Azure Terms & Conditions

TERMS AND CONDITIONS

These terms and conditions shall govern the rights, remedies and obligations of RAKE Digital Company, LLC and Customer as to the services to be furnished under the selected RAKE Statement of Work (SOW), (collectively, the “Agreement”) by and between RAKE Digital Company, LLC, having an office and place of business at 115 E. Calhoun St., Salem, VA 24153, (“RAKE “) and the party signing the SOW (“Customer”) (hereinafter collectively referred to as “the Parties”, or individually as a “Party”).

INTRODUCTION

RAKE is in the business of, and has expertise in, providing certain services, as may be described in a SOW. Customer wishes to obtain through RAKE and RAKE wishes to provide to Customer such Services. NOW THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth herein, the Parties agree to the following terms and conditions.

I. DEFINITION OF TERMS

The following terms, wherever used in any documents which form part of the Agreement, shall have the meanings indicated below unless the context otherwise requires:

“Affiliate” means any entity which controls, is Controlled by or is under common control with one of the Parties to this Agreement. “Control” or “Controlled” means beneficial ownership (direct or indirect) of the subject entity.

“Deliverables” means those work products, reports, documentation, and schedules to be developed and provided by RAKE to Customer in regard to the Services, as described in the SOW.

“IP Rights” means all rights of patent, copyright, trade secret and other proprietary rights applicable to a Deliverable.

“Site” means the office or other location, as designated by Customer in an SOW, for which the Services are intended, to which the Services are to be delivered or where the Services are to be carried out (if it is not to be performed at RAKE’s own facility), as the case may be.

“SOW” or “Scope of Work” means a document, mutually agreed by the Parties, that references these terms and conditions and describes the Services and Deliverables to be provided, the associated schedule and price, and any special conditions applicable to that SOW.

“Subcontractor” means the firm, person, or corporation at any tier having a contract with RAKE for the performance of any part of the Services.

“Services” means all services, labor, materials, equipment, and supplies provided by RAKE under an SOW.

II. RULES OF INTERPRETATION

The term “including” means “including, but not limited to” and shall be interpreted as broadly as possible.
All references to “days” shall be calendar days, not business days, unless otherwise explicitly stated.
The captions and titles to articles and paragraphs of this Agreement are only provided for convenience and have no effect on the nature, extent, construction and meaning of this Agreement.
In the event of any inconsistency between the provisions of the following documents, the inconsistency shall be resolved by giving precedence in the following order:
1. The SOW;
2. Amendments to this Agreement, if any;
3. Attachments to this Agreement in the order in which they are listed; and
4. This Agreement;

unless such inconsistency relates to modification to the Indemnification, Rights in Deliverables, Representations and Warranties, or Limitations of Liability Articles herein, in which case such modification must specifically state that it is amending this Agreement as so stated. This Agreement shall govern and supersede any preprinted terms and conditions on or attached to any Purchase Order or other document submitted by Customer to RAKE, which are null and void with respect to this Agreement.

If copies of documents are referenced or incorporated in this Agreement, they shall be read as originals. Attachments, schedules, appendices and addenda shall be considered part of the documents in which they are referenced. Documents that are referenced shall have the same force and effect as if contained in their entirety.
Notwithstanding the general rules of construction, both Customer and RAKE acknowledge that both Parties were given an equal opportunity to negotiate the terms and conditions contained in this Agreement and agree that the identity of the drafter of this Agreement is not relevant to any interpretation of the terms and conditions of this Agreement.

III. SCOPE OF AGREEMENT

This Agreement is not a commitment on the part of Customer to purchase Services from RAKE. Services will be purchased on an “as ordered” basis through the execution of one or more SOW documents, directing RAKE to perform the Services and provide the Deliverables.
Each SOW shall, at a minimum, contain the following:
1. The incorporation of this Agreement by reference;
2. The location where the Services will be performed;
3. A detailed description of the Services, including, but not limited to, performance standards and criteria, Deliverables, and/or specifications;
4. Price, including any applicable fees, expenses, not-to-exceed amounts, type (fixed price, time and material, unit price) and payment terms;
5. The SOW term and Schedule;
6. Acceptance criteria;
7. The signatures of the Parties’ authorized representatives and dates of signature.

IV. TERM OF AGREEMENT, SOW

This Agreement shall be effective on the last date of signature of the SOW (the “Effective Date”) and continue in effect for three years thereafter, unless otherwise mutually extended by the Parties, or if terminated in accordance with this Agreement.
The individual SOW shall be effective on the Effective Date and shall continue in effect through the end of the stated term of the SOW, unless earlier terminated in accordance with this Agreement.

V. RIGHTS IN DELIVERABLES

Unless otherwise specifically agreed to in a SOW, any and all Deliverables created, developed, or prepared by RAKE, its employees or Subcontractors shall be deemed a “work for hire” and belong to Customer, subject to the following non-exclusive license. To the extent any Deliverable is not deemed a “work for hire” by operation of law, RAKE hereby irrevocably assigns, transfers and conveys, and shall cause its Subcontractors irrevocably assign, transfer and convey to Customer all of its and their right, title and interest in all Deliverables. All other intellectual property rights and other proprietary rights in and to the Services, and information, know-how and processes developed by RAKE, or anyone acting on RAKE’s behalf arising from the Services performed hereunder shall be the sole and exclusive property of RAKE and shall not be claimed to be owned by Customer or their employees. Customer hereby grants RAKE an irrevocable, perpetual, transferable, non-exclusive, sublicensable (through multiple levels of sublicensees), non-royalty bearing, worldwide license to the IP Rights pertaining to the underlying software code and scripts and design elements of the Deliverables for all purposes.
RAKE shall provide to Customer all commercially reasonable assistance, execute such documents, and take all such other actions that may be reasonably required to perfect the foregoing rights to the Deliverable including, but not limited to, directing its employees to execute all applications for patents and/or copyrights, assignments, and other papers necessary to secure and enforce Customer’s rights to such Deliverable, subject in each case to the reimbursement to RAKE of its out-of-pocket expenses and subject to payment of hourly rates for time thereby incurred.
Notwithstanding the foregoing, RAKE shall retain ownership rights to (1) all of its previously existing intellectual property, including any derivatives, modifications and enhancements thereto, (2) Confidential Information of RAKE, and (3) any tools or scripting applications used, developed or created by RAKE or its third party licensors during the performance of this Agreement..

VI. INVOICING, TERMS OF PAYMENT, PRICE AND TAX

A. All invoices shall be submitted to the remit-to address specified in an SOW, submitted as specified in this Agreement, and shall reference the SOW number.

B. Subject to reconciliation with the terms of this Agreement, including verification that the Services were satisfactorily delivered, the invoice shall be paid (“paid” being defined as “issuance of payment from Customer’s Accounts Payable Department”) net ten days after receipt of a valid invoice at the above referenced remit-to address.

C. Any invoice or portion thereof that is subject to a good faith dispute will not be paid; in such case, Customer will promptly notify RAKE of any rejected invoice or portion thereof, with reasons for such rejection. The rejected costs, adjusted to the extent as mutually agreed to, shall then be re-invoiced on a separate invoice and paid net five calendar days thereafter.

D. Price

The Price to be paid by Customer to RAKE for the Services shall be specified in the SOW.

E. Tax

1. Customer will be responsible for payment of any federal, state, and local sales, use, withholding tax, duties or similar taxes imposed or based on the sale of Services and/or products provided under this Agreement. Taxability will be calculated based on the location the Services were performed.

2. When RAKE is authorized to collect such taxes, they will be separately stated on RAKE’s invoices and reported and paid to appropriate taxing authorities by RAKE. For locations where RAKE is not authorized to collect such taxes, no tax will be shown on RAKE’s invoice, and, if applicable, customer will be responsible for remitting such tax payments directly to the appropriate taxing.

3. At Customer’s request, RAKE will, to a commercially reasonable extent, file any certificate or other document which may cause any such tax to be avoided or reduced, and cooperate with Customer in contesting any such tax or in claiming, on Customer’s behalf, refunds of any such taxes paid by or on behalf of Customer.

4. All other taxes, including, but not limited to a Party’s operations, such as payroll or income taxes, federal, state, and local income taxes, franchise taxes, gross receipts taxes, federal, state, and local sales and use taxes, and property taxes shall be the responsibility of the Party that incurs the tax liability

VII. CONTRACTUAL RELATIONSHIPS

Customer/RAKE Relationship: RAKE shall operate as and have the status of an independent contractor and shall not act as or be an agent or employee of Customer in performing the Services under the Agreement. It is the intent of the Agreement that the relationship of Customer and RAKE be that of the “customer” and “independent contractor”. As an independent contractor, RAKE shall determine the means and methods for satisfactorily performing the Services.
No Privity with Subcontractors: Any provision herein referring to RAKE’s Subcontractors, describing how subcontracts may be authorized by Customer or requiring RAKE to incorporate a provision hereof in agreements with its Subcontractors, agents or assigns shall not create privity of contract between Customer and such Subcontractors, their agents and assigns.

VIII. INDEMNIFICATION

Each Party (the “Indemnifying Party”) shall, to the extent permitted by law, indemnify, defend and hold harmless the respective employees, officers, directors, agents and representatives of the other Party (the “Indemnified Party”) from and against any and all third-party liabilities, actual claims, actions, losses and damages (collectively “Claims”) to the extent caused by or arising out of (i) the gross negligence or violation of law by the Indemnifying Party or any agent of the Indemnifying Party and (ii)(X) in the case of RAKE as the Indemnifying Party, the fact any code written or generated or included by RAKE in any Deliverables (as opposed infringes any intellectual property right of such third party, provided that the foregoing shall not extend to whether Customer’s end use of the Deliverable is or is not infringing, or (Y) in the case of Customer, any end use of the Deliverables (not otherwise indemnifiable by RAKE). This indemnity shall apply to all Claims against the Indemnified Party made or threatened by, or in the name of or on behalf of the Indemnifying Party’s employees which arise in the course of their employment. The Parties hereby waive any defense they may otherwise have under applicable workers compensation laws.
The Indemnified Party shall provide timely written notice to the Indemnifying Party of any claim, loss, suit, demand or lien under this Article, which it becomes aware of; but the Indemnified Party’s failure to promptly notify the Indemnifying Party will only affect Indemnifying Party’s obligations hereunder to the extent that such failure prejudices Indemnifying Party’s ability to defend the Claim.
The Indemnifying Party shall assume exclusive control of the claim, loss, suit, demand or lien and the Indemnified Party shall provide reasonable assistance in the defense of the Claim at the Indemnifying Party’s expense. The Indemnifying Party may: (a) use counsel of Indemnifying Party’s own choosing (subject to the Indemnified Party’s written consent) to defend against any claim; and (b) settle the claim as the Indemnifying Party deems appropriate, provided that the Indemnifying Party obtains the Indemnified Party’s prior written consent before entering into any settlement which will impact the Indemnified Party’s rights under this Agreement. The Indemnified Party may also, at its own expense, assume control of the defense and settlement of the Claim at any time.
If the Indemnified Party is obligated to respond to a third party subpoena or other compulsory legal order or process as a result of a Claim, the Indemnifying Party will reimburse the Indemnified Party for reasonable attorneys’ fees, as well as time and materials costs incurred in responding to such third party subpoena or other compulsory legal order or process.

IX. LIMITATION OF LIABILITY

NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT IN THE CASE OF BREACH OF A PARTY’S LIABILITY TO A THIRD PARTY UNDER ARTICLE ENTITLED, “INDEMNIFICATION”, EITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER THEORY, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER TO RAKE UNDER THIS AGREEMENT FOR THE YEAR PREVIOUS TO THE INCIDENT THAT GAVE CAUSE FOR SUCH LIABILITY. CUSTOMER ACKNOWLEDGES THAT SUCH AMOUNT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT RAKE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

X. CONFIDENTIAL INFORMATION

A. If a Party to this Agreement, its subcontractors and agents (the “Receiving Party”) obtains access to Confidential Information (as defined below) of the other Party (the “Disclosing Party”) in connection with the negotiation of or performance under this Agreement, the Receiving Party agrees that:

a. The Disclosing Party shall retain ownership of the Confidential Information and that the Receiving Party shall not acquire any rights therein, except the right to use such Confidential Information to the extent provided in this Agreement.

b. The Receiving Party is hereby granted a limited, non-exclusive, royalty-free, non-transferable, worldwide right and license to use the Disclosing Party’s Confidential Information according to the terms of this Agreement.

c. The Receiving Party shall use at least the same degree of care to protect the Confidential Information from unauthorized disclosure or access that the Receiving Party uses to protect its own Confidential Information, but not less than reasonable care, including measures to protect against the unauthorized use, access, destruction, loss and alteration of such Confidential Information.

d. The Receiving Party agrees not to use the Confidential Information received from the other during the term of this Agreement, either directly or indirectly, to solicit business from any individual, company, agency or institute, or to interfere with, impair or hinder any relationship between the Disclosing Party and any of its customers, prospective customers, suppliers, strategic partners, Affiliates or investors, or in any other manner to compete against the Disclosing Party.

e. Except as otherwise provided in this Agreement, no Confidential Information disclosed pursuant to this Agreement shall be made available by the Receiving Party to any third party for any purpose, except to an Affiliate, consultant, attorney, subcontractor, or potential subcontractor who needs to know the Confidential Information for the performance of this Agreement and provided that they agree to be bound by the terms and conditions of this Article or another written agreement sufficient to require them to treat Confidential Information in accordance with this Agreement. The Receiving Party agrees to indemnify the Disclosing Party for any violation or breach of such restrictions.

B. “Confidential Information” shall mean: (1) information which is (a) in tangible form, clearly and conspicuously identified by the Disclosing Party or a third party as proprietary and/or confidential (by stamp, legend or otherwise) when disclosed or, (b) in intangible form, if its proprietary and/or confidential nature is first announced, and then reduced to writing (“Summary”) and furnished to the Receiving Party within thirty days of the initial disclosure, in which case the Confidential Information contained in such Summary shall be subject to the restrictions herein; (2) all information about or belonging to the Disclosing Party that is disclosed or otherwise becomes known to the Receiving Party in connection with this Agreement and that is not a matter of public knowledge; (3) all trade secrets and intellectual property owned or licensed by the Disclosing Party; and (4) all personal information about individuals contained in the Disclosing Party’s records (including, without limitation, names, addresses, social security numbers, and credit card and other financial information). The terms of this Agreement, along with the fact of this Agreement’s existence, are the Confidential Information of both Parties.

C. Each Party shall endeavor to keep to a minimum the amount of Confidential Information that is furnished to the other upon which restrictions are imposed.

D. Information of the Disclosing Party shall not be considered Confidential Information to the extent that the Receiving Party can demonstrate that such information:

a. was previously rightfully known by the Receiving Party free of any obligation to keep it confidential; or

b. is or becomes publicly known through no wrongful act of the Receiving Party; or

c. is independently developed by the Receiving Party without reference to, use of, or access to the Confidential Information of the Disclosing Party.

E. If Confidential Information is subject to disclosure pursuant to a subpoena, judicial or governmental requirement, or order, the Receiving Party shall give the Disclosing Party sufficient prior notice of such subpoena, requirement, or order, to permit the Disclosing Party a reasonable opportunity to object to the subpoena, requirement, or order and to allow the Disclosing Party the opportunity to seek a protective order or other appropriate remedy. Except in connection with a failure in the discharge of responsibilities set forth in the preceding sentence, the Receiving Party shall not be liable in damages for any disclosure of Confidential Information pursuant to judicial decree or government regulation.

F. The confidentiality obligations of each Party under this Agreement will survive any expiration or termination of this Agreement for a period of three years after receipt of such Confidential Information, or such time as may be required by federal or state law or regulations, whichever shall last occur. Upon the expiration of this Agreement, written request of the Disclosing Party or the Receiving Party’s determination that it no longer has a need for such Confidential Information, the Receiving Party shall return all Confidential Information and copies in tangible form thereof or certify in writing that it has destroyed all Confidential Information and copies in tangible form thereof. Notwithstanding the foregoing, neither Party is obligated to return or destroy Confidential Information that (a) it is required by law or regulation to retain, (b) is commingled with other information or documents of the Receiving Party if it would pose a substantial administrative burden to destroy such Confidential Information, or (c) is contained in an archived computer system or backup made by the Receiving Party in accordance with its standard security or disaster recovery procedures, provided in each case that: (i) such retained documents will eventually be erased or destroyed in the ordinary course of records management and/or data processing procedures; and (ii) that the Receiving Party remains fully subject to the obligations of confidentiality in this Agreement until the later of the eventual destruction or the termination or expiration of the confidentiality obligations set out in this Agreement.

G. The rights, duties and obligations of the Parties with respect to all Confidential Information disclosed before the date of this Agreement in contemplation of the execution of this Agreement shall be as set forth in this Article.

H. Notwithstanding anything else herein to the contrary, if Customer provides any feedback, comments, suggestions, ideas, description of processes, or other information to RAKE about or in connection with the deliverables or services provided under this Agreement, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback”), then it shall grant RAKE a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and sublicensable (through multiple levels of sublicensees) license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to Customer or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed another party’s Confidential Information, and nothing in this Agreement limits RAKE’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

XI. REPRESENTATIONS AND WARRANTIES

RAKE represents and warrants the Services and Deliverables will conform in all material respects to the specifications and requirements therefor as set forth in SOWs and/or this Agreement and will be free of material defects for ninety days commencing with Final Acceptance of the Services and Deliverables unless otherwise specified in the SOW (the “Warranty Period”).

If during the Warranty Period, (1) a material defect or nonconformity occurs or appears in the Services or Deliverables, or (2) any part of the Services or Deliverables becomes materially defective or fails due to defects in workmanship, or due to RAKE’s negligence, or (3) the Services or Deliverables fail otherwise to materially meet the requirements of the Agreement, upon notification by Customer, RAKE shall promptly correct any such defects or nonconformities hereunder by repair, replacement or re-accomplishment as determined by RAKE with due regard for the integrity and scheduling of the project (of which the Services is a part) as a whole.

While at any Customer site, RAKE and its Subcontractors shall comply with Customer’s policies, rules and reasonable requests regarding personal and professional conduct (including the wearing of an identification badge and adhering to safety, behavior and security practices and procedures) generally applicable to such premises.

The Services and any Deliverables will not contain any computer instructions, circuitry or other technological means whose purpose is to disrupt, damage or interfere with Customer’s use of the Services, Deliverables or its computer and telecommunications facilities.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, RAKE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO SERVICES OR DELIVERABLES TO BE PROVIDED BY RAKE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NONINFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS.

XII. PUBLICITY, MARKS

A. During or after the term of this Agreement, the RAKE shall not release any information (other than to its Subcontractors on a need to know basis for purposes of performance under this Agreement and subject to the terms of this Agreement), including news releases, publicity, promotional, marketing, or other materials, media, or activities, any name, trade name, trademark, service mark, logo, or any other designation relating to the Customer, its Affiliates, or this Agreement, without the Customer’s prior written approval and compliance with any terms and conditions related to such use which the owner of the mark provides to the other Party.

B. Except as specifically set out in this Agreement, nothing in this Agreement shall grant, suggest or imply any authority for one Party to use the name, trademarks, service marks or trade names of the other for any purpose whatsoever.

XIII. INSURANCE

RAKE represents that it carries commercially reasonable insurance for its industry.

XIV. LAWS, REGULATIONS, AND PERMITS

RAKE shall at all times comply with all applicable federal, state and local laws, ordinances, statutes, rules or regulations including but not limited to those relating to wages, taxes, hours, environmental, fair employment practices, equal opportunity, antidiscrimination, safety, fire prevention and working conditions.
Export of Deliverables is subject to applicable US export regulations, and Customer shall comply with all such regulations.

XV. ASSIGNMENT AND SUBCONTRACT

Neither Party may assign, subcontract, or transfer the Agreement or any part thereof without the other Party’s prior written consent, and any such assignment or transfer without such consent shall be null and void. Notwithstanding the foregoing, either Party may assign this Agreement and its rights, interests, liabilities and obligations thereunder to a a purchaser of substantially all its assets without such consent.
Notwithstanding Customer’s written consent to a proposed subcontract, RAKE shall remain responsible for all subcontracted Services and the payment therefor, and RAKE shall be liable to Customer for the acts and omissions of any subcontracted entity, their agents, representatives and persons directly or indirectly employed by them.
This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, heirs, successors and assigns permitted by this Agreement.

XVI. AUTHORIZED PREPRESENTATIVES, NOTICES, AND OTHER CORRESPONDENCE

Contract Representatives, Notices
1. Any notice or demand required under the terms of this Agreement that must be made in writing shall be sent by facsimile, certified or registered mail, delivered by hand via a nationally recognized overnight carrier, or sent by Email with receipt confirmation addressed to the “Contract Representatives” named below. The effective date of any such notice shall be (1) upon evidence of successful facsimile or Email transmission, or (2) five days following the date mailed for certified or registered letters and two days following the date mailed for overnight letters, or (3) when delivered, if in person or by overnight carrier.
2. The Contract Representatives are designated as follows:

For Customer:

See SOW

For RAKE:

Contracts Department
RAKE Digital Company, LL

115 E. Calhoun St.

Salem, VA 24153

Email: [email protected]

The Contract Representatives shall have the authority to make binding and enforceable decisions on behalf of their employer, and to accept service of commercial notices and other contractual correspondence which a Party desires to give or is required to be given under this Agreement. Either Party may change its Contract Representative designee by giving the other Party prior written notice thereof

XVII. NON SOLICITATION

Neither Party will actively solicit for hire, nor knowingly allow its employees to solicit for hire, any employee (or employee of a Subcontractor) of the other Party directly providing Services under an SOW to his Agreement during the term of this Agreement, plus twelve (12) months after its expiration. This provision shall not restrict in any way the right of either Party to solicit generally in the media for personnel or to hire personnel who respond to such solicitations, or the right to respond to unsolicited inquiries from employees, RAKEs, or representatives of the other Party and subsequently hire them.

XVIII. PROPERTY, MATERIALS AND GOODS

Title to all property, materials and goods furnished by Customer to RAKE shall remain vested in Customer. Notwithstanding anything else herein to the contrary, title to all property, materials and goods purchased by RAKE for Customer hereunder and explicitly identified as Deliverables in the SOW shall pass to and vest in Customer only upon payment in full for all Deliverables and Services to RAKE.

XIX. CHANGES

If either Customer or RAKE desires to change the Services or the SoW, they will discuss same in good faith and RAKE will provide estimates of any effect on cost or timing.
No change shall be implemented without Customer’s and RAKE’s Contract Representative’s prior written approval.

XX. FORCE MAJEURE

Neither Party to this Agreement shall be liable to the other to the extent any failure or delay in performing its obligations hereunder, or for any loss or damage resulting therefrom, is due to: (1) acts of God or public enemy, acts of government, riots, terrorism, fires, floods, strikes, lock outs, epidemics, act or failure to act by the other Party, or unusually severe weather affecting Customer, RAKE or its Subcontractors, or (2) causes beyond their reasonable control and which are not foreseeable (each a “Force Majeure Event”). In the event of any such Force Majeure Event, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
The Party experiencing the delay shall be prompt in restoring normal conditions, establishing new schedules and resuming operations as soon as the event causing the failure or delay has ceased. RAKE shall notify Customer promptly of any such delay and shall specify the effect on the Product delivery as soon as practical.

XXI. TERMINATION

Termination for Default
1. Either Party may terminate this Agreement in whole or in part by giving the defaulting Party a written “Notice of Termination for Default”, specifying one or more of the following causes or circumstances:
  1. if a Party becomes insolvent or makes a general assignment for the benefit of creditors; or
  2. if a petition under the Bankruptcy Code is filed by or against a Party; or
  3. if the defaulting Party fails to perform any of the other material provisions of this Agreement or the SOW and the Party in default does not cure such failure or substantially commence cure of such failure within 30 business days (or 5 business days if the failure is non-payment of amounts due) after receipt of notice from the non-defaulting Party specifying such failure.
Upon termination or expiration of this Agreement and after full payment to RAKE for any amounts due, RAKE shall promptly deliver to Customer any Deliverables and other property related to the Services that are in RAKE’s possession and/or in which Customer has or may acquire an interest.

XXII. NO WAIVER

Any failure by either Party to insist upon observance or performance by the other of the provisions of this Agreement shall not be deemed a “course of dealing”, waiver of any such provision, or a waiver of the right of the Parties to enforce any and all provisions in the future. No waiver shall be binding unless it is in writing and signed by the Parties’ Contract Representative. Any written waiver shall apply only to the specific default or to the instance specified, and a waiver of any default shall not be deemed a waiver of any other default, whether or not similar to the default waived.

XXIII. SEVERANCE

Should any of these terms and conditions be declared unenforceable in law for whatever reason, all other terms and conditions shall survive and the unenforceable provision(s) will be severed from these terms and conditions and the balance of the terms and conditions shall be binding on both Parties as if the severed provision(s) had never existed, unless performance thereof is rendered legally impractical and no longer fulfills the intentions this Agreement.

XXIV. CLAIMS/DISPUTES/GOVERNING LAWS

This Agreement, any SOW thereunder, and any claims or disputes arising out of or relating thereto shall be governed by the laws of the Commonwealth of Virginia, without regard to: (1) conflict of law principles; (2) the United Nations Convention on Contracts for the International Sale of Goods; and, (3) the Uniform Computer Information Transactions Act (“UCITA”). The Parties hereby consent to the exclusive jurisdiction and venue in the federal and state courts of the Western District of the Commonwealth of Virginia in connection with any dispute or other matter arising out of this Agreement.
Any claim or dispute which either Party may have against the other, arising out of this Agreement shall be presented by the claimant in writing to the other Party not later than thirty days after circumstances which gave rise to the claim or dispute have taken place or become known to the claimant, whichever is later. The claim or dispute shall contain a concise statement of the question or dispute, together with relevant facts and data to fully support the claim.
In the event of any such claim or dispute, the Parties’ Contract Representatives shall use their best efforts to negotiate a settlement. Upon the failure of such negotiations, such claim or dispute shall be further negotiated between more senior officials from each of the Parties who shall have decision making authority (but not direct responsibility for the administration of this Agreement); provided however, that nothing therein contained shall prohibit either Party from terminating its participation in the dispute during any stage of the process.
If any claim or dispute arising hereunder is not resolved through such negotiations within thirty days following written presentment pursuant to paragraph B., above, either Party may, upon giving the other Party at least ten days prior written notice, initiate litigation submitting such claims or disputes for decision by a court of competent jurisdiction within the venue stated in paragraph A., above, in accordance with the rules of that court and laws of that jurisdiction. Either Party may, at its option and at any time during the dispute resolution process, seek injunctive relief (including, but not limited to preliminary injunctive relief). Each party irrevocably WAIVES ITS RIGHTS TO A TRIAL BY JURY in any action or proceeding arising out of or relating to this Agreement or the transactions relating to its subject matter.
Except as specifically provided in this Article, neither Party shall institute any action or proceeding against the other Party in any court with respect to any dispute that is or could be the subject of a claim or proceeding pursuant to this Article.
The Parties acknowledge that the remedies available to them under this Agreement, or that would otherwise be available at law, will be inadequate in case of any default or threatened default in the performance of the Parties’ respective obligations under this Article and that such obligations shall be enforceable by a decree for the specific performance or by an injunction against any actual or threatened violation thereof.
Except as expressly stated in this Agreement, the Parties’ rights and remedies hereunder shall be cumulative and not exclusive of each other, shall be in addition to all other rights and remedies at law or in equity, and may be pursued separately or concurrently as the aggrieved Party determines.
The prevailing party in any litigation arising out of or relating to this Agreement shall be entitled to recover its expenses, costs of litigation (including, without limitation, clerk, paralegal, and expert witness costs), and reasonable attorneys’ fees from the losing party, whether or not otherwise specifically awardable under any law or court rule.

XXV. SURVIVAL OF OBLIGATIONS

The obligations of the Parties in the following Articles herein shall survive termination, cancellation or expiration of this Agreement:

Article 5 – Rights in Deliverables
Article 8 – Indemnification
Article 9 – Limitation of Liability
Article 11 – Confidential Information
Article 12 – Representations and Warranties
Article 24 – Claims/Disputes/Governing Laws

XXVI. EXECUTION/COUNTERPARTS/ELECTRONIC TRANSMISSION

This Agreement (and any SOW) may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together will be deemed to constitute one and the same document when a duly authorized representative of each Party has signed a counterpart. The Parties may sign and deliver this Agreement (and any SOW) by facsimile or other electronic transmission. Each Party acknowledges that the delivery hereof by facsimile or other electronic transmission will have the same force and effect as delivery of original signatures.

XXVII. ENTIRE AGREEMENT

This Agreement, including all SOWs issued by Customer and accepted by RAKE pursuant to this Agreement, shall constitute the entire agreement between the Parties with respect to the subject matter of this Agreement. This Agreement and any SOW shall not be modified or rescinded, except by a writing signed by RAKE and Customer. The provisions of this Agreement supersede all contemporaneous and prior oral and written communications, understandings and agreements of the Parties with respect to the subject matter of this Agreement.