Effective Date: June, 2023
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with Customer. For the purposes of this definition, “control” means direct or indirect ownership of more than 50% of the stock or equity of the subject entity.
“Agreement” means the Master Services Agreement and the Order Form(s).
“Administrative User” means any employee or individual contractor of Customer accessing the VIZIT Services to configure the VIZIT Service for each specific Customer brand, service or product project (each, a “Project”) on an administrative basis (“Configuration Activities”).
“Confidential Information” means any information disclosed by one party (the “Disclosing Party”), either directly or indirectly, in writing or orally, to the other party (the “Receiving Party”), including, without limitation, trade secrets, product descriptions, pricing, marketing plans, customer lists, customers, designs, features, layouts, algorithms, configurations, processes, formulae, platform specifications, programs, test results, technical know-how, methods and procedures of operation, and methods for producing and delivering recommendations. Confidential Information does not, however, include information which the Receiving Party can prove: (i) the Receiving Party knew at the time of disclosure by the Disclosing Party, free of any obligation to keep it confidential, as evidenced by contemporaneous written records, (ii) is provided to the Receiving Party by a third party having no obligation of confidentiality to the Disclosing Party, (iii) is or becomes generally publicly known absent a breach of the Agreement by the Receiving Party, or (iv) is independently developed by individuals employed or engaged by the Receiving Party who have not had access to Confidential Information and without the use of or reference to any Confidential Information as evidenced by contemporaneous written records.
For clarity, Confidential Information includes the terms and conditions of the Agreement. Customer’s Confidential Information includes the Customer Intellectual Property (defined below). VIZIT Confidential Information includes the VIZIT Intellectual Property (defined below).
“Customer Data” means information, data, copyrighted materials, and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly, from Customer or an Authorized User by VIZIT or by or through the VIZIT Service.
“Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights; (v) intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, not otherwise described in subsection (i), (ii), (iii), (iv) or (vi); and (vi) registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
“Order Form” means the separate ordering document referencing the Master Services Agreement and fully executed by the parties under which Customer subscribes to the VIZIT Service.
“Subscription Period” means the duration of access to the VIZIT Service identified in an Order Form.
“Update” means a release of a component of the VIZIT Software designated as such by VIZIT, intended to correct an error, including but not limited to, patches and bug fixes.
“Upgrade” means, collectively, a release of a component of the VIZIT Software, designated as such by VIZIT, intended to (i) improve the performance and/or security of the VIZIT Software (a “Maintenance Upgrade”), or (ii) provide additional functionality or features (a “Functional Upgrade”); provided that, in VIZIT’s sole discretion, Functional Upgrades may be provided at an additional charge and under separate terms and conditions agreed to in writing by the parties, provided that VIZIT agrees and acknowledges that Customer will not be subject to any degradation in the VIZIT Service functionality should Customer elect not to implement any Functional Upgrade that is subject to an additional charge.
“User” means Administrative Users and Viewers, collectively.
“Viewer” means any employee or individual contractor of Customer accessing the VIZIT Services only to view its content.
“Visual Asset” means a image.
“VIZIT Service” means remote access to and use of the VIZIT Software hosted by or on behalf of VIZIT by a third party as a service.
“VIZIT Software” means all artificial vision applications (A V As) and other VIZIT-owned or VIZIT-licensed software and all underlying data sets (excluding the Customer Data), artificial intelligence algorithms, and mathematical and analytical models; the unique expressions of the selection, organization and presentation of user visible functions; all templates, report forms and other methods of presenting data and information; all know-how, processes, techniques, and trade secrets; all training and support documentation; all statistical and other aggregated, deidentified data (which shall include but not be limited to Customer Data which has been deidentified and aggregated); all patterns, audience behavior, trends, and other visual information, insights, advice, analyses, recommendations and information generated by the VIZIT Service or by VIZIT as a result of performing Professional Services (excluding the Customer- Owned Service Materials (defined below)) (collectively, the “VIZIT-Owned Service Materials”); all Updates, Upgrades, corrections, repairs, enhancements, modifications, developments, and improvements; and all customizations thereto and derivative works of any of the foregoing developed solely by VIZIT, or by or with the input of another party and all underlying Intellectual Property Rights throughout the world (whether owned or licensed from a third party) (collectively, the “VIZIT Intellectual Property”).
2.1 From time to time, Customer may request and VIZIT may agree to provide the VIZIT Service, Professional Services and the Support and Maintenance Services (defined below) (collectively, the “Services”) as agreed by the parties in one or more Order Forms. The Services shall be performed subject to the terms and conditions set forth in the Agreement. In the event of a conflict between any Order Form and the Master Services Agreement, the Master Services Agreement shall prevail unless an Order Form specifically states the Section of the Order Form that will take precedence over a specific Section of the Master Services Agreement.
2.2 The execution of an Order Form by an Affiliate shall constitute that Affiliate’s agreement to be bound by the terms and conditions of the applicable Order Form and the Master Services Agreement as incorporated therein by reference. Unless otherwise expressly stated in the applicable Order Form, the entire liability for the obligations of “Customer” under the applicable Order Form shall be that of the Affiliate signing the Order Form.
2.3 In the event that Customer requests services in addition to the Services set forth in an existing Order Form and VIZIT agrees to perform such services, a separate Order Form or change order will be developed and presented to Customer by VIZIT for approval. Any such additional Order Forms or change orders shall only be effective and considered part of the Services upon the written approval of both parties. Upon such approval, any such additional Order Forms and/or change orders will be incorporated herein as additional exhibits to the Master Services Agreement and together with the original Order Forms shall be referred to as an “Order Form.”
2.4 VIZIT hereby grants to Customer a non-exclusive, revocable, non-transferable limited right to remotely access and use and have the number of Authorized Users set forth in the applicable Order Form (the “Maximum Authorized Users”) and the number of Viewers set forth in the applicable Order Form (the “Maximum Viewers”) remotely access and use the VIZIT Service only for Configuration Activities and to view the VIZIT Service, respectively, during the Subscription Period set forth in each Order Form, subject to any Visual Asset or other Project volume restrictions set forth in the applicable Order Form, for Customer’s internal business purposes only in accordance with the terms and conditions set forth in the Agreement.
3. Customer Obligations
3.1 VIZIT, and hereby grants VIZIT a non-exclusive, revocable, limited license to use, all relevant Customer Data for the purposes of providing the Services. With respect to each Project, Customer agrees to provide VIZIT with data regarding the sales of such brand, service or product before the use of the Services and after the use of the Services (the “Sales Data”), which Sales Data shall be included in the definition of Customer Data.
3.2 Customer agrees to (i) take such actions and make available such materials and other resources as required for the performance of the Services by VIZIT as are set forth in the Order Forms(s) or as are agreed to by the parties from time to time and (ii) provide such equipment (e.g. personal computer or device), software (e.g. browser) and ancillary services (e.g. Internet services) necessary for Customer and all Users to connect to, access or otherwise use the VIZIT Service as permitted in the Agreement (the “Customer Equipment and Software”).
3.3 In order to use the VIZIT Service, Customer must register an account for itself (the “Customer Account”) and register login information for each User on the VIZIT Service. Customer shall be responsible for maintaining the confidentiality of Customer Account passwords and log-in information (collectively, the “Customer Account Information”) and for all activities that occur under such Customer Account. Customer will immediately notify VIZIT of any unauthorized use of the Customer Account Information or any other breach of security related to the VIZIT Service of which Customer becomes aware. VIZIT is not, and shall not be, liable for any loss or damage arising
3.4 Customer shall not re-grant or distribute to any third party the rights it receives under Section 2.2 unless such third party is identified specifically in an Order Form or from time to time identified to VIZIT by Customer and accepted by VIZIT (each by electronic mail), such acceptance not to be unreasonably withheld (upon identification or acceptance, each, a “Third Party”); provided that upon such identification and acceptance each such Third Party and its employees shall be included in the definition of Authorized Users and Viewers, as appropriate, under the Agreement.
3.5 Any failure by VIZIT to perform or any delay in the performance by VIZIT of its obligations under the Agreement caused by a failure of Customer to perform as required in the Agreement shall not constitute a breach of the Agreement by VIZIT.
4. Maintenance and Support Services
4.1 VIZIT agrees to apply all Updates and Maintenance Upgrades to the VIZIT Software promptly upon general release to VIZIT’s customer base. VIZIT may develop and provide Updates and Upgrades in its sole discretion.
4.2 VIZIT agrees to: (i) promptly work to correct any failure of the VIZIT Service to materially perform in accordance with the requirements of the Agreement (an “Error”); (ii) provide telephone support to Administrative Users in connection with all Errors Monday through Friday 9:00 a.m. to 5:00 p.m. Eastern Time (“Business Hours”); (iii) provide email support to Customer and Administrative Users in connection with Errors during Business Hours; and (iv) provide online access to technical support bulletins and other User support information and forums. VIZIT will respond to identified Errors within twenty-four (24) hours during Business Hours. Error resolution time will be on a case-by-case basis. The support services set forth in this Section 4.2 and the application of Updates and Maintenance Upgrades by VIZIT to be referred to in the Agreement, as the “Support and Maintenance Services.”
5. Representations and Warranties
5.1 Each party represents and warrants that (i) it has the legal right to enter into the Agreement and perform its obligations thereunder, (ii) it has the right to grant the rights and licenses granted by it in the Agreement, (iii) its performance under the Agreement will comply with all applicable laws, rules, and regulations and with all agreements to which it is a party, and (iv) with respect to VIZIT, the VIZIT Intellectual Property, and with respect to Customer, the Customer Intellectual Property, will not infringe, misappropriate, or otherwise violate any intellectual property or privacy right of any third party.
5.2 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). CUSTOMER AGREES AND ACKNOWLEDGES THA T VIZIT IS NOT CUSTOMER’S LEGAL OR BUSINESS ADVISOR AND CANNOT GUARANTEE THA T THE USE OF THE SERVICES OR THE SERVICE MATERIALS (DEFINED BELOW) WILL RESULT IN INCREASED SALES BY CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, VIZIT IS NOT RESPONSIBLE FOR ANY OF CUSTOMER’S MARKETING OR BUSINESS DECISIONS MADE IN RELIANCE UPON THE SERVICES OR THE SERVICE MATERIALS OR THE RESULTS OR LACK OF RESULTS ARISING FROM SUCH DECISIONS.
6.1 Fees. In consideration for the Services, Customer agrees to pay to VIZIT the fees set forth in each applicable Order Form (the “Fees”) in accordance with the payment terms set forth herein. Pricing for Order Form Renewals (defined below) will be included in each Order Form unless otherwise agreed by the parties. Unless otherwise stated in an Order Form, VIZIT will invoice Customer for all Fees upfront, and Customer shall pay all invoices in United States Dollars within thirty (30) days of the invoice date.
6.2 Taxes. All Fees are exclusive of applicable taxes, unless otherwise stated in an Order Form, and Customer is solely responsible for the payment of any such taxes that may be imposed on its use of the Services or in making any payment to VIZIT, other than taxes attributable to the income of VIZIT.
7. Term and Termination
7.1 Term. The term of the Master Services Agreement commences on the Effective Date and continues for a period of thirty six (36) months (the “Initial Term”) unless the Master Services Agreement has been terminated earlier in accordance with the Master Services Agreement. Upon expiration of the Initial Term, the Master Services Agreement automatically renews for additional successive twelve (12) month terms (each a “Renewal Term”) unless and until either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current Term, or unless and until the Master Services Agreement is earlier terminated as provided under the Master Services Agreement or applicable law. The Initial Term and all Renewal Terms will be referred to collectively, as the “Term.” The term of each Order Form will be the Subscription Period set forth therein, subject to any renewals set forth in such Order Form (“Order Form Renewals”).
7.2 Termination. Either party may terminate the Agreement or any single Order Form (i) if the other party breaches any term or condition of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay Fees, which must be cured within ten (10) days after receipt of written notice from VIZIT; (ii) immediately, if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
7.3 Effect of Termination. Upon termination of the Agreement or a single Order Form, Customer’s right to access and use the VIZIT Service and receive the other Services thereunder shall immediately terminate and each party will promptly return the Confidential Information of the other party. Termination of the Agreement does not relieve Customer of its obligation to pay all Fees owed by Customer under the Agreement or such Order Form, and Customer shall not be entitled to any refund or credit for early termination of the Agreement or any Order Form.
8. Limitation of Liability; Indemnification
8.1 Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party and its directors, officers, employees, agents, successors and assigns (collectively, the “Indemnified Parties“) from and against any and all damages, losses, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees and other costs of defense) (“Losses”) suffered or incurred by the Indemnified Parties to the extent resulting from any claim, suit, action, or proceeding (each, an “Action”) brought by any third party against the Indemnified Party alleging any breach by the Indemnifying Party of any of the representations, warranties or covenants of the Indemnifying Party contained in the Agreement.
8.2 An Indemnifying Party’s indemnification obligations under Section 8.1 shall be subject to: (i) receiving prompt written notice of the existence of any Action or Loss from the Indemnified Party; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the Indemnified Party to participate in the defense of any Action; and (iv) receiving the full cooperation of the Indemnified Party in the defense thereof. Notwithstanding the foregoing, an Indemnifying Party will not be responsible for any settlement it does not approve in writing.
8.3 The obligations in Section 8.1 will not apply with respect to a breach of Section 5.1(iii) to the extent arising from intellectual property (i) not supplied by the Indemnifying Party, (ii) that is modified after delivery by the Indemnified Party, (iii) is combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where the Indemnified Party continues allegedly infringing activity after being notified thereof and provided with a modification by the Indemnifying Party that would have avoided the alleged infringement, or (v) in the case of Customer, where Customer’s use of the Services or Service Materials is not strictly in accordance with the Agreement.
8.4 UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONTINGENT DAMAGES, OR FOR ANY LOST PROFITS OR LOST REVENUES, ARISING FROM OR RELA TING TO THE AGREEMENT OR RELATING TO THE SERVICES, WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). EXCEPT FOR MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, THE LIABILITY OF EACH PARTY WITH RESPECT TO LOSSES OF ANY KIND WHATSOEVER UNDER THE AGREEMENT OR RELATING TO THE SERVICES, WHETHER ARISING IN TORT OR CONTRACT OR OTHERWISE, WILL NOT BE GREATER IN THE AGGREGATE THAN THE AMOUNT PAID BY CUSTOMER TO VIZIT FOR THE SERVICES OVER THE TWELVE (12) MONTHS PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY .
9.1 VIZIT and Customer each agree that it will not use in any way, for its own account or the account of any third party, nor disclose to any third party, except as expressly permitted by the Agreement, any of the other party’s Confidential Information except as required by law or to that party’s attorneys, accountants and other advisors (its “Representatives”) (subject to Section 2.2 with respect to the VIZIT Services) as reasonably necessary to perform under the Agreement, provided that the Receiving Party shall make all Representatives (and the case of Customer, all Users) aware of the provisions of the Agreement as applicable to such Representatives (and Users’) use of the Confidential Information of the Disclosing Party. A breach of the Agreement by a Receiving Party’s Representative, and in the case of Customer, a Third Party or a User, shall constitute a breach of the Agreement by the Receiving Party. Further, the Receiving Party shall take all reasonable precautions to protect the confidentiality of the Disclosing Party’s Confidential Information, which precautions, in any event, will be at least as stringent as it takes to protect its own Confidential Information. The Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that, unless restricted by order of a governmental agency or otherwise restricted by law, the Receiving Party provides reasonable notice to the Disclosing Party of the required disclosure so as to permit the Disclosing Party to respond to such request for disclosure.
9.2 Each party agrees that any violation or threatened violation of this Section 9 or Section 10 by a party may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all other available remedies at law and otherwise (without proof of actual damages or posting a bond).
10. Intellectual Property
10.1 All patterns, audience behavior, trends, and other visual information, insights, advice, analyses, recommendations and information arising from the performance of the Professional Services or generated through the access and use of the VIZIT Service under the Agreement to the extent they (i) are unique to Customer, or (ii) contain Customer Confidential Information (collectively, the “Customer-Owned Service Materials”), shall be the sole and exclusive property of Customer. In addition, as between the parties, Customer retains all right, title and interest in and to the Customer Data and the Customer Equipment and Software (together with the Customer-Owned Service Materials, the “Customer Intellectual Property”).
10.2 As between the parties, VIZIT retains all right, title and interest in and to the VIZIT Intellectual Property. Customer shall not, by virtue of the Agreement, or by virtue of its access to the VIZIT Service or performance of the other Services, obtain any copyright, patent or other proprietary right or interest in or to such VIZIT Intellectual Property except the rights specifically granted to Customer herein. No work-for-hire or joint development is contemplated by the Agreement. In the event that VIZIT is engaged to develop any software or other copyrightable material for Partner, the parties agree to execute a separate development agreement.
10.6 VIZIT hereby grants to Customer a non-exclusive, perpetual, worldwide, fully paid-up, royalty-free, license to use the VIZIT-Owned Service Materials together with the Customer- Owned Service Materials (collectively, the “Service Materials”) for Customer’s internal business use only, provided that such right shall not include a continued right to access or use the VIZIT Service. Customer acknowledges and agrees that Customer shall not use or permit Users to use the Service Materials (i) created for one project with a second brand, service or product, (ii) for competitive analysis; or (iii) to create, or assist in the creation of, directly or indirectly, any product or service that reasonably competes with the Services, or provides similar functionality or purpose, in whole or in part, as the Services.
10.7 Customer agrees to access use the VIZIT Service solely during the Subscription Period in accordance with the Agreement. Customer agrees that it shall not and shall not permit others to: modify, port, localize, adapt, translate, or create derivative works of the VIZIT Service or the VIZIT Software; copy, rent, lease, lend, sell, assign, publish, loan, distribute, sublicense or otherwise transfer the VIZIT Service or any VIZIT Software, in whole or in part; transfer, loan or otherwise provide the Services, or access to the Services, to any third party that is not a User; reverse engineer, decompile, disassemble, decode or otherwise attempt to derive or gain access to, or attempt to reconstruct, identify or discover, the source code or object code form of the VIZIT Software or attempt to reconstruct, identify or discover underlying algorithms or techniques except to the extent that such activities may not be prohibited under applicable law; remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any Intellectual Property Rights notices from the VIZIT Service, including any copy thereof; or access or use the Services for purposes not permitted by the Agreement.
10.8 Export to Customer of the Services is subject to all applicable export and re-export laws and regulations. VIZIT shall have no liability towards Customer if necessary authorizations, licenses or approvals are not obtained. Customer shall not export or re-export the Services when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval.
11.1 Governing Law; Exclusive Venue. The Agreement shall be governed by and interpreted under the laws of the Commonwealth of Massachusetts, excluding Massachusetts choice of law rules. Any suit, action or proceeding arising out of or relating to the Agreement shall be brought exclusively in the state or federal courts located in Boston, Massachusetts. Both parties hereby irrevocably consent to jurisdiction and venue in the state and federal courts located in Boston, Massachusetts, for purposes of any suit, action or proceeding arising out of or relating to the Agreement.
11.2 Assignment. Customer may not assign, including any transfer by operation of law or change of control, the Agreement without the prior written consent of VIZIT. Any permitted assignee or successor of Customer’s rights and obligations under the Agreement shall be bound by all terms and conditions of the Agreement.
11.3 No Joint Venture Created. The relationship between the parties is that of independent contractors. Nothing in the Agreement and its performance shall be construed as creating a joint venture, partnership, or agency between Customer and VIZIT, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11.4 Entire Agreement. The Agreement constitutes the full and entire understanding and agreement between the parties with respect to the subject matter hereof, and any other written or oral agreements relating to the subject matter hereof existing between the parties are expressly canceled. Any additional or different terms in any purchase order or invoice payment by Customer shall be deemed objected to by VIZIT without need of further notice of objection, and shall be of no effect or in any way binding upon VIZIT.
11.5 Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. If any provision of the Agreement is deemed invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.6 Amendment. Any term of the Agreement may be amended, terminated or waived only with the written consent of VIZIT and Customer. Any amendment or waiver effected in accordance with this Section shall be binding upon Customer and VIZIT.
11.7 Waiver. Neither the failure of either party to insist upon or enforce strict performance by the other party of any provision of the Agreement or the failure, delay or omission by either party in exercising any right with respect to any term of the Agreement, will be construed as a waiver or relinquishment to any extent of either party’s right to assert or rely upon any such provision or right in that or any other instance. No provision or part of the Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Any such waiver shall be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given and shall not apply with respect to any repeated or continued violation of the same provision or any other provision.
11.8 Third Party Beneficiaries. VIZIT and Customer agree that there shall be no third-party beneficiaries to the Agreement, including but not limited to the insurance providers for either party.
11.9 Titles. The titles, headings, and subtitles used in the Agreement are used for convenience only and are not to be considered in construing or interpreting the Agreement.
11.10 Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (other than non-payment) resulting from any condition beyond its reasonable control, including but not limited to, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power, or Internet failures.
11.11 Survival. Termination of the Agreement shall not relieve the parties of any obligation accruing prior to such termination. Sections 1, 3.3, 6, 7.3, 8, 9, 10 and 11 of the Master Services Agreement shall survive termination of the Agreement.
11.12 Notice. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under the Agreement in writing and addressed to the other party set forth above (or to such other address that the receiving party may designate from time to time in accordance with this Section). Each party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Master Services Agreement, a notice is effective only upon receipt by the receiving party, and if the party giving the notice has complied with the requirements of this Section.
11.13 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.