Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“MSA”) sets forth terms and conditions entered into by and between Libra Design, LLC, a Texas limited liability company (“Libra”), and the party (“Client”) executing a statement of work (“SOW”) and referencing this MSA (as applicable, the SOW and together with this MSA, the “Agreement”). Libra and Client may each be referred to herein as a “Party” and together as the “Parties”. This MSA shall be effective as of the effective date of the first SOW between the Parties.
Article I – Introductory Matters
1.1 Background. Libra is an engineering services company which designs horticulture lighting systems/products for clients and provides professional and related services to the manufacturing and delivery of such products. This MSA sets forth the general terms and conditions of the provisions of such products and services.
1.2 Representations. Each Party represents and warrants to the other Party that: (i) it has the requisite corporate power and authority to enter into the Agreement and to carry out the transactions contemplated by the Agreement; (ii) the execution, delivery, and performance of the Agreement and the consummation of the transactions contemplated by the Agreement have been duly authorized by the requisite corporate action on the part of such Party; and (iii) the execution, delivery, and performance of the Agreement and the consummation of the transactions contemplated by the Agreement shall not constitute: (1) a material default under any contract by which it or any of its material assets are bound; or (2) an event that would, without notice or lapse of time, or both, constitute such a default.
Article II – Products and Third-Party Solutions
2.1 Specified Products. Libra may from time to time design certain products for Client based on Libra LED modules with third-party components (“Specified Products”). Specified Products, or components thereof, will be designed, prototyped, sourced, assembled, or manufactured by third-party contract manufacturers. Unless otherwise specified by Client, Specified Products may carry Libra branding.
2.2 Non-Specified Products. “Non-Specified Products” mean products that are not Specified Products but are products (including, without limitation, hardware and software) manufactured, created by, or otherwise sourced from third parties which are sold, provisioned, or otherwise furnished to Client in connection with a purchase order or SOW, or otherwise pursuant to the Agreement. Non-Specified Products and Specified Products may be collectively referred to in this Agreement as “Products”.
2.3 Availability and Pricing. Commitments and guarantees to any particular quantity, availability and/or pricing are to be specifically set forth in a SOW. Libra or third parties, as the case may be, may changes the prices of and charges for Products from time to time and without prior notice unless specifically set forth in a SOW.
2.4 Product Warranty.
(a) Product warranties will be provided by manufacturer per the terms provided in the SOW.
(b) Libra makes no warranties with respect to any Products (whether they are Specified Products or Non-Specified Products).
(c) No Product (other than samples pursuant to Section 2.5 below) may be returned to Libra. Returns, if any, must be directed toward the applicable contract manufacturer.
2.5 Return of Samples. Client shall return sample Products provided by Libra back to Libra promptly upon request from Libra at Client’s sole cost and expense.
2.6 Third-Party Solutions. “Third-Party Solutions” mean third-party products, equipment, platforms, applications, services, or other solutions, whether at the Client’s site or offsite, whether off-the-shelf or configured, customized, or modified, and whether procured independently by Client or as a Non-Specified Product, and whether or not recommended by Libra as part of the project or in the course of rendering Services. All product/services costs, licensing fees, and additional services required to purchase or license, implement, utilize, or integrate with Third-Party Solutions are exclusive of the SOW. Unless otherwise specified in the SOW, neither vendor/solution research, diligence, and selection nor configuration, diagnosis, installation, troubleshooting, and interoperability functionality in respect of any Third-Party Solution is within the scope of Services, and if Libra elects to perform any such aforesaid work, then Libra may invoice Client at its then-prevailing rates for such work. Libra is not responsible for limitations of Third-Party Solutions which might affect the performance, scalability, or security of any Specified Product, Non-Specified Product, Deliverable, or Third-Party Solution.
Article III – Services
3.1 Services. From time-to-time Libra may perform certain services which are ancillary to a purchase order or may be specified in a SOW (“Services”). Services may also include the creation and/or delivery of Deliverables (as contemplated in Section 3.2 below).
3.2 Deliverables. “Deliverables” mean any Client-specific deliverable (other than Products and Third-Party Solutions) provided by Libra as part of the Services and identified as a “Deliverable” in the SOW.
3.3 Statements of Work. All services to be performed by Libra which are not ancillary to a purchase order shall be specified in a SOW. SOW must include, at a minimum, the scope of Services and Deliverables (if any), the project/work schedule, and associated fees, and should also set out any estimates, assumptions, conditions, dependencies, phases/milestones, and completion criteria if and as applicable and material. A SOW shall not be effective unless fully executed by duly authorized representatives of both Parties, and Libra shall not be obligated to perform any work until such time.
3.4 Performance Guarantee. Libra guarantees its designs will perform to the target specification within the specified tolerance as may be detailed in a SOW. Except as and unless otherwise specified in a SOW, all Services are rendered AS-IS, with all faults, and without warranty.
3.5 Subcontractors. Libra shall have the option to subcontract to perform Services.
3.6 Adjustments. All statements and agreements concerning time, fees, and other expenses (including any fixed price or not-to-exceed quotations in the SOW) are good faith estimates based upon information furnished by Client and circumstances existing at the time made. The SOW is subject to equitable adjustment upon any material change in such information or circumstances, the occurrence of delays (as contemplated in Section 3.7 below), or upon modification of the scope, timing, or level of work to be performed by Libra. Client acknowledges that delays not attributable to Libra and/or any agreed change may affect project schedule and/or the fees and expenses payable to Libra.
3.7 Delays. Libra, or its subcontractors engaged to perform work hereunder, shall be excused from delays in performing or from a failure to perform the Agreement to the extent that such delays or failures result from causes beyond Libra’s (or its subcontractors’, as applicable), reasonable control. Without limiting the generality of the foregoing, Client acknowledges that Client’s failure or delay in furnishing necessary information, equipment, or access to facilities, delays or failure by Client in completing tasks required of Client or in otherwise performing Client’s obligations hereunder or under the SOW, and any explicit assumption contained in the SOW which is not met or is incorrect or otherwise fails to hold shall be considered an excusable delay or excusable failure to perform by Libra and may impede or delay completion of Services and/or result in additional fees and expenses chargeable to Client. In addition, if a project is delayed by an aggregate number of thirty (30) days or more through no fault of Libra, then Libra may elect to terminate work under the SOW.
3.8 Postponement. Client must provide Libra with advance written notice of at least ten (10) business days if it expects or intends to postpone any work contemplated in the SOW. All postponements shall constitute delays subject to Section 3.7 above and Libra may elect to invoice Client for anticipated resources at their then-prevailing rates for each day of delay (whether or not work is performed during the postponement).
3.9 Account Managers. Each Party shall designate an account manager to represent that Party in the implementation of a SOW. Either Party may change its designated account manager upon written notice to the other Party. The account managers shall be responsible for the day-to-day coordination of activities between the Parties as contemplated by the SOW.
3.10 Change Requests. In the event Client wishes to request a modification to the SOW (including any scope, even if at no cost), Client shall provide Libra with written notice detailing the requested changes. Libra shall then provide a written response estimating the impact, if any, that the requested modifications would have on the scope, schedule, fees, or other material terms in the SOW. Libra may also propose change requests on its own initiative. Neither Party shall be compelled to agree to change requests. If the Parties agree to a change request, then such agreement must be reflected in a written change order indicating an amendment to the SOW. No changes to the SOW shall be effective fully executed by duly authorized representatives of both Parties, and Libra shall not be obligated to modify or perform any additional work until such time. Libra shall continue performing services in accordance with the applicable SOW unless and until the Parties agree in writing on the change in scope of work, scheduling, and fees therefore.
Article IV – Ownership and Intellectual Property
4.1 Ownership. As between the Parties and subject to the terms and conditions of the Agreement including, without limitation, the confidentiality provisions in Article VI below: (i) Client retains all right, title, interest, and ownership to and in and of the Client Materials; (ii) Libra hereby retains all right, title, interest, and ownership and licenses, as applicable, to and in and of the Libra Materials; and (iii) subject to the terms and conditions of the Agreement and Client’s compliance with same, including but not limited to Client’s fundamental obligation to pay fees and expenses pursuant to Article V below, Client shall own the Deliverables.
4.2 Client Materials License. Client grants to Libra a license to use, reproduce, and modify Client Materials solely for purposes of performing Services. “Client Materials” mean the Client-specific content or Confidential Information provided by Client to Libra for the purpose of a SOW.
4.3 Libra Materials License. Subject to the terms and conditions of the Agreement and Client’s compliance with same, including but not limited to Client’s fundamental obligation to pay the fees and expenses contemplated in Article V, Libra grants a nonexclusive, nontransferable, world-wide, royalty-free license to use and modify Libra Materials solely as incorporated in Deliverables. “Libra Materials” mean any and all intellectual property that: (i) is owned by Libra prior to the effective date of this MSA or is developed by Libra after such effective date but separately from the Agreement; (ii) is licensed by Libra from a third party; or (iii) comprise elements of the Deliverables that are of general applicability to Libra’s business without any of Client’s Confidential Information.
4.4 Competitive Materials. Except as set forth in the Agreement (including but not limited to the confidentiality provisions in Article VI), Libra shall not be precluded from developing materials outside the Agreement with other Clients that are competitive with Client or Deliverables, irrespective of their similarity to materials which might be delivered to Client pursuant to the Agreement. Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Libra to provide consulting, development, or other services of any kind of nature whatsoever to any individual or entity as Libra in its sole and absolute discretion deems desirable.
4.5 Residual Knowledge. Subject to the confidentiality provisions in Article VI, Client acknowledges that Libra and its employees and agents shall be free to use and employ their general skills, know-how, and expertise to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of rendering any Services, including, without limitation, the design or procurement of products to other clients which are similar to Specified Products.
4.6 Intellectual Property. Client acknowledges that Libra considers the design, component selection and sourcing, and configuration of Specified Products and samples to be proprietary intellectual property. Client agrees and covenants that it shall not, directly or indirectly, reverse engineer or attempt to reverse engineer any Specified Product or sample or permit any other party to do so. Client further covenants that it shall inform Libra promptly in writing if Client becomes aware of any actual, suspected, or threatened reverse engineering of a Specified Product or sample. Client shall not acquire any ownership interest in any of Libra’s intellectual property rights under this Agreement.
Article V – Fees and Invoicing
5.1 Fees. Charges for Specified Products (and if applicable, Non-Specified Products) and fees for Services shall be set forth in the SOW.
5.2 Expenses. Libra shall obtain Client’s pre-approval for any pass-through expenses or items paid or incurred in performing Services which are not scheduled or otherwise contemplated in the SOW.
5.3 Invoicing. Generally, Libra will invoice and require full payment of estimated Costs and other Libra charges in advance before performing under a SOW.
5.4 Payments. Subject to Section 5.3 above, payments are due upon receipt of invoice. Payments shall be made via wire or other electronic transfer of immediately available funds according to instructions on the invoice. Client shall also be responsible for any fees associated with the storage or disposition of Products in connection with late payment(s).
5.5 Taxes. Client shall pay all taxes, assessments, and fees applicable in connection with the Services, whether national, federal, state, or local, including, without limitation, sales, use, value-add, excise, personal property, customs fees, import duties, stamp duties, and any other similar taxes and duties, however designated or levied; provided, however, Libra shall be responsible for its own taxes on net income. Libra shall invoice Client for any taxes properly payable by Client that are required to be collected by Libra pursuant to any applicable statute, rule, regulation, or other requirement of law.
Article VI – Restrictive Covenants
6.1 Confidentiality. “Confidential Information” means: (i) with respect to Client, information regarding its finances, facilities, investors, or business operations that is marked, labeled, or otherwise designated as confidential or proprietary or that Recipient knew, or reasonably should have known, was confidential due to the circumstances surrounding the disclosure by Discloser; and (ii) with respect to Libra Materials. Each Party (as applicable, a “Recipient”) agrees to retain in strict confidence the other Party’s (as applicable, a “Discloser”) Confidential Information; provided, however, Confidential Information shall not include any information that (i) is generally known to the public at the time of disclosure, (ii) is received by Recipient without restriction from a third party without any breach by such third party of any confidentiality, fiduciary, or other obligation to the Discloser, (iii) is published or otherwise made known to the public by Discloser, or (iv) is generated independently by the Recipient without use of or reference to Discloser’s confidential information. Recipient shall use at least the same standard of care with Discloser’s Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose Confidential Information in order to respond to a valid order of a court or other governmental body or any political subdivision thereof, or as otherwise required by law, provided that the Recipient (A) informs Discloser as soon as reasonably practicable of the required disclosure, (B) limits the disclosure to the required purpose, and (C) at Discloser’s request and expense, assists in an attempt to object to or limit the required disclosure. Upon termination or expiration of the Agreement, or upon Discloser’s request, Recipient shall return or destroy all Confidential Information provided under the Agreement. Each Party acknowledges that breach of this provision by it would result in irreparable harm to the other Party, for which money damages would be an insufficient remedy, and therefore that the other Party shall be entitled to seek injunctive relief to enforce the provisions of this Article VI. Parties hereby agree and acknowledge that this Article VI supersedes any prior confidentiality agreements by and between the Parties with respect to Confidential Information disclosed after the effective date of this MSA.
6.2 Non-Solicitation. Client covenants that, during the period of activity under a SOW and for a period of two (2) years thereafter, Client will not, directly or indirectly, through a corporation or other entity, unincorporated business, affiliated party, successor or assign, or otherwise, solicit, hire for employment or engagement, or work with, on a full-time, part-time, consulting, advising, or any other basis, a contract manufacturer retained or engaged by Libra in connection with the production or procurement of the Specified Products.
6.3 Public Announcements. The existence, terms, subject matter, and performance of the business relationship between the Parties shall also remain confidential, and neither Party shall make any public announcement or comment or other communication to a third party pertaining to this MSA, any SOW, any of the Products or Services or Deliverables, or otherwise regarding the relationship between the Parties without the express written permission of the other Party; except (i) as pursuant to Section 2.8 above; (ii) as pursuant to any user terms and conditions privacy policy on a Libra website; (iii) as may be set forth in a separate agreement between the Parties; and (iv) Libra may identify Client as a Client of Libra on its marketing and promotional materials (including, without limitation, Libra’s websites).
6.4 No Exclusivity.
(a) Subject to Section 6.1 above, Libra may enter into any agreement with any other client or clients to provide any services, including services similar to any Services, without Client’s prior consent or any other restrictions.
(b) Client may enter into any agreement with any other service provider without Libra’s prior consent; provided, however, the other provisions of the Agreement shall strictly apply, including, without limitation, Section 4.6, Section 6.1 and Section 6.2 above.
Article VII – Indemnification
7.1 Third-Party Claims. Subject to Sections 7.2 through 7.4 below, each Party (as applicable, an “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (as applicable, an “Indemnified Party”) from and against any and all claims, losses, costs, and expenses (including reasonable attorneys’ fees) that the Indemnified Party incurs as a result of any third-party claims for bodily injury or property damage (real or personal) based on, arising out of, or resulting from the gross negligence or intentional misconduct of the Indemnifying Party (or its employees, subcontractors, assignees, or agents). The Indemnified Party shall (A) give the Indemnifying Party prompt written notice of the relevant claim, (B) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such claim, and (C) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that materially affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. If the Indemnifying Party duly and diligently defends a claim, then the Indemnified Party shall have the right to participate in the defense, such participation at the expense of the Indemnified Party (except as to expenses in connection with participation required by law or with cooperation requested by the Indemnifying Party, which shall be at the Indemnifying Party’s expense). If, however, the Indemnifying Party fails to duly and diligently defend or settle, as applicable, the claim, then the Indemnified Party may, upon written notice to the Indemnifying Party and at the Indemnifying Party’s expense, undertake the defense and/or settlement of the claim.
7.2 Other Indemnification. Each Party shall indemnify and hold harmless the other Party from and against any and all claims, losses, costs, and expenses (including reasonable attorneys’ fees) that the Party indemnified hereunder incurs resulting to the extent of any breach by the Party indemnifying hereunder of a provision of Article IV, Section 5.5, or Article VI above.
7.3 Exceptions. In no event shall Libra have any obligations under this Article VII or any liability otherwise for any claim or action which is caused by or results from: (i) Client’s combination or use of a Product or Deliverable with software, services, or products rendered or developed by Client or third parties, (ii) modification, damage, or misuse of a Product or Deliverable by anyone other than Libra, (iii) Client’s use of a Product or Deliverable in a manner not in accordance with the Agreement, (iv) Client’s failure to abide by all applicable export and/or technology transfer laws, rules, regulations, and orders that apply to a Product or Deliverable, or (v) Client’s use of a superseded or altered release of a Product or Deliverable, if such claim would have been avoided by the use of a current release of a Product or Deliverable that Libra has made available to Client at no additional cost.
Article VIII – Disclaimer and Limitations
8.1 Disclaimer. Other than the Product Warranty set forth in Section 2.4 and the Performance Guarantee set forth in Section 3.4, Libra disclaims any and all warranties, conditions, or representations (express or implied, oral or written) based on, arising out of, related to, or otherwise in connection with the agreement, including, without limitation, any and all implied warranties or conditions of title, non-infringement of intellectual property, merchantability, quality, or fitness or suitability for a particular purpose (whether or not a party knows, has reason to know, has been advised, or is otherwise in fact aware of any such purpose), whether or not alleged to arise by statute or common law or other law, by reason of custom or usage in the trade, or by course of dealing, and whether express or implied or otherwise. In addition, Libra expressly disclaims any warranty or representation based on, arising out of, related to, or otherwise in connection with the agreement to any person other than the original Client party to the agreement.
8.2 Limitation of Damages. Notwithstanding any other provision of the agreement otherwise to the contrary, in no event shall Libra be liable to Client or any other party for any consequential, incidental, special, exemplary, punitive, or any other indirect damages (including, without limitation, lost income or profits or business interruption, loss of business chance or loss of goodwill, cost of removal, rework or reinstallation, ancillary costs to the procurement of substitute goods or services, retesting, or labor costs) of any kind based on, arising out of, relating to, or otherwise in connection with the agreement, whether arising in contract, tort, equity, strict liability, or other legal theory, and whether or not such party has been advised of the possibility of such damages.
8.3 Limitation of Liability. Other than for liability arising pursuant to breach of confidentiality obligations set forth in Article VI above or indemnification obligations set forth in Article VII above, in no event shall Libra’s cumulative liability with respect any dispute arising hereunder or otherwise relating to the subject matter of the agreement exceed the aggregate of amounts actually paid under the applicable SOW.
8.4 Misuse. Notwithstanding any other provision of the agreement otherwise to the contrary, in no event shall Libra be liable to Client or any other party for any damages or claims for any product which: (1) is involved in an accident or is subject to abuse, neglect, misuse, negligence, or mistreatment by any person or party other than Libra, including, without limitation, abnormal physical stress or environmental conditions, improper installation, testing, or storage, or usage contrary to instructions issued by the Product manufacturer; (2) was repaired, altered, or modified in any way by a person or party other than the Product manufacturer; (3) is used with any other product not previously approved in writing by Libra or the Product manufacturer; (4) relates to a specific design, specifications, or instructions provided by Client; (5) was not timely paid in full by Client; or (6) are samples or prototypes.
8.5 Industry Standards. Unless Libra has explicitly designated an individual Product as meeting the requirements of a particular industry standard (e.g., ISO) in a SOW, Libra is not responsible for any failure to meet such industry standard requirements.
8.6 Related Advice. Libra may provide Client with technical, application, or design advice (including reference designs), quality characterization, reliability data, or other services. Client agrees that providing these services does not expand or otherwise alter Libra’s warranties as set forth above and no additional obligations or liabilities arise from Libra providing such services or items.
Article IX – Term and Termination
9.1 MSA Term. The term of this MSA is indefinite. Particular SOW, however, may be terminated before their natural expiration or completion as otherwise provided in this Article IX.
9.2 Termination by Mutual Agreement. A SOW may be cancelled or terminated before its completion or natural expiration (or amended or modified) by mutual agreement of the Parties; provided that such action is evidenced by a written instrument signed by a duly authorized representative of each Party.
9.3 Termination for Convenience. Client may terminate a SOW without cause upon prior written notice to Libra of at least ten (10) days, and Libra may elect to terminate the SOW pursuant to Section 3.7 above; provided that in any such case all prepaid amounts under such SOW shall be non-refundable and, provided, further, Libra shall have no responsibility for furnishing or retrieving, or providing any coordination or other efforts in respect of any Products or Deliverables, whether complete or incomplete or works in progress.
9.4 Termination for Cause. In the event that a material breach or material default by a Party occurs with respect to a SOW, then the non-defaulting Party shall provide written notice setting forth the details of the breach or default in reasonable detail (including, but not necessarily limited to, a description of the breach or default, a statement of the facts relating to the breach or default, the provisions of the Agreement that are in breach or default, and the action proposed to cure the breach or default). If the defaulting Party does not diligently commence curing the breach or remediating the default within thirty (30) days of delivery of notice, then the non-defaulting Party may terminate the applicable SOW immediately effective upon subsequent written notice to the other Party.
9.5 Bankruptcy or Insolvency. At its option Libra may terminate any or all purchase orders and/or SOW by giving Client written notice of termination if: (i) a receiver, trustee, administrator, or administrative receiver is appointed for either Party or its property; (ii) a Party makes a general assignment for the benefit of creditors; (iii) any proceedings are commenced against a Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (iv) any proceeding, plan, or other action for the bankruptcy, insolvency, dissolution, or liquidation of a Party is filed, adopted, or commenced.
9.6 Survival. The defined terms and the rights and obligations set forth in this MSA shall survive any termination or expiration of a SOW.
Article X – Miscellaneous
10.1 Notices. Any notices required or authorized to be given pursuant to the Agreement must be in writing and shall be sent to the other Party at its address set forth in the SOW or to such other address as such Party may from time to time specify in writing, and shall be deemed given: (i) if delivered personally, then when actually delivered; (ii) if delivered by overnight courier, then upon delivery as evidenced by ordinary course records of the courier; (iii) if delivered by certified or registered postal mail, return receipt requested, then upon verification of delivery; or (iv) if delivered by facsimile or other electronic transmission, then upon acknowledgement of receipt.
10.2 Force Majeure. Libra shall not be liable for any delays or other nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire, flood, or other casualty, epidemic, pandemic, act of God, strike or labor dispute, war, insurrection, riot, or protest or disturbance, any law, order, or requirement of any governmental agency or authority, shortages of components or raw materials, or any act or omission of employees or agents of Client. In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of the Agreement by Libra and the project schedule and any milestone and due dates shall be adjusted and extended accordingly, and also subject to Section 3.7 above.
10.3 Relationship of Parties. The Parties are independent contractors and the Agreement shall not be construed to create or evidence a partnership, joint venture, or franchise relationship between them. Neither Party shall have the authority to bind the other Party by or to any representation, warranty, promise, obligation, or agreement.
10.4 No Third-Party Beneficiaries. Nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person any rights or remedies under or by reason of the Agreement other than the Parties and their permitted assigns. No third-party beneficiaries are expected or intended.
10.5 Assignment. Neither Party may assign or otherwise transfer (whether direct or indirect, or by merger, operation of law, change of control, or otherwise) the Agreement in whole or in part without the other Party’s prior written consent except in the case of the sale or other transfer of all or substantially all of the assets or voting equity interests of a Party so long as the assignee agrees in writing to be bound by the terms of the Agreement. Any assignment contrary to this provision shall be void and of no effect.
10.6 Waiver. No course of conduct shall constitute a waiver of any terms or conditions of the Agreement, unless such waiver is specified in writing by the waiving Party, and then only to the extent so specified. A waiver of any of the terms and conditions of the Agreement on one occasion shall not constitute a waiver of the other terms of the Agreement, or of such terms and conditions on any other occasion.
10.7 Interpretation. The language used in the Agreement shall be deemed to be the language chosen by the Parties to express their collective mutual intent, and no rule of strict construction shall be applied against either of them. Each defined term used in the Agreement has a comparable meaning when used in its plural or singular form. Article and section headings are inserted for convenience of reference only and shall not affect the meaning or interpretation of the Agreement. In the event of conflicting terms between this MSA and the applicable SOW, the terms of the SOW shall control.
10.8 Severability. If any provision of this MSA shall be declared by a court of competent jurisdiction to be illegal, void, or unenforceable, then all other provisions of the Agreement shall not be affected and shall remain in full force and effect.
10.9 Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of the Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas without giving effect to any choice of law or conflict of law rules or provisions (whether of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas.
10.10 Dispute Resolution.
(a) In General. The Parties must resolve any dispute, controversy, or claim arising out of or relating to the Agreement, or the termination or alleged breach or invalidity hereof (each, a “Dispute”), pursuant to the provisions in this Section 10.10; provided, however, that the commencement of the Dispute resolution process set forth in this Section 10.10 shall not prohibit a Party from simultaneously seeking an injunction or similar equitable relief in accordance with Section 10.14 below.
(b) Informal. The Parties involved in a Dispute must first attempt in good faith to resolve the Dispute by informal consultation and negotiation. Any Dispute which is not resolved through this process after a period of five (5) business days from an initial written notice of attempting to resolve such Dispute by negotiation and consultation from a Party (or such shorter period designated by a Party due to time constraints relevant to the specific Dispute), shall be resolved as described hereinbelow.
(c) In-Person. If the Dispute is not resolved pursuant to Section 10.10(b) hereinabove, then either Party may provide written notice to the other Party invoke additional Dispute resolution process and representatives of both Parties with decision making authority shall meet in-person (with counsel and other advisors, at their option) at Libra’s principal office or other location, if mutually agreed, within ten (10) business days after receipt of a written notice to discuss the areas of disagreement and to negotiate in good faith regarding possible solutions.
(d) Mediation. If the Dispute is not resolved pursuant to Section 10.10(c) hereinabove, then the Dispute shall be submitted to non-binding mediation. Libra shall select the mediator, and the Parties shall engage in the mediation process in good faith. The fees of the mediator shall be split evenly between the Parties.
(e) Arbitration. If the Dispute is not resolved pursuant to Section 10.10(d) hereinabove, then the Dispute shall be resolved by binding arbitration in accordance with JAMS Arbitration Rules and Procedures at a location within, unless otherwise agreed by the parties thereto, Travis County, Texas. The fees of the arbitrator shall be split evenly between the Parties.
(f) Litigation. No Party shall institute any litigation in a court of law with respect to a Dispute other than (i) pursuant to Section 10.14 below, (ii) another party to the Dispute refuses or fails to comply with the Dispute resolution process set forth hereinabove, or (iii) to enforce the binding decision of the arbitrator pursuant to Section 10.10(e) hereinabove.
(g) Costs and Fees. Irrespective of the outcome of a Dispute, each Party shall be responsible for its own costs and expenses, including attorneys’ fees, incurred in connection with the investigation, negotiation, prosecution, defense, mediation, arbitration, litigation, or appeal of such Dispute.
10.11 Consent to Jurisdiction. Each of the parties hereto hereby consents to the exclusive jurisdiction of the courts of the state of Texas, or the United States district courts located within Texas, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, for the purpose of any suit, action, or other proceeding arising out of, related to, or in connection with, the agreement. Each party hereby expressly waives any and all rights to bring any suit, action, or other proceeding in or before any court or tribunal other than the courts described hereinabove and covenants that it shall not seek in any manner to prosecute or defend any dispute other than as set forth in this Article X or to challenge or set aside any decision, award, or judgment obtained in accordance with the provisions hereof. Each party hereby expressly waives any and all objections it may have to venue, including, without limitation, the inconvenience of such forum, in any of such courts.
10.12 Waiver of Jury Trial. To the extent not prohibited by applicable law that cannot be waived, each party hereto hereby waives, and covenants that it will not assert (whether as plaintiff, defendant, or otherwise), any right to trial by jury in any forum in respect of any issue, claim, demand, action, or cause of action arising in whole or in part under, related to, based on, or in connection with the agreement or the subject matter hereof, whether now existing or hereafter arising and whether sounding in tort or contract or otherwise. Any party hereto may file an original counterpart or a copy of this section 10.12 with any court as written evidence of the consent of each such party to the waiver of its right to trial by jury.
10.13 No Class Actions. Each party irrevocably agrees that any dispute shall be conducted only on an individual basis and not in any class, consolidated, or representative action.
10.14 Injunctive Relief. Each Party acknowledges and agrees that any violation of the provisions of Article VI will cause damage to the other Party in a fashion or amount with may be irreparable and will be difficult to ascertain. Each Party therefore agrees that in the event that it breaches, threatens to breach, or fails or refuses to perform any of its obligations under Article VI, the other Party shall be entitled to, in addition to any remedies at law under this Agreement for damages or other equitable relief, specific performance of such covenant or agreement hereunder, including injunctive relief in any jurisdiction without the necessity of posting a bond.
10.15 Entire Agreement: Modifications. This MSA and the applicable SOW represent the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersedes any previous oral or written agreements or understandings regarding such subject matter. This MSA may be amended or modified only by a written instrument signed by a duly authorized representative of each Party. Conflicting terms on order forms subsequently transmitted by Client shall be disregarded unless signed by duly authorized representative of Libra.
10.16 Manner of Execution. This MSA shall be deemed agreed when a SOW is fully executed by both Parties. SOW may be executed in counterparts, each of which if so executed shall be deemed an original and both of which together shall constitute one and the same instrument. Scanned images of signatures transmitted electronically (or other evidence of consent transmitted electronically) shall have the force and effect of original signatures.
THE PARTIES HERETO AGREE TO THIS MASTER SERVICES AGREEMENT BY VIRTUE OF ENTERING INTO A STATEMENT OF WORK REFERENCING SAME.
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