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Terms & Conditions

K2K9 SOLUTIONS, LLC STANDARD TERMS AND CONDITIONS

 

These K2K9 Solutions, LLC Standard Terms and Conditions (this “Agreement”), together with each Work Order and any documents attached to or referred to in such Work Order constitute the complete agreement for the provision and purchase of the Services between K2K9 Solutions, LLC (“K2K9”) and the party specified as the client on the Work Order (the “Client”) and shall supersede and replace all prior negotiations, proposed agreements, contracts, representations, correspondence, offers, proposals, and discussions, whether written or oral, express or implied, relating hereto or thereto.  The written acknowledgment or acceptance of a Work Order or any other conduct of Client or any of its representatives consistent with acceptance of a Work Order, whichever occurs first, constitutes the unconditional acceptance by Client of this Agreement and its non-negotiable terms and conditions.  Any different, conflicting or additional terms in any Work Order, purchase order, order acknowledgment, purchase contract, terms and conditions or other writing from Client shall be void unless expressly agreed in writing and signed by the Chief Executive Officer, acting Chief Executive Officer, General Manager or Operations Manager of K2K9 expressly stating that Client and K2K9 intend it to serve as a substitution, modification or supplement to this Agreement.  No failure of K2K9 to object to any different, conflicting or additional terms or conditions shall operate as a waiver of the terms of this Agreement.  For the avoidance of doubt, any executed and delivered Master Services Agreement between K2K9 and Client shall supersede and replace, in all respects, this Agreement.

 

DEFINITIONS.

 

  • “Action” means any charge, claim, action, complaint, petition, inquiry, investigation, appeal, suit, litigation, grievance or other proceeding, whether administrative, civil, regulatory or criminal, whether at law or in equity, or otherwise under any applicable Law, and whether or not before any arbitrator or Governmental Authority.

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  • “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such legal entity. For the purpose of this definition, “control” (including with correlative meanings, “controlled by” and “under common control with”), when used with respect to any legal entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such legal entity, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise.

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  • “Business Day” means any day except Saturday, Sunday and any day which shall be a federal legal holiday in the United States or a day on which banking institutions are authorized or required by applicable Laws or other action of Governmental Authorities to close.

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  • “Governmental Authorities” means all federal, state, county, municipal, and local governments, and all departments, commissions, boards, bureaus and officers thereof, having jurisdiction over the Services.

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  • "Laws” means all laws, statutes, constitutions, rules, regulations, ordinances, orders, decrees, requirements, judgments and codes of Governmental Authorities.

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  • “Loss” means any loss, damage, expense, liability or claim (including reasonable costs of investigation and defense as well as reasonable attorney’s fees and disbursements in connection therewith).

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  • “Party” means, individually, K2K9 or Client.

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  • “Parties” means, collectively, K2K9 and Client.

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  • “Person” means any individual or entity (including, without limitation, any Governmental Authority).

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  • “Premises” means the location, owned or leased by Client, at which K2K9 will perform the Services.

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  • “Services” means canine screening, canine training, and canine handler instruction to government and commercial clients in the United States of America.

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  • “Third Party” means any Person other than a Party and a Party’s Affiliates.

 

OVERVIEW.

 

  • General.  The Services may include canine detection roles for (a) cargo screening (freight and luggage) or (b) person-borne screening (scanning individuals for threats in various environments) and will be described in one or more work orders as mutually agreed upon and executed by the Parties pursuant to this Agreement (“Work Orders”) and subject to this Agreement.  Each Work Order shall be in substantially the same form as Exhibit A with such additions and deletions as the Parties may agree.

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  • Work Orders.  Each Work Order executed by the Parties, the schedules, exhibits and attachments referenced in each Work Order and the exhibits referenced in this Agreement are incorporated into this Agreement.

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  • Conflicts.  This Agreement shall control and govern all Services performed by K2K9 under any Work Order. If there is a conflict or inconsistency between the provisions of this Agreement and any Work Order, the terms of the Work Order, including the schedules, exhibits and attachments referenced therein, shall be governed by the terms of this Agreement, unless a Work Order expressly and specifically notes the deviations from the terms of this Agreement and exhibits for the purposes of such Work Order in the “Deviations from Terms of Master Services Agreement” section of such Work Order.

 

SERVICES.

 

  • Services Generally. During the Term and in accordance with this Agreement, K2K9 agrees to provide certain Services as described in each Work Order.

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  • Client Obligations. For all Services, unless otherwise expressly agreed by the Parties in writing, Client shall (a) provide K2K9 personnel with all credentials and access privileges applicable to the designated portion of the Premises for the performance of Services as reasonable necessary for the performance of the Services by K2K9 in its customary manner, (b) provide K2K9 personnel with all necessary information relating to the Premises and events therein and thereat to allow K2K9 personnel to perform the Services in accordance with each applicable Work Order, (c) introduce K2K9 personnel to Client’s security officials and staff, (d) provide K2K9 personnel with all necessary information relating to standard operating procedures applicable to the Premises, (e) use commercially reasonable efforts to support K2K9 in the performance of the Services including consultation as reasonably required by K2K9, at no charge to K2K9, (f) provide K2K9 with fresh potable water and an indoor or shaded area for periodic rest periods, (g) provide K2K9 with sufficient and suitable parking within a five (5) minute walk to the designated portion of the Premises for the performance of Services, (h) facilitate and not interfere with approved Red Team Evaluations, and (i) provide K2K9 with a Forecast as described in the applicable Work Order and Section 3.4 (collectively, the “Client Obligations”).

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  • Standards of Performance.

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  • K2K9 shall perform the Services in accordance with (a) the Work Order and (b) applicable Laws.

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  • K2K9 shall perform the Services in a courteous and professional manner consistent with industry standards applicable to the performance of such Services.

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  • K2K9 personnel shall be punctual and appropriately attired and equipped for the performance of Services.

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  • K2K9 personnel shall promptly report any incident of detection or any observation of unusual or suspicious behavior to Client’s security personnel and shall, upon request, provide a written witness statements or contact reports to Client’s security personnel.

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  • K2K9 personnel shall observe all visibly designated safety procedures in the designated portion of the Premises for the performance of Services and shall not enter any area that is visibly designated as restricted, prohibited to unauthorized personnel or other security-sensitive without the escort or direction of Client’s security personnel.

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  • K2K9 personnel shall limit the use of mobile phones, smart phones, and other electronic devices to the conduct of their respective duties or in designated break areas not in view of the general public.

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  • Forecasts. 

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  • Each Work Order shall include a forecast of Client’s anticipated requirements for Services (each, a “Forecast”) that shall, subject to Section 5, constitute a binding commitment on the Parties subject to Section 3.4.3.

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  • In the event that Client wishes to request one or more reductions in the provision of Services below its Forecast that will result in an aggregate reduction in the amount due under such Work Order in excess of ten percent (10%) (a “Material Reduction in Services”), Client shall do so pursuant to a written request for amendment of the Work Order, and no amendment to or revision of the Forecast shall be effective without a duly executed and delivered amendment to the Work Order, which K2K9 may accept or reject in its sole discretion.

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  • In the event that Client wishes to request a reduction in the provision of Services that will not result in a Material Reduction in Services, Client shall do so pursuant to a written directive, and Client’s liability for the cancelled Services shall be (a) limited to any non-cancellable expenses (or any non-cancellable portion thereof) incurred by K2K9 arising from Client’s Forecasts in the event of any directive delivered fifteen (15) or more days prior to the scheduled commencement thereof or (b) for payment in full in the event of any directive delivered fewer than fifteen (15) days prior to the scheduled commencement thereof.

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  • Scope of Services. 

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  • For the avoidance of doubt, canine teams engaged to perform static explosive detection, person-borne explosive detection or firearm and narcotics detection (collectively, “Canine Detection Teams”) perform detection services only, and canine handlers are unarmed and do not provide bite work or protection work or perform apprehensions, interviews or otherwise respond to incidents of detection.

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  • Canine Detection Teams shall perform their Services on the Premises under the direction, subject to the terms of this Agreement and any Work Order and the performance of the Services by K2K9 in its customary manner, of Client.

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  • Quality Control.  K2K9 engages in periodic simulations, involving decoys and response drills, designed to test its Canine Detection Teams (collectively, “Red Team Evaluations”).  K2K9 shall be entitled to conduct Red Team Evaluations during the performance of Services at the Premises, which shall not interfere in any manner with the performance of Services at the Premises, and shall provide notice to Client of any Red Team Evaluation.

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  • NON-SOLICITATION BY CLIENT.  Client acknowledges and agrees that the employment of its employees and contractors involves a substantial investment in training by K2K9 and exposure to K2K9’s proprietary information pursuant to which Client covenants to and agrees with K2K9 that (a) Client shall not, directly or through and third party, for one (1) year after the expiration or termination of the Term, request, induce, or solicit any employee or contractor of K2K9 (i) to terminate his, her or its employment or contract relationship with K2K9 or (ii) to provide products or services that are similar to, or competitive with, those that he, she or it provided on behalf of K2K9 to Client and (b) Client shall, in the event of a breach by Client of this Section 4, promptly pay a sum to K2K9, as liquidated damages and not as a penalty, in an amount equivalent to six (6) months of the annualized salary or compensation of the K2K9 employee or contractor payable thereto by K2K9 during the last six (6) months of his, her or its employment or contract relationship.

 

TERM OF AGREEMENT.

 

  1. Term.  The “Term” will commence upon the execution and delivery of the initial Work Order between K2K9 and Client and continue and remain applicable to each Work Order between K2K9 and Client. 

 

  1. Suspension; Termination by K2K9.  K2K9 may suspend the Services performed under any Work Order with immediate effect if, at any time, K2K9 believes, in its reasonable discretion, that (a) Client or its conduct compromises the safety or security of K2K9 personnel or K2K9’s established standards of performance, (b) the Services do not comply with any applicable Laws, (c) any of the representations or warranties of Client set forth in this Agreement are incomplete, incorrect or inaccurate in any material respect, (d) Client materially breaches this Agreement or (e) Client fails to make any payment as and when due pursuant to Section 6.   K2K9 shall provide Client with ten (10) days’ written notice of such suspension (except, in the event of any breach of any Client Obligation, two (2) days’ written notice of such suspension), and Client shall have the opportunity to cure, if curable, any such issues within that time period, time being of the essence. If not cured, K2K9 may terminate this Agreement and shall send Client a written notice of termination (a “Notice of Termination”) that shall specify the effective date of the termination (the “Termination Date”).

 

  1. Termination by Client. Client may terminate the Services performed under any Work Order if (a) any of K2K9’s representations or warranties set forth in this Agreement are incomplete, incorrect or inaccurate in any material respect, (b) the Services do not comply with any applicable Laws or (c) K2K9 materially breaches this Agreement.  Client shall provide K2K9 with ten (10) days’ written notice of such suspension, and K2K9 shall have the opportunity to cure, if curable, any such issues within that time period, time being of the essence. If not cured, Client may terminate this Agreement and shall send K2K9 a Notice of Termination that shall specify the Termination Date.

 

  1. Termination for Convenience.  Either Party may terminate any Work Order at any time and for any reason whatsoever upon forty-five (45) days’ written notice to the other Party. The Party terminating the Work Order shall send the other Party a Notice of Termination that shall specify the Termination Date. The termination of a Work Order shall not necessarily affect any other Work Order. Neither Party shall, by the termination of any Work Order, be relieved of its obligations or liabilities thereunder or under this Agreement arising out of or related to the Services performed prior to the Termination Date.

 

  1. Survival of Pre-Termination Obligations.  Neither Party shall, by the expiration or termination of this Agreement or any Work Order, be relieved of its obligations or liabilities thereunder or under this Agreement arising out of or related to the Services performed prior to the expiration date or Termination Date.

 

  1. Payment of Accrued Obligations.  Client shall, notwithstanding any other provision of this Agreement or any Work Order, promptly pay K2K9 for all Services prior to the expiration date or Termination Date as well as for any non-cancellable expenses (or any non-cancellable portion thereof) incurred by K2K9 arising from Client’s Forecasts.

 

FEES, COSTS, EXPENSES, TAXES, CONSIDERATION AND INVOICING.

 

  1. Fees.  K2K9 will be compensated for the Services in accordance with the fee schedule set forth in each Work Order or as described herein. All payments shall be made by check or electronic funds transfer to an account identified in writing by K2K9.

 

  1. Late Payment.  Within thirty (30) days from receipt of an invoice, time being of the essence, Client shall pay K2K9 in immediately available funds by wire or electronic fund transfer.  All amounts not paid within thirty (30) days shall accrue interest at a monthly rate (based upon a thirty (30) day month) of two percent (2%), and Client shall pay all reasonable attorneys’ fees and costs of K2K9 in enforcing collection of amounts due under this Agreement. 

 

  1. Taxes.  Client shall be responsible for all sales, use and goods and services, value-added, and any other similar taxes, duties and charges (“Indirect Taxes”) imposed by any Government Authority on any amount payable by Client hereunder; provided, however, that K2K9 shall be solely responsible for the payment of its income taxes, franchise or similar taxes, and its employee’s salaries, unemployment insurance, workers’ compensation, employee benefits and other employment-related costs, charges and deductions.

 

DISCLOSURE, LIABILITY, AND INDEMNIFICATION.

 

  1. Disclosure.  Client warrants, represents, covenants, and agrees that it has disclosed, and will continue to disclose, to K2K9, prior to the commencement of any Services under any Work Order, any and all potential health, safety and/or environmental hazards that may be associated with the Premises or the provision of Services by K2K9.

 

  1. Inaccuracy.  Each Party shall promptly notify the other Party, in writing, as soon as it becomes aware of any condition or circumstance which makes any of the representations or warranties set forth in this Agreement incomplete, incorrect or inaccurate in any material respect as of any date.

 

  1. Limitation On Liability.

 

  1. Disclaimer. Except as expressly provided herein, neither Party makes, and, to the fullest extent permitted under applicable Laws, specifically disclaims, any representation or warranty of any kind, whether express, implied, statutory or otherwise.  Without limiting the foregoing, Client acknowledges and agrees that (a) K2K9 is not an insurer and that insurance coverage, if any, shall be obtained by Client and that amounts payable to K2K9 hereunder are based upon the value of the services and the scope of liability set forth in this Agreement and are unrelated to the value of Client’s property and the property of others located on the Premises, (b) the fees paid hereunder cannot assure client of any specific result from the performance of the Services, and (c) K2K9 makes no guaranty or warranty, including any implied warranty of merchantability or fitness for a particular purpose, that the Services provided by K2K9 will detect or avert occurrences or the consequences therefrom that the Services are designed to detect or avert.

 

  1. Limitation of Liability. It is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from failure on the part of K2K9 to perform any of its obligations under this Agreement.  Therefore, notwithstanding anything to the contrary contained in this Agreement, to the fullest extent permitted under applicable Laws, in no event shall either Party or its Affiliates be liable for, or bear any obligation in respect of, any special, consequential, incidental, punitive, exemplary or indirect damages of any kind or character, or any damages relating to or arising out of lost profits, loss of data, loss in value, loss of goodwill, loss of opportunity, however caused and under any theory of liability, arising out of or in connection with this Agreement, whether or not the other Party has been advised of the possibility of such damages.  In no event will either Party’s aggregate liability arising out of or relating to any Work Order exceed the total amount of fees paid or payable to K2K9 by Client for the Services under such Work Order during the twelve (12) month period preceding the claim giving rise to liability.  The limitations of liability set forth in this Agreement shall inure to the benefit of all parents, subsidiaries and Affiliates of K2K9, whether direct or indirect, as well as K2K9’s employees, contractors, managers, members, and Affiliates.

 

  1. Reciprocal Waiver of Claims (SAFETY Act). Certain of K2K9’s services have received Certification or Designation as Qualified Anti-Terrorism Technologies (“QATT”) under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 6 U.S.C. §§ 441-444 (the “SAFETY Act”). As required under 6 C.F.R. 25.5(e), to the maximum extent permitted by applicable Laws, each of K2K9 and Client waive their respective rights to make any claims against the other Party for any losses (including, without limitation, business interruption losses) sustained thereby (or by any of their respective employees, contractors, managers, members, and Affiliates) arising out of or in connection with an “Act of Terrorism” (as defined in 6 C.F.R. 25.2) if and to the extent that QATT has been deployed in defense against, response to, or recovery from such Act of Terrorism.

 

  1. Materiality.  Client acknowledges and agrees that (a) K2K9 would not enter into this Agreement without the limitations on its liability set forth in this Section 7.3 and (b) K2K9 entered into this Agreement in reliance upon the provisions set forth in this Section 7.3, which reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and the provisions set forth in this Section 7.3 form an essential basis of the bargain between the Parties.  In the event that, without limitation upon Section 9.10 or Section 9.13, a claim is adjudicated in a jurisdiction in which any limitation of liability hereunder is not permitted, the total cumulative liability of K2K9 shall be limited to the maximum extent permitted by applicable Laws.

 

  1. Indemnification.

 

  1. Indemnification by Client. Client shall indemnify, defend and hold harmless each of K2K9, its Affiliates, and each of their respective managers, members, employees, and contractors (collectively, the “K2K9 Indemnitees”) from and against all Losses incurred or sustained by, or imposed upon, any of the K2K9 Indemnitees or that any of the K2K9 Indemnitees may incur, as a result of, based upon, arising out of, with respect to, or by reason of, (a) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Client pursuant to this Agreement, (b) any negligence, gross negligence or willful malfeasance of Client, its Affiliates, or any of their respective employees or contractors or (c) any act or omission of any invitee of Client except to the extent any Loss described in Section 7.4.1(a), Section 7.4.1(b) or Section 7.4.1(c) is attributable to the negligence, gross negligence or willful malfeasance of K2K9.

 

  1. Settlement.  No compromise or settlement of any Indemnification Claim may be effected by Client Party without the consent of the Indemnified Party unless (a) there is no finding or admission of any violation of applicable Law and no effect on any other claims that may be made the Indemnified Party and (b) the sole relief provided is monetary damages that are paid in full by Client.  Neither Party shall have any liability with respect to any compromise or settlement effected without its consent, which shall not be unreasonably withheld, conditioned or delayed. 

 

  1. Non-Exclusive Remedies.  Nothing in this Section 7.4 shall limit either Party’s right to seek any right or remedy to which it is otherwise entitled hereunder or under applicable Laws.

 

COVENANTS.

 

  1. Confidentiality. During the Term of this Agreement and for a period of two (2) years thereafter, neither Party will at any time, except as required to perform the Services or as authorized in writing by the Party disclosing information (“Disclosing Party”), supply, disclose, use, or otherwise permit access to any information, in whole or in part, that the other Party (“Receiving Party”) may acquire by reason of its performance under this Agreement and that concerns or in any way relates to the Disclosing Party, its Affiliates, and their respective employees, contractors, and Affiliates (including, without limitation, the terms, conditions, and provision of this Agreement and all Work Orders as well as any information, data, or records pertaining to Client’s facilities or to K2K9’s pricing and staffing) (collectively, “Confidential Information”). The obligations in this Section 8.1 shall not apply to any Confidential Information that (a) is rightfully already in the Receiving Party’s possession at the time of disclosure by Disclosing Party, (b) is or later becomes part of the public domain through no fault of Receiving Party, (c) is received from a Third Party having no obligations of confidentiality to Disclosing Party or (d) is required by applicable Laws to be disclosed, provided that (i) Receiving Party provides Disclosing Party prompt written notice before any such disclosure so that it may seek a protective order or other appropriate remedy and (ii) Receiving Party complies with any such protective order (or equivalent) imposed on such disclosure. In the event that a protective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information that is legally required to be disclosed in the opinion of Receiving Party’s legal counsel. Without prejudice to the rights and remedies otherwise available to the Parties under this Agreement, each of the Parties shall be entitled to seek equitable relief by way of injunction if the other Party breaches or threatens to breach any of the provisions of this Section 8.1.  Without limitation upon the generality of Section 9.12, the provisions of this Section 8.1 shall expressly survive the termination of this Agreement. The Receiving Party will use the same measures to protect Disclosing Party’s Confidential Information as it uses to protect its own information of a similar nature. Receiving Party will use at least a reasonable standard of care.

 

  1. Insurance.

 

  1. During the Term of this Agreement, K2K9 shall maintain insurance in amounts not less than the following minimum limits of coverage:

 

  1. Workers’ compensation insurance with statutory limits as required by applicable Laws.

 

  1. Commercial general liability insurance with limits of liability not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate.

 

  1. Umbrella/excess liability insurance providing additional limits above the commercial general liability insurance policy with limits of liability not less than $5,000,000.00 per occurrence and $5,000,000.00 in the aggregate.

 

  1. Commercial automobile liability insurance, including hired and non-owned automobile coverage, with a combined single limit of liability not less than $2,000,000.00.

 

  1. K2K9 shall, upon request, deliver evidence of insurance to Client applicable to the existence and actual limits of all required insurance policies after the execution and delivery of this Agreement. [All liability insurance policies will be endorsed and name Client as an additional insured.] [All liability insurance policies will be endorsed to provide a mutual waiver of subrogation.]  [All liability insurance policies will be endorsed to require the insurance carrier providing coverage to send notice to Client at least thirty (30) days prior to any cancellation, material change, or non-renewal.]

 

  1. Publicity. 

 

  1. K2K9 shall (a) be entitled to record video and audio images, during training or the performance of Services, in portions of the Premises open to the general public or that are not otherwise restricted areas and (b) share its video and audio images with Client upon request for use thereby.

 

  1. Each of the Parties (a) agrees that the other Party may disclose the performance of Services in general terms for marketing purposes, (b) grants a non-transferable and nonexclusive license to the other Party to use its name and logo solely for the purposes of Section 8.3.2(a), and  (c) agrees to accept reference calls from Third Parties on behalf of the other Party and to provide feedback and testimonials for use in the other Party’s marketing materials.  For the avoidance of doubt, the Licensee shall not use the Logo other than as expressly provided for in Section 8.3.2(a) including, without limitation, making any modifications, adaptations, enhancements or derivative works thereof.

 

GENERAL PROVISIONS.

 

  1. Entire Agreement. This Agreement constitutes the entire and complete agreement between the Parties with respect to the subject matter contemplated herein. This Agreement supersedes any prior agreement or understanding, whether written or oral, between the Parties with respect to the Services.

 

  1. Amendment. No modification, alteration, waiver, or supplement of this Agreement will be effective unless it is set forth in a written instrument that is signed by an authorized representative of the Party against which or whom enforcement is sought (which, for K2K9 is limited to its Chief Executive Officer, its acting Chief Executive Officer, its General Manager or its Operations Manager).

 

  1. Independent Contractor. K2K9 is an independent contractor with respect to the performance of all Services, and neither K2K9 nor anyone employed or contracted by K2K9 shall be deemed for any purpose to be the employee, agent, or representative of Client in the performance of any Service. Client shall have no direction or control of K2K9 or its employees and agents.

 

  1. Non-Exclusive Agreement. Nothing in this Agreement is intended to prevent, or should be construed as preventing, K2K9 from contracting with any Third Party for the provision of goods or services that are the same as or similar to the Services. K2K9 may, notwithstanding anything contained herein to the contrary, engage in whatever activities K2K9 chooses, in its sole and absolute discretion. K2K9 acknowledges and agrees that this Section 9.4 is a material part of the consideration for K2K9 to enter into this Agreement and to provide the Services.

 

  1. Assignment. No rights and privileges granted to any Party under this Agreement may be transferred or assigned without obtaining the prior written consent of the other Party; provided, however, that K2K9 may assign or otherwise transfer this Agreement and its rights and obligations hereunder without the other Party’s consent (a) to an Affiliate of K2K9 or (b) in connection with the transfer or sale of all or substantially all of the business or assets of such Party relating to the provision of the Services to a Third Party, whether by merger, consolidation, divesture, restructure, sale of ownership interests, sale of assets or otherwise; provided however, that, if any designated level of SAFETY Act coverage as a QATT is specifically required under any Work Order, Client shall be entitled to terminate this Agreement, without penalty, in the event that K2K9 assigns this Agreement to any party that does not hold a similar designated level of SAFETY Act coverage as a QATT.  Any attempt to otherwise transfer or assign any rights or privileges under this Agreement shall be null and void and shall entitle the other Party to immediately terminate this Agreement.

 

  1. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, this Agreement shall be deemed to be amended to the extent necessary to make such provision enforceable, or, if necessary, this Agreement shall be deemed to be amended to delete the unenforceable provision or portion thereof. In the event any provision is deleted or amended, the remaining provisions shall remain in full force and effect.

 

  1. Non-Waiver of Defaults. Failure of any Party to declare any default by any other Party immediately upon occurrence thereof, or delay by any Party in taking any action in connection therewith, shall not waive such default or a potential remedy for such default.

 

  1. Force Majeure. Except for the duty to make payments when due and to provide indemnification under this Agreement, neither Party will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to any act of God, war, deployment of personnel in any branch of the armed forces of the United States or of any State, riot, fire, explosion, epidemic or pandemic, accident, flood, sabotage, Laws, regulations, order, injunction, or other act of any Governmental Authority, strike, plant or equipment failure, lack of availability of personnel, materials, energy, labor or equipment, and other circumstances beyond the reasonable control of the affected Party (“Force Majeure”).

 

  1. Notices.  Any notice required or permitted to be given hereunder (except for routine operational communications and exchanges of information) shall be in writing and given by (a) personal delivery, (b) overnight delivery by a nationally recognized courier (e.g., FedEx or UPS) to the address set forth for the recipient in the applicable Work Order or (c) by certified or registered mail, return receipt requested, by the United States Postal Service to the address hereinabove set forth for the recipient.  Any notice given as hereinafter set forth shall be deemed given upon the earlier of actual receipt or refusal of receipt.  The address set forth in the applicable Work Order may be changed as to any Party upon at least ten (10) days prior notice thereof to the other Party.

 

  1. Arbitration.

 

  1. In the event that any dispute should arise between the Parties as to the meaning, effect, performance, enforcement, or other issue in connection with this Agreement or any Work Order (a “Dispute”), it shall, upon the written request of a Party (the “Arbitration Request”) be submitted to be finally resolved by binding arbitration in accordance with the then-current (a) JAMS Streamlined Arbitration Rules and Procedures if the amount in dispute, inclusive of all claims and counterclaims, totals less than ten thousand dollars ($10,000.00) or (b) JAMS Comprehensive Arbitration Rules and Procedures if the amount in dispute, inclusive of all claims and counterclaims, totals ten thousand dollars ($10,000.00) or more (the “JAMS Rules”), except as specifically modified in this Section 9.10, as the sole and exclusive forum and remedy for any Dispute.  The arbitration shall be held in Pinehurst, North Carolina or such other place as the Parties may mutually agree in writing. 

 

  1. Unless otherwise agreed by the Parties in writing, any Dispute to be decided pursuant to this Section 9.10 shall be decided (a) before a sole arbitrator if the amount in dispute, inclusive of all claims and counterclaims, totals less than ten thousand dollars ($10,000.00) or (b) by a panel of three (3) arbitrators if the amount in dispute, inclusive of all claims and counterclaims, totals ten thousand dollars ($10,000.00) or more.  If the arbitration shall be before a sole independent arbitrator, then the sole independent arbitrator will be appointed by agreement of the Parties within thirty (30) days of the date of receipt of the Arbitration Request. If the Parties cannot agree to a sole independent arbitrator during such thirty (30) day period, then upon written application by either party, the sole independent arbitrator will be appointed pursuant to the JAMS Rules.  If a panel of three (3) arbitrators is to be chosen, then (a) within thirty (30) days from the date of the receipt of the Arbitration Request, each Party will name an arbitrator and (b) the two (2) Party-appointed arbitrators shall thereafter, within thirty (30) days from the date on which the second of the two (2) arbitrators was named, name a third independent arbitrator who will act as chairman of the arbitral tribunal.  In the event that either Party fails to name an arbitrator within thirty (30) days from the date of receipt of the Arbitration Request, then, upon written application by either Party, such arbitrator shall be appointed pursuant to the JAMS Rules. In the event that the two (2) Party-appointed arbitrators fail to appoint the third, then the third independent arbitrator will be appointed pursuant to the JAMS Rules.

 

  1. The arbitrator or arbitrators, as applicable, (whether one or more, the “Arbitrators”) shall have the right to award, on an interim basis, or include in the final award, any relief which it or they deem proper in the circumstances including, without limitation, money damages (with interest on unpaid amounts from the due date), injunctive relief (including specific performance); provided, however, that the Arbitrators will not award any relief not specifically requested by the Parties and, in any event, without limitation upon any other provision of this Agreement, shall be limited by Section 7.3.  The award of the Arbitrators shall be final and binding on the Parties, and may be enforced in any court of competent jurisdiction. The initiation of arbitration pursuant to this Section 9.10 will toll the applicable statute of limitations for the duration of any arbitration proceedings.

 

  1. Counterparts; Facsimile Signature. This Agreement may be executed in any number of counterparts, each of which will for all purposes be deemed an original of this Agreement, but all of which together will constitute one and the same document. This Agreement also may be evidenced by facsimile signature or by e-mail delivery of a “.pdf” format data file, and facsimile or “.pdf” signature page will be deemed to be an original signature and is to be considered to have the same binding effect as the delivery of an original signature on an original contract.

 

  1. Survival. The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by either or both Parties (including, without limitation, all indemnity an confidentiality provisions of this Agreement) shall so survive the completion of performance and termination or expiration of this Agreement, including without limitation, the payment obligations, indemnity obligations, confidentiality provisions and limitations of liability set forth herein.  The expiration or termination of this Agreement shall not affect any right or obligation that either Party may have accrued prior to such expiration or termination.

 

  1. Governing Law; Venue; Personal Jurisdiction. 

 

  1. This Agreement is entered into by the Parties in and shall be interpreted and construed in accordance with the Laws of the State of North Carolina.  Any and all claims, controversies, and causes of action arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by the Laws of the State of North Carolina, including its statutes of limitations, without giving effect to any conflict-of-laws rule that would result in the application of the Laws of a different jurisdiction. 

 

  1. For the purpose of compelling arbitration pursuant to this Agreement and for the purpose of any judicial proceedings seeking to confirm, modify or vacate any arbitration award, each Party hereby (a) irrevocably submits and consents to the exclusive jurisdiction and venue of the General Court of Justice of the State of North Carolina for Moore County and the United States District Court for the Middle District of North Carolina, as well as all respective appellate courts therefrom, (collectively, the “Courts”) over any action, suit or proceeding arising out of or relating to this Agreement, (b) consents to the exercise of personal jurisdiction thereover and venue in the Courts and hereby waives any objection and defense to the exercise of personal jurisdiction or venue, (c) covenants that it will not commence any action, suit or proceeding arising out of or relating to this Agreement except in the Courts, and (d) agrees that (i) any action brought in contravention of this Section 9.13 is subject to dismissal at any time and at any stage of the action, suit or proceeding, and no action taken by the other Party in defending, counterclaiming or appealing shall be construed as a waiver of this right to immediate dismissal and (ii) a Party bringing an action in contravention of this Section 9.13 shall be liable to the other Party for the costs, expenses and attorneys’ fees incurred in successfully dismissing the action or successfully transferring the action to the Courts.  No provision of this Section 9.13 shall be construed, however, to affect the right of any Party to enforce a judgment rendered by the Courts in any other jurisdiction. 

 

  1. Construction. This Agreement shall not be construed either more favorably for or strongly against either of the Parties based upon which Party drafted it. Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning.

 

  1. Headings. The headings used in this Agreement are used for reference purposes only and do not constitute substantive matters to be considered in construing the terms of this Agreement.

 

  1. Rules of Construction. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) the word “including” and words of similar import shall mean “including, without limitation,” (c) provisions shall apply, when appropriate, to successive events and transactions, (d) the headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement, (e) the words “herein,” “hereto,” “hereinafter” and words of similar import refer to this Agreement as a whole, (f) “may” is permissive and “may not” is mandatory, (g) “will” and “shall” are mandatory, not merely expressions of future intent or expectation, (h) items omitted from non-exclusive lists or examples shall not be deemed to be a purposeful omission of other items in such non-exclusive lists or examples, even if such items were originally included in such lists or examples or discussed between the Parties during the negotiation of this Agreement, and (i) this Agreement was drafted with the joint participation of both Parties and shall be construed neither against nor in favor of either, but rather in accordance with the fair meaning hereof.

 

  1. Modification.  K2K9 reserves the right to unilaterally modify or amend any portion of this Agreement at any time without prior notice. The current version of this Agreement and any modification or amendment supersedes all prior versions of this Agreement. The most current version of this Agreement may be found at K2K9’s website at www.k2k9s/termsandconditions.com) and is otherwise available upon request.

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