THIS PRODUCTS AND SERVICES Agreement (“Agreement”) between The Henson Group, Inc., a New York corporation of 1221 Brickell Avenue, Suite 900, Miami, FL 33131 (“THG”) and the undersigned (“Client”) is effective upon execution by Client. The capitalized terms in this Agreement shall have the definitions provided herein. THG and Client agree as follows:
1. Resale. THG is an authorized reseller of Microsoft business computing products and services (“Microsoft Products and Services”) and other products and services (altogether with Microsoft Products and Services, the “products and services”). This Agreement identifies the products and services Client seeks to purchase from THG in Schedule A and establishes the terms and conditions upon which THG will sell such products and services to Client. The terms and conditions of this Agreement are subject to amendment from time to time by THG on 30 days prior written notice. Client expressly agrees to be bound by any such revisions prior to termination of this Agreement. All changes to this Agreement will be available for your review here: www.hensongroup.com/cspterms. Please review these changes thoroughly and often.
2. Authorized Use and Compliance. In addition to the terms and conditions of this Agreement, Client’s purchase and use of and access to Microsoft Products and Services is subject to compliance with all terms and conditions applicable to Microsoft Products and Services, as amended by Microsoft from time to time. Microsoft Products and Services are licensed and not sold. Licenses granted for metered products billed periodically based on usage continue as long as Client continues to pay for its consumption of the Microsoft Products and Services. Microsoft may, in its sole discretion, modify Microsoft Products and Services, including by adding/removing new features or functionality, or otherwise, from time to time and without prior notice. THG is not an agent of Microsoft and is not authorized to enter into any agreement with Client on behalf of Microsoft.
(a) “THG Support Services” means (i) one quarterly review by THG of Client’s arrangement and use of products and services to provide guidance on optimizing performance and security, reducing costs, and other general advisory services, including answering questions regarding best practices, architecture, migrations, and/or application design (“THG General Advisory Support”). THG General Advisory Support requests may take up to five (5) business days to align necessary resources and are limited to two (2) hours per month. Charges may apply for exceeding this limit. Requirements for THG General Advisory Support tickets are detailed in Schedule C; and (ii) other support services requested by Client from time to time. THG does not provide any specific service levels under this Agreement. THG Support Services are provided solely by THG and not by Microsoft. THG Support Services do not include the full scope of and are not the equivalent of Premier Support offered by Microsoft. Additional fees apply to THG Support Services described in Schedule C. If THG cannot provide requested support services or the requested support constitutes Microsoft Support Services (defined below), THG will forward the request for support to Microsoft.
THG Support Services other than THG General Advisory Support, or THG General Advisory Support provided in excess of the limits described in this Agreement, will be billed at applicable hourly rates set forth in Schedule A. All amounts due for THG Support Services under this Agreement will be invoiced in accordance with this Agreement.
Client may initiate a request for THG Support Services at https://hensongroup.itclientportal.com/ClientPortal/Login.aspx If Client does not have logon credentials or this URL is unavailable, Client can open a support case by sending an email to email@example.com. Client administrators for ticketing may be added, changed, or deleted by sending an email to firstname.lastname@example.org.
(b) “Microsoft Support Services” means services provided by Microsoft to address specific problems encountered while using products and services where there is a reasonable expectation that the problems are caused by Microsoft products and services. Microsoft will contact and troubleshoot the request for support with the Client directly (without THG involvement), subject to the terms, conditions and costs provided by Microsoft. The severity of the request for support will determine certain response levels from Microsoft, initial estimated response times, and the responsibilities of THG, Microsoft, and Client. In any such request for support, Client is responsible for communicating the business impact to its organization and, in consultation with Microsoft and THG, Microsoft will assign an appropriate severity level to Client’s support request. Severity definitions, estimated initial response times, and submission requirements are detailed in the attached Schedules B and C. Client can request a change in severity level by Microsoft during an incident should the business impact require a change to a higher or lower severity. THG cannot implement any change in severity level or guaranty that Microsoft will change its determination of severity. THG cannot control any aspect of delivery of Microsoft Support Services by Microsoft other than opening a ticket with Microsoft for Premier Support.
Pricing of Microsoft products and services under this Agreement includes free Microsoft Premier Support for cloud, and, subject to the limits described in this Agreement. Client acknowledges that (i) should Microsoft determine their support was provided for on-premise technology (all Microsoft software not in Microsoft’s cloud, including server products, developer tools, database products, etc.), Microsoft will charge $500 per hour for such support; (ii) the determination whether Microsoft support is billable is made by Microsoft without notice to THG, and possibly without notice to Client until after such engagement with Client is complete. Client may dispute on-premise billable support hours directly with Microsoft; and (iii) any such amounts will be billed to THG by Microsoft, and THG will then bill Client for such amounts, which are due payable in accordance with this Agreement.
(c) The performance of either THG Support Services or Microsoft Support Services is subject to the availability of necessary resources. Not all support services are available globally. Available support services are subject to change at any time, without prior notice.
4. Payment. All fees and charges applicable to products and services, and support under this Agreement are described in Schedule A (altogether, the “Fees”). Client acknowledges that THG purchases Microsoft Products and Services from Microsoft and third-party distributors for resale to others. Upon execution of this Agreement, THG will be obligated to Microsoft and/or third parties for the cost of Microsoft Products and Services delivered to Client under this Agreement. THG will be billed periodically for metered Microsoft Products and Services provided to Client under this Agreement based on Microsoft usage reports for the prior month. Immediately upon such billing, THG will charge or invoice Client for such amounts and Client agrees to pay THG such amounts in accordance with this Agreement. This Section 4 is a material term of this Agreement and THG would not sell products and services to Client on other payment terms.
(a) Payment Due Date. Unless credit terms are made available under paragraph (d) below, all THG invoices are due immediately upon receipt by Client (the “Due Date”), without setoff. Prepayment for products and services may be required initially and at any other time during the term of this Agreement upon written notice by THG. Failure to pay any amounts due on or before the Due Date is a material breach of this Agreement.
(b) Payment Method. Client must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing THG with a payment method, Client (1) consents to THG’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes THG to charge Client Fees using that payment method on or after the Due Date.
For subscriptions to products or services that renew automatically, Client authorizes THG to charge Client’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Client authorizes THG to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, THG or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Client for the amount due.
(c) Invoice Payment Terms. Each invoice will identify the amounts payable by Client to THG for the period corresponding to the invoice. All invoices will be delivered by THG by email to the Billing Contacts listed in Schedule A. To the extent such Billing Contacts, or either of them, is no longer employed by Client or involved in the payment process of Client for products and services under this Agreement, Client will provide THG with a replacement Billing Contact. It is Client’s sole responsibility to provide THG with at least two Billing Contacts with valid Client email addresses at all times for purposes of delivering invoices and other important notices under this Agreement.
(d) Extended Invoice Payment Terms of Net 30. THG may offer eligible Clients Net 30 terms. Client’s eligibility for Net 30 terms is subject to THG’s approval of Client’s financial condition as of the date of this Agreement, and from time to time in its sole discretion. Client authorizes THG to obtain information about Client’s financial condition, including credit reports, to assess Client’s eligibility for Net 30 invoicing. Unless Client’s financial statements are publicly available, Client may be required to provide balance sheets, profit and loss and cash flow statements to THG from time to time. Client may also be required to provide security for payment in a form(s) acceptable to THG. THG may withdraw Client’s eligibility for Net 30 invoicing at any time and for any reason. Client must promptly notify THG of any changes in its company name or location and of any significant changes in its ownership, structure, or operational activities.
(e) Late Payments. A late fee applies to any invoice remaining unpaid more than fifteen (15) calendar days after the Due Date in the amount of five (5%) percent of the amount remaining unpaid for each month it remains unpaid, but no less than $75 per month, or the highest amount allowed by law if less. Late payments will void any discounts previously offered or applied to unpaid invoices.
(f) Suspension. Upon breach of this Agreement Titans may disable, by electronic means or otherwise, access or prevent use of any products or provided by Titans to Client under this Agreement. All rights of Client hereunder are subject to payment in full of the Fees in accordance with this Agreement. Titans will give Client at least 24 hours’ notice to the Client’s Billing Contacts before suspending Products and Services.
(g) Cancellation Fee. Client shall be responsible for all cancellation fees charged by Microsoft for cancellation of Microsoft Products and Services.
(i) Except as provided in Section 6(b) and 6(c) below, THG does not provide refunds of any amounts paid under this Agreement for any reason. THG has no obligation to refund any amounts for prepaid products and services upon termination by Client.
(ii) Client may request that THG initiate a refund request with Microsoft and/or other third-party distributor(s). Any such request must be made by Client to THG in writing within 30 days of the event giving rise to the refund request. To the extent THG uses any third-party distributor to provide products and services to Client under this Agreement, such refund request must be made directly by such third-party distributor to Microsoft. THG cannot guaranty that such third-party distributor will make a refund request to Microsoft. Microsoft may or may not consider any refund request made. If Microsoft does consider a refund request, there is no guarantee it will refund any amount. All refund determinations are made directly by Microsoft and not by THG. THG may offset amounts due to THG with any credits granted or credit memos issued by Microsoft to THG on Client’s behalf. Initiating a refund request with Microsoft or a third-party distributor does not change the Due Date or payment terms of any THG invoice. All amounts invoiced to Client by THG remain due and are payable in accordance with this Agreement notwithstanding any refund request. The process of requesting and receiving any refund from Microsoft or a third-party distributor can be lengthy. To the extent any refund is issued to THG in favor of Client by Microsoft or another third-party distributor, such refund will be first applied to any amounts due under this Agreement, or other amounts due from Client to THG until such refund is exhausted, and any remaining balance shall be delivered to Client.
(i) Taxes. THG prices exclude applicable taxes unless specifically identified as tax inclusive. Client shall pay all applicable sales, use, excise, value added, goods and services, gross receipts, or other similar transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges, assessments or duties or similar amounts imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of company that is in accordance with the direction or request of customer) that are based on or with respect to any products or services provided by THG to Client, or the amounts payable to THG therefore. Client shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of any products or services by Client to its affiliates. THG shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership. If THG or Client is subject to an audit by a government agency responsible for the administration of taxes applicable to this Agreement, THG and Client agree to use reasonable efforts to cooperate in defense of such audit.
5. Client Responsibilities.
(a) Client will provide THG with the cooperation, access and information required by THG to implement, configure, maintain, support and deliver the products and services, including, where applicable, test time on Client’s computer systems and networks and personnel appointed for project management as set forth below.
(b) Client acknowledges and agrees that it is solely responsible for the following:
(i) Client use of products or services delivered by THG under this Agreement;
(ii) Use of products or services delivered by THG under this Agreement to any affiliate of Client;
(iii) Compliance with terms and conditions of this Agreement and all other agreements applicable to Client use of products or services delivered by THG under this Agreement;
(iv) Compliance with applicable laws governing use of products or services delivered by THG under this Agreement;
(v) Monitoring consumption of Azure and other products and services and enabling consumption warnings and governance of all metered products and services. Client acknowledges and agrees that THG is not responsible for costs incurred by Client from metered products and services, including Microsoft Azure;
(vi) Validating Azure Reserved Instance types prior to provisioning. Any problems or other issues with such Reserved Instances must be disclosed to THG within five (5) business days of provisioning. THG will honor Microsoft terms for any refund granted by Microsoft for such products, which currently include a 12% restocking fee if the Reserved Instance is incorrect or returned before the end of the license term. Reserved Instances over $50,000 are non-refundable;
(vii) Client will provide an administrative contact on behalf of (AOBO) and Azure Lighthouse permissions which are required for Microsoft Premier Support;
(viii) Client shall specify Henson Group as DPOR, CPOR, and PAL on all CSP and non-CSP Azure subscriptions and accept Ingram Micro and Henson Group relationship links;
(ix) Payment of all amounts billed to Client accounts by Microsoft or other vendors for products or services delivered by THG in accordance with this Agreement;
(x) Monitoring and reviewing any changes to this Agreement as provided above;
(xi) Notifying THG at least 3 business days in advance regarding the details of any changes by Client to the products and services purchased under this Agreement;
(xii) Accept all relationship and administration permission links which are required to provision products and services and provide access for Microsoft Premier Support and THG Support Services when needed;
(xiii) Notifying Client’s insurance providers of the work to be undertaken by it and THG under this Agreement in connection with Client’s computer systems and information systems; and
(xiv) All other Client responsibilities specifically identified in Schedule A.
(c) Client will be the primary administrator for Client’s Azure account(s), and all other Client accounts for Microsoft Products and Services. Client will not identify THG as the primary administrator on any Client account for Microsoft Products and Services, or other products or services.
(d) THG will be excused from its failure to perform any obligation under this Agreement to the extent such failure is caused by Client’s delay or failure to perform its responsibilities.
(a) Term. The term of this Agreement shall commence on the date it is executed and delivered by Client and shall continue until terminated as provided below. This Agreement shall automatically terminate upon the termination of Client’s right to use of the products and services.
(b) Termination Without Cause. Either party may terminate this Agreement without cause on 90 days’ prior written notice to the other. Termination without cause will not affect Client’s prepaid licenses for products or services, which will continue for the duration of the applicable subscription period(s), subject to the terms of this Agreement. All refunds, to the extent available, are subject to the terms of Section 4(h) above. Client may not terminate this Agreement without cause unless and until all amounts due and owing to THG have been paid in full, and Client has prepaid amounts requested by THG for non-invoiced metered Products based on estimated consumption. Client will receive a refund of any prepaid amounts in excess of actual consumption.
(c) Termination With Cause. Without limiting other remedies it may have, either party may terminate this Agreement for material breach on 60 days’ (“Notice Period”) prior written notice to the other if the other party fails to cure the breach within the Notice Period. Upon such termination: (1) All licenses granted under this Agreement will terminate immediately except for fully-paid licenses. Paid up licenses will continue through the expiration date. No refund will be made for perpetual or term licenses; (2) Client may not terminate this Agreement unless and until all amounts due and owing to THG have been paid in full; and (3) Client shall prepay amounts requested by THG for non-invoiced metered Products based on estimated consumption. Client will receive a refund of any prepaid amounts in excess of actual consumption. During any Notice Period, Client agrees to engage with THG in good faith efforts to resolve any disputes and, as required, plan for migration of existing resources without compromising business continuity.
(d) Notice to Terminate. Termination shall not be effective under any circumstances until Client has completed the required Client Cancellation Request Form identified in Schedule D.
(e) Suspension of Use. THG may suspend use of products and services electronically without terminating this Agreement during any period of material breach. THG will give Client at least 24 hours notice before suspending products and services.
7. Limitation of Liability. THG makes no representations or warranties to Client and provides no indemnity to Client against any claims related to Microsoft Products and Services, Microsoft Support Services or other products and services, or Client’s use of Microsoft Products and Services or Microsoft Support Services or other products and services. THG does not assume or undertake any indemnification obligation on behalf of Microsoft with regard to Microsoft Products or Services or Microsoft Support Services. Nothing in this Agreement shall be deemed nor construed to create any direct or indirect indemnification obligations on behalf of Microsoft or any third-party.
To the maximum extent permitted by applicable law, THG disclaims and excludes, directly and on behalf of its suppliers, subcontractors, agents and Microsoft all representations, warranties, and conditions whether express, implied or statutory, including but not limited to representations, warranties, or conditions of title, non-infringement, satisfactory condition, merchantability and fitness for a particular purpose, with respect to any products or services provided hereunder. All products and services of third parties are subject to the terms and conditions set forth in the vendors' or manufacturers’ warranty or end-user license packaged with such products with no further warranty of any kind from THG, including any warranty that such products shall be free from defects in design, material or workmanship, or that third party products and services will be available and delivered without interruption for any reason.
To the maximum extent permitted by applicable law, notwithstanding anything to the contrary contained in this Agreement: (i) neither party, their respective employees, agents or affiliates, will be liable for any indirect, consequential (including without limitation, damages for business interruption, or loss of business information), special, punitive or incidental damages or damages, or loss of use, loss of revenues or profits, or interruption of business, however caused or on any theory of liability, in connection with this Agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable; and (ii) the maximum and total liability of THG, its agents or affiliates, in connection with Client’s assertion of any one or more claims against THG, its agents or affiliates, whatever the legal basis for such claims, is limited to direct damages up to the amount paid to THG in the aggregate for the products and/or services giving rise to such claims during the immediately preceding 12 month period. No limitation or exclusions will apply to liability arising directly from either party’s intentional conduct or gross negligence documented by clear and convincing evidence of breach of the following (1) confidentiality obligations (except for liability related to Client Data, which will remain subject to the limitations and exclusions herein); and (2) violation of the other party’s intellectual property rights.
(a) Personal Data. “Personal Data” means any information relating to an identified or identifiable natural person. Client consents to the processing of Personal Data by THG and Microsoft, their affiliates, agents and subcontractors, as provided in this Agreement. Before providing Personal Data to THG or Microsoft, Client will obtain all required consents from third parties (including Client’s contacts, partners, distributors, administrators, and employees) under applicable privacy and data protection laws.
To the extent permitted by applicable law, Personal Data collected by THG under this Agreement may be transferred, stored and processed in the United States or any other country in which THG or its affiliates, or their respective agents and subcontractors, maintain operations. THG will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.
(b) Client Data. “Client Data” means all data, including all text, sound, software, image or video files that are provided to THG by, or on behalf of, Client under this Agreement. THG will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, including without limitation, measures designed to prevent unauthorized access to or disclosure of Client Data to unauthorized persons. Upon request by Client made within 90 days after the effective date of termination or expiration of this Agreement, THG will make any Client Data in its possession available to Client for export or download. After such 90-day period, THG will have no obligation to maintain or provide any Client Data, and may thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited.
Except as otherwise specifically provided herein, as between the Client and THG, Client Data will be and remain the property of Client. THG shall not use Client Data for any purpose other than to render services under this Agreement. No Client Data may be sold, assigned, leased, or otherwise disposed of to third parties or commercially exploited by or on behalf of THG. THG shall not possess or assert any lien or other right against or to Client Data. Without limiting the generality of the foregoing, THG may only use personal identifying information of Client as strictly necessary to render the services and must restrict access to such information to THG personnel on a need-to-know basis. When accessing Client Data, THG will observe and comply with Client’s security procedures that have been communicated to THG in writing. THG will establish and maintain safeguards against the destruction, loss, or alteration of Client Data in its possession or control that are no less rigorous than those safeguards maintained by Client as of the effective date and communicated to THG in writing and are no less rigorous than those maintained by THG for its own data of a similar nature. In carrying out any activities under this Section 8, THG will observe and comply with applicable European Union data privacy and data protection laws and regulations.
9. Client Intellectual Property. The parties acknowledge that Client may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, services, training, ideas, skills, designs, know-how or other intellectual property owned by Client or its licensors, and Client may also create additional intellectual property based thereon, in the performance of this Agreement (all of the foregoing, the “Client Intellectual Property”). Client shall maintain all ownership, rights, and title to its Client Intellectual Property. THG agrees that all proprietary rights to the Client Intellectual Property, as it existed as of the date hereof and as it may be modified or created in the course of performance under this Agreement, including patent, copyright, trademark, and trade secret rights, to the extent they are available, are the sole and exclusive property of Client, free from any claim or retention of rights thereto on the part of THG, and THG hereby assigns to Client any rights it may have or obtain in any of the foregoing. Client shall defend, indemnify and hold harmless THG from and against any and all third party losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs alleging that the Client Intellectual Property infringes any U.S. patent, trademark or copyright.
(a) Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Client Data, and the terms of this Agreement. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
(b) Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
(c) Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
(d) Residual information. Neither party is required to restrict work assignments of its representatives who have had access to Confidential Information. Each party agrees that the use of information retained in representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
(e) Duration of Confidentiality obligation. These obligations apply (1) for Client Data, until it is deleted from THG systems; and (2) for all other Confidential Information, for a period of three years after a party receives the Confidential Information.
11. Defense of Third-Party Claims. The parties will defend each other against the third-party claims described in this Section 11 and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This Section 11 describes the parties’ sole remedies and entire liability for such claims.
(a) THG will defend indemnify and hold harmless Client from and against any third-party claim to the extent it alleges that any deliverable other than Microsoft Products and Services provided by THG for a fee under this Agreement, misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If THG is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace such deliverable with a functional equivalent, or (2) terminate Client’s license and refund any license fees for such deliverables (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. THG will not be liable for any claims or damages due to Client’s continued use of a deliverable provided by THG under this Agreement after being notified to stop due to a third-party claim.
(b) Client will defend indemnify and hold harmless THG and its affiliates from and against any third-party claim to the extent it alleges that: (1) any Client Data, Client Intellectual Property or third-party product used by Client misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; (2) Client’s use of a third-party product, alone or in combination with anything else, violates the law or harms a third party; or (3) Client’s use of any deliverable provided by THG under this Agreement for a purpose other than the specific purpose for which such deliverable was provided misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party.
12. No Third Party Rights. Client acknowledges that Microsoft is not a party to this Agreement. This Agreement does not create, confer upon or give Client any third-party beneficiary rights against Microsoft or any other party; or otherwise impose upon Microsoft or any other party any direct obligation under this Agreement.
13. Entire Agreement. This Agreement, together with all schedules, exhibits and other THG agreements referenced herein constitute the entire agreement of the parties with respect to the subject matter hereof. This Agreement is a legally binding document between THG and Client. This Agreement supersedes all prior written and oral understandings between THG and Client regarding the subject matter hereof. This Agreement is further subject to the agreements between Microsoft and the distributors of Microsoft-branded products and services through Microsoft’s Cloud Solution Provider program, the Microsoft Partner Network, and any applicable agreement(s) between THG and Microsoft and the Client and Microsoft regarding use or access of Microsoft Products and Services.
14. Authority; Binding Agreement. The undersigned signatory of Client represents and warrants to THG that the signatory: (i) is authorized to bind Client; and (ii) agrees on behalf of Client that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter of this Agreement and waives any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement.
15. Disputes. Both parties agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement. If necessary, such disputes shall be escalated to appropriate senior management of each party. In the event that such good faith settlements fail, excluding any and all disputes and controversies arising out of nonpayment of invoices, any and all other disputes and controversies of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Agreement shall be submitted to binding arbitration, pursuant to the Rules of the American Arbitration Association, before a single arbitrator in New York County, New York. In the event the parties cannot agree on the arbitrator, then an administrator of the American Arbitration Association shall select an appropriate arbitrator from among arbitrators of the American Arbitration Association with experience in commercial disputes related to technology products. This Agreement shall be governed by New York law, without reference to choice of laws. If any dispute is not subject to arbitration as described above, THG and Client agree to venue in the applicable federal and state courts for New York County, New York. The United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The prevailing party in any dispute in connection with this Agreement shall be entitled to recover reasonable attorneys' fees and expenses incurred. Notwithstanding the foregoing, claims by THG against Client for unpaid invoices are not subject to arbitration.
16. Insurance. Client represents and warrants that it has insurance coverage sufficient to protect Client from financial losses from risks arising under this Agreement, and regardless of the actual cause or nature of such losses.
17. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect. If such invalidity or unenforceability is due to the court's determination that the provision's scope is excessively broad or restrictive under applicable law then in effect, the parties hereby jointly request that such provision be construed by modifying its scope so as to be enforceable to the fullest extent of applicable law then in effect. If any provision is held to be invalid or unenforceable with respect to a particular circumstance, such provision shall nevertheless remain in full force and effect in all other circumstances.
18. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
19. Notice. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to THG must be sent to the following address: The Henson Group, Inc., 1221 Brickell Avenue, Suite 900, Miami, FL 33131. Notices to Client will be sent to the individual at the address Client identifies on its account as its contact for notices. THG may send notices and other information to Client by email or other electronic form.
20. Neutral Construction. The construction and interpretation of any part of this Agreement shall be construed without regard to the identity of the party that prepared this Agreement, and no presumption shall arise as a result that this Agreement was prepared by one party or the other.
21. No Assignment. Client may not assign or otherwise transfer any right or power or delegate any of its duties or obligations under this Agreement without the prior written consent of THG. Assignment will not relieve Client of its obligations under the assigned Agreement. Any attempted assignment is void.
22. Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment) in two or more counterparts, and by the different parties in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Any such counterpart, to the extent delivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
23. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
24. Media. Each party may use logo of the other party and nonspecific project information for marketing purposes such as whitepapers, customer lists, case studies, partner awards, in any media.
25. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.