Standard Terms & Conditions

This Standard Terms and Conditions Agreement (“Agreement”) sets forth the terms governing the relationship between Adams Brown Technology Specialists, LLC, a Kansas company with an office at 1823 South Eisenhower Street, Wichita, Kansas 67209 (“ABTS”), and the Client. These Terms and Conditions apply to all services provided by ABTS under any executed Statement of Work (“SOW”) between ABTS and the Client. By entering into an SOW with ABTS, the Client agrees that these Terms and Conditions shall govern the provision of support, maintenance, and related services, without the need for a separate signature on this Agreement.

SCOPE OF SERVICES; SOW.
1. This Agreement governs all of the services that ABTS perform for CLIENT (collectively, the “Services”). The Services will be described in one or more statements of work that ABTS provide to CLIENT (each, a “SOW”),and once CLIENT and ABTS mutually agree to a SOW (either by signing it or by electronic acceptance), the SOW will become a part of, and governed under, the terms of this Agreement. If there is a material difference or conflict between the language in a SOW and the language in this Agreement, then the language of the SOW will control, except in situations involving warranties, limitations of liability or termination of this Agreement. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.
GENERAL REQUIREMENTS.
1. System Configuration. For the purposes of this Agreement, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by ABTS pursuant to this Agreement. ABTS fees are based upon the configuration of CLIENT System as of the effective date of the applicable SOW. If the System configuration changes, then ABTS may adjust the scope of services and/or the fees charged to CLIENT under the applicable SOW to accommodate those changes.
2. Requirements. At all times, all software on the System must be genuine and licensed, and CLIENT agrees to provide ABTS with proof of such licensing upon ABTS request. If ABTS require CLIENT to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), CLIENT agrees to do so as an ongoing requirement of ABTS providing its Services to CLIENT.
3. Maintenance; Updates. If patches and other software-related maintenance updates that are produced and distributed by the manufacturers of software and/or hardware devices (“Updates”) are to be provided by ABTS under a SOW, ABTS will install the Updates only if ABTS has determined, in its reasonable discretion, that the Updates will be compatible with the configuration of the System. ABTS will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer’s or applicable vendor’s instructions.
4. Third Party Support. If, in ABTS’s discretion, a hardware or software issue requires vendor or OEM support, ABTS may contact the vendor or OEM (as applicable) on CLIENT behalf and pass through to CLIENT, without markup, all fees and costs incurred in that process.
5. Insurance. If CLIENT is supplied with ABTS Equipment, CLIENT shall, at its own expense, maintain at all times during the term of this Agreement, replacement cost insurance coverage concerning any Covered Component(s). Coverage must include damage caused by negligence on behalf of CLIENT’s employees or agents, accidents, acts of God and natural disasters. Should Covered Component(s) become damaged for any reason specified and CLIENT fails to carry adequate insurance coverage, CLIENT agrees to reimburse ABTS for costs associated with replacement of Covered Component(s).
6. Advice; Instructions. From time to time, ABTS may provide CLIENT with specific advice and directions related to ABTS provision of the Services or the maintenance or administration of the System. (For illustrative purposes, such advice or directions may include installing cooling mechanisms or environmental controls in a server room, increasing the System’s server or hard drive capacity, or replacement of obsolete equipment.). CLIENT agree to promptly follow and implement any direction ABTS provide to CLIENT related to the Services which, depending on the situation, may require CLIENT to make additional purchases or investments in the System or the environment in which the System is maintained, at CLIENT sole cost. ABTS will not be responsible for any System downtime caused by CLIENT failure to promptly follow ABTS’s advice or directions. If CLIENT failure to follow or implement ABTS’s advice renders part or all of the Services economically or technically unreasonable in ABTS’s discretion, then ABTS may terminate the applicable SOW for cause by providing notice of termination to CLIENT. Any services required to correct or remediate issues caused by CLIENT failure to follow ABTS’s advice or directions, as well as any services required to bring the System up to the Minimum Requirements, will be billed to CLIENT at ABTS’s then-current hourly rates.
7. Prioritization. Unless otherwise stated in a SOW, all Services will be performed on a schedule, and on a prioritized basis, as determined by ABTS.
FEES; PAYMENT.
1. CLIENT agrees to pay the fees described in each SOW. If the SOW does not include a fee schedule, then CLIENT agrees to pay ABTS on an hourly basis pursuant to ABTS’s standard hourly rate schedule, which will be provided to CLIENT prior to the commencement of Services.
2. Schedule. Unless otherwise stated in a SOW, all undisputed fees will be due and payable in advance of the calendar month in which the Services are to be provided to CLIENT. If applicable, payments made by ACH will be deducted from CLIENT designated bank account on the first business day of the month in which the Services are to be provided. For prepaid fees or fees paid pursuant to a service plan, payment must be made in advance of work performed, unless other arrangements are expressly stated in the SOW.
3. Nonpayment. Fees that remain unpaid for more than fifteen (30) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. ABTS reserves the right, but not the obligation, to suspend part or all of the Services without prior notice to CLIENT in the event that any portion of undisputed fees are not timely received by ABTS. All disputes related to fees must be received by ABTS within sixty (60) days after the applicable Service is rendered or the date on which CLIENT receives an invoice, whichever is later; otherwise, CLIENT waive CLIENT right to dispute the fee thereafter. A re-connect fee may be charged to CLIENT if ABTS suspends the Services due to non-payment. Time is of the essence in the performance of all payment obligations by CLIENT.
ACCESS.
1. CLIENT hereby grants ABTS the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System for the purpose of enabling ABTS to provide the Services. It is CLIENT responsibility to secure, at CLIENT own cost and prior to the commencement of any Services, any necessary rights of entry, licenses, permits or other permissions necessary for ABTS to provide Services to the System and, if applicable, at CLIENT designated premises.
LIMITEDWARRANTIES; LIMITATIONS OF LIABILITY
1. Hardware / Software Purchased Through ABTS. Unless otherwise stated in a SOW, all hardware, software, peripherals, or accessories purchased through ABTS (“Third-Party Products”) are nonrefundable once the applicable purchase order is placed in ABTS’s queue for delivery. ABTS will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third-Party Products to CLIENT, but will have no liability whatsoever for the quality, functionality, or operability of any Third-Party Products, and ABTS will not be held liable as an insurer or guarantor of the performance, uptime, or usefulness of any Third-Party Products. Unless otherwise stated in a SOW, all Third-Party Products are provided “as is” and without any warranty whatsoever as between ABTS and CLIENT(including but not limited to implied warranties).
2. Warranty Application. Notwithstanding any provision to the contrary in this Agreement, any warranty provided by ABTS shall be deemed null and void if the applicable hardware or product is (i) altered, modified or repaired by persons other than ABTS, including, without limitation, the installation of any attachments, features, or devices not supplied or approved by ABTS; (ii) misused, abused, or not operated in accordance with the specifications of ABTS or the applicable manufacturer or creator of the hardware or product, or, (3) subjected to improper site preparation or maintenance by persons other than ABTS or persons approved or designated by ABTS.
3. Limitations. In no event shall either party be liable for any indirect, special, exemplary, consequential or punitive damages, or for lost revenue, loss of profits (except for fees due and owing to ABTS), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages. Except for CLIENT payment obligations and each party’s indemnification obligations described in this Agreement, each party’s aggregate liability to the other for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort or negligence, shall be limited to the amount of the aggrieved party’s actual direct damages, not to exceed the amount of fees paid by CLIENT to ABTS for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are the result of an aggrieved party’s willful misconduct or gross negligence. It is understood and agreed that the costs of hardware or software (if any) provided to Client under this Agreement shall not be included in the calculation of the limitation of damages described in this paragraph.
INDEMNIFICATION.
1. CLIENT agree to indemnify, defend, and hold ABTS harmless from and against any and all losses, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, CLIENT breach of this Agreement, or which relate to any act or omission undertaken or caused by CLIENT. The foregoing indemnification obligation includes Damages arising out of any alleged infringement of copyrights, patent rights and/or the unauthorized or unlicensed use of any material, property, or other work in connection with the performance of the Services. ABTS will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section.
TERM; TERMINATION.
1. This Agreement will begin as of the latest date of the signatures of the SOW and will continue until terminated as described in this Section (the “Term”). Since this is a master agreement, CLIENT may have the option (depending on the circumstances) to terminate individual SOWS without affecting other SOWs that are in-progress.
2. Termination Without Cause. Unless otherwise agreed by the parties in writing, no party will terminate a SOW without cause prior to the SOW’s natural expiration date. If CLIENT terminates a SOW without cause, then CLIENT will be responsible for paying the early termination fee described in the applicable SOW. If no early termination fee is listed, then prior to the effective date of termination of the SOW or this Agreement (as applicable) without cause, CLIENT agrees to pay ABTS an amount equal to (i) all expenses incurred by ABTS in its preparation and provision of the Services to CLIENT, e.g., licensing fees incurred by ABTS, non-mitigatable hard costs, etc. (“Hard Costs”), as well as (ii) fifty percent (50%) of all fees that would have been paid to ABTS had the term not been terminated prematurely.
3. Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination)provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If ABTS terminates this Agreement or any Sow for Cause, then ABTS shall be entitled to receive, and CLIENT hereby agree to pay to ABTS, (i) all amounts that would have been paid to ABTS had this Agreement or SOW (as applicable) remained in effect, and (ii) all Hard Costs. If CLEINT terminates this Agreement or a SOW for cause, then CLIENT will be responsible for paying only for those services that were properly delivered and accepted by CLIENT up to the effective date of termination.
  1. Client Activity As A Basis for Termination. In the event that any Client-supplied equipment, hardware software, or any action undertaken by CLIENT, causes the System or any part of the System to malfunction or requires remediation by ABTS on three (3) occasions or more (“System Malfunction”), and CLIENT fails to remedy, repair or replace the System Malfunction as directed by ABTS (or CLIENT fails to cease the activity causing the System Malfunction, as applicable), then ABTS will have the right, upon ten (10) days prior written notice to CLIENT, to terminate this Agreement and the applicable SOW For Cause or, at ABTS’s discretion, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
4. Consent. CLIENT and ABTS may mutually consent, in writing, to terminate the SOW or this Agreement at any time.
5. Equipment / Software Removal. Upon termination of this Agreement for any reason, CLIENT will provide ABTS with access, during normal business hours, to CLIENT premises or any other locations at which ABTS-owned equipment or software (collectively, “ABTS Equipment”) is located to enable ABTS to remove all ABTS Equipment from the premises. If CLIENT fail or refuse to grant ABTS access as described herein, or if any of the ABTS Equipment is missing, broken or damaged (normal wear and tear excepted) or any of ABTS-supplied software is missing, ABTS will have the right to invoice CLIENT for, and CLIENT hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
6. Transition; Deletion of Data. In the event that CLIENT requests ABTS’s assistance to transition to a new service provider, ABTS will provide such assistance if (i) all fees due and owing to ABTS are paid to ABTS in full prior to ABTS providing its assistance to CLIENT, and (ii) CLIENT agrees to pay ABTS its then-current hourly rate for such assistance, with up-front amounts to be paid to ABTS as may be required by ABTS. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise stated in a SOW, ABTS will have no obligation to store or maintain any Client data in ABTS’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. ABTS will be held harmless for, and indemnified by CLIENT against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, ABTS’s deletion of CLIENT data beyond the time frames described in this Section (7.6.).
RESPONSE REPORTING.
1. Response. ABTS warrants and represents that ABTS will provide the Services, and respond to any notification received by ABTS of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s)designated in an applicable SOW (“Response Time”), except for (8.1.1.) those periods of time covered under the Onboarding Exception (defined below), or (8.1.2.) periods of delay caused by Client-Side Downtime (defined below), or (8.1.3) periods in which ABTS is required to suspend the Services to protect the security or integrity of CLIENT System or ABTS’s equipment or network, or (13.8.) delays caused by a force majeure event.
  1. Scheduled Downtime. For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by ABTS but which will not occur between the hours of 9 AM and 5:30 PM CST (or CDT, as applicable), Monday through Friday without CLIENT authorization or unless exigent circumstances exist, during which time ABTS will perform scheduled maintenance or adjustments to its network. ABTS will use its best efforts to provide CLIENT with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
  2. Client-Side Downtime. ABTS will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by CLIENT actions or omissions (“Client-Side Downtime).
  3. Remedies; Limitations. Except for the Onboarding Exception, if ABTS fails to meet its service level commitment in a given calendar month and if, under such circumstances, ABTS’s failure is not due to CLIENT activities, omissions, or inactivity, then upon receiving CLIENT written request for credit, ABTS will issue CLIENT a pro-rated credit in an amount equal to the period of time of the outage and/or service failure. All requests for credit must be made by CLIENT no later than forty-five (45) days after ABTS either (8.1.1.) report the outage or service failure to ABTS, or (8.1.2) if applicable, receive a monthly report showing the outage and/or failure. The remedies contained in this paragraph are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to CLIENT for ABTS’s failure to meet any service level commitment during the term of this Agreement.
2. Onboarding Exception. CLIENT acknowledges and agree that for the first thirty (30) days following the commencement date of a SOW, the Response Time commitments described in this Agreement will not apply to ABTS, it being understood that there may be unanticipated downtime or delays due to ABTS’s initial startup activities with CLIENT (the “Onboarding Exception”).
CONFIDENTIALITY.
1. Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to ABTS by CLIENT, including but not limited to CLIENT customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of ABTS, (ii) was developed independently by ABTS, or (iii) is or was lawfully and independently provided to ABTS prior to disclosure by CLIENT, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
2. Use. ABTS will keep CLIENT’s Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by CLIENT in writing, or (ii) as needed to fulfill ABTS’s obligations under this Agreement. If ABTS is required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then ABTS will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Section 9.
3. Due Care. ABTS will exercise the same degree of care with respect to the Confidential Information it receives from CLIENT as ABTS normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
4. Compelled Disclosure. If ABTS is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand, or similar process) to disclose any of the Confidential Information, ABTS will immediately notify CLIENT in writing of such requirements that CLIENT may seek a protective order or other appropriate remedy and/or waive ABTS’s compliance with the provisions of this Section 9. ABTS will use its best efforts, at CLIENT’s expense, to obtain or assist CLIENT in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, ABTS may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that ABTS has been advised by written opinion of counsel reasonably acceptable to ABTS that it is legally compelled to disclose.
THIRD PARTY SERVICES.
1. EULAs. Portions of the Services may require CLIENT to accept the terms of one or more third party end user license agreements (“EULAs”). EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. CLIENT agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, ABTS is required to comply with a third-party EULA and the third-party EULA is modified or amended, ABTS reserves the right to modify or amend any applicable SOW with CLIENT to ensure ABTS’s continued compliance with the terms of the third-party EULA.
2. Data Loss. If backup and/or disaster recovery services are to be provided under a SOW, then CLIENT hereby understand and agree that ABTS will not be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) ABTS’s failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services.
3. BYOD. CLIENT hereby represent and warrant that ABTS is authorized to provide the Services to all devices, peripherals and/or computer processing units, including mobile devices(such as notebook computers, smart phones, and tablet computers) that (i) are connected to the System, and (ii) have been designated by CLIENT to receive the Services, regardless of whether such device(s) are owned, leased, or otherwise controlled by CLIENT. Unless otherwise stated in a SOW, devices will not receive or benefit from the Services while the devices are detached from or unconnected to the System.
OWNERSHIP.
1. Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights, and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights in one party’s Intellectual Property to the other party.
MISCELLANEOUS.
1. Assignment. Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, ABTS may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of a party, or any other transaction in which ownership of more than fifty percent (50%) of either party’s voting securities is transferred; provided such assignee expressly assumes the assignor’s obligations hereunder.
2. Amendment. No amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by ABTS, specifically refers to this Agreement, and is accepted in writing by one of CLIENT’s Authorized Contacts.
3. Time Limitations. The parties mutually agree that any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
4. Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility, or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
5. Other Terms. ABTS will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication between the parties unless such terms or conditions are incorporated into a duly executed SOW.
6. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
7. Merger. This Agreement, together with any and all SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or SOW will act only to provide illustrations or descriptions of Services to be provided and will not act to modify this Agreement or provide binding contractual language between the parties. ABTS will not be bound by any agents’ or employees’ representations, promises or inducements not explicitly set forth herein.
8. Force Majeure. ABTS will not be liable to CLIENT for delays or failures to perform ABTS’s obligations under this Agreement or any SOW because of circumstances beyond ABTS’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by CLIENT, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and Acts of God.
9. Non-Solicitation. CLIENT acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, CLIENT will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of ABTS’s employees or subcontractors to discontinue or reduce the scope of their business relationship with ABTS, or recruit, solicit or otherwise influence any employee or agent of ABTS to discontinue such employment or agency relationship with ABTS. In the event that CLIENT violate the terms of the restrictive covenants in this Section 13.9 (i), CLIENT acknowledges and agrees that the damages to ABTS would be difficult or impracticable to determine, and CLIENT agree that in such event, as ABTS’s sole and exclusive remedy therefore, CLIENT will pay ABTS as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with CLIENT (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of ABTS’s employees by CLIENT will be deemed to be a material breach of this Agreement, in which event ABTS shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
10. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive.
11. Insurance. ABTS and CLIENT will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers’ compensation and general liability. ABTS agrees to maintain a general liability policy with a limit of not less than $1,000,000 per occurrence. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.
12. Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Kansas. CLIENT hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Sedgwick County, Kansas, for any and all claims and causes of action arising from or related to this Agreement. CLIENT AND ABTS AGREE THAT EACH OF US WAIVES ANY RIGHT TO A TRIAL BY JURY FOR ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING FROM OR RELATED TO THIS AGREEMENT.
13. No Third-Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
14. Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
15. Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Sedgwick County, Kansas, such period will be extended to and through the next succeeding business day in Sedgwick County, Kansas
16. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from CLIENT to ABTS regarding (a) any alleged breach of this Agreement by ABTS, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to ABTS either by U.S. mail or fax, unless such requirement is expressly and specifically waived by ABTS. All electronic documents and communications between the parties will satisfy any “writing” requirement under this Agreement.
17. Independent Contractor. Each party is an independent contractor of the other, and neither is an employee, partner or joint venture of the other.
18. Subcontractors. Generally, ABTS does not utilize subcontractors; however, should ABTS elect to subcontract a portion of the Services, ABTS shall guarantee all work performed by any ABTS-designated subcontractor as if ABTS performed the subcontracted work itself.
19. Data Access/Storage. Depending on the Service provided, a portion of CLIENT data may occasionally be accessed or stored on secure servers located outside of the United States. CLIENT agrees to notify ABTS in the event that CLIENT company requires ABTS to modify ABTS standard access storage procedures.
20. Attorneys’ Fees. If ABTS is required to bring an action to enforce the terms of this Agreement, ABTS shall be entitled to an award of the reasonable attorneys’ fees and costs that incurred at all stages of the action, including without limitation, at trial and appeal.
21. Counterparts. The parties may sign and deliver this Agreement and any SOW in any number of counterparts, each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign and deliver this Agreement (or any SOW) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party will be entitled to rely upon the apparent integrity and authenticity of the other party’s signature for all purposes.
22. Credit Card Payments. CLIENT agrees that any payments made via credit card will be subject to a 3% processing fee. This fee will be added to the total amount of each transaction at the time of payment.