MASTER SERVICE AGREEMENT
THIS MASTER SERVICES AGREEMENT (the “Agreement”) is entered into by and between (YOUR COMPANY) with its principal place of business at (YOUR ADDRESS) (hereinafter referred to as “Customer”), and Vitcom LLC., a New York limited liability company with its principal place of
business at 1425 37th Street, Suite 210, Brooklyn, NY 11218 (hereinafter referred to as “VTL”). Customer and VTL are sometimes referred to collectively as the “Parties” or individually as a “Party.” In consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree:
Customer shall purchase from VTL the products or services described in the Attachments to this agreement (the “Services”) in accordance with the terms and conditions of this Agreement and its attachments, which are hereby made a part of this Agreement. VTL, in its sole discretion, may provide the Services directly to Customer, or may cause such Services to be provided by third parties whom which VTL has contracted for such purposes. No Attachment shall be effective unless executed by the Parties. In event of a conflict of terms and conditions of this Agreement and the terms and conditions of the Attachments, the terms and conditions of the Attachments shall govern.
1. TERM AND TERMINATION
Term.This Agreement shall become effective on the date this Agreement is fully executed by both Parties (the “Effective Date”) and continue for twelve (12) months (the “Initial Term”). After the expiration of the Initial Term, this Agreement will continue on successive one (1) month terms (each a “Renewal Term”) unless terminated by either Party by written notice no less than thirty (30) calendar days prior to the beginning of such Renewal Term (the Initial Term and all Renewal Terms shall be collectively referred to as the “Term”).
1. Termination Due to Insolvency. This Agreement may be terminated by a Party upon thirty (30) days’ written notice in the event that the other Party: (a) ceases to do business as a going concern; (b) makes a general assignment for the benefit of, or enters into any arrangement with, creditors; (c) admits in writing its inability to pay its debts as they become due; (d) is insolvent, bankrupt, or the subject of a receivership; (e) authorizes, applies for, or consents to the appointment of a trustee or liquidator of all or a substantial part of its assets or has proceedings seeking such appointment commenced against it which are not terminated within sixty (60) calendar days of such commitments; (f) files a voluntary petition under any
bankruptcy or insolvency law or files a voluntary petition under the reorganization or arrangement provisions of the of the United States related to bankruptcy or any similar law of any jurisdiction, or has proceedings under any such law instituted against it, which are not terminated within sixty (60) calendar days of such commencement; or (g) has any substantial part of its property subject to any levy, seizure, assignment or sale for or by a creditor or governmental agency without said levy, seizure, assignment or sale being released, lifted, reversed, or satisfied within ten (10) business days thereafter.
Payment Default. A “Payment Default” shall occur if:
1. A Customer who is a Prepaid Customer as defined in section ?3.1 below, fails to maintain a positive balance on his account,
2. Any other Customer fails to make full and timely payment for all Services as required under this Agreement and such failure remains uncorrected for two (2) days from the Due Date (as defined in the 1. Other Defaults and Remedies. An “Other Default” shall occur if either Party fails to perform or observe any material term or obligation, excluding payment terms, contained in this Agreement, and any such failure remains uncorrected for fifteen (15) calendar days after written notice from the non-defaulting 2. Default for Fraud. VTL may immediately suspend, restrict or terminate the Services upon email or other written notice, in whole or in part, and may deny requests for additional services or initiate other appropriate action: (i) if it suspects fraud, abuse or misuse by Customer, or its agents, representatives, affiliates or end users, or any other third party; (ii) if VTL determines that an unusually high volume of calls or other charges are being placed on Customer’s account in any twenty-four-(24) hour period; (iii) if VTL is prevented from providing the Services to Customer due to actions taken by VTL suppliers; or (iv) if use of the Services, or a portion thereof, is determined or reasonably suspected to violate any applicable law, rule or regulation of any country, or is used for an unlawful purpose. In the case of (iii), VTL will use commercially reasonable efforts to notify Customer by email or other writing in advance of any suspension, restriction or termination of Services due to VTL suppliers.
3. Termination for Default. In the event of a Payment Default or Other Default by Customer VTL may, in addition to its rights available to it at law or in equity: (i) suspend any or all Services to Customer upon written notice; (ii) cease accepting or processing Service Orders for Services; and/or (iii) terminate this Agreement. In the event of an Other Default by VTL, Customer’s remedies are limited to its proven direct damages, unless this Agreement provides for exclusive remedies, in which case Customer’s remedies are as described therein. If Customer violates any provisions or restrictions applicable to certain products, and such activity is affecting VTL’s network, or other parties on VTL’s network then VTL shall have the right immediately to suspend or terminate any or all Services hereunder without notice to Customer.
4. Early Termination Charge. If this Agreement is terminated because of a Payment Default, Other Default by Customer or Default for Fraud, such termination shall not affect or reduce Customer’s minimum monthly commitments required under this Agreement, if applicable, and all Early Termination charges shall apply. If Customer terminates this Agreement because of an Other Default by VTL, no early termination charges or minimum commitment charges for unused portions of the Term shall be owed by Customer.
SECURITY, BILLING, PAYMENT
1. To assure payment by Customer of its obligations to Provider, Provider may, in its sole judgment, require Customer to provide and maintain financial security satisfactory to Provider in an amount established by Provider. Provider may specify whether such financial security is to take the form of a cash deposit or letter of credit acceptable to Provider
2. Provider may also, in its sole judgment, elect to classify Customer as a Prepaid Customer. Such a Customer shall maintain a cash deposit balance (the “Prepaid Account”) with Provider, in the amount that Provider, in its sole discretion establishes. Provider shall deduct all charges from that cash balance. A Prepaid Customer shall, at all times, ensure that the balance of funds in his Prepaid Account remains above zero.
3. No interest shall be paid on any cash or Prepaid Account deposit, and such cash deposits shall not be segregated from Provider’s operating funds, unless otherwise required by law.
4. If Customer provides Provider with a Credit Card number for use of payment, or with a checking account and routing number for payment via ACH, Customer agrees that such method of payment may, in Provider’s sole discretion, be used for all future payments, unless Customer withdraws such consent in: Minimum Billing: Customer understands and accepts that there is a monthly minimum fee of Twenty Five Dollars ($25.00) per account, any services or products could be included to the amount of $25.00, No rollover or credit will be given for unused funds. :
1. Payment Terms. All recurring charges are billed in advance; all usage charges are billed in arrears, unless otherwise specified in the Attachments to this Agreement. Customer agrees to pay for all Services as invoiced, including taxes, surcharges and fees as applicable. Payment is due within 3 days of the date on the invoice, unless otherwise specified in the invoice or Attachments to this Agreement. Any amounts not received when due are subject to late payment charges of 1.5% per month or the highest rate allowed by law, compounded monthly.
2. Disputes. Customer may withhold payment of an invoiced amount if Customer disputes the amount in good faith and provides full documentation of such dispute to VTL in writing. VTL shall not interrupt, delay, suspend, or terminate the provision of Services to Customer during the resolution of disputes provided that Customer is current on payment of all non-disputed charges. Upon resolution, if Customer should be issued a credit, VTL will apply the credit to the immediately following invoice; if Customer is required to pay a disputed amount, Customer will pay the amount in the following month together with late payment charges from the time payment was originally due. Customer has thirty (30) days from the original invoice date to dispute amounts billed or due to VTL. Any item not disputed in writing within such 30 days shall be deemed conclusive and binding on Customer.
3. Fraudulent Calls. Customer agrees that VTL has no ability to prevent fraudulent calls by third parties. Customer shall be solely responsible for any fraudulent use of the Services and shall pay for all usage, fraudulent or otherwise. Customer may not dispute any invoice from VTL based on any claim of fraudulent usage.
EQUIPMENT, INTERCONNECTION. Each Party will purchase, install, license (if required), test and operate all equipment for its network necessary to fulfill its obligations under this Agreement. The Point of Interconnection (“POI”) shall be the Peering Point used for the interchange of IP protocol traffic between Provider and Customer through use of third parties. Each Party shall have the obligation, at its cost and expense, to arrange for facilities or another carrier to deliver IP protocol traffic to, and receive traffic at, such POI in IP format; provided, however, that Provider may elect, in its sole discretion, at its own cost or as mutually agreed, to arrange for GIG-E direct connections.
TESTING. Testing of new services, hardware and/or software is required to provide interoperability between VTL and Customer networks as mutually provided by the Parties. In cases where VTL is utilizing a third party to provide some or all of the Services, Customer may be required to work directly with the third party on provisioning and testing of those third party Services.
OWNERSHIP. All computer programs, software, or other intellectual property, and all intellectual property therein or based thereon, now owned by or developed by or for VTL, or which may be licensed or sublicensed by VTL, or which may be owned by or developed by or for VTL, in connection with delivering the Services to Customer or otherwise as a result of or related to this Agreement, whether or not developed at the specific request of Customer, shall remain the sole and exclusive property of VTL and Customer acquires no rights or licenses, express or implied, in same by virtue of this Agreement or the provision of the Services or other services hereunder.
SURVIVAL OF PROVISIONS. The provisions for Sections 6,8,9 and 10 shall survive the termination of this Agreement.
CONFIDENTIAL INFORMATION. For purposes of this Agreement, the Party disclosing Confidential Information is the “Discloser”, and the Party receiving Confidential Information is the “Recipient.” Confidential Information means all information concerning the Parties’ business including, but not limited to, all tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) Account contact information; (d) Vendor contact information; (e) business information, including operations, planning, marketing interests, and products; (f) the terms of any Agreement between the Parties and the discussions, negotiations and proposals related to that Agreement; and (g) any proprietary methodology utilized by either of the Parties in the delivery of the Services. Confidential Information disclosed to the other Party must be clearly identified as Confidential Information at the time of disclosure.
1. Confidential Information is to be used by the Recipient only for the purposes contemplated by this Agreement, and the Recipient may not disclose the same to anyone other than the Recipient’s employees, accountants, attorneys, consultants, or other representatives on a need to know basis and who agree to be bound by the terms of this Section or to law enforcement acting in accordance with its lawful authority. Confidential Information may not be retained by the Recipient Party and all originals and any copies or summaries shall be returned to the Discloser no later than upon termination of this Agreement.
2. Neither Party may use the name, logo, trade name, brand name, service marks, trademarks, copyright, patent, business process, printed materials, or any other intellectual property of the other Party or itsrespective affiliates, in any promotional or advertising material, statement, document, press release, broadcast, provisioning of services, or otherwise without the prior written consent of the other Party, which consent may be granted or withheld at the other Party’s sole discretion. Each Party’s name and the names of its Affiliates are proprietary and nothing herein constitutes a license authorizing their use, and in no event shall Customer attempt to sell service to its End Users using the name of VTL or its Affiliates. In addition, Customer shall not state to End Users or prospective End Users: (i) that they will be VTL Customers or that they may obtain VTL service from Customer; or (ii) that Customer has any relationship with VTL other than an Agreement to purchase Services on a wholesale basis.
3. The Parties acknowledge the existence of a highly competitive marketplace, and agree that either Party may offer to provide service to Customers of the other Party in accordance with such rates and terms as a Party and Customer agree on, provided, however, that a Party may not use Confidential Information of the other Party in soliciting Customers; and provided further, that a Party cannot market to existing Customers of the other Party by using this Agreement as an inducement for such Customers to switch their service. Each Party also agrees not to circumvent the other Party, either directly or indirectly, through the use of Confidential Information.
4. Each Party acknowledges that a breach or threatened breach of this Section may cause the Discloser irreparable harm, which cannot be adequately compensated by monetary damages. Therefore, in the event of any such breach or threatened breach, the Recipient consents to equitable relief, including all restraining orders or injunctions, restraining the Recipient from any violation of the terms of this Agreement, without being required to post bond or other security of any character, and without having to prove or otherwise establish the inadequacy of available remedies at law for the breach or threatened breach of the Recipient.
LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES WITHOUT LIMITING CUSTOMER’S OBLIGATION TO PAY FOR SERVICES AND ANY OTHER EXPRESS FINANCIAL OR LIABILITY PROVISIONS PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, RELIANCE, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, OR THE PROVISIONING OF SERVICES HEREUNDER (INCLUDING ANY SERVICE IMPLEMENTATION DELAYS/FAILURES), UNDER ANY THEORY OF TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. VTL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE PROVISIONED HEREUNDER. VTL SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES; INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. NOTWITHSTANDING THE FOREGOING, VTL’S TOTAL LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE CHARGES APPLICABLE UNDER THIS AGREEMENT OR THE APPLICABLE SERVICE ORDER FOR THE PERIOD DURING WHICH THE SERVICES WERE AFFECTED. FOR THOSE SERVICES WITH MONTHLY RECURRING CHARGES, VTL’S LIABILITY IS LIMITED TO AN AMOUNT EQUAL TO THE PROPORTIONATE MONTHLY RECURRING CHARGES FOR THE PERIOD DURING WHICH SERVICE WAS AFFECTED.
Customer acknowledges and accepts the reasonableness of the foregoing disclaimer and limitations of liability. No cause of action under any theory which accrued more than one (1) year prior to the institution of a legal proceeding alleging such cause of action may be asserted by either Party against the other, and shall be barred by this agreed limitation.
REGULATORY COMPLIANCE AND INDEMNIFICATION
1. This Agreement is made expressly subject to all present and future valid orders and regulations of any authority having jurisdiction of the subject matter hereof, and to the laws of the United States, or any of its States, or any foreign governmental agency having jurisdiction.
1. In the event this Agreement, or any of its provisions, shall be found contrary to, or in conflict with, any such order, rule, regulation, or law, this Agreement shall be deemed modified, and shall be modified, to the extent necessary to comply with any such order, rule, regulation, or law.
2. In the event this Agreement, or any of its provisions, shall be found contrary to or in conflict with any tariff of either Party, then the Party with the conflict will allow the other Party the opportunity to amend its tariff to conform to the Service of this Agreement.
3. If the Federal Communications Commission, a state Public Utilities Commission or a court of competent jurisdiction issues a rule, regulation, law, or order after the date of this Agreement which has the effect of canceling, changing, or suspending any material term or provision of this Agreement of any of the Service Orders (collectively, “Regulatory Requirement”), then this Agreement shall be deemed modified in such a way as the Parties mutually agree is consistent with the form, intent and purpose of this Agreement, to the extent necessary to comply with such Regulatory Requirement. Should the Parties not be able to agree on the modifications necessary to comply with a Regulatory Requirement within fifteen (15) Days after the Regulatory Requirement is effective, and then the Parties shall submit the matter to arbitration in accordance with paragraph 14.5 of this Agreement.
4. If reporting obligations or requirements are imposed upon VTL by any regulatory or governmental third party or regulatory agency in connection with either this Agreement or the Services, including use of the Services by Customer or its End Users, Customer agrees to assist VTL in complying with such
obligations and requirements, as reasonably required by VTL and to save, protect, defend, indemnify and hold VTL harmless from any and all expenses, damages, penalties, assessments or costs of any nature whatsoever directly arising out of Customer’s failure to procure the information.
5. The Parties acknowledge and agree that both (i) certain equipment, software and technical data which may be provided or utilized in connection with the furnishing of the Services hereunder; and (ii) the use of such services may be subject to export, re-export or import controls under the United States Export Administration Regulations or similar regulations of the United States or of any other country.
1. Each Party shall comply with all applicable federal, state, and local laws, rules, and regulations (including, but not limited to, directives of the North American Numbering Plan Administrator) applicable to its performance under this Agreement. Each Party will operate its network and systems in accordance with general industry standards and protocols.
2. Basic 911 and E911 Service Limitation. If Customer is ordering Call Origination or Call Termination Services, Customer understands and agrees that the Service cannot complete calls to Basic 911, E911 or other emergency calling services and that Customer will not utilize the Service in the provision of any offering to its end users that would require the Service to provide Basic 911 or E911 functionality. Customer agrees that it shall be solely liable for and shall indemnify VTL from and against any and all lawsuits, claims, demands, penalties, losses, fines, liability, damages and expenses, including reasonable attorney’s fees, arising out of or in any way relating to such inability to complete Basic 911, E911, and other emergency calls, including, without limitation, any actual failure of any such call to be completed.
3. Customer knowingly and expressly indemnifies and holds harmless VTL from and against any loss, cost, claim, liability, damage or expense (including reasonable attorneys’ fees) to third parties, relating to any claim or allegation that any access charges or other intercarrier compensation-related payments are owed as a result of VTL’ performance of this Agreement.
Should Customer claim an exemption of any value-added, sales, use, or other tax, or fee assessed by USAC or any other regulatory body, Customer will provide officially documented/certified proof of such exemption to VTL. It is Customer’s responsibility to ensure its exempt status, and the proof thereof, remains current. Customer will be responsible for paying all appropriate taxes, penalties and interest that may be assessed by any tax authority and that it shall fully and completely indemnify, defend, and hold harmless VTL, with respect to such issue and further, including reimbursing VTL for any all costs expended by VTL should VTL be required to defend itself, with regards to Customer’s tax exemption claim. In no event will VTL be liable for any taxes due by Customer. VTL will invoice Customer for taxes and other charges, if any, that are not covered by a valid tax exemption certificate properly filed with VTL. Customer will notify VTL as soon as reasonably practicable in the event of any notice of violation, summons, order or complaint that has been issued by any governmental authority to any Party that could materially affect the provision or use of the services provided by VTL under this Agreement.
CUSTOMER RESALE AND END USER RESPONSIBILITIES
1. Customer is solely responsible for obtaining all licenses, approvals, and regulatory authority for its use and operation of the Services and the provision of Services to its End Users. In connection with its resale of the Services, Customer is solely responsible for all billing, billing adjustments/credits; Customer service, creditworthiness and other service-related requirements of its End Users, and VTL shall have no liability to Customer’s End Users under this Agreement. Customer’s payment obligations hereunder are not contingent upon Customer’s ability to collect payments or charges from its End Users, Affiliates, agents, brokers or re-sellers.
2. Customer shall save, protect, indemnify and hold VTL harmless from and against any and all claims, demands, suits, actions, losses, damages, assessments or liabilities of any nature whatsoever arising directly or indirectly out of: (a) any damages caused by any intentional or illegal acts of Customer or any of its End Users, (e.g., slamming) in connection with its use or resale of the Services; (b) Customer’s or End User’s use, resale or modification of the Services, or (c) any claims by Customer’s Customers or ultimate End Users alleging any defect in any of the Services.
3. The terms, representations, warranties and agreements of the Parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any third party (including, without limitation, Customer’s Affiliates and End Users).
1. Notices. Except as otherwise provided in this Agreement, all non-RATE required or permitted notices shall be in writing and shall be deemed to be effective upon dispatch if sent by (i) overnight courier or hand delivery, (ii) facsimile, with confirmation by letter, or (iii) electronic (email) transmission. (Rate Notifications are addressed in Attachment B.) Notice given by facsimile shall be deemed given when transmitted, provided that the sender shall have received a transmission report indicating successful transmission of all pages of the notice to the correct facsimile number. Notice by electronic mail shall be deemed given when the sending Party receives validation from the receiving Party’s e-mail server. Either Party may change its Notice information by giving prior written notice according to the terms herein.
Please send all LEGAL Notices for VTL:
1425 37th Street
Brooklyn, NY 11218
Waiver. No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No extension of time for the performance of any obligation or act shall be deemed an extension of time for the performance of any other obligation or act.
Force Majeure. For purposes of this Agreement, “Force Majeure” means any event or circumstance beyond the reasonable control of a Party which affects the performance by such Party of its obligations hereunder, including but not limited to, any war, declared or not, or hostilities, or belligerence, blockade, revolution, insurrection, acts of terror, riot, public disorder, expropriation, requisition, confiscation or nationalization, whether imposed by law, decree or regulation by any governmental authority, or fire, unusual flood, earthquake, volcanic activity, storm, typhoons, lightning, unforeseen changes to VTL’s underlying carrier contracts, performance of VTL’s carriers, or any event, matter or thing, wherever occurring that is clearly outside of either Party’s reasonable control. In the event of a Force Majeure Event, neither Party shall be liable to the other for any delay or failure in performance of any part of this Agreement, and the time for performance of such obligation shall be excused for the period of such delay or prevention and extended for a period equal to the period of such delay or prevention. The Party claiming relief under this Section shall notify the other in writing of the existence of the Force Majeure Event. Notwithstanding this provision, Customer shall in no way be relieved of any of its payment obligations as provided herein.
Choice of Law. This Agreement will be governed by and construed in accordance with the Laws of the State of New York, USA, without regard to its conflicts of law principles. Venue for any cause of action arising out of or related to this Agreement shall be brought and maintained exclusively in the court of appropriate jurisdiction located in New York, NY Customer consents and agrees to submit to the jurisdiction of such courts. BOTH PARTIES FOREVER RELINQUISH THEIR RESPECTIVE RIGHTS/ENTITLEMENT TO TRIAL BY JURY IN ANY AND ALL LITIGATION PERTAINING TO THIS AGREEMENT. Should legal action be required by either Party to enforce this Agreement, the prevailing Party shall have the right to recover its reasonable expenses (including attorney and collection agency fees) incurred in the enforcement of its rights under the Agreement.
Arbitration; Forum Selection. Any billing, payment or rate dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement in directly arising out of a billing, rate or payment issue which cannot be resolved through discussions between the Parties, shall be determined by arbitration in Brooklyn, NY, before one arbitrator. At the option of the first to commence an arbitration, the arbitration shall be administered the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. For arbitration matters, each Party will be responsible for paying its own costs and expenses including all legal fees. For litigation matters, the prevailing Party shall be reimbursed for its reasonable attorney’s fees and costs incurred in the enforcement of this Agreement, including all costs of arbitration proceedings.
Headings; Section References. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement. All references to Sections in this Agreement are to sections of this Agreement.
No Partnership. Nothing contained in this Agreement shall be construed to create a partnership or joint venture between the Parties or their successors in interest or permitted assigns. The relationship between the Parties is that of independent contractors and shall not be that of partners, and nothing herein shall be deemed to constitute a partnership, agency, joint venture, employee relationship or franchise between them or a merger of their assets or their fiscal or other liabilities or undertakings. Neither Party shall have the right to bind the other Party, or otherwise or make any representations or guarantees on behalf of the other, except as expressly provided for in this Agreement.
Counter Parts. This Agreement may be executed in any number of counterparts and any Party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement shall become binding when one or more counterparts taken together shall have been executed and delivered (which deliveries may be by facsimile) by the Parties.
Proper Execution. The submission by VTL to Customer of this Agreement in an unsigned form shall be deemed to be a submission solely for Customer’s consideration and not for acceptance and execution. Such submission shall have no binding force or effect, shall not constitute an option or an offer and shall not confer any rights, irrespective of any reliance thereon, change of position or partial performance. The submission of this Agreement for execution by Customer and the actual execution thereof by Customer and delivery to VTL by Customer shall similarly have no binding force and effect on VTL until VTL will execute this Agreement and a counterpart hereof executed by both VTL and Customer.
Mutual Drafting. This Agreement is the mutual product of the Parties hereto and each provision hereof has been subject to the mutual consultation, negotiation and agreement of each of the Parties and shall not be construed for or against any Party hereto.
Amendment. This Agreement may only be amended by the Parties hereto in mutually signed writing. Any extension or waiver by any Party of any provision hereto shall be valid only if set forth in an instrument in writing signed on behalf of such Party.
Business Days. If any date herein set forth for the performance of any obligations by any Party or for the delivery of any instrument or notice as herein provided should fall on a Saturday, Sunday or Legal Holiday (hereinafter defined), the compliance with such obligations or delivery shall be deemed acceptable on the next business day following such Saturday, Sunday or Legal Holiday. As used herein, the term “Legal Holiday” shall mean any day on which banking institutions are required to close in the State of New York. As used herein, the term “Business Day” means any day other than a Saturday, Sunday or Legal Holiday.
Binding Effect. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
Assignment. Neither Party shall assign, sell or transfer this Agreement or any of its rights or obligations hereunder, including the right to receive the Services, whether by operation of law nor otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, VTL may obtain some Services contemplated hereunder from third party Vendors. Either Party may assign this Agreement to an Affiliate upon thirty (30) days written notice. Any attempted assignment in violation hereof shall be null and void and shall be deemed a material breach of this Agreement. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective affiliates, successors and assigns
Authority. The Parties represent and warrant that: (i) the full legal name of the legal entity in this Agreement is accurately set forth herein; (ii) the person signing this Agreement has been duly authorized to execute this Agreement on the Party’s behalf; and (iii) the execution hereof is not in conflict with law, the terms of any charter, bylaw, articles of association, or any agreement to which the Party is bound or affected. VTL may act in reliance upon any instruction, instrument, or signature reasonably believed by VTL to be genuine. VTL may assume that any employee of Customer who gives any written notice, Order Form, or other instruction in connection with this Agreement has the authority to do so.
Entire Agreement. This Agreement, together with the Schedules and Exhibits (including any and all agreements the form of which are included as Exhibits) attached hereto, all of which are incorporated by reference, sets forth the entire understanding of the Parties hereto with respect to the transactions contemplated hereby. Any and all previous agreements and understandings between or among the Parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.