Terms & Conditions
These Terms and Conditions, effective as of the earlier of (a) the date that CLIENT signs and ORDER or (b) the date that a CLIENT first receives any services, efforts, or products of B3 (“Effective Date”), bind the following entities:
- B3Cyber, LLC., a Delaware limited liability company (“B3”), with offices at ; and
- The entity or person stated on an ORDER hereunder (“client”), including all affiliates and related organizations or entities.
B3 and client may be referred to individually as “Party” and, together, as the “Parties.”
- Client wishes to engage B3 to data security services (the “Services”) on the terms set forth in these Terms and subsequent ORDERs (“ORDER”); and
- B3 wishes to provide the Services to the client on the terms set forth in these Terms.
Now, therefore, in consideration of the recitals above and the terms and conditions set forth below, the Parties agree as follows:
- Scope of support. B3 will begin providing to client, and client will purchase from B3, the Services described in an ORDER on the dates set forth in such ORDER. During the term of an ORDER, B3 may provide additional services to the client on terms mutually agreeable to the Parties as reflected in a subsequent addendum or ORDER executed by the Parties.
- Service metrics and standards. The Services will be provided in accordance with the service metrics and standards provided in the pertinent ORDER, if applicable.
- Training. Personnel from B3 will be trained, as provided in the pertinent ORDER, if applicable.
- Service reporting. The reporting requirements applicable to the provision of Services by B3 are described in the pertinent ORDER, if applicable.
- Pricing. client will compensate B3 in accordance with the pricing terms and component rates set forth in the pertinent ORDER. If a client requests additional services or deliverables not covered in an ORDER, the Parties may execute an addendum or additional ORDER relating to the specific services to be added. In the absence of such an addendum, B3 will invoice the client for such additional services at its then-current rates for such services.
- Terms and conditions of payment. B3 will prepare and render invoices for the costs of the provision of services provided in the ORDERs, detailing the activity of each underlying element of cost. The client will pay all costs shown in an invoice within thirty (30) calendar days following the date of invoice. Restrictive endorsements or other statements on checks accepted by B3 will not apply. The client will reimburse B3 for reasonable fees of attorneys and any other costs associated with the collection of delinquent payments. Any amounts payable by client under an ORDER that remain unpaid after the due date will be subject to a late charge equal to the greater of one and one-half percent (1.5%) per month or the maximum rate permitted by law (whichever is less) from the due date until such amount is paid. The client agrees that the prompt payment of amounts due is a material term of their agreement with B3 and all ORDERS. B3 may, without breach, immediately suspend any provision of Services in the event payment for any invoice which is past due and for which client has been given not less than ten (10) days written notice and payment in full has not been received by B3.
- Term. These Terms shall apply to the Parties until all ORDERS have expired or been terminated (as applicable), and even at that time, the portions of these Terms deemed to survive expiration or termination of ORDERS shall survive such events (“Term”). Termination of all ORDERs will only occur upon any of the following:
- automatically and without any notice requirement upon the occurrence of a “Bankruptcy Event” (as defined below) with respect to a Party.
- if client fails to remit payment when due,
- if either Party fails to cure a breach clearly defined in a written notice by the other Party within two (2) months from the date of receipt of the notice by the Party alleged to have committed the breach; and unless otherwise expressly stated in an ORDER, all ORDERs shall automatically renew for a period of one (1) year after the expiration of any ORDER initial term. Each subsequent renewal period shall be referred to as a “Renewal Term.” Automatic renewal can only be prevented by one party providing written notice to the other party of their intent not to renew for a subsequent renewal term no less than thirty (30) days before the end of the then-current term. Either party may terminate an ORDER for convenience by providing written notice no less than sixty (60) days before the effective date of such termination notice. For purposes of these Terms, a “Bankruptcy Event” means (i) a Party makes a general assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, files a petition in bankruptcy, is adjudicated as bankrupt or insolvent, files a petition in any proceeding seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or files an answer admitting or fail timely to contest the material allegations of a petition filed against it in any such proceeding, (ii) a proceeding is commenced against a Party seeking any bankruptcy, reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or (iii) a receiver or trustee is appointed for all or substantially all of the assets of a Party. In the event of termination by either Party for any allowed reason, B3 will, subject to receipt of payment of all charges through to and including termination including any estimated costs of return, send all property belonging to client it may hold to client’s address for notices, as supplied below. client will arrange for and prepay for all freight for such property from Daphne, Alabama, to the destination of its choice.
- Disclaimer of warranties. all goods and services contemplated in these terms and ORDERs are provided “as is” with no other representations or warranties, express or implied. Except as otherwise expressly set forth in these terms, B3 expressly disclaims any and all representations and warranties, whether express, implied, or statutory including, but not limited to, any warranty of merchantability or fitness for a particular purpose.
- Consequential damages. Neither B3 nor client will be liable to each other or to any third party, end user, or other customer of client, for any indirect, incidental, special, consequential, or punitive damages (including, but not limited to, indirect loss of profits, indirect loss of revenues, or indirect loss of business; loss of data; loss of software; and business interruption) resulting from, or in any way related to, the services rendered under these terms or any ORDER ,or arising out of, or alleged to have arisen out of, breach of these terms or any ORDER, regardless of whether such party will be advised, will have other reason to know, or, in fact, will know of the possibility of such damages. The limitation of liability set forth in this section will apply regardless of whether such damages are sought based on breach of warranty, breach of contract, negligence, strict liability in tort, or other legal theory. The parties agree that this limitation of consequential damages is an essential and integral element of the bargain between the parties without which the parties would not have entered these terms or any ORDER. This section shall not apply to client’s failure to render payments under the terms or any ORDER or client’s termination of an ORDER in any manner not specifically set forth in such ORDER or these terms.
- Limitation of Liability. If any B3 liability arises from these Terms, an ORDER, or the Services provided hereunder, B3’s liability will be limited to proven direct damages not to exceed, in the aggregate, the total amount of fees paid by client to B3 under such specific ORDER during the three (3) calendar months immediately preceding the month in which the event, or first occurrence of any cause of action giving rise to such liability as agreed or otherwise adjudicated, occurred. This limitation of liability is cumulative and not per occurrence. The Parties acknowledge that the limitations of liability and allocation of risk in this section and in the other provisions of these Terms are an essential element of the bargain between the Parties, without which B3 would not have entered any ORDER under these Terms. B3’s pricing and terms reflect this allocation of risk and the limitations of liability specified. This section will supersede any other verbiage in these Terms or any ORDER pertaining to B3’s liability.
- Indemnification. Each Party (hereinafter, the “Indemnitor”) agrees to indemnify the other Party and their directors, officers, employees, independent contractors and agents (each an “Indemnitee”) and hold the Indemnitee harmless against from and against any damages (including punitive, special, consequential, indirect, exemplary or incidental damages), losses, attorneys fees, costs, expenses, penalties, fines, liabilities and settlement amounts (each, a “Loss” and, collectively, “Losses”) against any actual or threatened disputes, claims, actions, lawsuits or proceedings (each, a “Claim” and, collectively, “Claims”) asserted, commenced or threatened against an Indemnitee by any third party, including without limitation, any governmental or regulatory agency, or any owner of intellectual property, directly arising out of the Indemnitor’s breach of these Terms or any ORDER. This indemnification applies to any Claim that arises out of or is directly related to these Terms or any ORDER, regardless of when the Loss occurs or the Claim is asserted, commenced, or threatened. All such indemnification obligations shall terminate one year after the termination of all ORDERs under these Terms. Each party will promptly notify the other party of any claim, demand, suit, or threat of suit of which that party becomes aware (except with respect to a threat of suit either party might institute against the other) which may give rise to a right of indemnification pursuant to these Terms. The Indemnitor will be entitled to participate in the settlement or defense of any such claim, demand, suit, or threat of suit and, if the Indemnitor elects, to take over and control the settlement or defense of the Claim with counsel satisfactory to the Indemnitee; provided that the Indemnitor must consult with the Indemnitee prior to any settlement and the Indemnitor cannot bind or materially prejudice the Indemnitee without Indemnitee’s written consent. The Indemnitor may, at any time and at its own cost and expense (which cost, and expense will not be subject to indemnification hereunder) settle any claim, demand, suit or proceeding against it so long as such settlement is expressly without prejudice to the interest or position of the Indemnitee. In any case, the Indemnitor and the Indemnitee will cooperate (at no cost to the Indemnitee) in the settlement or defense of any such claim, demand, suit, or proceeding. Client will indemnify and hold B3 harmless for, from, and against, any claims, damages, costs, or expenses arising from or related to direct instructions made by client regarding the services, or changes required because of information not provided by client to B3 on a timely basis if such information is of regulatory or legal import. Notwithstanding anything contained in the foregoing, B3 will not be obligated to indemnify client for any loss or damage arising from the use of any products or services of client by any persons, or, to the extent such loss or damage may be caused by the negligence or willful misconduct of client, or its employees, agents, clients, subcontractors, or independent contractors. The obligations of this section will survive termination or expiry of these terms, including, but not limited to, this section.
- Intellectual property rights. “Intellectual Property Rights” shall include, without limitation, all patents, copyrights, trademarks, trade secrets, trade names, service marks, rights of authorship, moral rights, or other intellectual property or proprietary rights therein
- Existing Intellectual Property. The Services contemplated by these Terms may involve significant exposure by B3 of its software (including, without limitation, object and source code pertaining thereto, B3’s platform, and any successor products, software, or platforms), inventions, trade secrets, and information regarding sales and/or operational processes, products, research and development, purchasing, selling, servicing, financing, and business systems, processes, and operations that B3 possesses at the time of the Effective Date or obtains or develops other than in connection with the performance of Services under these Terms (“B3 Existing Intellectual Property”). All Intellectual Property Rights in all B3 Existing Intellectual Property, shall at all times, including during the Term and following the termination or expiration hereof, be fully vested in and possessed by B3. Unless otherwise expressly stated herein, nothing in this section shall obligate B3 to provide any rights or license to B3’s Existing Intellectual Property to client.
- Created Intellectual Property. A Party may develop, create, modify, configure, prepare derivative works of, and improve scripts, templates, software, web pages, ideas, developments, creative works, or other materials, products, processes, or services based on B3 Existing Intellectual Property (the “B3 -Based Created Intellectual Property”) in performing its obligations under the Terms. Unless explicitly stated otherwise within these Terms, B3 shall have all rights and title to B3 – Based Created Intellectual Property, including without limitation, all Intellectual Property Rights therein. B3 —Based Created Intellectual Property will not be considered “Works for Hire” under U.S.C. 17, §101, nor shall it be considered “Work Product. ”A Party may develop, create, modify, configure, prepare derivative works of, and improve scripts, templates, the Software, web pages, ideas, developments, creative works, or other materials, products, processes, or services based on client Existing Intellectual Property (the “client -Based Created Intellectual Property”) in performing its obligations under these Terms. Unless explicitly stated otherwise within these Terms, client shall have all rights and title to client – Based Created Intellectual Property, including without limitation, all Intellectual Property Rights therein. client —Based Created Intellectual Property will not be considered “Works for Hire” under U.S.C. 17, §101, nor shall it be considered “Work Product. ”Should any Created Intellectual Property be used under these Terms or by any Party in any fashion if such Party is not the original owner of such Created Intellectual Property, before such Created Intellectual Property is used therein, the Parties shall negotiate a license agreement pertaining to such use.
- Derivative Intellectual Property. B3 shall own any Intellectual Property which modifies, incorporates, configures, is a derivative work of, is developed based on, or improves any B3 Existing Intellectual Property or B3 -Based Created Intellectual Property (“B3 -Derivative Intellectual Property). B3 -Derivative Intellectual Property will not be considered “Works for Hire” under U.S.C. 17, §101, nor shall it be considered “Work Product.” client shall own any Intellectual Property which modifies, incorporates, configures, is a derivative work of, is developed based on, or improves any client Existing Intellectual Property or client -Based Created Intellectual Property (“client -Derivative Intellectual Property). Client -Derivative Intellectual Property will not be considered “Works for Hire” under U.S.C. 17, §101, nor shall it be considered “Work Product.”
- Effect of Termination. If all ORDERs under these four Terms are expired or terminated, B3 will continue to maintain ownership and control of (1) B3 Existing Intellectual Property; (2) B3 -Based Created Intellectual Property; and (3) B3 -Derivative Intellectual Property. Unless otherwise specifically set forth herein or as otherwise mutually agreed by the Parties in writing, all rights and licenses relating to the B3 Existing Intellectual Property, B3 -Based Created Intellectual Property, or B3-Derivative Intellectual Property granted to client pursuant to these Terms shall terminate at such time.
- Indemnity. In addition to any other indemnification obligations of either Party as set forth herein, each Party possessing ownership of any Existing Intellectual Property, Created Intellectual Property, or Derivative Intellectual Property defined herein shall protect, defend, indemnify, and hold harmless the other Party and the other Party’s affiliates, officers, directors, employees, agents, successors, and assigns from any and all claims, losses, deficiencies, damages, liabilities, costs, settlements, judgments, and expenses (including without limitation attorneys’ fees, court fees, and other costs of litigation or dispute resolution) that the Existing Intellectual Property, Created Intellectual Property, or Derivative Intellectual Property belonging to such Party (“Indemnitor”) infringes, violates, or misappropriates any third party’s Intellectual Property Rights. Indemnitor will, upon learning of any actual or threatened infringement of any Intellectual Property Rights of a third party, at the indemnified Party’s option: (i) replace the infringing goods or services with goods or services with equivalent functionality that do not infringe, or (ii) modify the infringing goods or services, without impairing the functionality of the goods or services, such that the goods or services no longer infringe.
- Survival. This section shall survive termination or expiration hereof, in perpetuity.
- Confidentiality. The Parties acknowledge and agree that confidential information of each Party may be disclosed to the other Party in connection with the performance of ORDERS under these Terms. “Confidential Information” will mean information not generally known to the public, including, but not limited to, software, inventions, trade secret information about processes, products, research and development, purchasing, marketing, merchandising, selling, servicing, financing, business systems and processes, and operations, as well as information concerning the contents of these Terms, the identities of customers, all customer lists, and the sales and shipments made to such customers; provided, however, that nothing contained in these Terms will be construed to prevent either Party from referring to its relationship with the other under these Terms or the description of services provided in these Terms in a generic and otherwise descriptive form. Each Party agrees that it will use the other Party’s Confidential Information only for the purposes of performance under these Terms, and that it will not disclose any of the other Party’s Confidential Information during the Term or at any point after termination or expiration of these Terms without the advance written consent of the other Party. In the event the receiving Party is served with a subpoena or other process requiring the disclosure of any of the other Party’s Confidential Information, such receiving Party will promptly notify the other Party of such request and reasonably cooperate with the efforts of the other Party to seek a protective ORDER or other relief at the sole expense of the other Party. Upon termination or expiration of these Terms, all Confidential Information received by a Party will, upon written request of the disclosing Party, be returned to the disclosing Party or destroyed unless such Party is required to retain a copy of such Confidential Information for regulatory purposes in ORDER to comply with law. These confidentiality obligations will survive the termination or expiration of these Terms for a period of three (3) years. Confidential Information will not be deemed to include (i) the existence, but not the provisions and contents, of these Terms; (ii) any information that is or becomes publicly known through no wrongful act of the receiving Party; (iii) any information that is or becomes known to the receiving Party prior to the Effective Date of these Terms as shown by the Party’s written records without any other obligation to keep such information confidential; (iv) any information that is received by a Party from a third party that has a lawful right to disclose it to such Party; or (v) any information that is used or disclosed by a Party with the prior written approval of the other Party. Each Party will inform its employees, agents, subcontractors, and independent contractors, if any, who have access to the other Party’s Confidential Information, of the above confidentiality obligations and will use commercially reasonable means to assure that such employees, agents, subcontractors, and independent contractors comply with such obligations. Any act of a Party’s employees, agents, subcontractors, and independent contractors shall be deemed the act of such Party as relates to the use or disclosure of the other Party’s Confidential Information.
- Non-solicitation. Client agrees that, during the Term and for a period of one (1) year after termination or expiration hereof, client will not hire, offer to hire, recruit, or solicit for employment any employee of B3, until such employee has been separated from employment by B3 for at least six (6) months. In the event either client hires an employee or former employee of B3 in violation of this provision, B3 will be entitled to one-time liquidated damages client equal to twelve (12) months of the employee’s salary at the time of his or her departure or other termination from B3. Payment of liquidated damages will be due immediately upon the hiring of any employee or former employee in contravention of this provision of these Terms. The foregoing may be waived with written consent of an Officer of B3.
- Taxes. All charges payable under these Terms or any ORDER are exclusive of taxes and duties. Client will pay or reimburse B3 for all value-added, excise, sales, use, premium, property, tangible or intangible property, and similar taxes; all customs, duties, import fees, stamp duties, license fees, and similar charges; and all other mandatory payments to government agencies of whatever kind imposed with respect to products and services contemplated or delivered pursuant to these Terms. If a transaction is exempt from tax, client will provide B3 with a valid exemption certificate or other evidence of such exemption in a form acceptable to the governmental authority requiring same. Each Party will be solely responsible for all property and income taxes as may be properly charged or levied upon each Party’s respective property or income.
- Notices. Any notices required or permitted under these Terms will be deemed given upon: (a) proof of receipt by intended recipient; (b) expiration of five (5) business days from deposit of notice with the U.S. Postal Service as certified mail, return receipt requested, postage prepaid; (c) the next day for overnight courier service with written acknowledgment of receipt, ;or (d) the day of facsimile transmission with written acknowledgment of receipt. All notices will be addressed as follows, or as subsequently updated in writing to the other Party: If to B3:with a copy via mail or fax to firstname.lastname@example.org If to client: USE CONTACT INFO ON ORDER(S)
- Force Majeure. Either Party will be excused from delays in performing or failure to perform under these Terms or any ORDER to the extent that such delays or failures result from causes beyond the reasonable control of such Party, including, but not limited to, any act of God or public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other similar event, disruption or outage of communications, power or other utility, labor problems or strikes, and any other cause which could not have been prevented through the use of reasonable care or which was not reasonably foreseeable by the affected Party. This shall not apply to client’s failure to remit payments as set forth more fully herein.
- Premises of the other Party. Both Parties acknowledge and agree that no employee, agent, designee, or outside representative (collectively referred to as “Representatives”) of either Party will enter any area of the other’s premises, other than those work area(s) specifically designated for access by the other Party, without an escort from the other Party. Any intentional failure to adhere to this obligation will constitute a material breach of these Terms. Upon one day’s written notice (facsimile transmissions acceptable), a Representative will be permitted to observe a Party’s operations and employees relating to the performance of the Services mentioned in these Terms during the regular operating hours of those facilities. Any Representative of either Party visiting the premises of the other Party shall do so at their own expense.
- Independent contractor. B3 is an independent contractor. Nothing contained in, or performed pursuant to, these Terms or any ORDER will be construed as creating a partnership, agency, or joint venture. Except as otherwise expressly provided these Terms, neither Party will become bound by any representation, act, or omission of the other Party. Neither Party will have any authority to obligate or otherwise act as a representative, or agent for, the other Party for any purpose, and neither will make any representations or hold itself out as having such authority.
- Assignment. Neither these Terms or any ORDER nor any rights or obligations found in these Terms, or any ORDER may be assigned by either Party without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that either Party may assign these Terms or any ORDER to a commonly controlled affiliate for valid business purposes with notice, but without consent. The Parties agree that this section shall not apply to a Change of Control of either Party (as defined below), which shall not be deemed an assignment of this these Terms or any ORDER. ”Change of Control” shall mean the occurrence of any of the following: i. Approval by stockholders of a Party of (a) any consolidation or merger of the Party in which the Party is not the continuing or surviving corporation or pursuant to which shares of stock of the Party would be converted into cash, securities or other property, other than a consolidation or merger of the Party in which holders of its common stock immediately prior to the consolidation or merger have substantially the same proportionate ownership of common stock of the surviving corporation immediately after the consolidation or merger as immediately before, or (b) a sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Party; ii. a change in the majority of members of the board of a Party within a 24-month period unless the election or nomination for election by the stockholders of each new director was approved at a vote of two thirds of the directors then still in office who were in office at the beginning of the 24-month period: iii. purchase by any person (as defined in section 13 (d) of the 1934 act), corporation or other entity, other than the Party or a wholly owned subsidiary of the Party, of shares pursuant to a tender or exchange offer, to acquire any stock of the Party (or securities convertible into stock) for cash, securities or any other consideration provided that, after consummation of the offer, such person, group, corporation or other entity is the beneficial owner (as defined in rule 13d-3 under And 1934 Act), directly or indirectly, of 20% or More of the Outstanding Stock of the Party (calculated as provided in paragraph (d) of Rule 13d-3 under the 1934 act in the case of rights to acquire stock);iv. the Party combines with another company and is the surviving corporation but, immediately after the combination, the shareholders of the Party immediately prior to the combination do not hold, directly or indirectly, more than 50% of the Voting Stock of the combined company (there being excluded from the number of shares held by such shareholders, but not from the Voting Stock of the combined company, any shares received by affiliates (as defined in the rules of the Securities and Exchange Commission) of such other company in exchange for stock of such other company).
- Books and records; invoice audit. B3 will maintain complete and accurate records to support and document the charges for Services and/or the Deliverables under these Terms or any ORDER in accordance with generally accepted accounting principles consistently applied.
- Compliance with law. In their performance under this these Terms or any ORDER, each Party will materially comply with all applicable federal, state, and local laws, ordinances, rules, and regulations. The foregoing shall be individually and collectively referred to herein as “Laws and Regulations.” The Parties agree and understand that Laws and Regulations will evolve during the Term, and that the Parties will need to evaluate and possibly amend the Term and ORDER(s) periodically to ensure the Terms, ORDERs, Services, and efforts of each Party thereunder comply with applicable Laws and Regulations. Each Party shall hold harmless and indemnify the other Party against any loss, damage, penalties, or liabilities that may occur by reason of their failure to comply with such federal, state, and local laws, regulations and codes.
- Claims. As a condition precedent to recovery, claims for loss or damage caused by B3 must be made in writing by the client within one (1) month after loss or damage. Claims for loss or damage, if found to be accurate by B3, will be paid or denied by B3 within one (1) month after receipt of notice of such claim.
- Dispute Resolution. It is understood and agreed that any dispute, controversy or question arising from or relating to the performance or interpretation of these Terms, the breach thereof, or the subject matter thereof (“Controversy”) shall be resolved exclusively pursuant to the following mandatory dispute resolution procedures, provided however that client may not initiate any dispute resolution relating to a claim under these Terms or any ORDER more than 30 days after the origin or first instance of the act or omission leading to the Controversy which client is submitting to Dispute Resolution. All dispute Resolutions are Confidential Information and are subject to the restrictions applicable to Confidential Information set forth herein. Neither Party shall disclose any information about anything presented by the other Party in mediation, arbitration, or executive review, except during judicial, regulatory, or arbitration proceedings, or as may be demanded by government authority. Before making any disclosure permitted by the preceding sentence, a Party shall give the other Party reasonable advance notice of the intended disclosure and an opportunity to prevent disclosure.
- Any Controversy between the parties arising shall first be referred for executive review. The disputing party shall initiate “Executive Review” by giving the other party written notice of the Controversy and shall specifically request Executive Review of said Controversy in such notice (“Executive Review Notice”). Within twenty (20) calendar days of any Party’s Executive Review Notice, the receiving party shall submit a written response (“Response”). Both the Notice and Response shall include a statement of each party’s position and a summary of the evidence and arguments supporting its position. Within thirty (30) calendar days of any Party’s Executive Review Notice, an executive level employee of each Party shall be designated by the Party to meet and confer with his/her counterpart to attempt to resolve the Controversy.
- If a Controversy has not been resolved within 30 calendar days of the date of Executive Review under paragraph 2 above, the Controversy shall be sent to mediation. Mediation shall occur in the JAMS (or a successor entity to JAMS) location nearest to the Venue set forth in these Terms. Both parties must agree on a single mediator (who shall be a lawyer) within the JAMS office selected, and such agreement on the selection of the mediator will not be unreasonably withheld. The mediation shall occur within 60 days of the Executive Review.
- If a Controversy has not been resolved within 30 calendar days of the mediation date the Controversy shall be settled exclusively by final and binding arbitration before a single arbitrator, who shall be a lawyer. The arbitration shall be conducted in the JAMS location nearest to the Venue set forth in these Terms and shall proceed in accordance with the applicable Rules of Procedure for Arbitration, and which to the extent of the subject matter of the arbitration, shall be binding not only on all Parties, but on any other entity controlled by, in control of or under common control with the party to the extent that such affiliate joins in the arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each Party shall have the right to take the deposition of one individual and any expert witness retained by the other Party. Additional discovery in the arbitration proceeding may be had only where the arbitrator so ORDERs, upon a showing of substantial need by the requesting Party. Only evidence that is directly relevant to the issues at hand may be obtained in discovery. Each Party bears the burden of persuasion of any claim or counterclaim raised by the Party. Each Party shall assume its own costs and attorney’s fees and no Arbitrator may make an award finding otherwise. The compensation and expenses of the arbitrator and any administrative fees or costs shall be borne equally by the parties. The decision of the arbitrator shall be final, conclusive, and binding, and no action at law or in equity may be instituted by either Party other than to enforce the award of the arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. An arbitration award shall be accompanied by a written statement containing a summary of the issues in controversy, a description of the award, and an explanation of the reasons for the award.
- The arbitrator will render a decision based on the facts at hand and content of these Terms. The prevailing Party will be awarded its reasonable fees of attorneys and costs incurred in connection with the arbitration. The proceedings will be confidential and will not be discussed by the Parties or arbitrator with third parties, excepting attorneys, consultants, and others engaged to assist the Parties in the arbitration. All documents and other evidence exchanged in the arbitration and any copies thereof will be returned by the arbitrator and the other Party to the Party producing such documents or other evidence promptly after the conclusion of any arbitration by award, stipulation, or continuance.
- The parties may use temporary injunctive relief for the purpose of seeking to preserve the status quo pending arbitration. However, if either party pursues temporary injunctive relief, that party will give notice to the other party at least twenty-four (24) hours prior to seeking that relief. In addition, the party seeking relief will inform the other party of the time and place of the hearing and provide the other party with a copy of the papers filed in support of the motion for temporary injunctive relief. This section shall survive the termination or expiration of these Terms.
- Taxpayer identification, certification, and backup withholding information. The taxpayer identification number (tin) for B3 is . B3 certifies that this number is its correct tin, and that, as a corporation, B3 is an exempt payee and is not subject to backup withholding requirements.
- Applicable law and Venue. These Terms and all ORDERs will be governed by, and construed in accordance with, the laws of the State of Alabama, without regard to its conflict of laws principles. Any permitted legal action or proceeding with respect to the Terms, ORDERs, or any other transaction document may be brought in any state or federal court of the United States of competent jurisdiction in the State of Alabama. By execution and delivery of any ORDER under the Terms, the Parties irrevocably consent to and accept, for themselves and in respect of their property, generally and unconditionally the exclusive jurisdiction of such courts. Each party further irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, or otherwise, which it may now or hereafter have to the bringing of any action or proceeding in such jurisdiction in respect of these Terms or any other documents governing the relationship between the Parties
- Headings. Section headings are for convenience only and do not modify or affect the meaning of any provision in nor be the basis for interpretation or construction of these Terms.
- Severability. In the event any provision of these Terms or any ORDER is found to be unenforceable, void, invalid, or unreasonable in scope, such provision will be modified to the extent necessary to make it enforceable, and as so modified, such document will remain in full force and effect.
- Waiver. Failure by either Party to exercise any right under these Terms or any ORDER will not be construed as a waiver of such right.
- Mutual Warranties. Each Party warrants and represents that: (a) it has the full power and authority necessary to enter into these Terms and all ORDERs; (b) the execution by B3 of any ORDER and the performance of its obligations thereunder will not breach or violate any other agreement to which it is a party; (c) it is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization; (d) it is Solvent. “Solvent,” as to an entity for purposes of these Terms, means (i) the present fair saleable value of such entity’s assets is in excess of the total amount of its liabilities, (ii) such entity is presently able generally to pay its debts as they become due, and (iii) such entity does not have unreasonably small capital to carry on such entity’s business as theretofore operated and all business in which such entity is about to or intends to engage. The phrase “present fair saleable value” of an entity’s assets means that value which can be obtained if the assets are sold within a reasonable time in arm’s length transactions in an existing and not theoretical market ; (e) it is not in default with respect to any material contract, agreement, lease, or other instrument to which it is a party, nor has it received any notice of default under any such material contract, agreement, lease or other instrument which as a consequence of any such default, would materially and adversely affect the performance of its obligations under these Terms; (f) no contract, lease agreement, or other instrument to which it is a party or by which it is bound, and no provision of applicable law or governmental regulation, materially and adversely affects the business, operation, prospects, property, or financial condition of the party such as to impair its ability to meet its obligations under these Terms and the ORDERs; (g) all information furnished for purposes of or in connection with these Terms or any information furnished during the course of the business relationship between the Parties, is true and correct in all material respects and no such information omits to state a material fact necessary to make the information so furnished not misleading. There is no fact known which has not been disclosed and which materially and adversely affects the financial condition, business, property, or prospects of the Party; (h) no event which, with notice or the passage of time or both, would permit termination hereof has occurred and is continuing or, to the best knowledge of the party, is threatened to occur; (i) the ORDER(s) has been duly executed and delivered, and constitutes a legal, valid, and binding obligation, enforceable in accordance with its terms, subject to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors’ rights generally from time to time in effect and to the availability of equitable remedies; (j) execution of an ORDER will not violate any law or regulation or any ORDER or decree of any court or governmental instrumentality ; and (k) it does not require any filing or registration with or the consent or approval of any governmental body, agency, authority, or any other person which has not been made or obtained previously as a condition precedent to executing an ORDER.
- Publicity. B3 will be permitted to indicate in its marketing efforts that it provides services for clients. The client will be permitted to disclose that B3 provides services for client. Each Party agrees to provide publicity materials containing direct references to the other Party to such other Party for its approval in advance of public release or submission for publication. Neither Party shall unreasonably withhold or delay such approval. Each web site of client developed or hosted by or linked to a B3 ORDER entry site may incorporate a logo supplied by B3.
- No Interpretation Against the Drafter. These Terms and the contents of the ORDER(s) will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms or any ORDER or based on a party’s undertaking of an obligation under the Terms or an ORDER.
- Entire Agreement. These Terms and the ORDER(s), constitute the entire agreement between the Parties with respect to the subject matter set forth in these Terms and the ORDERs and exhibits and supersedes all prior or contemporaneous arrangements relating to these matters, whether oral or written, between the Parties. No modification or addition to these Terms will be valid unless in writing and signed by a duly authorized officer of each Party.
- Definitions. The definitions found in these Terms shall govern all ORDERs, and other documents between the Parties unless otherwise specifically set forth in such ORDERs, and other documents between the Parties.