Master Services Agreement (Slingshot Call Center Services)

This Master Services Agreement sets forth the terms and conditions governing your use of customer support and sales services (the “Services”) provided by Slingshot Technology, Inc. (“Slingshot”).  Additional terms and conditions specific to an applicable Service you have purchased may also apply. You agree to review such additional Service specific terms and conditions, and that such additional terms and conditions are binding and incorporated herein by reference. As used herein, the term “Agreement” means this Master Services Agreement and such additional Service specific terms and conditions.

By executing a Purchase Order that incorporates by reference this Agreement, you agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not accept this Agreement and you may not use the Services. In addition, you may not access the Services if you are our competitor, except with our prior written consent.

As used in this Agreement, “you” or “Company” refers to any person, company, or organization using the Services.  By using the Services, you acknowledge that you understand, accept, and agree to be bound by this Agreement.  Slingshot and Company shall each be referred to herein as a “Party” and together as the “Parties.”

1. Services, Generally.
   1. Purchase Orders. Subject to the terms and conditions of this Agreement, Company hereby retains Slingshot to perform certain Services pursuant to one or more purchase orders (each, a “Purchase Order” or “PO”) which shall be governed by this Agreement and made part of this Agreement by this reference.  Each Purchase Order shall set forth in detail the specific Services to be provided by Slingshot as well as the applicable Fees (as defined in Section 4a of this Agreement) and the specific timing for performance of the Services.  Company may request to change, add, or remove the Services (“Change Request”) to be performed by Slingshot pursuant to a Purchase Order by providing prior written notice to Slingshot.  Upon Slingshot’s written (via email) acknowledgment and confirmation of the Change Request, the Parties will execute a new PO or amend an existing PO, as appropriate, to affect a Change Request, and such changes will become effective at the beginning of the following month.
   2. Dashboard Access. Slingshot shall provide access to Company and its authorized users access to Slingshot’s web-based customer software portal (the “Dashboard”) during the Term (as defined below) of this Agreement.  Slingshot hereby grants to Company a non-exclusive, non-transferable and non-sublicensable license to use the Dashboard solely for Company’s business purposes in accordance with this Agreement.  Company acknowledges and agrees that Slingshot retains all ownership, right, title and interest in and to the Dashboard and its components (together with all intellectual property rights related to or arising therefrom including, without limitation, any updates or improvements thereof) (collectively, the “Slingshot IP”).
   3. Implementation and Other Support. Commencing on the Effective Date, Slingshot will provide to Company up to three (3) one-hour calls to support Company’s transition to full implementation or other support (e.g., service updates, scope changes, etc.) (“Support”) for no additional charge.  Any additional Support calls shall be billed by Slingshot at a minimum of One Hundred Fifty Dollars ($150.00) per one (1) hour (or such current rate charged by Slingshot).
2. Call Center Services.
   1. Inbound and Outbound Calls. Slingshot may receive inbound telephone calls (“Inbound Calls”) on behalf of Company from Company’s existing customers (“Customers”) and prospective customers (“Leads”).  If indicated on the Purchase Order, Slingshot may place outbound telephone calls (“Outbound Calls”) on behalf of Company to Company’s Customers and Leads.  Such calls may include sales calls to seek to enroll Customers or Leads in Company’s services (“Sales Calls”) or customer service calls to seek to resolve customer service issues from existing Customers and/or provide information allowing Customers to obtain customer service from Company during Company’s operating hours (“Customer Service Calls”).  The specific terms of any Inbound Call or Outbound Call program shall be stated in the Purchase Order.
   2. Call Volume Forecasting. Commencing on the second month of the Initial Term, and provided on a rolling basis thereafter, Company will provide Slingshot with a call volume forecast of Inbound Calls and Outbound Calls 45 days in advance of any month that Services are to be provided (each, a “Forecast”) (for example, Company must provide a volume forecast for March by January 15th of any given year). This Forecast must be within 25% variance of accuracy, otherwise all calls handled that month will be subject to $0.15/per min surcharge (“Surcharge”).  Billing reconciliation to be reviewed and applied on a quarterly basis or such other time period as determined by Slingshot.  If Company fails to provide a timely Forecast, a Surcharge shall be applied for the following months; or if Company needs help getting a forecast, Slingshot can provide a Forecast as a service at the cost of One Hundred Fifty Dollars ($150.00) per hour (or such current rate charged by Slingshot).
   3. Company Products and Materials. To receive Inbound Call and/or Outbound Call Services, Company will provide Slingshot information about Company’s products and services (“Company Products”) sufficient to enable Slingshot representatives to provide the Services.  Such materials may include, without limitation, advertising material used by Company to promote Company Products a description of and information about each Company Product, terms and conditions and warranty or guarantee information for each Company Product, fulfillment materials or literature sent to Customers or Leads (collectively, “Company Materials”).  Based on Company Materials, Slingshot may provide script development, training, calling strategy, and program execution in coordination with Company. Notwithstanding the foregoing, Company is responsible and liable for the Company Products and Company Materials and the contents of all scripting, talking points, training materials, strategy, or other program content to be used by Slingshot representatives in Sales Calls, whether such material was written by Slingshot or provided directly by Company.
      1. Script Change Requests. From time to time, Company may request changes to scripts.  Slingshot shall permit Company to request up to: (i) 4 script changes during the first 30 days following the Effective Date at no charge; and then (ii) one basic (1) script change per month after that at no charge. Any additional requests by Company to change the script in beyond a basic change (i.e., more than standard wording edits to the current form) shall be billed at a minimum of One Hundred Fifty Dollars ($150.00) per request (or such current rate charged by Slingshot).
   4. Additional Terms for Outbound Calls.
      1. Company acknowledges that federal Do Not Call  (“DNC”) laws prohibit outbound calls to numbers on the national DNC registry unless the called party has provided prior express written permission to be called or has an established business relationship (“EBR”) with the company, as specified in the Federal Trade Commission’s Telemarketing Sales Rule (16 C.F.R. Part 310).  Company further acknowledges that, notwithstanding federal law, some state laws may otherwise prohibit or further restrict the placing of calls to numbers on the federal DNC registry or a state-sponsored DNC list.  Company is solely responsible for ensuring that it has obtained sufficient consent or has a valid EBR to call any telephone number provided to Slingshot for any Outbound Call campaign.  If requested by Slingshot at any time, Company must provide proof that any particular number(s) on a call list meet the required consent or EBR standard as set forth herein.    Nothing in this Agreement requires Slingshot to access or use any federal or state DNC list on behalf of Company.  Company will defend, indemnify, and hold Slingshot harmless in the event that any call made by Slingshot to any telephone numbers on calling list provided by Company or as otherwise directed by Company violates any federal or state DNC rules and regulations.
      2. At all times during the term of this Agreement, Company must maintain an internal DNC list noting each telephone number associated with a Customer or Lead who specifically requested not to receive calls from or on behalf of Company (“Company-Specific DNC List”).  Prior to providing a calling list to Slingshot, Company must ensure that any numbers on its Company-Specific DNC List do not appear on the Call List.  Alternatively, Company may make arrangements (via the Purchase Order for the campaign) for Slingshot to obtain the Company-Specific DNC List and remove from the calling list any numbers on the Company-Specific DNC List.
      3. Slingshot shall record any new company-specific do not call requests that it receives in the course of providing the Services and record such requests to prevent Slingshot from making outbound calls on behalf of Customer to that number after the request is made.
      4. Slingshot shall not use an automatic telephone dialing system or “autodialer” (as that term is defined in the Telephone Consumer Protection Act (“TCPA”) and FCC rules implementing the TCPA) to call any number assigned to a cellular or wireless services unless separately agreed to by Slingshot and Customer in accordance with current TCPA and state requirements.
      5. Slingshot shall not engage in outbound text messaging on behalf of Company unless separately agreed to by Slingshot and Customer in accordance with current TCPA and state requirements.
      6. Slingshot shall not make calls using an artificial voice or prerecorded voice messages (“prerecorded message calls”) on behalf of Company unless separately agreed to by Slingshot and Customer in accordance with current TCPA and state requirements.
      7. Without limiting anything in this Agreement to the contrary, if Company requests that Slingshot make the types of calls discussed in subsections iv. (autodialer calls), v. (text messages), or vi. (prerecorded message calls) above, Company (A) must provide a calling list to Slingshot, and (B) hereby represents and warrants that it has obtained sufficient “Prior Express Consent” or “Prior Express Written Consent” for Slingshot to make such calls or send such texts on Company’s behalf to the numbers on the calling list, as those terms as defined in the TCPA and FCC rules implementing the TCPA.
      8. Slingshot shall provide notice at the outset of the call that the call may be recorded, unless Company already provides such notice prior to routing any calls to Slingshot.
3. Consumer Data.
   1. Customer Information. All non-public customer information collected by Slingshot from the Company’s existing Customers (the “Customer Data”) shall be owned by Company. Company hereby grants to Slingshot a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by Company.
   2. Qualified Sales Leads. (i) Each Lead that purchases Company’s Products (including by enrolling in Company’s services) as a result of Slingshot’s Services under this Agreement is referred to herein as a “Qualified Sales Lead.”  Slingshot hereby covenants and agrees not to use, solicit or otherwise develop any Qualified Sales Lead for any purpose except for the purpose of performing the Services for Company.  For the avoidance of doubt, Slingshot covenants and agrees not to sell or refer any Qualified Sales Lead to any third party without the express written consent of Company.  (ii) Any Lead that does not purchase Company’s Products or enroll in Company’s services, including but not limited to Leads that are not eligible to receive Company’s Products or enroll in Company’s services due to the Lead’s location, Company’s service limitations, or any other reason, is referred to herein as an “Unqualified Lead.”  Company hereby acknowledges and agrees that Slingshot may use, solicit, or otherwise develop any Unqualified Lead for any purpose, in Slingshot’s sole discretion, including by sharing Unqualified Lead information with other clients or partners of Slingshot for their marketing efforts.  Company shall have no responsibility or liability for Slingshot’s use of any Unqualified Lead once Slingshot determines that the Lead is an Unqualified Lead.
4. Fees; Payment Terms; Taxes.
   1. Fees. In consideration of the Services performed by Slingshot, Company agrees to pay Slingshot the fees set forth in the Purchase Order (collectively, the “Fees”). Such Fees shall be due and payable by Company upon receipt of invoice from Slingshot.  You agree to provide us with valid and updated contact information and credit card information (or other payment arrangements acceptable to us).  You agree to notify us promptly of any changes to same.  Payment for each month’s services are due in advance in accordance with the billing frequency stated in the Purchase Order.  All fees and amounts due shall be paid in United States Dollars, unless otherwise agreed to in writing between us.  If we have accepted payment by a method other than credit card or other automatic payment method, we reserve the right to invoice you, and you agree to pay, a handling fee of $25.00 per transaction.
   2. PAYMENT TERMS. BY PROVIDING A PAYMENT METHOD, YOU EXPRESSLY AUTHORIZE SLINGSHOT, THROUGH ITS THIRD-PARTY PAYMENT PROCESSOR (“PAYMENT PROCESSOR”), TO AUTOMATICALLY CHARGE OR DEBIT COMPANY’S PAYMENT METHOD(S) FOR THE AMOUNT DUE EACH MONTH. COMPANY UNDERSTANDS THE RECURRING AND/OR VARIABLE NATURE OF THESE CHARGES AND AGREES THAT SLINGSHOT MAY MAKE THESE PERIODIC CHARGES FOR THE SERVICES WITHOUT OBTAINING ANY FURTHER AUTHORIZATION FROM COMPANY, UNTIL COMPANY HAS REVOKED THIS AUTHORIZATION BY PROVIDING WRITTEN NOTICE TO SLINGSHOT AT LEAST 15 DAYS PRIOR TO THE FIRST OF THE NEXT MONTH. SUCH REVOCATION, WITHOUT PROVIDING AUTHORIZATION FOR A REPLACEMENT PAYMENT METHOD, MAY RESULT IN SUSPENSTION OR TERMINATION OF SERVICES.
   3. If your payment is rejected, refused, returned, disputed, or reversed by its card issuer or financial institution for any reason, Company remains responsible for payment of the invoice. If Company develops credit conditions (e.g., excessive credit card denials, chargebacks, returned payments due to insufficient funds, or increased risk of insolvency) or Slingshot otherwise in its sole discretion designates Company as a credit risk, Slingshot reserves the right to require prepayment, or to suspend or terminate Company’s access to the Services at any time.  Slingshot is not responsible for any error by its Payment Processor.  Slingshot reserves the right to discontinue Services or acceptance of any particular Payment Method at any time for any reason. Company agrees that if its selected Payment Method does not have sufficient funds for a payment, Slingshot and/or its Payment Processor may assess a non-sufficient funds fee for each attempted transaction with your account. If Company’s payment date falls on a weekend or holiday, Company understands that the payment may be executed on the next business day.  Purchases of Leads are not cancellable, and fees paid are not refundable.  You are not authorized to use any Leads that you do not pay for.
   4. If any amount due is not received within thirty (30) days following the due date, then, without limiting our rights or remedies, we may (a) charge interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) suspend the sale of leads to you until such amounts are paid in full and charge a one hundred dollar ($100) reactivation fee, (c) accelerate your unpaid feed obligations for any leads purchased by you during the period in which your payment remained delinquent so that all such obligations become immediately due and payable, and/or (d) condition sale of future leads on receipt of all outstanding amounts.
   5. You agree to bear any and all costs of collection incurred by us as a result of your late payment or nonpayment including, without limitation, all reasonable attorneys’ fees and expenses, insufficient funds charges, and any collection agency fees which we may incur, unless prohibited by law.  In addition, if you dispute a credit card charge with your bank or credit card company and we receive a “chargeback” or other penalty fee, you agree to reimburse us for such chargeback or fee.  You agree that we may collect any such costs of collection, chargeback, or other penalty fees by charging your credit card during the next payment cycle or by separate invoice without further authorization from you.  You will not be required to reimburse such chargeback or penalty fee if we have materially breached the terms of this Agreement, or if we have made an error in invoicing with respect to such disputed payments; provided, however, if you assert that we have materially breached this Agreement, you must have provided us with written notice of such alleged breach at least 10 days prior to the applicable charge date, stating the basis for such breach in reasonable detail to provide us the opportunity to cure such breach prior to such charge date.
   6. Taxes. Our Fees do not include any taxes, levies, duties or similar government assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder.  If we have the legal obligation to pay or collect Taxes for which you are responsible hereunder, we will invoice you and you will pay that amount unless you provide use with a value tax exemption certificate authorize by the appropriate taxing authority.  For clarity, we are solely responsible for taxes assessable against us based on our income, property, and employees.
5. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Slingshot includes, without limitation, non-public information regarding features, functionality and performance of the Dashboard and the Services, the terms and conditions of this Agreement and all Purchase Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes. Except as expressly set forth herein, the Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information at any time now or in the future. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
6. Term and Termination.
   1. Except as otherwise specified in a Purchase Order, the term of this Agreement shall begin when Company executes its first Purchase Order under this Agreement (“Effective Date”) and shall continue until one (1) year from the Effective Date (“Initial Term”).  Except as otherwise specified in a Purchase Order, this Agreement shall then renew automatically thereafter for additional one (1) year terms from such Effective Date unless either Party gives the other Party forty-five (45) days written notice prior to the end of the then-current term (each, a “Renewal Term,” and together with the Initial Term, the “Term”).  Notwithstanding the foregoing, this Agreement must remain effective while any Purchase Order remains outstanding in order for Slingshot to provide Services under the Purchase Order. Pricing during any renewal term is subject to increase at our discretion in an amount of up to five percent (5%) above the applicable pricing in the prior term without prior notice; if pricing will be higher than five percent (5%), then Slingshot will provide you notice at least sixty (60) days prior to the applicable renewal term. You hereby authorize us to charge your credit card or bank account, as applicable, the contract amount reflecting any such increase during each such renewal term.
   2. Either Party may terminate this Agreement for a material breach by the other Party of its obligations hereunder if such continues uncured for a period of thirty (30) days subsequent to written notification of breach from the non-breaching Party to the Party in breach (or, if able to be cured and the cure reasonably takes longer than thirty (30) days, within such longer period as such cure reasonably requires, provided that the breaching party promptly undertakes action to cure and diligently pursues the same until cured). Either Party may also terminate this Agreement immediately upon written notice to the other Party in the event that the other Party commences bankruptcy proceedings or otherwise substantially ceases its business operations.
   3. Upon any expiration or termination of this Agreement: (i) Slingshot shall immediately cease providing the Services; (ii) Company shall immediately cease using the Dashboard; and (iii) Company will immediately pay any and all outstanding Fees and charges owed to Slingshot. Notwithstanding the expiration or termination of this Agreement or any renewal period hereof, it is acknowledged that those rights and obligations that by their nature are intended to survive such expiration or earlier termination will survive.
   4. Company may terminate this Agreement for any reason (an “Early Termination”) by providing Slingshot with written notice thereof on or before the date that is Sixty Days (60) days after the Effective Date.
   5. In the event of an Early Termination, Company shall pay Slingshot all fees remaining for the contract months specified in the Purchase Order, within 30 days of the written notice date.
7. Warranty and Disclaimer. Slingshot shall use reasonable efforts consistent with prevailing industry standards to perform the Services in a professional and workmanlike manner. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS OTHERWISE UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT, SLINGSHOT DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, OF ANY KIND INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT IN RELATION TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, AS TO ANY OF THE SERVICES, THE DASHBOARD, OR THE SLINGSHOT IP. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT THE SERVICES ARE PROVIDED “AS IS”.  SLINGSHOT DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICE ERRORS, (B) ANY SOFTWARE THAT MAY BE USED AS PART OF THE SERVICE WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY US, AND (C) THE SERVICE WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. COMPANY ACKNOWLEDGES THAT SLINGSHOT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SLINGSHOT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SLINGSHOT IS NOT RESPONSIBLE FOR ANY ERRORS OR ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS, THIRD-PARTY APPLICATIONS, OR THIRD-PARTY CONTENT.

   FOR ANY BREACH OF WARRANTY, COMPANY’S EXCLUSIVE REMEDY AND SLINGSHOT’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY. IF SLINGSHOT CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, COMPANY OR SLINGSHOT MAY TERMINATE THE DEFICIENT SERVICES AND WE WILL REFUND TO YOU THE FEES FOR THE TERMINATED SERVICES THAT YOU PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.

8. Representations and Obligations.
   1. Each Party hereby represents and warrants to Slingshot as follows: (i) this Agreement has been duly and validly executed and delivered by it and constitutes the legal, valid and binding obligation of the Party, enforceable against Company in accordance with its terms; (ii) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation/organization, and has full power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the execution, delivery and performance of this Agreement and the consummation by it of its obligations hereunder will not conflict with or violate (A) any provision of law, rule or regulation to which the Party is subject, (B) any order, judgment or decree applicable to the Party or binding upon its assets or properties, (C) any provision of the charter or other organizational documents of the Party, or (D) any agreement or other instrument applicable to the Party or binding upon its assets or properties; and (iv) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by the Party in connection with the execution, delivery and performance of this Agreement or the taking by the Party of any other action contemplated hereby.
   2. During the Term, Company shall conduct its business and operations in compliance with all federal, state and local laws and regulations applicable to its business and shall obtain, maintain and comply with all governmental licenses and permits required of Company.  Without limiting the foregoing, Company represents and warrants that it has the absolute right and title to market and sell the Company Products (and to engage Slingshot to perform the Service on its behalf as an agent), that it has obtained all necessary permits, licenses, or other authorizations to sell the Company Products and/or use the Company Materials, and its marketing and sales of the Company Products and/or use the Company Materials violate no state or federal law or regulation and do not infringe upon any other party’s property rights.
9. Indemnification.
   1. By Company. Company shall indemnify, defend and hold Slingshot and its subcontractors, assignees, agents, employees, subsidiaries and affiliates (collectively, the “Slingshot Indemnified Parties”) harmless from any claims, actions, losses, liabilities, damages and expenses (including attorney’s fees and court costs) (collectively, “Claims”) made, assessed or awarded against any such Slingshot Indemnified Party arising out of or in connection with (i) the acts or omissions relating to Company’s use of any of the System or the Services; (ii) a breach of any of Company’s representations, warranties or other obligations set forth in this Agreement, except to the extent that any Claim arises from the breach, gross negligence or willful misconduct of Slingshot; (iii) any of Company’s Products or the Company Materials, including but not limited to claims for damage or injury to persons or property, and claims arising out of violations of any federal, state, provincial, local or other statutes, laws, regulations or ordinances.
   2. By Slingshot. Slingshot shall indemnify, defend and hold Company and its subcontractors, assignees, agents, employees, subsidiaries and affiliates (collectively, the “Company Indemnified Parties”) harmless from any Claims made, assessed or awarded against any such Company Indemnified Party arising out of or in connection with a breach of any of Slingshot’s representations, warranties or other obligations set forth in this Agreement, except to the extent that any Claim arises from the breach, gross negligence or willful misconduct of Company.
   3. The party entitled to be indemnified (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party”) of any claim for which indemnification may be required under this Agreement. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except if and to the extent that such failure materially and adversely affects the ability of the Indemnifying Party to defend the applicable claim. If the Indemnified Party notifies the Indemnifying Party of any claim asserted by a third party against the Indemnified Party that the Indemnifying Party acknowledges is a claim for which it must indemnify the Indemnified Party under this Agreement, the Indemnifying Party will be entitled to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party (including the obligation to indemnify hereunder) without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of the defense of any such suit, claim or demand, such cooperation to include without limitation using reasonable efforts to provide or make available documents, information and witnesses.
10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SLINGSHOT AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR ANY MATTER BEYOND SLINGSHOT’S REASONABLE CONTROL; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY COMPANY TO SLINGSHOT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SLINGSHOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.  Independent Contractors. The Parties are independent contractors and nothing in this Agreement will be construed to create a joint venture, partnership or an agency relationship between the Parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.
12. Miscellaneous.
    1. Neither of us shall be responsible for failure or delay of performance if caused by an act of war, act of terrorism, sabotage, act of God, electrical, internet or telecommunications outage, government restrictions (including the denial or cancellation of any export, import, or other license), or any other event outside the reasonable control of the obligated party, provided that such failure or delay shall be excused only for so long as the affected party is using reasonable efforts to cure, correct, and/or mitigate the effect of a force majeure event.
    2. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    3. This Agreement is not assignable, transferable or sublicensable by Company except with Slingshot’s prior written consent. Slingshot may transfer and assign any of its rights and obligations under this Agreement without consent.
    4. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.   From time to time during the Term, Slingshot may modify or amend the Agreement or the Service terms its sole discretion with or without notice or by posting such revised terms on a Slingshot-designated website.  Your use of the Services constitutes agreement to any such modification. You may not modify or amend this Agreement without our prior written consent.
    5. The captions and headings in this Agreement are strictly for convenience and shall not be considered in any interpretation or construction.
    6. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Company does not have any authority of any kind to bind Slingshot in any respect whatsoever.
    7. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
    8. All notices required to be sent hereunder shall be in writing and may be delivered by email, overnight courier, or certified mail, and shall be deemed to have been given (a) on the date sent by email, (b) on the date it was delivered by courier, or (c) five (5) business days following posting in the case of delivery by certified mail return receipt requested. Notices to Company shall be sent to the attention of those persons you have designated in an applicable Purchase Order, through the Service, or otherwise. Notices to Slingshot shall be sent to our attention at our address as listed from time to time on our website. For notices that are directed to you as part of our general customer base, we may give notice by means of a general notice on the Service, invoice, or by posting such notice on a Slingshot-designated website, or by email to your e-mail address on record in our account information.
    9. Reserved.
    10. If Company requires Slingshot to use its systems and software as part of the Services, then Company hereby grants Slingshot a non-exclusive, non-transferable, non-assignable license to: (i) use Company’s software and applications (“Your Applications”), and (ii) process, store, and transmit, in accordance with this Agreement, any of the data provided or derived as part of the Services, for the duration of the Term plus any applicable post termination period. If Your Applications include any third-party software or applications, Company grants to Slingshot the necessary permissions and rights to access such third-party programs as required for provision of the Services.  Company shall indemnify and hold harmless from any claims from such third-parties related to use of its software.
    11. Company may not assign this Agreement, by operation of law or otherwise, without Slingshot’s prior express written consent. This Agreement inures to the benefit of and is binding upon the parties, and their permitted successors, assigns, and legal representatives. No other person has any right, interest, or claim or is entitled to any benefits under, this Agreement as a third-party beneficiary or otherwise. Nothing in this Agreement shall prevent Slingshot from utilizing the services of subcontractors as it deems appropriate to perform its obligations hereunder, provided, however, that it shall require its subcontractors to comply with all applicable terms and conditions of this Agreement in providing such services.
    12. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The state and federal courts located in New Jersey shall have the sole and exclusive jurisdiction over any claims or actions arising out of or related to this Agreement, and Company hereby consents to personal jurisdiction of such courts.
    13. Company understands that Slingshot is unable to perform sales calls or offer any price quotes in the State of Georgia (or any other state that may prohibit such activities).