedy. Accordingly, the Parties shall not in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists. In the event of such breach by a party, the non-breaching party shall have the right to enforce the provisions of Section 5 by seeking injunctive or other relief in any court, and this Agreement shall not in any way limit remedies at law or in equity otherwise available to the non-breaching party. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the Project Details or an executed SOW or Change Order, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorneys’ fees, costs and disbursements. No delay or failure by a Party in exercising any right under this Agreement shall be construed to be a waiver of such right or of the right to assert a claim with respect to any future breach of this Agreement.
6. Representations and Warranties by Fundingo. Fundingo represents to Client that:
6.1. All Services performed hereunder shall be performed in a good and workmanlike manner in accordance with industry standards.
6.2. For 30 days from the applicable implementation date, the Project Deliverables and the final Application will perform the functions described in the functional specifications therefore (the “Functional Specifications“). For 30 days from the applicable implementation date or for so long as maintenance is purchased for the Project Deliverables and the Final Application, Fundingo’ sole obligation, and Client’s sole remedy, in the event the any Project Deliverable and/or the final Application fails to perform the functions described in the Functional Specifications shall be for Fundingo to correct the defective item(s) at Fundingo’ expense.
7. Warranty Limitation. The warranties set forth in section 6 of this Agreement, will not apply if (a) the Project Deliverables or the completed Application are used other than in accordance with Fundingo’ instructions; (b) the Project Deliverables or the completed Application have been altered, modified or converted by Client or any third party; (c) the operation of the Project Deliverables or the completed Application are affected by a malfunction in any of Client’s equipment or software; (d) Client has not installed any error corrections or updates provided or continues to use the Project Deliverables or the completed Application after receipt of written notice by Fundingo that such use may cause errors; (e) any other cause within the control of Client results in the Project Deliverables or the completed Application becoming inoperative; or (f) Client breaches this Agreement or the terms set forth in any executed SOW or Change Order between the Parties.
8. Intellectual Property Indemnity.
8.01 Indemnification by Fundingo. Except to the extent that any Damages result from or are caused by the willful misconduct or negligence of Client or its directors, officers, employees or by any person or entity acting on behalf of or under control of Client, Fundingo agrees to indemnify, defend and hold Client harmless, including the Client subsidiaries and their respective officers, directors, employees, agents, successors and permitted assigns thereof (each of the foregoing being hereinafter referred to individually as a “Client Indemnified Party”) from and against any and all Losses that may be sustained by such Client Indemnified Party by reason of any (a) incorrect warranty, or any breach of any representation or warranty, covenant, agreement, obligation or undertaking in this Agreement by Fundingo; (b) third party claims that result from any injury of or damage or death to any person or real or tangible property to the extent proximately caused by the negligence or willful misconduct of Client or its directors, officers, employees or by any person or entity acting on behalf of or under control of Client; or (c) third party claims that any Services or Deliverables or any portion thereof, actually or allegedly, involve misappropriation of a trade secret or infringe a copyright, trademark, or United States patent right or other proprietary right of any third party.
8.02 Indemnification by Client. Except to the extent that any Losses result from or are caused by the willful misconduct or negligence of Fundingo or its directors, officers, employees or by any person or entity acting on behalf of or under control of Fundingo, Client agrees to indemnify, defend and hold Fundingo harmless, including the Fundingo subsidiaries and their respective officers, directors, employees, agents, successors and permitted assigns thereof (each of the foregoing being hereinafter referred to individually as a “Fundingo Indemnified Party”) from and against any and all Losses that may be sustained by such Fundingo Indemnified Party by reason of any (a) breach of any representation or warranty, covenant, agreement, obligation or undertaking in this Agreement by Client; (b) third party claims that result from any injury of or damage or death to any person or real or tangible property to the extent proximately caused by the negligence or willful misconduct of Fundingo or its directors, officers, employees or by any person or entity acting on behalf of or under control of Fundingo; or (c) third party claims that any Services or Deliverables or any portion thereof, actually or allegedly, involve misappropriation of a trade secret or infringe a copyright, trademark, or United States patent right or other proprietary right of any third party.
9. Limitation of Liability.
NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOSS OF BUSINESS, LOST OR DAMAGED DATA, FAILURE TO ACHIEVE COST SAVINGS OR THE FAILURE OR INCREASED EXPENSE OF OPERATIONS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT ANY EXECUTED SOW or CHANGE ORDER OR THE PROJECT DETAILS REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARE CHARACTERIZED AS ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. CLIENT ACKNOWLEDGES THAT THE WARRANTY EXCLUSIONS AND LIMITATION OF REMEDIES PROVIDED HEREUNDER ARE NEITHER UNREASONABLE NOR UNCONSCIONABLE AND IF Fundingo’ LIABILITY HAD NOT BEEN SO LIMITED; THE FEES CHARGED TO CLIENT HEREUNDER WOULD HAVE BEEN SUBSTANTIALLY HIGHER.
Any dispute or other action arising out of this Agreement must be brought within three years of the date the cause of action accrued, except that an action for nonpayment may be brought within three years of the date of last payment.
11.1. Term. This Agreement will commence as of the Agreement Effective Date and will remain in effect until the completion by Fundingo of all Services and delivery of each of the Project Deliverables and the final Application, unless this Agreement is terminated earlier in accordance with the terms set forth in Section11.2.
11.2. Termination for Breach. If a Party materially breaches this Agreement, or any executed SOW or Change Order (the “Defaulting Party”), and (i) such breach is incapable of cure, or (ii) with respect to such breaches capable of cure, the Defaulting Party does not cure such breach within twenty (20) days after written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. If Client is the Defaulting Party and Client fails to cure the material breach within twenty (20) days after written notice of material breach, Fundingo may cease working on the Services and the Project Deliverables and Application associated with the SOW or Change Order, until such time as Client cures the material breach and pays all amounts then due and owing on account of the Services, Project Deliverables and Application and all late fees and expenses incurred in connection therewith. Termination of a this Agreement and the associated SOW’s and Change Orders will be without prejudice to any other rights and remedies that the non-defaulting Party may have under this Agreement or at law or in equity.
11.3. Termination for Convenience. The Client may terminate this Agreement or any SOW, or Change Order hereunder at any time upon written notice to Fundingo and payment in full to Fundingo of all amounts due and owing on account of the Services and Project Deliverables up to and including the effective date of such termination based upon the Professional Services Rate, the number of hours worked on the project and the fixed cost for the Managed Package as set forth in the initial SOW, and all Change Orders. .
11.4. Effect of Termination. Upon any termination or expiration of this Agreement Fundingo will: (i) deliver to Client all Project Deliverables, in progress at the time of termination or expiration (but such delivery shall not include the final deployment of the Application, unless Fundingo receives payment in full for the entire project based upon the Professional Services Rate (as defined in the applicable SOW) and the fixed price for the Managed Package; (ii) repay all monies paid in advance in respect of the affected Services or Project Deliverables which have not been supplied or Delivered; (iii) work with the Client to ensure a smooth transition to the Client and/or a third party (if applicable) of the remaining Services or Project Deliverables; (iv) cease to use and return all equipment, documentation, data and any other materials provided by the Client; and (v) immediately cease working on any Project Deliverables and Services in each then outstanding SOW and Change Order.
12.1. Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand, or on the next business day if delivered by a recognized overnight courier, or on the third business day if mailed (by certified or registered mail, return receipt requested, first class postage prepaid), at the address set forth below the signature block on the first page of this Agreement and to Fundingo at 15250 Ventura Blvd., Suite 401, Sherman Oaks, CA 91403.
12.2. Relationship of the Parties. Nothing herein shall be construed to create a partnership, agency relationship, or joint venture between the parties hereto. Fundingo is acting as an independent contractor and not as an employee or agent of Client. Neither party has any authority hereunder to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party. Fundingo’ employees and agents at all times shall remain under the direction and control of Fundingo. The parties shall be considered independent contracting entities.
12.3. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of the services or obligations set forth in this Agreement due to a cause beyond its reasonable control. Performance times shall be considered extended for the period required to make up the work lost because of such cause.
12.4. No Third-Party Beneficiaries. Fundingo and Client mutually agree that this Agreement is intended by them to be solely for the benefit of the Parties hereto and that no third parties may rely on any reports, analyses or other material provided by Fundingo or shall obtain any direct or indirect benefits from the Agreement, have any claim or be entitled to any remedy under this Agreement or otherwise in any way be regarded as third-party beneficiaries under this Agreement.
12.5. Survival of Rights and Obligations. Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement will survive any such termination or expiration of this Agreement, including Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12.
12.6. Severability. If any part hereof shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.
12.7. Governing Law. This Agreement and all acts and transactions hereunder and thereunder and all rights and obligations of Fundingo and Client shall be governed, construed and interpreted in accordance with the internal laws of the State of California. Client and Fundingo agree that all actions or proceedings relating directly or indirectly this Agreement shall be litigated in courts located within said state and that the exclusive venue therefore shall be Los Angeles County, California. Fundingo and Client consent to the jurisdiction and venue of any such court and consent to service of process in any such action or proceeding by personal delivery or any other method permitted by law. Each party further agrees to waive any right such party may have to seek a change of venue based on inconvenience of the forum or otherwise.
12.8. Arbitration. The Parties further agree that, in the event that any dispute, claim or controversy (collectively, a “Dispute”) arises out of or relates to any provision of this Agreement, any SOW executed by the Parties or the breach, performance or validity or invalidity thereof, the Parties each knowingly and voluntarily agree to submit and settle any dispute, controversy or claim arising out of relating to this Agreement to arbitration. The arbitration proceeding shall be instituted by making a written demand for arbitration to either ADR Services (Century City) or JAMS (Los Angeles or Santa Monica), by registered letter, return receipt requested. The failure to institute an arbitration proceeding as set forth above within the applicable statute of limitations period shall constitute an absolute bar to bring any proceedings concerning any Disputes. The arbitration shall be conducted in Los Angeles, County, in the State of California, and judgment upon the award may be entered in any court having jurisdiction thereof. The arbitration shall be administered by a single arbitrator which shall be from the ADR Services or the JAMS panel of arbitrators, selected by mutual written agreement of the parties. Contractor and Subcontractor each further agrees that the filing of any law and motion hearings or the initiation of any hearings to obtain any form of a pre-judgment remedy shall not operate as a waiver of the parties right to submit and settle any dispute, controversy or claim arising out of relating to this agreement to arbitration. The prevailing party shall be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred.
12.9. Entire Agreement. Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms. The parties further agree that this Agreement, together with all Attachments hereto, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and that it supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to such subject matter. To the extent there is any conflict or inconsistency between the terms of the body hereof and those of an Attachment, the terms of the body of this Agreement shall control. This Agreement may not be modified except by a written instrument duly executed by the parties hereto.
1 Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Statement of Work or the Project Details as applicable.