Terms & Conditions

1. Definitions. When used in this Agreement, the following capitalized terms will have the meanings assigned to those terms in this Section 1. 

1.1. "Deliverables" means any tangible property, and any designs or other information inscribed on a tangible medium or stored in an electronic or other medium, that Contractor creates, develops or provides, or is to create, develop or provide, under any Schedule. 

1.2. "Intellectual Property Rights" means all intellectual property rights, including patent rights, copyrights, moral rights, trademark rights, trade name rights, service mark rights, trade dress rights, trade secret rights, proprietary rights, privacy rights, and publicity rights, whether or not those rights have been filed, registered or applied for under any statute or are protected or protectable under applicable law. 

1.3. "Purchase Price" means the amount payable by Company to Contractor under a Schedule. 

1.4. "Services" has the meaning assigned to that term in each Schedule. 

2. Payment.

2.1. Payment. Except as expressly provided otherwise in a Schedule, Company will pay Contractor the amount invoiced within 30 days after Company's receipt of each invoice submitted by Contractor to Company. Unless otherwise provided in a Schedule, all sums payable under that Schedule are payable in United State Dollars. 

2.2. Taxes. Contractor will include in each invoice all federal, state and local sales and use taxes, ad valorem taxes, value added taxes, tariffs and duties that Contractor is legally required to collect from Company. Contractor will remit to the appropriate governmental authorities any such taxes, tariffs or duties it receives from Company. 

2.3. Expenses. Except as otherwise provided in any Schedule, Company shall reimburse Contractor for all of its "out-of-pocket" expenses incurred in providing the Services and/or Deliverables (excluding day to day travel) provided such non-emergency expenses are pre-approved in writing by Company. Emergency expenses shall not require written preapproval by Company. 

3. Intellectual Property Ownership Rights.

3.1. Company and Contractor Property. Except as expressly provided otherwise in a Schedule, Contractor and/or its licensors will retain ownership of and to any of Contractor's Intellectual Property Rights in existence before the Effective Date or independent of this Agreement (collectively, the "Contractor Property"), and nothing in this Agreement shall confer on Company any title to or, except as necessary for the provision of the Services hereunder, right to us such intellectual property; and Contractor hereby grants to the Company a nonexclusive, royalty free, perpetual, irrevocable, sublicensable, world-wide license to the extent necessary to use the Deliverables for Company's business purposes with respect to each of the following: any Contractor Property and/or Developments (defined below) that are incorporated into any of the Deliverables. Except as expressly provided otherwise in a Schedule, Contractor will own all Deliverables and Services and all Intellectual Property Rights in and to each of the following that are included or embodied in or created in connection with the Deliverables or Services (the "Developments"): (a) all inventions, ideas, developments, designs, devices, machines, manufactures, compositions of matter, patterns, specifications, prototypes, concepts, processes, methods, algorithms, formulae, techniques, know how, or other discoveries, whether or not patentable; and (b) all works of authorship fixed in a tangible medium of expression, including without limitation, designs, patterns, plans, texts, graphics, photographs, drawings, and all other architectural, literary, pictorial, graphic, sculptural, audio visual, musical, collective and other works described in Section 101 of the United States Copyright Act of 1976, as amended; and (c) any word, name, slogan, symbol, jingle, character or sound to be used to identify products or services; and (d) any list, compilation, database or other commercially valuable assembly of information; and (e) all adaptations, modifications, improvements, enhancements, revisions, and derivative works of any of the preceding, whether or not registered; in each case, whether or not made, conceived or reduced to practice alone or jointly with others. Company hereby assigns to Contractor exclusively, without any compensation, all present and future right, title and interest in and to the Developments, and the Developments and their related benefits will immediately and automatically be the sole and absolute property of Contractor. Upon Contractor's request and at Contractor's cost, Company will execute and deliver to Contractor all documents necessary to perfect Contractor's right, title and interest in and to each Development, both domestically and abroad. Company hereby irrevocably designates and appoints Contractor and its duly authorized agents as Company's attorney-in-fact, to act for an in its behalf to execute and file those documents if Contractor is unable, after reasonable effort, to secure Company's assistance for any reason. 

3.2. Company Intellectual Property. All Intellectual Property Rights owned by Company prior to or independent of this Agreement shall remain the sole and exclusive property of Company, and nothing in this Agreement shall confer on Contractor any title to or, except as necessary for the provision of the Services hereunder, right to us such intellectual property. 

4. Covenants. 

4.1. Nonsolicitation. During the term of this Agreement and for a period of two years after its termination, Company will not, directly or indirectly, solicit, divert or hire (or attempt to solicit, divert or hire) to or for Company or any other company or business organization, any Resources (as defined below), whether or not that employee or independent contractor is or was a full-time, part-time or temporary employee or independent contractor, whether or not that employment or relationship is or was pursuant to a written agreement, and whether or not that employment or relationship is or was for a determined period or at will. Notwithstanding the foregoing, Company shall not be prohibited from making any general solicitation not targeted at such Resources directly and any hire or termination resulting from such general solicitation. The Parties agree that in the event Company hires any Resource of Contractor in breach of this Section 4.1, the resulting actual damages to Contractor would be costly, and extremely difficult and inconvenient for the Parties to determine. Company also acknowledges that Contractor has expended a large amount of effort, resources and training in connection with developing its employees' and independent contractor's skills and that replacing them is difficult and expensive. Therefore, the Parties agree that in addition to any other rights and remedies of Contractor including any available equitable remedy, Company shall pay to Contractor as liquidated damages, and not as a penalty, the amount of 50% of the Resource's annualized bill rate, for each employee or independent contractor placed by Contractor at Company's location. The Parties agree that the amounts stated herein as liquidated damages are fair and reasonable under the circumstances existing as of the date of this Agreement. 

4.2. FERPA AND HIPAA. If a determination of necessity is made and agreed upon by Company and Contractor that Contractor's performance under this Agreement requires compliance with the Family Educational Rights and Privacy Act (FERPA) and/or the Health Insurance Portability and Accountability Act (HIPAA), Contractor agrees to enter into any and all additional terms necessary to address FERPA and/or HIPAA compliance.

5. Change Control.

5.1. Change Orders Initiated by Company. Company may at any time, without invalidating any Schedule or the rest of this Agreement, direct Contractor to prepare a draft change order that describes any scope-related changes to a Schedule that Company deems desirable, including changes to the description of the Deliverables or Services, any functional or technical requirements or acceptance criteria, or any other scope-related additions, deletions or revisions. Upon receipt of those directions, provided they don't materially change the nature of the Deliverables or the Services or exceed Contractor's capacity to perform, Contractor will promptly prepare and submit to Company a draft change order reflecting Company's requested changes and proposing reasonable adjustments, if any, to the Deliverables or Services, the work schedule and delivery or milestone completion dates for the Services and any Deliverables, and/or the Purchase Price, as applicable. 

5.2. Change Orders Initiated by Contractor. If, during the course of performing its obligations under a Schedule, Contractor reasonably determines that its costs, or the time necessary to complete the Deliverables or Services, will be significantly greater as a result of (i) any delays on the part of Company, or (ii) the failure of any of the assumptions and conditions described in that Schedule, and if that increase cannot be mitigated through the exercise of reasonable efforts at no significant additional cost to Contractor, then Contractor may prepare and submit to Company a draft change order describing Company's delay or the failed assumption or condition, and proposing reasonable adjustments to the Deliverables or Services, the work schedule and delivery or milestone completion dates for the Services and any Deliverables, and/or the Purchase Price, as applicable. 

5.3. Final Change Orders; Contractor's Obligation to Perform. If Company accepts a draft change order for a Schedule prepared by Contractor under Section 5.1 or Section 5.2 above, Company will sign that change order, and that Schedule will be amended accordingly. If Company rejects any aspect of a draft change order prepared by Contractor, Company and Contractor will negotiate in good faith to revise the draft change order; and: (a) If the Parties are unable to reach agreement regarding a change order initiated by Company under Section 5.1, Company may, at its election, (i) withdraw its request for a change order and enforce the current form of that Schedule, or (ii) direct Contractor to proceed in accordance with the scope changes in the draft change order prepared by Contractor. If, notwithstanding its rejection of a draft change order prepared by Contractor, Company directs Contractor to proceed in accordance with the scope changes requested in a draft change order, Contractor will perform the work, and in that case any issues related to the work schedule, the delivery or milestone completion dates, and/or the Purchase Price will be referred immediately to arbitration in accordance with Section 5.4 below. (b) If the Parties are unable to reach agreement regarding a change order initiated by Contractor under Section 5.2, Contractor will proceed in accordance with this Schedule in its current form, and in that case, any issues related to the work schedule, the delivery or milestone completion dates, and/or the Purchase Price will be referred immediately to arbitration in accordance with Section 5.4. below. 

5.4. Arbitration. 

(a) Any dispute relating solely to a change order request under this Section 5 that cannot be resolved by the Parties will be resolved by arbitration as provided in this Section. If the dispute relates to any substantive provision in this Agreement other than to this Section 5 (either alone or in connection with any other substantive provision in this Agreement), this Section 5.4 shall also apply. 

(b) The Parties will first endeavor to settle any dispute in an amicable manner before resorting to arbitration. Any unresolved change order dispute will be settled by arbitration administered by the JAMS in accordance with its commercial arbitration rules or similar organization selected by the Parties. Arbitration will be conducted in Los Angeles County, California. If the total amount in dispute is less than $500,000, one arbitrator will hear the dispute. If the total amount in dispute is $500,000 or more, three arbitrators will hear the dispute. Each arbitrator must have a minimum of five years' experience as a state or federal judge, ten years as a lawyer or an accountant, or any alternate qualifications that the Parties agree upon. 

(c) The Parties have elected to submit their disputes under this Section 5 to arbitration in part to minimize costs and to expedite the resolution of those disputes. Consequently, the arbitrator(s) will allow limited discovery in harmony with those goals. 

(d) Each Party will submit to the arbitrator(s), and will exchange with each other Party in advance of the arbitration hearing, its last best draft change order if the dispute involves a change order, or such other information regarding the dispute, if the dispute does not involve a change order. If the dispute involves a change order, the arbitrator(s) will select only one of the two submitted draft change orders and this Schedule will be amended as and to the extent expressly provided by the draft change order selected by the arbitrator(s). If the dispute does not involve a change order the arbitrator shall have the power to grant all legal and equitable remedies, but the arbitrator may not order relief beyond what a court could order. The decision will be final and binding on the Parties. Any court having jurisdiction may enter a judgment on the award rendered by the arbitrator, or correct or vacate such award as provided by applicable law. The arbitrator may award the prevailing party all reasonable attorneys' fees, expert witness fees, and other litigation expenses, expended or incurred in such arbitration or litigation, unless the laws related to the claim that the party prevailed on preclude a court from awarding attorneys' fees and costs to the prevailing party. 

(e) Neither Party may disclose the existence, content, results or any other information about the dispute, the arbitration or the award to any person except as necessary to enforce the award or as required by law. Each Party agrees that it will not engage an attorney, arbitrator or arbitration service unless that attorney, arbitrator or arbitration service agrees in writing that it will not disclose the existence, content, results, award (including redacted copies of the award) or any other information about the dispute, the arbitration or the award to any other person without the prior written consent of both Parties. 

6. Resources. 

6.1. Resources. Contractor will (a) select and supervise the performance of each of its employees and independent contractors who perform work on the Deliverables or render Services (the "Resources") (and may reassign Resources as necessary); (b) will comply with the provisions of California Education Code section 33192 regarding the submission of fingerprints of the Resources to the California Department of Justice and the completion of criminal background investigation for employees and any individual providing the Services or if such Services are performed outside of the State of California, comply with similar state provisions as required; and (c) ensure the manner in which the Services are performed by Contractor and the specific hours to be worked by Contractor will be done in the agreed upon Schedule and will be limited to the hours set forth in the Schedule and unless there is an emergency situation, Company will be notified in advance of any potential overages in hours. Contractor makes no other representations or warranties, whether written, oral, express or implied, with respect to the Services or Deliverables, and hereby disclaims any other express or implied warranties. 

6.2. Access to Premises; Holidays; Overtime. 

(a) Company will provide the Resources who work at any location owned or controlled by Company a dedicated, environmentally safe, comfortable and secure workspace and access to the premises. 

(b) Company will provide the Resources the same holidays and time off recognized by Contractor. Contractor recognizes 11 holidays, with the addition of 1 floating holiday: New Year’s Day Martin Luther King Day Memorial Day Juneteenth (June 19th) Independence Day Labor Day Veterans Day Thanksgiving Day Black Friday (Day After Thanksgiving) Christmas Eve Christmas Day Floating Holiday (an 8-hour floating day off – needs to be requested and approved by the Company prior to being taken by the Resource) 

(c) In addition to Contractor holidays, each Health Coordinator shall be given a week-long vacation for winter break (from Christmas Eve 12/24 - New Year's Day 1/1) and for summer break (two weeks total) in alignment with the Company’s school calendar. 

(d) Company acknowledges and agrees that Resources shall work standard eight-hour work days with a mandatory (and strictly enforced) 30-minute lunch break included in the middle of the day. The exact hours for daily arrival and dismissal will be agreed upon by the Company, Contractor and the Resource upon hiring. 

(e) Overtime hours for Resources will be charged to the Company after eight (8) hours per day or forty (40) hours per week. Double Time hours for Resources will be charged to the Company after twelve (12) hours per day. 

(f) If a Resource is required to work on one of Contactor’s recognized holidays, the Resource will be billed to the Company at their Double Time rate.

7. Indemnification. 

7.1. Definition of Loss and Losses. "Loss" or "Losses" includes, without limitation: (a) all costs and reasonable attorney fees paid or payable by an Indemnitee (defined below) in defense of any claim subject to indemnification under this Section 7, whether prior to, at trial or any other proceeding and in any appeal or other post judgment proceeding; and (b) all direct losses and damages and all incidental, consequential, punitive and exemplary damages paid or payable to any other person, including without limitation, for property damage and for personal injury, sickness and death; (c) all interest, costs, fines, taxes, premiums, assessments, penalties, and expenses; and (d) all other liabilities of any kind or nature. 

7.2. Indemnification Obligations. Each Party (the "Indemnitor") will indemnify, defend, and hold harmless the other Party, its affiliates and their respective officers, directors, shareholders, employees and agents (jointly and severally, the "Indemnitees") from and against all Losses asserted directly or indirectly by any other person for any actual or alleged: (a) infringement, misappropriation or unauthorized use of any trademark, patent, copyright, right of privacy, publicity right, trade secret right, name or likeness, or any other Intellectual Property Right of that other person, by the Indemnitor or contained in any Deliverables or Services provided by the Indemnitor; (b) negligent, willful, or unlawful acts or omission by the Indemnitor, in the case of Contractor in performing the Services or the Deliverables, and in the case of Company, in connection with the Agreement; (c) breach of any representation, warranty or covenant in this Agreement by the Indemnitor; and (d) violation of any applicable law by the Indemnitor; in each case, whether arising from or in connection with a demand, action, regulatory action, lawsuit, proceeding (including without limitation, proceedings under the US Bankruptcy Code), judgment, settlement, appeal or other post judgment proceeding and whether asserted in contract, tort, strict liability or otherwise. 

7.3. Exceptions. The indemnification obligations described above will not apply to a Loss to the extent that Loss was caused by: (a) an Indemnitees' negligent acts or omissions; (b) an Indemnitees' breach of its representations, warranties or covenants in this Agreement or elsewhere; (c) an Indemnitees' intentional misconduct; or (d) an Indemnitees' violation of any applicable law. In addition, Contractor's indemnification obligations will not apply to a Loss to the extent that Loss was caused by: (w) Contractor's compliance with Company's specifications or detailed instructions, but only if the Loss would not have arisen but for that compliance; (x) Company's modification of the Deliverables without Contractor's consent (other than those modifications contemplated by the Parties); (y) Company's use of Deliverables or Services in combination with goods or services that were not provided or recommended by Contractor or contemplated by the Parties. The maximum liability under this Section 7 will be subject to any limitations of liability set forth in this Agreement or in an applicable Schedule. 

Procedures. 

The duty of Indemnitor to indemnify the Indemnitees under this Section 7 is subject to the Indemnitees' compliance with each of the following conditions: (a) the Indemnitees promptly notify the Indemnitor of the Loss (except that the Indemnitees' failure to promptly notify the Indemnitor of a Loss will not limit, impair or otherwise affect the Indemnitees' rights under this Section 7 unless the Indemnitor is prejudiced by that failure, and then only to the extent of the prejudice); and (b) the Indemnitees give the Indemnitor full and complete authority (including without limitation, settlement authority) and reasonable assistance (including without limitation, reasonable access to information in the Indemnitees' possession) for the defense. However, the Indemnitor's rights under Subsection (b) are contingent on its agreement that it will not settle any claim without the Indemnitees' prior written consent unless that settlement includes a full and final release of all claims against the Indemnitees and does not impose any obligations on the Indemnitees. 

8. Confidentiality. 

8.1. Confidential Information. Contractor understands that from time to time Company may disclose Confidential Information to Contractor. For purposes of this Section 8, the term "Confidential Information" means all information of and about Company, its employees, students, and others whose confidential information Company has agreed to protect, whether in oral, written, or other tangible or intangible form, including, without limitation, medical and health information, business plans, financial plans and information, computer programs, security plans, banking information, event planning documents, historical records of incidents, insurance and legal records, and personally identifiable information of Company and Company's employees and others who Company is entrusted to protect, except that the term "Confidential Information" will not include any information that Contractor can demonstrate: (i) is or subsequently becomes publicly available without Contractor's breach of any obligation owed to Company; (ii) was known to Contractor before Company's disclosure of such information to Contractor as evidenced by Contractor's written records; (iii) became known to Contractor from a source other than Company without a breach of this Agreement by Contractor as evidenced by Contractor's written records; or (iv) is independently developed by Contractor's personnel as evidenced by Contractor's written records. 

8.2. Obligations. Contractor will maintain the Confidential Information in confidence and will not use the Confidential Information for any purpose except to perform its obligations for the benefit of Company under this Agreement. Contractor agrees to use the same degree of care in protecting the Confidential Information as Contractor uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. In addition, Contractor agrees that: (i) it will not reproduce the Confidential Information in any form except as required to accomplish Contractor's obligations for the benefit of Company under this Agreement; (ii) it will only disclose the Confidential Information to Contractor's directors, officers, employees, professional advisors and/or contractors who have a need to know such Confidential Information in order for Contractor to perform its duties for the benefit of Company under this Agreement. Contractor will report any unauthorized access to Confidential Information to Company as soon as Contractor becomes aware of it. Contractor will not remove any Confidential Information or records containing Confidential Information from Company, unless authorized to do so, and will return such records to Company upon request. 

8.3. Relief. Contractor acknowledges that due to the unique nature of the Confidential Information, Company would not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. Therefore, in addition to any other remedies that may be available in law, in equity or otherwise, Company will be entitled to obtain injunctive relief to prevent such unauthorized use or disclosure of its Confidential Information. 

8.4. Term. Contractor's obligations under this Section 8 will continue for so long as the Company information qualifies as "Confidential Information."

9. Injunctive Relief. Contractor acknowledges that its breach of Section 3 ("Intellectual Property Ownership Rights"), and Section 8 ("Confidentiality") of this Agreement will irreparably harm Company, and that such harm will not be susceptible to accurate measurement for the purpose of calculating money damages. Accordingly, Company, in addition to seeking and recovering money damages and other remedies available at law, will have the right to obtain an injunction or other equitable relief to prevent a breach or threatened breach of such Sections, without the necessity of posting a bond or other security. 

10. Independent Contractor. Nothing contained in this Agreement will create a joint venture or partnership, establish a relationship of principal and agent, establish a relationship of employer and employee, or any other relationship of a similar nature between the Parties. Neither Party will represent the other Party in any capacity, bind the other Party to any contract, or create or assume any obligation on behalf of the other Party for any purpose whatsoever, except as expressly authorized by this Agreement. Except as expressly required by this Agreement, Contractor retains sole and absolute discretion as to the manner and means of carrying out its obligations under this Agreement, and Company will have no right or obligation to direct or control Contractor's working conditions or activities. 
 
11. Insurance. Contractor will maintain at its own expense, unless otherwise agreed by the Parties, the following insurance:
 
(a) Workers' Compensation Insurance with statutory limits for the jurisdiction in which the Services are being performed.
 
(b) Only for Health Coordinator and Venues and Events projects: General/ Professional Liability insurance with a limit of not less than five million US dollars ($5,000,000) per claim and no less than five million US dollars ($5,000,000) in the aggregate and Sexual Misconduct insurance endorsement with a limit to not less than one million US dollars ($1,000,000) per claim and no less than one million US dollars ($1,000,000) in the aggregate.
 
(c) Only for School Security Division projects: General/ Professional Liability insurance with a limit of not less than one million US dollars ($1,000,000) per claim and not less than three million US dollars ($3,000,000) in the aggregate. 
 
(d) If requested by the Company, this insurance will (i) be written on an occurrence basis; and (ii) if requested by the Company, name Company and its affiliates as additional insureds. Any limits specified in this Section may be achieved through a combination of primary and umbrella or excess liability policies. On or prior to the Effective Date, and as the insurance policies expire, if requested by the Company, Contractor will deliver copies of certificates of insurance for each required policy to Company. Company will maintain at its own expense insurance policies and coverages to adequately support its indemnification obligations to Contractor as provided herein, and if requested by, Contractor, shall name Contractor as an additional insurance and deliver to Contractor copies of certificates of insurance for each such policy. 
 
12. Notices. Each notice, consent, request, or other communication required or permitted under this Agreement will be in writing, will be delivered personally or sent by certified mail (postage prepaid, return receipt requested), by facsimile (with electronic confirmation of receipt and a confirmation hard copy sent by regular mail no later than the following business day) or by a recognized US overnight courier, and will be addressed to the contact for such Party as set forth in the "Parties" table on the first page of this Agreement. Each notice, consent, request, or other communication will be deemed to have been received by the Party to whom it was addressed (w) when delivered if delivered personally; (x) on the third business day after the date of mailing if mailed; (y) on the first business day after the facsimile transmission if delivered by facsimile; or (z) on the date officially recorded as delivered according to the record of delivery if delivered by overnight courier. Each Party may change its address for purposes of this Agreement by giving written notice to the other Party in the manner set forth above.
 
13. Force Majeure. Except as expressly permitted in a Schedule and excluding any payment obligations, neither Party will be liable for a delay in performing its obligations under this Agreement to the extent that delay is caused by an event beyond the reasonable control of the affected Party, including but not limited to, insurrection, war, riot, explosion, nuclear incident, fire, flood, earthquake, global pandemic or other catastrophic event, pandemic, epidemic, recognized health threat as determined by any federal, state or local governmental or quasigovernmental authority (including the federal Centers for Disease Control) order or directive to "shelter in place", or any other event or occurrence, order or directive similar to the above, provided the affected Party immediately notifies the other Party and takes reasonable and expedient action to resume operations. 
 
14. Termination of this Agreement. 

14.1. Term. The term of this Agreement and/or any Schedule shall be set forth in the applicable Schedule attached to this Agreement. 

14.2. For Cause. Either Party may terminate this Agreement or any Schedule, effective immediately, by giving the other Party notice, if the other Party has breached a material provision of this Agreement or any Schedule and that breach (a) is not capable of being cured; or (b) if it is capable of being cured, that breach remains uncured for 30 days after the breaching Party receives notice of that breach. In the event Contractor terminates this Agreement for cause, all funds paid to Contractor shall be deemed fully earned and Contractor shall retain all such funds and have no requirements to provider further Services or Deliverables and Company shall immediately pay any outstanding amounts due and owing Contractor. In the event Company terminates this Agreement for cause, Contractor shall refund a prorated amount of the funds paid to it by Company under this Agreement. 

15. Survival. The following will survive and continue in full force and effect after this Agreement expires or is earlier terminated: Section 3 ("Intellectual Property Ownership Rights"); Section 4.1 ("Nonsolicitation"); Section 6("Indemnification"); Section 8 ("Confidentiality"); Section 9("Injunctive Relief"); Section 10 ("Independent Contractor"); Section 11 ("Insurance"); Section 12 ("Notices"); this Section 15("Survival"); and Sections 18 ("Governing Law; Jurisdiction and Venue") through Section 24 ("Limitations of Liability"); each other provision of this Agreement (including without limitation, the Schedules and the Attachments) that expressly or by its nature provides for rights, obligations or remedies that extend beyond the expiration or earlier termination of this Agreement; and all claims that arose before the expiration or earlier termination of this Agreement.
 
16. Assignment. Neither Party may assign any right or subcontract or otherwise delegate any duty under this Agreement, whether by transfer, merger, operation of law, or otherwise, without the prior written consent of the Party; provided however such consent shall not be required (i) if Contractor sells all of its business in any manner to a third party or (ii) if Contractor assigns or transfers all or part of this Agreement to an affiliate or subsidiary. A change in the control (voting or otherwise) will be deemed an assignment for purposes of this Section.
 
17. Succession. This Agreement will bind and inure to the benefit of each Party and its permitted successors and permitted assigns. 
 
18. Governing Law; Jurisdiction and Venue. This Agreement will be interpreted under, and any disputes arising out of this Agreement will be governed by, the laws of the State of California, without reference to its conflicts of law principles.
 
19. Waiver. A Party's delay or failure to enforce or insist on strict compliance with any provision of this Agreement will not constitute a waiver or otherwise modify this Agreement. A Party's waiver of any right granted under this Agreement on one occasion will not (a) waive any other right; (b) constitute a continuing waiver; or (c) waive that right on any other occasion.
 
20. Amendments. The Parties may amend a Schedule, these Standard Terms or any other provision of this Agreement only by a written instrument that: (a) expressly refers to the provision(s) of this Agreement to be amended; (b) provides the full text of the amendment; and (c) is signed by an authorized representative of each Party. 
 
21. Interpretation. Both Parties have had the opportunity to have this Agreement reviewed by their attorneys. Therefore, no rule of construction or interpretation that disfavors the Party drafting this Agreement or any of its provisions will apply to the interpretation of this Agreement. Instead, this Agreement will be interpreted according to the fair meaning of its terms. Caption headings are for convenience of reference only and will not in any way limit or otherwise affect the provisions of any section. The words "includes" and "including" are not limited in any way and mean "includes or including without limitation." The word "person" includes individuals, corporations, partnerships, limited liability companies, co-operatives, associations and other natural and legal persons. The term "and/or" means each and all of the persons, words, provisions or items connected by that term; i.e., it has a joint and several meaning. All exhibits attached to or referenced in this Agreement are a part of and are incorporated in this Agreement. 
 
22. Severability. If any court, arbitrator, or arbitration panel finds any provision of this Agreement to be invalid or otherwise unenforceable, that provision will be modified to the extent necessary for it to be enforceable. However, that finding will not affect the validity of any other provision of this Agreement, and the rest of this Agreement will remain in full force and effect unless enforcement of this Agreement as modified would be grossly inequitable under all of the circumstances or would frustrate the primary purposes of this Agreement.
 
23. Counterparts and Delivery. This Agreement may be executed in counterparts. Each counterpart will be considered an original, and all of them, taken together, will constitute a single Agreement. Facsimile signatures will be deemed original signatures for all purposes under this Agreement. Neither this Agreement nor any amendment or modification of this Agreement may be executed by means of an electronic signature. When properly signed, this Agreement may be delivered by facsimile or electronically, and any such delivery will have the same effect as physical delivery of a signed original.
 
24. Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR BREACH OF SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT OR OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAD NOTICE OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. EXCEPT IN THE EVENT OF CONTRACTORS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CONTRACTOR'S CUMULATIVE LIABILITY TO COMPANY AND ANY COMPANY INDEMNITEES FOR ANY AND ALL DAMAGES FOR ANY CAUSE WHATSOEVER ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE FEES PAID BY COMPANY TO CONTRACTOR IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM AND (B) THE AMOUNTS PAID PURSUANT TO CONTRACTOR'S INSURANCE POLICIES. NOTHING IN THIS SECTION IS INTENDED TO LIMIT AMOUNTS PAYABLE BY THE INSURER UNDER CONTRACTOR'S INSURANCE POLICIES. COMPANY ACKNOWLEDGES AND AGREES THAT CONTRACTOR WOULD NOT ENTER INTO THIS AGREEMENT FOR THE CONSIDERATION PAID BY COMPANY BUT FOR THE LIMITATIONS OF LIABILITY AND DAMAGES IN THIS SECTION 24, AND THE RIGHT TO RECEIVE THE DELIVERABLES AND SERVICES FOR THE LIMITATIONS IN THIS SECTION 24 AND THE OTHER CONSIDERATION GIVEN BY COMPANY FOR THE SERVICES AND DELIVERABLES CONSTITUTE A BARGAIN THAT IS FAIR AND REASONABLE. 

 

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