MUTUAL NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT 

  WHEREAS, by making payment or other action of acceptance, one or more of the parties to this Agreement possess certain confidential and/or proprietary information and is/are willing to share such confidential and/or proprietary information with the other party for the purpose discussing the anticipated award of contracts and general business opportunities with Red Lion, LLC. All such disclosures are subject to the terms and conditions set forth below;  NOW, THEREFORE, in consideration of the promises and agreements herein set forth, the Parties agree as follows: 
  • APPLICABLE LAW 
      1. This Agreement shall be governed by the laws of the State of Delaware, without regard to Delaware’s conflict of laws principles. 
  • DEFINITIONS 
      1. For the purposes of this Agreement, the term “Confidential Information” shall mean confidential and/or proprietary information under the ownership or control of one of the parties, such as but not limited to technical, financial, strategic, or operational information or data. The term “Confidential Information” expressly excludes information that: 
        1. Was in the public domain at the time it was disclosed or falls within the public domain, except through a breach of this Agreement; or 
        2. Is or becomes known by the Receiving Party or any of its associated companies from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party; or 
        3. Was furnished to a third party by the Disclosing Party without similar restriction on the third party’s rights; or 
        4. To the extent that such disclosure shall be required by law, but only after the Disclosing Party has been notified in writing and has been provided a reasonable opportunity to take appropriate action to protect its legal interest in the Confidential Information; or 
        5. If only a portion of any Confidential Information falls within any one of the exceptions listed above, the remainder of such Confidential Information shall continue to be subject to this Agreement; or 
        6. Was lawfully contained in written record in the receiving Party’s files prior to the date of its receipt from the disclosing Part; or 
        7. Was disclosed with the prior written approval of the disclosing Party; or 
        8. Was demonstrated in written record by the receiving Party to have been developed independently of disclosures made here under. 
      2. For the purposes of this Agreement, the term “Disclosing Party” shall mean the party owning or controlling Confidential Information and making such Confidential Information available to the other party. 
      3. For the purposes of this Agreement, the term “Receiving Party” shall mean the party who receives Confidential Information from the Disclosing Party. 
  • LIMITATION ON USE OF CONFIDENTIAL INFORMATION 
      1. The parties agree that the asserted Confidential Information disclosed under this Agreement derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means, by other persons who can obtain economic value from its disclosure or use. 
      2. All rights, title and interest in Confidential Information disclosed pursuant to this Agreement are reserved by the Disclosing Party, and the Receiving Party will not use such Confidential Information disclosed to it by the Disclosing Party to benefit itself or others, except for the limited purposes for which the Confidential Information is disclosed within the context of this Agreement. The Receiving Party will not disclose such Confidential Information to any third party unless and until expressly authorized in writing to do so by the Disclosing Party. 
      3. The Parties acknowledge that unauthorized use or disclosure of the Confidential Information, in whole or in part, or the unauthorized use or disclosure of any information or material created from, based upon, or arising out of the Confidential Information may give rise to irreparable harm to the Disclosing Party which cannot be adequately compensated in damages. Accordingly, the Disclosing Party may seek or obtain injunctive relief against any such undertakings, in addition to all other legal remedies which may be available to it. 
      4. Neither Party may assign or transfer this Agreement to any third party without the prior written consent of the other Party. Such consent shall not be unreasonably withheld. 
  • PROTECTION OF CONFIDENTIAL INFORMATION 
      1. The Receiving Party shall exercise at least the same standard of care to prevent the disclosure or misuse of the Confidential Information as it exercises to prevent the disclosure or misuse of its own Confidential Information, but in no event shall the Receiving Party exercise less than reasonable care. The Receiving Party shall limit dissemination of such Confidential Information to those persons within its organization who have a need to know such information to fulfill the purpose of this Agreement and who agree to be subject to the restrictions of this Agreement. Both parties agree not to disclose the fact or content of any negotiations to third parties without the written consent of the other party. 
  • TERM OF AGREEMENT 
      1. This Agreement shall take effect as of the date written above and shall terminate 365 days after completion of and acceptance of work product by the end client, unless terminated by either Party upon the giving of thirty (30) days written notice to the other Party of its intention to terminate. 
      2. The respective obligations of the parties relating to limitations on the use and/or disclosure of Confidential Information under this Agreement shall survive for a period of three (3) years from the date of receipt of the Confidential Information after completion of and acceptance of work product by the end client.
  • RETURN OF CONFIDENTIAL INFORMATION 
      1. All Confidential Information and copies thereof shall be returned to the Disclosing Party at the time this Agreement expires, or earlier at the initiation of the Receiving Party or upon the Receiving Party’s receipt of a written request from the Disclosing Party for the return of such Confidential Information. 
      2. The Receiving Party may retain one (1) copy of such Confidential Information for its legal archives, subject to the ongoing restrictions on the use and/or disclosure of the Confidential Information. 
  • MARKING OF PROPRIETARY AND/OR CONFIDENTIAL INFORMATION 
      1. As used in this agreement, the term “Proprietary Information” shall mean any information disclosed by one party to the other pursuant to this Agreement which is in written, graphic, machine readable or other tangible form and is marked “Proprietary,” “Confidential” or in some other manner to indicate its confidential nature.  Proprietary Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as proprietary at the time of disclosure and is reduced to writing by the disclosing party within a reasonable time (not to exceed thirty [30] calendar days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving party.  Notwithstanding any failure to so identify it, however, all technical information which includes but not limited to any CD, DVD, hard drive, diskette or other tangible form and the contents on same, all customer information and all financial information disclosed by one party to the other, or developed here under, shall be deemed “Proprietary Information” here under.
  • ENTIRE AGREEMENT 
    1. Both parties acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms and further agree that it is the entire agreement between parties hereto which supersedes all prior agreements, written or oral, relating to the subject matter hereof. No modification or waiver of any provision shall be binding unless provided in writing, and signed by the party against whom such modification or waiver is sought to be enforced. 
NOW THEREFORE, the Parties hereto have caused this Agreement to be duly executed in their names by officials who are duly authorized as of the effective date of purchase on this site. 
 

Master Services Agreement for Purchased Service

This Information Technology Master Services Agreement (“Agreement”) made at the time of service purchase or retainer between Red Lion, LLC (hereinafter “Service provider”), a Delaware Corporation with principal office at 206 Mustang Ct. Gambrills, MD, 21054 and the service purchaser  (hereinafter “Customer or Client”).  Company and Customer may each be referred to individually as a “Party” and collectively as the “Parties”.  Other capitalized terms are defined below.

AGREEMENT

 
  • Contracted Services. This Agreement shall act as a base agreement under which the Parties can enter into multiple specific transactions by executing a Statement of Work (SOW)/ Proposal for Services (Proposal) and/or Purchase Order (PO) made by Company at the request of Customer. This Agreement (including all exhibits listed below), the individual Statement(s) of Work and/or Purchase Order(s), and any related Change Order shall form a single integrated agreement between the Parties. Any conflict or inconsistency between the terms and conditions of this Agreement and a particular SOW/Proposal/PO and/or Change Order shall be resolved in favor of the terms and conditions of the documents in the following order: this Agreement first, the Change Order second, and the SOW/Proposal/PO third. The Parties agree that the sole purpose of any such SOW/Proposal/PO and/or Change Order or other any other instrument furnished or utilized by Customer or Company in connection with the Work is limited to describing specific Work to be performed and/or provided (including the applicable rate/compensation for such Work), and any other language or provision in any such instrument that purports to expand, limit, modify, waive or otherwise define the rights or duties of the Parties shall be null and void ab initio, and shall not be binding on Company or Customer.
 
    1. Definitions:
      1. For purposes of this Agreement, the following terms shall have the following meanings:
        1. “Services” means any and all services specified in any Statement of Work. 
        2. “Work” or “work” is synonymous with “Service” or “Services”.
        3. “Deliverables” means any tangible property, including software, reports, or other property, delivered to Customer under this Master Services Agreement, as specified in the Statement of Work.
“Project” means the combination of Services and Deliverables to be provided under this Agreement.  
  • Term of Agreement.
 
    1. The term of this Agreement will commence on the Effective Date set forth above and will continue until terminated by either Party, as provided herein. SOW/Proposal/PO shall be for a term or specific work as specified therein and shall continue until completion of the work or termination by either Party pursuant to Section 14 of this Agreement. In the event that an SOW/Proposal/PO provides for a different Term, the SOW/Proposal/PO Term will control for that specific SOW/Proposal/PO only.
    2. In the event that the Customer has a continuing need for any Services identified in an SOW/Proposal/PO after the expiration of this Agreement, Customer can request – in writing – to have Company complete the Services, at which point this Agreement will automatically renew for the length of time necessary for the completion of such Services.
 
  • Fees and Payment Terms.
 
      1. In exchange for the Services performed by Company, as outlined in any SOW/Proposal/PO, Customer agrees to compensate Company at the rates identified in the fee schedule outlined in the individual SOW/Proposal/PO. Such rates are exclusive of any federal, state, or local sales taxes, use taxes, or any other taxes or fees assessed on, or in connection with, any of the Services rendered herein. Customer will pay all undisputed invoices within thirty (30) calendar days of receipt of an invoice or according to the terms set forth in the SOW/Proposal/PO referenced above. If necessary, Customer may initiate a billing dispute by notifying the Company point of contact for the relevant SOW/Proposal/PO in writing within ten (10) calendar days of issuance of the invoice.
      2. In addition, Customer shall reimburse Company its pre-approved actual out-of-pocket expenses as reasonably incurred by Company representatives in connection with the performance of Services as defined in an SOW/Proposal/PO. Additional expenses for materials, services, training and hardware may only be incurred by Company and charged to Customer. If prior written approval from Customer has been obtained, payment terms are net-21 calendar days from the date the invoice is issued, unless otherwise specified in the SOW/Proposal/PO.
      3. In the event that payment for an invoice is past due:
        1. A late charge of one and one-half percent (1½ %) per month or the legal maximum, whichever is lesser, shall accrue on the outstanding balance of past-due invoices unless the Customer has notified Company of a billing dispute prior to the due date initially set for said payment.
        2. Company will cease work until Customer pays the past-due invoice in full to the current amount, at which point work will resume as previously agreed upon, unless it is being disputed in accordance to this Section.
      4. Speculative work shall be covered under SOW/Proposal/POs that are attached to this MSA.
      5. In the event of a stoppage of work that is of no fault to Red Lion AND/OR Customer has provided no additional guidance to Company within 150% of the time defined in the SOW/Proposal/PO, Company reserves the right to invoice Customer for all remaining monies, expenditures, and other payable responsibilities set forth in the SOW/Proposal/PO. Customer agrees herein, to pay the resulting invoice according to the terms set forth in section 3, sub section a. Upon receipt of payment, Company will grant a twenty (20) day extension to perform outstanding services. If services that must be rendered will exceed this twenty (20) day grace period, then a new SOW/Proposal/PO will be generated, which will be subject to this MSA in full.
      6. In the event of a dispute or question regarding any invoice submitted by Company:
        1. All amounts not disputed or in question shall be promptly paid as and when required by this section.
        2. Customer shall promptly transmit to Company an explanation of the dispute or question.
        3. Company and Customer shall promptly seek to resolve the dispute or question.
        4. Payment of any remaining amount shall be made within thirty (30) calendar days of when the dispute or question is resolved. 
        5. During the term of the dispute, in no event shall Company stop or suspend the Work as long as Customer is paying undisputed invoice amounts in accordance with this Section.
 
  • Change Orders for Out-of-Scope Services. To the extent that Customer requires or requests additional services or services that exceed the scope of Services outlined in any SOW/Proposal/PO incorporated herein, Company may charge an additional fee for such additional services and/or out-of-scope work. Fees for such additional services and/or out-of-scope work will be set forth on a Change Authorization Order (CAO), which will also provide a description of the changes/ additional service(s) being requested. Once both Parties sign a CAO, that CAO will be incorporated into this Agreement and will have the same legal effect as the original SOW/Proposal/PO that was incorporated into the Agreement.  For the avoidance of doubt, Customer shall not be obligated to pay for any such fees or additional services unless Customer has signed the CAO.
   
  • Ownership of Materials Related to Services. The Parties, Customer and Company, hereby agree that any materials prepared and delivered by Company in the course of providing the Services defined in a SOW/Proposal/PO shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to Customer as its sole and exclusive property. Notwithstanding the foregoing, the Parties recognize that performance of Company hereunder will require the skills of Company and, therefore, Company shall retain the right to use, without fee and for any purpose, such knowledge/ skills, ideas, techniques, and/or concepts used and/or developed by Company in the course of performance of Services of this Agreement.
   
  • Independent Contractor. This Agreement is made with the express understanding that Company is an independent contractor. This Agreement is a contractual relationship, and nothing contained herein shall be construed or applied to create the relationship of employer and employee, or principal and agent, or master and servant, between Customer and Company or any of Company’s Subcontractors, its Employees or its other Personnel. Neither Company, its Subcontractors, nor any of its Employees or other Personnel are authorized to act or appear to act as agents or representatives of Customer, whether in performing the Work or otherwise. Any provisions of this Agreement or any SOW/Proposal/PO which may appear to give Customer the right to direct Company as to the details of performing any Work, or to exercise a measure of control over Company’s performance of the Work, shall be interpreted to mean that Company will follow the instructions of Customer with respect to the results of the Work achieved only, and not in the means whereby the Work are to be accomplished. Company shall have complete and authoritative control as to the details of performing the Work. All Work contemplated hereunder, however, shall meet the approval of Customer and shall be subject to the general right of inspection. Nothing in this Agreement shall be construed or interpreted to create a partnership or joint venture between Customer and Company.
   
  • Confidential Information.
 
    1. Customer understands and acknowledges that Company may, from time to time, disclose “Confidential Information” to Customer. For purposes of this Agreement, the term “Confidential Information” shall include – but not be limited to – any nonpublic and/or proprietary information and/or materials relating to Company’s promotional and/or marketing strategy; any nonpublic and/or proprietary information and/or materials relating to Company’s activity; Company’s pricing information (e.g., rates, margins, and budgets); Company’s financial and budget information; Company’s client lists; information about the educational background, experience, and/or skills possessed by Company employees; Company employee compensation information; Company’s service techniques; Company’s customer satisfaction data or sales information; or any information which Company marks or identifies as “Confidential” at the time of disclosure and/or confirms in writing as “Confidential” within a reasonable time (i.e., not to exceed thirty [30] calendar days) after disclosure. Customer will not disclose Company’s Confidential Information to any third party at any time without the prior written consent of Company, and Customer shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, and/or consultants. Further, Company’s Confidential Information shall include the terms outlined in this Agreement, all of which shall remain the property of Company and shall in no event be transferred, conveyed, or assigned to Customer as a result of the Services provided pursuant to this Agreement. The preceding duty shall survive any termination or expiration of this Agreement.
    2. Company also understands and acknowledges that Customer may, from time to time, disclose to Company proprietary ideas, documents, writing, information concepts, expertise, and technologies developed by Customer relating to computer application programming, installation, and operation (collectively “Customer Confidential  Information”). Company agrees not to use any Customer Confidential Information for its own use or for any purpose other than the specific purpose of completing the Services. 
    3. Company shall not disclose the Customer Confidential Information to any third party, and shall protect such Customer Confidential Information using the same degree of care that Company uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of Customer Confidential Information. The preceding duty shall survive any termination or expiration of this agreement.
    4. Notwithstanding anything in the foregoing to the contrary, the Receiving Party may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that the Receiving Party promptly notifies, to the extent practicable, the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information; provided that the Receiving Party will disclose only that portion of the requested Confidential Information that, in the written opinion of its legal counsel, it is required to disclose.  The Receiving Party agrees that it shall not oppose and shall cooperate with efforts by, to the extent practicable, the Disclosing Party with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if the Disclosing Party fails or refuses to contest such a third-party disclosure demand, or a final judicial order is issued compelling disclosure of Confidential Information by the Receiving Party, the Receiving Party shall be entitled to disclose such information in compliance with the terms of such administrative or judicial process, subpoena or order, but such information shall otherwise remain Confidential Information subject to the confidentiality obligations set forth herein.
    5. In no event shall Customer use Company’s Confidential Information to reverse engineer or otherwise develop products and/or services functionally equivalent to the products and/or services of the Owner.
    6. The following shall not be considered “Confidential Information” of either Company or Customer, for purposes of this Agreement:
      1. Information that is or becomes available in the public domain through no fault or act of the receiving Party;
      2. Information which was independently developed by the receiving Party without the use of or reliance on the disclosing party’s Confidential Information;
      3. Information which was provided to the receiving Party by a third party under no duty of confidentiality to the disclosing Party; and/or
      4. Information which is required by law to be disclosed, with no further obligation of confidentiality, provided that prior notice shall be given – within a reasonable time – to the party whose Confidential Information is involved.
    7. The Parties agree that the disclosure of any of the foregoing Confidential Information by either Party shall give rise to irreparable injury to the owner of the Confidential Information, and inadequately compensable in monetary damages.  Accordingly, the non-disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
   
  • Customer Responsibilities. In addition to any obligations and responsibilities described in a SOW/Proposal/PO or elsewhere in this Agreement, Customer shall have shared responsibility with Company regarding the following:
   
    1. To ensure that the necessary business and application knowledge is available and conveyed from the Customer’s existing support team to Company’s support team.
    2. Provide ready access to all appropriate computing platforms; documentation for hardware, software, firmware, etc. (e.g., LAN, WLAN, GRC, and any other related systems that apply to an SOW/Proposal/PO) as well as relevant policies, processes, procedures, and other requested documentation; and personnel (i.e., end users and technical representatives employees or contracted by Customer) necessary to fully understand the current business systems and environments throughout the life of the engagement.
    3. Provide, at its facility, office space and equipment for Companies on-site employees as outlined in an SOW/Proposal/PO.
    4. Provide external communications capability (e.g., Virtual Private Network [VPN] access) and/or access to its work facility to Company’s on-site project team to enable Company’s access to Customer’s information technology system for after hours or weekend Services as required.
    5. Customer shall assign an employee or representative to be present at the work facility for any after hours or weekend Services provided by Company, unless granted in writing by Customer. 
    6. Provide contact information upon request, as needed.  Customer-identified point of contact (or alternate point of contact provided by Customer, if necessary) shall be reasonably available  to Company, unless otherwise discussed.
 
  • Warranty of Service/Work.  Company represents and warrants that the Services: (a) will be provided in conformance with the terms of this Agreement and any SOW entered into between the Parties; (b) do not, and will not, during the term of the Agreement infringe, violate or misappropriate any third party’s intellectual property rights (including but not limited to copyrights, patents, trademarks, privacy, moral rights, or other personal or proprietary rights); (c) do not contain or promote malicious code or any Disabling Device, and no Disabling Devices will be coded or introduced into the Services or Customer’s systems by Company or its agents; (d) do not violate any applicable law, rule, or regulation; (e) will be performed in a professional and workmanlike manner, and subject to a permitted delay under Section 15(d), on time and in accordance with any deadlines agreed to between the Parties; (f) will be performed in accordance with industry best practices, by personnel with the requisite education, training and skill; and (g) will contain and maintain appropriate security measures to comply with privacy regulations.  As used herein, “Disabling Device” shall mean any virus, worm, built-in or use-driven destruction mechanism, injurious or damaging algorithm, time bomb, Trojan horse or other software or hardware that can disable or adversely affect the Services and/or their operation or destroy any of data belonging to Customer, Customer Confidential Information or other software or hardware. THE FOREGOING EXPRESS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.
   
  • Limitation of Liability. EXCEPT FOR DAMAGES OR LIABILITIES ARISING FROM EITHER PARTY’S (I) OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT; (II) INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT; OR (III) WILLFUL OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (IV) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SOW, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED  THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated or actual income, revenues, profits, or savings; loss of or damage to business reputation or goodwill; loss of customers/clients; loss of business or financial opportunity; loss of data or equipment; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the applicable law of the State of Delaware.
   
  • Indemnification. Each Party (“Indemnitor”) shall defend, indemnify, and hold harmless the other Party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable outside attorneys’ fees) (“Losses”), that arise from or relate to any unaffiliated third-party claim (i) of the Customer’s unauthorized or negligent use of the Service or products (in the case of Customer as Indemnitor), (ii) that the Service or product (in the case of Company as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right, or (iii) alleging any willful, intentional or grossly negligent action or failure to act by an Indemnitor.  Each Indemnitor shall: (i) provide prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) give the Indemnitor the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) provide reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).
  Except as otherwise expressly provided to the contrary, the release, defense, indemnity and hold harmless obligation contained in this Agreement shall apply to the maximum extent allowed by law even if the claims are caused, in whole or in part, by the joint, solely, or concurrent negligence, strict liability or other fault. Whether passive or active, of any person or entity seeking release, defense and/or indemnity hereunder, provided that no person or entity shall be entitled to indemnity to the extent that a claim is caused by or results from the gross negligence or willful misconduct of the person or entity seeking release, defence and/or indemnity hereunder. Both parties agree that this statement complies with the requirement known as the EXPRESS NEGLIGENCE RULE, to expressly state in a conspicuous manner and to afford fair and adequate notice that this article has provisions requiring one party to be responsible for negligence, strict liability, contractual liabilities to third parties or other fault of another party.   
  • Equal Opportunity Employer. Company is an Equal Opportunity Employer and does not discriminate in recruitment, hiring, transfer, promotion, compensation, development, and termination of its employees on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran’s status, sexual orientation, or other protected category as required by applicable federal, state, and/or local laws, nor does Company discriminate on the basis of gender identity or expression. Customer likewise represents that it will not discriminate in the referral or acceptance of Consultants hereunder on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs veteran’s status, sexual orientation, or other protected category as required by applicable federal, state and local laws.
 
  • Termination.
   
      1. Termination for Cause: If either Party believes that the other Party has failed in any material respect to performing its obligations under this Agreement (including any Exhibits or Amendments hereto), then that Party may provide written notice to the other Party’s management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under this Agreement, the breaching party shall have fifteen (15) business days to pay any sum due, after which the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, the breaching Party shall have thirty (30) calendar days after receiving such written notice to either: (a) cure the material failure, or (b) notify the non-breaching party that the breach is not one that can reasonably be cured within thirty (30) calendar days, at which point the non-breaching party may terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching Party.
      2. Termination for Bankruptcy: Either Party shall have the immediate right to terminate this Agreement by providing written notice to the other Party in the event that (i) the other Party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other Party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor and/or government agency.
    1. Payments Due: Subject to Section 16(d), termination of this Agreement shall not release either party from the obligation to make payment of all amounts then due and payable.
      1. Termination for Convenience: Either Party shall have the option to terminate this Agreement, without cause, by providing sixty (60) days’ notice of its intent to terminate the Agreement without cause.  In the event that an SOW provides for a different termination notice period, the SOW termination clause will control for that specific SOW only.
      2. Permitted Delays: Each Party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any Services pursuant hereto or in subsequent SOW/Proposal/PO agreements, in whole or in part, as a result of delays caused by the other Party if the performing Party’s actions are expressly conditioned on the non-performing Party, an act of God, or any other cause beyond its reasonable control and which could not have prevented by reasonable precautions, and such nonperformance shall not be a default hereunder or a ground for termination hereof. This may include, but is not limited to, failures or fluctuations in telecommunications equipment. Company’s time and performance shall be enlarged, if and to the extent reasonably necessary, in the event: (i) that Customer fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by Customer or any governmental agency authorized to regulate, supervise, or impact Company’s normal processing schedule; (iii) that Customer fails to provide any equipment, software, premises or performance called for by this Agreement and/or as deemed necessary to execute the Services as agreed-upon in the SOW/Proposal/PO, and the same is necessary for Company’s performance hereunder. Company will notify Customer of the estimated impact on its processing schedule, if any.
      3. Continuation of Services: Company will continue to perform Services during the notice period unless otherwise mutually agreed upon by the Parties in writing. In the event that Customer provides the notice of termination and directs Company not to perform the Services through the notice period, Customer agrees to pay Company an amount equal to the amount normally due to Company for the notice period until the date of termination. Upon termination by either Party, Customer will pay Company fees for all Services performed and all expenses reasonably incurred by Company in connection with the Services provided under this Agreement through the date of termination.
      4. Termination or Cancelation Without Cause: If Customer terminates and and/or cancels one or more Services detailed in an SOW/Proposal/PO associated entered into pursuant to this Agreement, for any reason other than termination for cause, as listed above in Paragraph 15 section (a), Customer shall pay Company 30% of the remaining contract value detailed in the then applicable SOW/Proposal/POs in force for the Service or Services being cancelled. 
 
  • Miscellaneous Clauses.
 
    1. Insurance.  During the Term of the Agreement and any SOW, Company shall maintain insurance (issued by insurers of recognized financial responsibility) of the types, against such losses and in the amounts, with such insurers and subject to deductibles and exclusions as Company reasonably believes are customary in Company’s industry and otherwise reasonably prudent, including, without limitation, insurance coverage against theft, damage, destruction, acts of vandalism, security breaches and all other risks customarily insured against by similarly situated companies, all of which insurance is in full force and effect and no written notice of cancellation has been received.  To the extent third party insurance is obtained or maintained pursuant to this Section, Company shall upon Customer’s request furnish to Customer certificates of insurance or other appropriate documentation of such coverage.
    2. Records.  Company will maintain accurate books and records required to substantiate the performance of the Services and provision of any products, Company’s compliance with its obligations under this Agreement and the accuracy of the amounts charged to Customer hereunder, including timesheets, work specifications, invoices and receipts.  Such records will be maintained during the Term and for a period of at least one (1) year following the date of termination of this Agreement (the “Retention Period”). All such records will be available for review by Customer or its representatives during Company’s normal business hours. In the event of any dispute arising under or with respect to this Agreement, the Retention Period shall be extended until the resolution of such dispute becomes final and non-appealable and all obligations of the Parties hereto have been satisfied in full.
    3. Regulator Audits.  Company acknowledges that Regulators have regulatory oversight over Customer.  In the case of a Regulator audit, Company shall provide such reasonable cooperation with the Regulator as may be reasonably requested and will cooperate with the Regulator in responding to any inquiry made by it.  Company reserves the right to charge Customer reasonable fees for any such assistance provided to the Regulator in accordance with the then applicable time and materials rates for such professional services.
    4. Non-Restrictive Relationship: Company may provide the same or similar services to other customers, and Customer may utilize other information technology service providers that are competitive with Company.
    5. Waiver: The rights and remedies provided to each of the Parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either Party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other Party shall not prejudice such Party’s right of termination or enforcement for any further or other default or violation nor be deemed a waiver or forfeiture of those rights..
    6. Arbitration: Both Parties: (i) agree to submit to arbitration any controversy existing at or arising after the effective date of the Agreement; (ii) agree that these terms are valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract, without regard to the justiciable character of the controversy; and (iii) agree that this Agreement confers jurisdiction in Delaware in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The aggrieved party must serve upon the another party a notice of intention to arbitrate, specifying this Agreement pursuant to which arbitration is sought and the name and address of the party, officer, or agent serving the notice. This notice must state that, unless the party served applies to enjoin the arbitration within twenty (20) business days after such service, such party shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with. Such notice shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. In the event that the Customer is the party aggrieved, the total award against Company, including fees and expenses of arbitration, shall in no event exceed the total amount of fees paid to date by Customer to Company for the Services rendered in the SOW/Proposal/PO. Any award shall be paid within ninety (90) business days, unless an extension has been previously agreed upon by both parties in writing. The arbitrators will deliver a copy of the award to both parties following the same procedure as other Notices in this Agreement, as listed in Paragraph 17, section e, below.
The arbitral tribunal will be composed of one arbitrator, who is a neutral and impartial lawyer with excellent academic and professional credentials (a) who has practiced law for at least fifteen (15) years, specializing in either general commercial litigation or general corporate and commercial matters and (b) who has had both training and experience as an arbitrator and is generally available to serve as an arbitrator.  If the parties cannot agree on an arbitrator then the arbitral tribunal shall consist of three (3) arbitrators (who possess the qualifications set out in this Section); two of whom shall be chosen by the respective parties and one who will be agreed upon and chosen by the two (2) other arbitrators. The arbitrator’s award shall be based on the terms of this Agreement and the arbitrator shall endeavor to follow the law and judicial precedents which a United States District Judge sitting in the District of Delaware would apply in the event the dispute were litigated in such court; provided, however, that if, despite such endeavors, the arbitrator fails to correctly follow applicable law, the award shall not be vacated or modified (for errors of law or otherwise), except as expressly provided by statute. The arbitrator’s award shall be rendered in writing and, unless both parties otherwise agree, shall include an explanation of the reasons for the award, which explanation may be limited to the extent necessary to support the award and need not attempt to cover all issues raised by the parties. The arbitration shall be governed by the substantive laws of the State of Delaware applicable to contracts made and to be performed therein, without regard to conflicts of law rules, and by the arbitration law of the Federal Arbitration Act (Title 9, U.S. Code) and, unless otherwise agreed to by the parties hereto, the arbitrator shall have no power or authority to order or grant any remedy or relief that a court could not order or grant under applicable law.  Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All fees and expenses of the arbitrator and expenses for hearing facilities and other expenses of arbitration shall be borne equally by the parties unless they otherwise agree or unless the arbitrator in the award assesses such fees and expenses against one of the parties or allocates such expenses other than equally between the parties.  Each party shall bear its own counsel fees and the expenses of its witnesses except to the extent otherwise provided in this Agreement or under applicable laws, and interest shall be payable on any award to the extent provided by applicable laws; provided, however, that if the arbitrator finds that the claim or defense of any party was frivolous or lacked a reasonable basis in fact or law, the arbitrator may assess against such party all or any part of the counsel and witness fees and expenses of the other party.  Except as otherwise provided in this Agreement, the arbitration proceeding conducted pursuant hereto shall be confidential.  
    1. Notices: All notices required under or regarding this Agreement will be in writing and will be considered if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), or sent by courier (confirmed by receipt), addressed to the following designated parties:
If to Red Lion, LLC, located at: 206 Mustang Ct. Gambrills, MD, 21054 If to purchaser:”
    1. Severability: If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
    2. Captions: The section headings in this Agreement are intended solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. 
    3. Entire Agreement: This Agreement and the SOW/Proposal/PO(s) separately constitute the entire agreement between the Parties and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.
    4. Amendments: This Agreement and the Exhibits may be amended only by an instrument in writing executed by the Parties hereto. Any written Change Order (i.e., work order) submitted by Customer shall not amend the terms of this Agreement and will only be considered (1) as a statement of the work to be performed; (2) to set forth any deadlines or schedules; and (3) to list the additional fees to be charged, if any, for any out of scope work and/or services as stated on the aforementioned Change Order.
    5. Applicable Law: This Agreement is made under and will be construed in accordance with the law of the State of Delaware. 
    6. Successors and Third Party Beneficiaries: This Agreement shall inure to the benefit of Company and Customer and any successors or assigns of Company and Customer. No third party shall be a beneficiary to this Agreement.  Neither party may assign any of its rights or obligations hereunder without the other Party’s consent; provided that (i) either Party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such Party’s business relating to this Agreement.
IN WITNESS, WHEREOF, the parties have executed this Agreement as of the date first written above by accepting and completion of the purchase of services on this website.