Governance, Risk, and Compliance Services
Managed Security and IT Services
This Master Services Agreement (“Agreement”) is integrated into the quote, order form, statement of work, or other ordering document (each, a “Statement of Work”) that is signed by Rea & Associates, Inc. (“Rea”) and the customer identified therein (“Customer”). Each of Rea and Customer is a “Party” and together, the “Parties.”
I. Structure
1.1 Products and Services; Statement of Work. This Agreement sets forth the terms and conditions on which Rea may make available to Customer the Deliverables (defined below) or other products (collectively, “Products”) or provide the Professional Services (defined below), each as expressly identified in a Statement of Work. Each Statement of Work is subject to the terms of, and is deemed incorporated into, this Agreement and is effective beginning on the date set forth thereon (“Statement of Work Effective Date”).
1.2 Addenda. All Products and Professional Services will be provided pursuant to a signed Statement of Work. A Statement of Work may reference one or more additional documents that contain terms relevant to a particular Product or Professional Services (each, an “Addendum”). All Addenda are deemed incorporated into this Agreement.
1.3 Statement of Work Term. Unless earlier terminated in accordance with this Agreement or the applicable Statement of Work, each Statement of Work will continue for the initial term specified in such Statement of Work (“Initial Statement of Work Term”) and, if such Statement of Work provides for automatic renewal, then, unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Statement of Work will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Statement of Work Term or such other length of Renewal Term period as stated on the Statement of Work (the Initial Statement of Work Term and each Renewal Term, if any, collectively, the “Statement of Work Term” or “Term” of such Statement of Work). Notice of non-renewal of a Statement of Work must be provided by a Party at least thirty (30) days prior to the end of the Initial Statement of Work Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Statement of Work). Renewal of any Statement of Work may be conditioned on and subject to Customer’s agreement to changes to this Agreement and any applicable Addenda. Termination of this Agreement will terminate all Statement of Work Terms then in effect unless otherwise specified on the applicable Statement of Work. Statement of Work that are solely for Professional Services will remain in effect until the Professional Services are completed (unless earlier terminated in accordance with this Agreement or the Statement of Work) and will not automatically renew, nor will any Professional Services included on any other Statement of Work automatically renew for a Renewal Term unless otherwise expressly specified on the applicable Statement of Work. As used in this Agreement, the term “Contract Year” means a one (1) year period that begins on the Statement of Work Effective Date or any anniversary thereof.
1.4 Order of Precedence. Any conflict between a Statement of Work, an Addendum, or this Agreement will be resolved according to the following order of precedence: (1) the Statement of Work; (2) the Addendum; and (3) this Agreement.
1.5 Services by Affiliates. Rea’s Affiliates may perform any of Rea’s obligations under this Agreement. If a Rea Affiliate executes a Statement of Work that is subject to this Agreement, then for the purposes of that Statement of Work only all references in this Agreement to “Rea” shall be deemed to refer instead to such Rea Affiliate. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations. Rea and all Rea Affiliates are the “Rea Group.”
II. Professional Services
2.1 Provision of Professional Services. Subject to the terms of this Agreement, Rea will use commercially reasonable efforts to provide any implementation, installation, configuration, customization, or other professional services expressly identified in this Agreement, in an Addendum, or on a Statement of Work (collectively, “Professional Services”). Rea will perform the Professional Services in a professional manner in accordance with the applicable Statement of Work.
2.2 Deliverables. Rea retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by Rea in connection with its performance of Professional Services (“Deliverables”). If Rea provides any Deliverables to Customer pursuant to a Statement of Work, then Rea hereby grants to Customer a non-exclusive, royalty-free, fully paid up, worldwide license under Rea’s rights in the Deliverables to use and exploit such Deliverables in connection with the Products and Professional Services during the Term.
2.3 Customer Obligations. In addition to any responsibilities of Customer identified in a Statement of Work, Customer will, at no charge to Rea: (a) in a timely manner make available to Rea all technical data, computer facilities, programs, files, documentation, test data, sample output, and other information and resources of Customer required by Rea for the performance of the Professional Services; (b) make timely decisions and obtain required internal approvals to enable Rea to properly perform the Professional Services; and (c) provide office space, services, and equipment to Rea as Rea reasonably requires to perform the Professional Services. Customer acknowledges that any timelines or delivery dates set forth in the Statement of Work are contingent upon Customer’s timely performance of its responsibilities and obligations under this Agreement (“Customer Obligations”), and Rea will have no liability under this Agreement for any delays or non-performance of its obligations to the extent attributable to Customer’s failure to perform a Customer Obligation.
2.4 Onboarding Process. Customer acknowledges and agrees that Rea will have no responsibility for any deficiencies in the current operating systems and infrastructure until Rea has had a reasonable opportunity to conduct a review of the current system and to provide Customer with its recommendations, and Customer has accepted and implemented same.
2.5 Offboarding Process. In the event of the suspension, expiration or termination of any Statement of Work by either Party, Rea will make reasonable accommodations to transition the provision of Customer’s Professional Services to Customer or such third party designated by Customer. Notwithstanding the foregoing, Customer shall pay Rea’s standard rates for such transition Professional Services.
III. Product Rights and Restrictions
3.1 Software. If a Statement of Work indicates that Customer will receive a license to downloadable software (including any mobile applications and downloadable add-ins to other Products) (“Software”), then Rea hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Rea’s rights in such Software to install and operate such Software in accordance with all applicable Documentation and the restrictions set forth in this Agreement (including the applicable Statement of Work). If the Statement of Work provides that the foregoing license is perpetual in respect of any Software, then the license set forth in this Section 3.1 is perpetual with respect to such Product; provided, however, that such license will terminate if Rea terminates the applicable Statement of Work for Customer’s breach pursuant to Section 5.2. Otherwise, such license will continue for the Statement of Work Term set forth in the applicable Statement of Work. Any Rea-provided mobile applications acquired by Customer in connection with another Product licensed under this Agreement is deemed Software licensed to Customer pursuant to this Section. In connection with the foregoing license to Software, Rea may provide certain support and maintenance services as further described in the applicable Statement of Work.
3.2 Equipment Rental. If a Statement of Work indicates that Customer will receive equipment for rent, then Rea will provide such equipment referenced on the applicable Statement of Work (“Equipment”) and Customer may use such Equipment solely (i) for the Statement of Work Term set forth in such Statement of Work, and (ii) in accordance with the restrictions set forth in this Agreement (including the applicable Statement of Work).
3.3 Additional Features. Customer acknowledges that not all of the features or functionality of a Product may be available at Customer’s purchase level irrespective of whether such feature or functionality is described in the Documentation, and that access to such features or functionality may require payment of additional fees or the purchase of additional licenses.
3.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer may use each Product for its internal business purposes only and will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use a Product or the Documentation; (b) use a Product to provide services to third parties (e.g., as a service bureau) or in any manner that competes with or adversely impacts the business of the Rea (e.g., in connection with the development of a competitive product); (c) use a Product for any benchmarking activity; (d) circumvent or disable any security or other technological features or measures of a Product or use a Product in a manner that Rea reasonably believes poses a threat to the security of Rea-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from a Product (except to the extent that applicable law prevents the prohibition of such activities); or (f) use or access any Product in a manner that materially impacts or burdens Rea or Rea’s servers and other computer systems, or that interferes with Rea’s ability to make available any Product to any third party; or (g) use a Product in violation of Rea’s then-current published Acceptable Use Policy applicable to that Product, as may be updated from time to time.
3.5 Documentation. To the extent that a Product is accompanied by any Rea-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to a Product (“Documentation”), Rea hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Rea’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license to or grant of access and usage rights for such Product.
3.6 Third-Party Products. To the extent that a Product includes or is accompanied by third-party software or other products that Rea provides to Customer or that is otherwise identified in the Documentation as being required to use properly such Product (“Third-Party Products”), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms and, unless expressly authorized by this Agreement or such terms, will not use such Third-Party Products independently of the Products with which they were provided. Without limiting the foregoing, if Rea enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Customer will comply at all times with such terms and conditions. Notwithstanding anything to the contrary in this Agreement, the Rea Group makes no warranties and offers no indemnities with respect to any Third-Party Products, irrespective of whether such Third-Party Products are included in, or provided with, a Product.
3.7 Compliance with Laws. Customer will use the Products and Documentation in compliance with all applicable laws and regulations.
3.8 Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Products and Documentation and will immediately notify Rea in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to a Product or Documentation through Customer.
3.9 Ownership; Data. As between Rea and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) any data or information that Customer uploads or inputs into a Product or otherwise makes available to the Rea Group, including in connection with Customer’s use of a Product or receipt of Professional Services and (b) data that is generated and made available to Customer by any Product through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data”). As between the Parties, Rea owns all right, title, and interest, including all intellectual property rights, in and to the Products, Documentation, Deliverables, and any improvements to any Rea Group products or services made as a result of the Rea Group’s use, processing, or generation of Customer Data. During the Term, Customer may request that Rea make available to Customer a copy of Customer Data stored in certain Products, and Rea may agree to do so for an additional fee.
3.10 Feedback. If Customer provides any feedback to the Rea Group concerning the functionality and performance of a Product, any Documentation, or the Professional Services (including identifying potential errors and improvements), Customer hereby assigns to Rea all right, title, and interest in and to the feedback, and Rea is free to use the feedback without payment or restriction.
IV. Fees and Payment
4.1 Fees and Payment Terms. Customer will pay Rea the fees and any other amounts invoiced under this Agreement as specified in the applicable Statement of Work, including, where applicable, any early termination fees specified on the Statement of Work. Unless otherwise specified in such Statement of Work, Customer will pay 50% of all amounts due upon signing a Statement of Work and the remaining 50% within fifteen (15) days of the date of the project is completed. Any amount not paid within thirty (30) days of the date the project is completed will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Rea to collect any amount that is not paid when due. Rea will increase any fees invoiced in respect of any Contract Year by providing notice of such increase to Customer at least thirty (30) days prior to the first day of the next Contract Year in which the increase will take effect, with such increase fixed at 3%.
4.2 Taxes. Other than net income taxes imposed on Rea, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Rea after all such Taxes are paid are equal to the amounts to which Rea would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
4.3 Long-Term Assignment Costs. In the event that Rea reasonably determines that a Rea employee is on a long-term assignment in performance of the Professional Services for Customer, Customer shall be responsible for all gross up costs relating to such long-term assignment provisions addressed in Internal Revenue Code Section 162 or other similar provision of the Internal Revenue Code Section.
4.4 Out of Pocket Expenses. Customer will reimburse Rea for any out of pocket expenses needed to support their environment, that Customer has previously been made aware of and has approved the purchase of by Rea. Out of pocket expenses include but are not limited to cables, consumables purchased for Customer by Rea, standard mileage reimbursement rates as established by the Internal Revenue Service for trips to and from Customer location(s). Mileage billed will be calculated from the closest Rea location. All out-of-pocket expenses shall be itemized by Rea with supporting documentation. Customer will have thirty (30) days to review and approve or contest any out of pocket expenses submitted by Rea. All out of pocket expenses over $100.00 require written acceptance by Customer prior to purchase by Rea. Written acceptance can be in the form of a signed proposal or an e-mail.
V. Termination
5.1 Termination for Convenience. Either Party may terminate this Agreement for convenience upon ninety (90) days prior written notice to the other Party.
5.2 Termination for Material Breach. Either Party may terminate this Agreement or one or more Statement of Work if the other Party does not cure its material breach of this Agreement or the applicable Statement of Work(s) within thirty (30) days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the thirty (30) day cure period. Notwithstanding the foregoing, Rea may immediately terminate this Agreement upon notice to Customer if Rea reasonably believes that Customer has made or distributed any unauthorized copies of any Product, has violated Section 3.4, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Rea’s intellectual property rights, including rights in and to any Product. Without limiting any other provision of this Section 5.3, if Customer fails to timely pay any fees, Rea may, without limitation to any of its other rights or remedies, suspend access to the Products or performance of the Professional Services under all Statement of Work until it receives all amounts due.
5.4 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) Customer will pay to Rea any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) Customer will provide Rea with a written certification signed by an authorized Customer representative certifying that all use of Products and Documentation by Customer has been discontinued and that all Confidential Information in Customer’s possession or control has been returned or destroyed.
5.5 Survival. Notwithstanding anything to the contrary herein, Sections 1 (Structure), 3.6 (Third-Party Products), 3.9 (Ownership; Data), 3.10 (Feedback), 4 (Fees and Payment), 5.5 (Post-Termination Obligations), 5.6 (Survival), 6 (Confidentiality), 8 (Warranties and Disclaimer), 9 (Indemnification), 10 (Limitations of Liability), and 11 (General) will survive termination or expiration of this Agreement.
VI. Confidentiality
6.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, Rea’s “Confidential Information” includes each Product, all Documentation, all Rea Group technical information, and all information concerning Product-related database structure information and schema. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Rea is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
VII. Audit
7.1 Compliance Records. Customer will create and maintain complete and accurate records containing all information necessary to enable Rea to verify Customer’s compliance with this Agreement. Customer will promptly provide a copy of such records to Rea upon request. Customer acknowledges that Rea will have the right to implement in the Products testing, compliance, and monitoring tools and technologies to collect data concerning Customer’s usage of such Products. Nothing in this Agreement will be construed to limit Rea’s right to use such data to verify Customer’s compliance with this Agreement and make improvements to Products.
7.2 Audit. During the Term and for a period of one year thereafter, Rea will have the right, at its own expense, upon at least fifteen (15) calendar days’ prior notice, to periodically inspect and audit Customer’s use of the Product for purpose of determining Customer’s compliance with the terms and conditions of this Agreement. Customer will cooperate with Rea in the performance of any such audit, and will provide to Rea or a third party designated by Rea such access to Customer’s relevant records, data, information, personnel, computer systems and/or facilities as Rea may reasonably request for such limited purposes. Rea will bear the costs of any such audit unless such audit determines that Customer has violated the terms and conditions of this Agreement, in which case (a) Customer will reimburse Rea for all expenses incurred in connection with the audit, (b) Customer will pay Rea all fees that are applicable to Customer’s unauthorized use (e.g., additional seat licenses to cover use in excess of Customer’s previously purchased seat licenses), and (c) Rea may immediately terminate this Agreement for cause, in addition to any and all remedies available to Rea in law or equity.
VIII. Warranties and Disclaimer
8.1 Limited Rea Warranties. Rea hereby warrants, for the benefit of Customer only, the following:
a. Rea has obtained and will maintain all the necessary licenses and/or approvals under all applicable laws and regulations, for the Professional Services, Deliverables, and Products;
b. the Professional Services, Deliverables, and Products are produced and provided in compliance with all applicable laws and regulations;
c. the Professional Services, Deliverables, and Products are free from defects in workmanship and materially in accordance with the applicable Statement of Work and this Agreement; and
d.Rea is the full and rightful owner to, or has to right to transfer, all rights associated to the Professional Services, Deliverables, and Products and that neither the design and function of the Professional Services, Deliverables, and Products nor the provision, use, or sale thereof shall in anyway infringe upon or violate any intellectual property rights or other rights of any third party.
8.2 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
8.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8 OR A STATEMENT OF WORK OR ADDENDUM, THE REA GROUP MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. THE REA GROUP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. THE REA GROUP DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR PROFESSIONAL SERVICES. THE REA GROUP DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION, OR PROFESSIONAL SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS OR PROVISION OF THE PROFESSIONAL SERVICES WILL BE SECURE OR UNINTERRUPTED. THE REA GROUP EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PRODUCTS OR DOCUMENTATION OR RECEIPT OF THE PROFESSIONAL SERVICES.
IX. Indemnification
9.1 Defense by Rea. Rea will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Rea’s provision of the Professional Services, infringes or misappropriates any patent, copyright, or trademark or otherwise arising from Rea’s breach of this Agreement and Rea’s grossly negligent or willful misconduct. Rea’s obligation to indemnify Customer only applies if: (a) Customer gives Rea prompt written notice of the Claim; (b) Customer grants Rea full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Rea may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim subject to indemnification under this Section without Rea’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Rea will have sole control over the defense and settlement of the Claim.
9.2 Indemnification by Rea. Rea will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Rea’s consent after Rea has accepted defense of the Claim); and (c) all amounts that Rea agrees to pay to any third party to settle any Claim under Section 9.1.
9.3 Exclusions from Obligations. Rea will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (a) use of a Product in combination with other products or services not provided by Rea if such infringement or misappropriation would not have arisen but for such combination; (b) a Product or the Professional Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of a Product by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use a Product in accordance with instructions provided by Rea, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of a Product not made or authorized in writing by Rea where such infringement or misappropriation would not have occurred absent such modification.
9.4 Remedy. If Rea becomes aware of, or anticipates, a Claim subject to indemnification under Sections 9.1 and 9.2, then Rea may, at its option (a) modify the Products that are the subject of the Claim so that they become non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Statement of Work(s) on written notice to Customer and refund to Customer any pre-paid but unused fees (which, in the case of perpetual licenses, will be calculated based on 3-year straight-line basis).
9.5 Limited Remedy. Sections 9.1, 9.2, 9.3, and 9.4 state Rea’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by a Product or the Professional Services.
9.6 Defense by Customer. Customer will defend the Rea Group from any actual or threatened third-party Claim: (a) arising out of or based upon (i) Customer’s use of a Product, provision of the Customer Data, or breach of any of the provisions of this Agreement or (ii) the gross negligence or willful misconduct of Customer; or (b) that is an Excluded Claim, if: (1) Rea gives Customer prompt written notice of the Claim; (2) Rea grants Customer full and complete control over the defense and settlement of the Claim; (3) Rea provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (4) Rea complies with any settlement or court order made in connection with the Claim. The Rea Group will not defend or settle any Claim subject to indemnification under this Section 9.6 without Customer’s prior written consent. The Rea Group will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
9.7 Indemnification by Customer. Customer will indemnify the Rea Group from and pay (a) all damages, costs, and attorneys’ fees finally awarded against the Rea Group in any Claim under Section 9.6; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by the REA Group in connection with the defense of a Claim under Section 9.6 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 9.6.
X. Limitations of Liability
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE REA GROUP WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF THE REA GROUP IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL THE REA GROUP BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA STORED IN, OR IN CONNECTION WITH, A PRODUCT.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE REA GROUP’S TOTAL LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE STATEMENT OF WORK (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE STATEMENT OF WORK WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE TOTAL LIABILITY OF REA FOR ANY SPECIFIC EVENT WILL NOT EXCEED THE TOTAL AGGREGATE LIABILITY FOR REA, AS CALCULATED ABOVE, LESS ANY SUMS PAYABLE FOR PREVIOUIS EVENTS GIVING RISE TO LIABILITY ON THE PART OF SUCH PARTY THAT HAVE OCCURRED PRIOR TO THE DATE OF THE SPECIFIC EVENT.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY REA TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
XI. General
11.1 Relationship. Rea will be and act as an independent contractor in the performance of this Agreement. Nothing herein contained shall constitute a partnership between or joint venture by the Parties or constitute any Party the agent of the other. No party shall hold itself out contrary to the terms of this Section 11.1 and no party shall become liable by any representation, act, or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
11.2 Entire Agreement. This Agreement (together with the applicable Statement of Work) is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Rea that are not described in a Statement of Work and with respect to which Customer has executed a separate agreement with Rea that remains in effect. No employee, agent, or other representative of Rea has any authority to bind Rea with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
11.3 Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Rea may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
11.4 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The Parties consent to the reformation of any invalid or unenforceable provision so that it is enforceable to the maximum extent permitted by law.
11.5 Modifications. Rea reserves the right to update and change this Agreement and its terms hereto, without notice, by posting a new version on Rea’s website. Customer’s continued use of the Services and Products following the posting of modified terms will be subject to the terms in effect at the time of Customer’s use. Please review these terms periodically for changes.
11.6 Non-solicitation. The employees and consultants of Rea are a valuable asset to Rea and are difficult to replace. Accordingly, Customer agrees that, during the Term, and for a period of two years after the termination or expiration of this Agreement, it will not solicit for employment or engagement (whether as an employee, independent contractor or consultant) any Rea Group employee or consultant. Customer is not restricted from posting, or hiring any personnel that respond to, public job advertisements or similar general solicitations. Customer agrees that if it employs any person previously employed by Rea Group in violation of the provisions of this Section 11.6, then Rea will be entitled to liquidated damages equal to the greater of (i) 150,000 or (ii) an amount equal to the solicited employee’s salary for a period of one year.
11.7 Force Majeure. Any failure by any of the Parties hereto to carry out any of its obligations under this Agreement shall not be deemed to be a breach of this Agreement or a default if such failure is caused by a Force Majeure event. “Force Majeure” events include, but are not limited to, acts of God, wars, restrictions, pandemics, national emergency, strikes, fires, floods, or other casualty, riots, insurrections, accidents, delays in transportation, rules and restrictions by law or government agencies, and other causes beyond the party’s control, whether or not the cause be of a class or character similar to those heretofore enumerated.
11.8 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Ohio. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Tuscarawas County, Ohio in connection with any action arising out of or in connection with this Agreement.
11.9 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.10 Insurance. Rea shall maintain comprehensive general liability insurance in an amount of no less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate. Rea shall also maintain worker’s compensation and employer’s liability insurance in the amount no less the requirements of the jurisdiction in which the Deliverables are to be provided. Rea shall provide coverage for any legal liability which may exceed the underlying limits of insurance coverages required herein pursuant to a comprehensive excess indemnity policy (commonly referred to as an “umbrella” policy) with aggregate limits of $5,000,000.00.
11.11 Subcontractors. Rea may utilize subcontractors or other third parties to perform its duties under this Agreement, so long as Rea remains responsible for all of its obligations under this Agreement.