ARBITRATION

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Arbitrable Dispute
Arbitrable Dispute refers to any dispute arising out of or relating to the Agreement or any transaction or relationship resulting from it.
Arbitration Rules
(a) All arbitration proceedings are to be governed by the Arbitration Rules, namely the Commercial Arbitration Rules of the American Arbitration Association as in effect at the time of the demand for arbitration.
(b) For the avoidance of doubt, the Arbitration Rules are agreed to as a choice of rules and not of forum.
Arbitral Law
All arbitration proceedings are to be governed by the Arbitral Law, namely the (U.S.) Federal Arbitration Act.
Arbitral Tribunal
The arbitration is to be heard by the Arbitral Tribunal, namely, a single individual:
(1) having the qualifications (if any) specified in the Agreement and the Arbitration Rules, and
(2) selected in accordance with the Arbitration Rules or, failing that, as provided by law.
Arbitral Location
The arbitration hearing is to be conducted in the Arbitral Location, namely a location to be determined in accordance with the Arbitral Rules.
Arbitration Administrator
The arbitration is to be administered by the Arbitration Administrator, namely the American Arbitration Association. If that organization declines or is unable to serve and the parties do not agree on another administrator, then the Arbitral Tribunal is to administer the arbitration.
Arbitral Language
(a) The Arbitral Language is the English language as spoken in the United States of America.
(b) Except to the extent that the parties expressly agree otherwise, the Arbitral Language is to be used for:
(1) all notices in any arbitration proceedings under the Agreement;
(2) all written and oral communications in such proceedings; and
(3) any award.
Arbitration Requirement
Unless expressly provided otherwise in the Agreement, every Arbitrable Dispute is to be submitted to arbitration upon written demand by either party, regardless whether the dispute arises hereunder
Arbitration Streamlining
The parties desire that the Arbitral Tribunal take appropriate measures to actively manage the arbitration proceedings as a joint business project, with due notice to the parties, and with the goals of: (1) reducing the cost of building a record and an award; and (2) preserving the fundamental fairness of the proceedings.
Prohibited Arbitrator Actions
The Arbitral Tribunal has no power to take any action specified in the Agreement as a Prohibited Arbitrator Action without the express prior written consent of all parties against which the prohibited action would be taken.
Binding Effect; Enforcement of Award
Except to the extent that the Agreement expressly states otherwise, any award in an arbitration under the Agreement:
(1) will be binding; and
(2) may be enforced in any court or other forum having jurisdiction.
WAIVER OF JURY TRIAL
By agreeing to arbitration, each party knowingly, voluntarily, intentionally, permanently, and irrevocably waives the right to have its case heard in court, as well any right it might have to a jury trial, except to the limited extent (if any) that the agreement expressly states otherwise.
Survival of Arbitration Provisions
The provisions of the Agreement relating to arbitration are intended to survive any termination or expiration of (i) the Agreement or (ii) any one or more rights or obligations under the Agreement.
Preliminary Relief in Arbitration
Any party to an arbitration under the Agreement may seek temporary, interim, or preliminary injunctive relief, in accordance with applicable law, from one or both of (1) a court or other tribunal of competent jurisdiction; and (2) the Arbitral Tribunal; a party's seeking of such relief from other than the Arbitral Tribunal will not in itself waive that party's right to arbitrate.
Attorney Fees for Unsuccessful Challenge to Arbitration
(a) A party that unsuccessfully challenges the arbitrability of a dispute in court (for example, by opposing a motion to compel arbitration or by moving to enjoin arbitration) must reimburse the other party to the dispute for the other party's Dispute Expenses incurred in connection with the arbitrability challenge, in both trial- and appellate courts, in an amount to be determined by the Arbitral Tribunal, regardless of any other relief that might be granted to any party.
(b) A party that successfully seeks judicial confirmation or enforcement of an arbitration award under the Agreement, following a failure by another party to comply with the award, will be entitled to recover from the other party its Dispute Expenses, in both trial- and appellate courts, for all stages of the confirmation or enforcement proceedings, in addition to any other relief that may be granted to the seeking party.
Arbitration of Arbitrability
If the parties disagree about whether a particular dispute must be arbitrated; then that disagreement is itself to be arbitrated. this includes, without limitation, disagreements about, for example, one or more of the following:
(1) whether the parties have in fact entered into an agreement to arbitrate the primary dispute;
(2) whether the agreement to arbitrate is binding; enforceable; applies to a particular type of controversy; and/or conflicts with a non-waivable legal right; and
(3) whether any party has waived its right to require arbitration.
Small-Claims Exception to Arbitration Requirement
(a) Subject to subdivision (b): A party entitled to demand arbitration under the Agreement may bring a claim in a court, instead of arbitrating the claim, if the amount in controversy is no more than the Small-Claims Limit, defined as USD $10,000.
(b) The court in which a claim is brought under subdivision (a) must:
(1) have jurisdiction over the parties and the subject matter; and (2) not be precluded by a forum-selection provision of the Agreement.
(c) For the avoidance of doubt, this section does not in itself authorize class- or collective-action arbitration.
Class Arbitration Prohibition
(a) Unless the Agreement expressly states otherwise, a claimant must arbitrate a dispute only in its individual capacity; it may not do so as a plaintiff or representative class member in a purported class-action, collective-action, or representative proceeding, nor in a capacity of private attorney general.
(b) The absence of this provision in the Agreement is not to be implied as an agreement to class- or collective-action arbitration.
Limitation Period for Claims in Arbitration
The Arbitral Tribunal will have no power to render an award on a claim that is brought after the end of a limitation period that would apply if the claim were to be adjudicated in a court of competent jurisdiction instead of in arbitration.
Reasoned Award Upon Request
If so requested by either party, the Arbitral Tribunal is to issue its award in a written statement that sets forth the tribunal's reasons for the award, with enough detail to provide reasonable support for the award (in case of subsequent judicial review) without being excessively wordy.
Arbitrator as Mediator
(a) Unless either party seasonably objects in writing, a member of the Arbitral Tribunal — by request of either party or at his or her own initiative — may serve as mediator and convene one or more mediation sessions, in accordance with the American Arbitration Association's then-current commercial mediation procedures, to help the parties attempt to resolve the dispute.
(b) For the avoidance of doubt, this section does not obligate any member of the Arbitral Tribunal to serve as a mediator.
No Non-Party Arbitration Demand
No party other than a Signatory Party ("Non-Party") may demand arbitration under the arbitration provisions of the Agreement.
Conference-Call Interviews by Agreement
When so agreed by the parties, any party may conduct, record, and introduce into evidence a conference-call interview of an individual (a witness), without thereby limiting any right the party might have (if any) to take a later deposition of that witness.
Optional Swearing of Witness
A party conducting such a conference-call interview may arrange for the witness to be sworn; alternatively, the party may ask the witness simply to state that he or she will tell the truth, or the party may elect to remain silent on that point.
Witness's Options
(a) During a conference-call interview in accordance with this section 22.2.22, the witness may, in his or her sole discretion, on advice of counsel or otherwise:
(1) decline to be sworn or to state that he or she will tell the truth;
(2) decline to answer one or more questions; and
(3) terminate the conference-call interview.
(b) In determining how much weight to give to a witness's testimony in such a conference-call interview, a fact-finder may take into account (in addition to any other appropriate evidence) any circumstances of the case in the categories set forth in subdivisions (a)(1) through (a)(3).
Other Questioning Not Precluded
A party’s right, if any, to question a witness (on direct examination, cross-examination, re-direct, re-cross, etc.) in an informal interview or in a subsequent deposition, hearing, or trial is not waived, limited, nor expanded:
(1) by that party’s participation or non-participation in such a conference-call interview of that witness; nor
(2) by the witness’s refusal to participate in such a conference-call interview; nor
(3) by the witness’s refusal to answer any particular question during such a conference-call interview.
Interview by Video Conference
When so agreed by the parties and the witness, such a conference-call interview may be conducted by video conference, for example using laptop Web cameras and a service such as Skype, Zoom.us, GoToMeeting, etc.
Recording of Interview
(a) Any party that participates in such a conference-call interview may record it, electronically or by stenographic transcription, at that party's own expense.
(b) A party that records such a conference-call interview is to announce that fact while the witness and all parties are on the line.
Written Deposition-Question Procedure
(a) Any party conducting an oral deposition may provide the deponent, in advance, with written questions, especially but not exclusively concerning subjects expected not to be in dispute such as (for example) questions about work history, dates, participants in meetings, etc.
(b) Whether or not to respond in writing to any particular written question is within the sole discretion of the deponent, on advice of counsel or otherwise.
(c) The parties, each in its sole discretion, may agree on a procedure for accepting the deponent's written answers to particular questions, if any, in lieu of orally posing those questions to the witness.
(d) A deponents’ written answer to, or failure to answer, a particular written question will not in itself limit or expand the questioner’s right, if any, to ask the same question again orally at a deposition or at the arbitration hearing.
Arbitration Hearing Transcript
If so requested by either party, the Arbitral Tribunal is to arrange to have the parties provided with a transcript of any hearing, prepared by a suitably-qualified reporter.
Enhanced Judicial Review of Arbitration Award
(a) The powers of an arbitral tribunal do not include the power to render an award that:
(1) is based on errors of law or legal reasoning that would be grounds for reversal if made by a judge in a civil trial to the court (sometimes known as a "bench trial"); or
(2) is based on evidence that would not satisfy the requirements of law in such a trial; or
(3) grants relief prohibited by the Agreement or not available under applicable law.
(b) The parties expressly agree that if an arbitration award under the Agreement is based, in whole or in part, on one or more of the factors enumerated in subdivision (a); then Upon application of either party, the award is to be vacated, by a court of competent jurisdiction, on grounds that the arbitral tribunal thereby exceeded its agreed powers.

ATTORNEY FEE

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Dispute Expense refers to one or more of the following when incurred (for example) in a trial or arbitration hearing; an appeal at any level; or other contested proceeding in the action:
(1) reasonable fees billed by (or by one or more firms for the services of) attorneys; law clerks, paralegals, and other persons not admitted to the bar but performing services under the supervision of an attorney; and expert witnesses;
(2) reasonable expenses actually incurred by individuals and/or firms referred to in sub-division (1) in connection with the proceeding, such as (for example) printing, photocopying, duplicating, and shipping;
(3) the costs of the litigation, arbitration, or other proceeding, such as for example costs of court; administration fees charged by an arbitration provider; and arbitrator fees and expenses; and
(4) costs, fees, and other expenses incurred in enforcing a right to recover Dispute Expenses.
Attorney Fees to Prevailing Party
(a) In any litigation, arbitration, or other action arising out of or relating to the Agreement or any transaction or relationship resulting from it, the Recovering Party, namely the prevailing party (if any), will be entitled to recover its Dispute Expenses from the other party, in addition to any other relief that may be granted.
(b) All provisions of the Agreement relating to the recovery of attorney fees and other Dispute Expenses will survive each of the following:
(1) any termination, expiration, or other coming to an end of the Agreement; and
(2) the entry of a judgment, arbitration award, or other decision in a contested proceeding — for the avoidance of doubt, this Attorney Fees to
No Non-Participating Party will be entitled to recover its Dispute Expenses, and each party knowingly, voluntarily, intentionally, permanently, and irrevocably waives any claim to such recovery to the extent that the waiving party is such a Non-Participating Party, even if the Non-Participating Party:
(1) would otherwise have been entitled to such a recovery, whether under the Agreement or under applicable law; and/or
(2) prevails in the dispute in question or in the challenge against validity or enforceability of the Dispute-Resolution Provision in question.

AUIDTS

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Auditable Records refers to records sufficient to document each of the following, as applicable,
(1) labor performed and billed under the Agreement;
(2) materials billed under the Agreement;
(3) other items billed under the Agreement;
(4) compliance with specific requirements of the Agreement; and
(5) any other matters as to which, under the Agreement, the Auditing Party has the right to audit records.
Auditing Party refers to a specified party that has the right to cause Auditable Records to be audited under the Agreement.
Permissible Auditors refers to:
(1) any Big Four accounting firm; and
(2) any other auditor proposed by the Auditing Party by written notice and reasonably acceptable to the Recordkeeping Party.
Recordkeeping Party refers to any party that, under the Agreement, is required to keep records that come within the definition of Auditable Records.
Right to Conduct Audits The Auditing Party may cause one or more audits of Auditable Records to be conducted, in accordance with the audit provisions of the Agreement, by one or more Permissible Auditors.
Audit Access
(a) The Recordkeeping Party will provide the auditor(s) with access to the Auditable Records to the extent reasonably necessary for the audit, in the form, electronic or otherwise, in which the Recordkeeping Party keeps those records in the ordinary course of the Recordkeeping Party's business.
(b) The Recordkeeping Party will make its relevant personnel reasonably available to the auditor(s), and direct them to answer reasonable questions from the auditor(s), except as otherwise provided in the Agreement.
Post-Audit Adjustments
An audit reveals the apparent existence of a billing- or payment discrepancy such as (for example) over- or underbilling or over- or underpayment; The party benefiting from that discrepancy is to promptly take such action as may be necessary to remedy ("true-up") the discrepancy, including, for example, refunding an overpayment or paying a shortfall, as the case may be.
A party due to an error that it made or for which it is otherwise responsible must pay a shortfall or refund an overpayment , that party must also pay interest on the shortfall or refund at 1.5% simple interest per month or the maximum rate permitted by law, whichever is less.
Reimbursement of Audit Expenses
The Recordkeeping Party is to reimburse the Auditing Party for reasonable expenses actually incurred — for example, reasonable auditors' fees and expenses — if an audit reveals the existence of any of the following, if the Recordkeeping Party is responsible for it under the Agreement:
(1) a discrepancy in billing or payment, for the period being audited, that:
(A) is equal to or greater than 5%; and
(B) was caused by an error made by, or imputable to, the Recordkeeping Party; and
(C) favors the Recordkeeping Party; and/or
(2) an uncured material breach of the Agreement, and/or
(3) fraud.
Audit Time and Place
Unless otherwise agreed, each audit is to be conducted:
(1) at the location or locations where the Auditable Records are kept in the ordinary course of business, during the regular working hours, at that location, of the party having custody of the records; or
(2) at the Recordkeeping Party's option, at one or more other reasonable times and places designated in advance by the Recordkeeping Party in consultation with the Auditing Party.
Exclusion of Certain Information
Unless the Agreement expressly states otherwise, the Auditing Party's right to audit Auditable Records does not extend to any of the following:
(1) information that, under applicable law, would be immune from discovery in litigation, for example on grounds of attorney-client privilege, work-product immunity, or any other privilege;
(2) trade secrets and other confidential information relating to formulae and/or processes; and
(3) clearly-unrelated or -irrelevant information.
Audit Notice
The Auditing Party must give the Recordkeeping Party at least ten business days' advance written notice of any proposed audit except for good reason.
Audit Frequency
The Auditing Party may conduct audits no more than once per 12-month period and once per period audited except for good reason.
Audit Confidentiality Obligation
(a) Absent consent of the Recordkeeping Party, the Auditing Party:
(1) may not use any nonpublic information that is learned or derived in the course of any such audit, except to the extent necessary to protect the Auditing Party's rights and/or for the Auditing Party's performance of its obligations under the Agreement;
(2) may not disclose any such information to third parties except in response to compulsory legal process, after first:
(A) advising the Recordkeeping Party of such process (where not prohibited by law); and
(B) providing reasonable cooperation in any efforts by the Recordkeeping Party to preserve the confidentiality of such information.
(b) The Auditing Party must enter into binding written agreements with its auditors requiring them to comply with the audit-confidentiality requirements of the Agreement.
Auditor Work Space
An audit is to be conducted at one or more sites controlled by the Recordkeeping Party; The Recordkeeping Party is to cause the audit site(s) to be furnished with appropriate facilities of the type customarily used by knowledge-based professionals, including, for example, furniture, lighting, air conditioning, electrical outlets, and Internet access.
Right to Receive Copy of Audit Report
The Recordkeeping Party is entitled to receive, from the auditor(s), upon request, at the Auditing Party's expense, a copy of any audit report produced.
Remedies for Audit Discrepancies
In respect of any invoicing- or payment discrepancy revealed by an audit, the Recordkeeping Party complies with the obligations within 30 days after receiving notice of the discrepancy and a copy of the audit report; The Recordkeeping Party will have no further obligation or liability for that discrepancy or the actions or omissions that caused it.
Auditor Retention of Record Copies
The auditor(s) may make and keep copies of the records that it audits, so long as the auditor(s):
(1) comply with the audit-confidentiality requirements of the Agreement; and
(2) return or destroy the copies, in accordance with the auditor's regular, commercially-reasonable policies and processes, within a reasonable time after the end of the last period for which Auditable Records are required to be maintained under the Agreement or by law.

BACKGROUND CHECKS

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Background-Check Definitions
Applicable Background Checks :- refers to the specific background check(s) are to be performed under the Agreement.
Checked Individuals :- refers to the individual or individuals whose backgrounds are to be checked under the Agreement.
Checking Party :- refers to a party that is required to perform background checks under the Agreement.
Credit Check :- refers to standard credit reporting from all major credit bureaus serving the jurisdiction in question.
Criminal History :- refers to the Checked Individual's having been convicted of, or having pled guilty or no contest to, one or more of (A) a felony; and/or (B) a misdemeanour involving fraud or moral turpitude.
Criminal-History Check :- refers to a nationwide check of records of arrests, convictions, incarcerations, and sex-offender status. A Criminal-History Check is not required to include fingerprint submission to confirm identity.
Critical Activity :- refers to any activity involving a substantial possibility of (i) bodily injury to or death of one or more individuals, including but not limited to a Checked Individual; and/or (ii) loss of, or damage to, tangible or intangible property of any kind; such loss or damage might be physical and/or economic.
Driving-Record Check :- refers to a check of records of accidents; driver's-license status; driver's-license suspensions or revocations; traffic violations; criminal charges (e.g., DUI).
Drug Misuse :- as to a Checked Individual, refers to evidence of use, by the Checked Individual, of one or more of: (1) illegal drugs; and/or (2) prescription drugs other than in accordance with a lawfully-issued prescription.
Drug Testing :- refers to testing for illegal drugs and controlled pharmaceuticals.
Education Verification :- refers to confirmation of dates of attendance, fields of study, and degrees earned.
Employment Verification :- refers to confirmation of start- and stop dates and titles of employment for the past seven years.
Lien, Civil-Judgment, and Bankruptcy Check :- refers to a check of records of tax- and other liens; civil judgments; and bankruptcy filings.
Personal Reference Check :- refers to telephone- or in-person interviews with at least three personal references, seeking information about the individual's ethics; work ethic; reliability; ability to work with others (including, for example and where relevant, peers, subordinates, superiors, customers, and suppliers); strengths; areas with room for improvement; personality.
Requesting Party :- refers to a party that requested to perform background checks under the Agreement.
Residence Address Verification :-refers to confirmation of dates of residence addresses for the past seven years.
Restricted Activity :- refers to any one or more of the following, when engaged in, in connection with the Agreement, by an employee of, or other individual under the control of, a Checking Party:
(1) working on-site at any premises of a Requesting Party;
(2) having access (including for example remote access) to the Requesting Party's equipment or computer network;
(3) having access to the Requesting Party's confidential information;
(4) interacting with the Requesting Party's employees, suppliers, or customers; and
(5) any Critical Activity.
Background Check Requirement
The Checking Party is to cause all Applicable Background Checks to be conducted on all Checked Individuals, as follows:
(a) Any Applicable Background Check by the Checking Party itself is to be performed in a commercially-reasonable manner.
(b) Each other Applicable Background Check is to be performed by a reputable service provider.
Compliance with Law Requirement
The Checking Party is to take prudent measures to cause each background check to be conducted in accordance with law, including, for example:
(1) any applicable privacy laws, including for example any requirement to obtain the consent of the relevant Checked Individual; and
(2) any applicable requirement (for example, in credit-reporting laws) that the relevant Checked Individual must be notified before or after a decision is made using information learned in the background check.
Criminal-History Consequences
(a) If a Checked Individual's background check reveals any Criminal History; the Checking Party is not to assign, nor permit, that individual to engage in any Restricted Activity without first consulting with the Requesting Party.
(b) If a Checked Individual's background check indicates any Drug Misuse; the Checking Party must not assign nor permit that individual:
(1) to engage in any any Critical Activity without the express prior written consent of the Requesting Party; nor
(2) to engage in any other Restricted Activity without first consulting with the Requesting Party.
Independent Reference Contacts
As a safeguard against falsified references, all reference checks (if any) other than personal character references are to be completed using contact information obtained other than from the Checked Individual.
Checking Party Indemnity Obligation
The Checking Party must defend and indemnify the Requesting Party against any and all third-party claims — including but not limited to any claim by a Checked Individual and any claim by a government authority — arising from any allegation of breach of governing law in the performance of background checks under the Agreement by or at the direction of the Checking Party.

Billing for Services

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Billing Requirements
Billing for Services is to be:
(1) as specified in the Statement of Work (if applicable);
(2) accompanied by supporting detail sufficient to document the invoiced charges; and
(3) in accordance with Payment Terms.
Option to Suspend Work for Nonpayment
IF: Customer does not pay Provider an amount due under the Agreement within seven days following the original payment due date (the Nonpayment Grace Period; AND: The nonpayment is not due to fault attributable to Provider; THEN:
(1) Provider may suspend its performance of the relevant Services at any time beginning at the end of seven days following notice of suspension (the Required Suspension Notice Period), without prejudice to Provider's other remedies for the nonpayment; and
(2) The price of the relevant Services is to be appropriately adjusted for account for Provider's reasonable costs, including for example those (if any) associated with:
(A) any resulting delay; and
(B) redeployment of personnel- and material resources in connection with (i) the suspension of work and (ii) any resumption of work.
Requirement of Timely Payment as Condition of Customer's Rights
Customer's timely payment of any amounts required by the applicable Statement(s) of Work in respect of a particular Deliverable is a prerequisite to Customer's continued exercise of its rights in that Deliverable.
Prohibition of Work Suspension for Payment Disputes
In no event may Provider suspend or terminate performance of the Services because of a payment dispute.

Changes to Orders for Goods or Services

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Provider is not to implement any change requested by any Customer representative until the change request is confirmed in writing by an authorized representative of Customer. If any such change causes an increase or decrease in the cost of, or time required for, performance of any part of work under this purchase order/contract, regardless of whether changed by a written order, Buyer shall make an equitable adjustment in purchase order/contract price, delivery schedule, or both, and shall modify purchase order/contract accordingly in writing. Buyer Changes. Buyer may at any time make changes within the scope of this Order Supplier shall not proceed to implement any change until such change is provided in writing by Buyer. If any changes cause an increase or decrease in the cost or schedule of any work under this Order, an equitable adjustment shall be made in writing to the Order price and/or delivery schedule as applicable. Any Supplier claim for such adjustment shall be deemed waived unless asserted within thirty (30) days from Supplier’s receipt of the change or suspension notification and may only include reasonable, direct costs that shall necessarily be incurred as a direct result of the change. Supplier Changes.
Supplier shall notify Buyer in writing in advance of any and all: (a) changes to the goods and/or services, their specifications and/or composition; (b) process changes; (c) plant and/or equipment/tooling changes or moves; (d) transfer of any work hereunder to another site; and/or (e) sub-supplier changes, and no such change shall occur until Buyer has approved such change in writing. Supplier shall be responsible for obtaining, completing and submitting proper documentation regarding any and all changes, including complying with any written change procedures issued by Buyer.

Changes to Orders for Goods Upon Customer Request

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For any order for goods under the Agreement, Customer may at any time, by written request, make changes to any one or more of the following, so long as all changes are within the general scope of the order:
1. quantity;
2. specifications;
3. drawings or designs;
4. packaging;
5. method of shipment;
6. place of delivery;
7. time of delivery;
8. grade or quality;

Compliance Requirement

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Compliance Obligation
(a) In performing its obligations and exercising its rights under the Agreement, each party (each, an Obligated Party) must comply with each of the following to the extent relevant to (i) that party's obligations, and/or (ii) the other party's rights, under the Agreement:
(1) all requirements of law that apply generally to the Obligated Party (for example, corporation law, employment law, and the like);
(2) all requirements of law that apply generally to the type of business engaged in by the Obligated Party (for example, professional-licensing requirements), if any; and
(3) any other particular laws expressly specified in the Agreement.
(b) For the avoidance of doubt, the Obligated Party is not responsible for complying with requirements of law that are specific to any other party or its business, but not to the Obligated Party or its business, unless expressly agreed otherwise in writing.
Noncompliance Indemnity Obligation
Each Obligated Party must defend and indemnify each other party against any third-party claim arising out of that Obligated Party's failure to comply with the compliance-with-law provisions of the Agreement.
Specified Noncompliance as Material Breach
(a) Any failure, by an Obligated Party, to comply with one or more particular laws for compliance expressly stated in the Agreement (if any) is to be considered a material breach of the Agreement by that party.
(b) For the avoidance of doubt: This section does not rule out the possibility that one or more failures by an Obligated Party to comply with other laws could also constitute a material breach of the Agreement by that party.

Confidential Information

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Confidential Information
Except to the extent (if any) that the Agreement specifically provides otherwise, the term Confidential Information encompasses, and not of limitation, the following types of information when the information is otherwise eligible under the Agreement: Algorithms. Audit reports. Biological materials. Business plans. Business records. Circuit records. Commercial information. Compounds. Computer programs. Contracts. Construction records. Data-center designs. Designs. Diagrams. Documents. Draft publications. Drawings. Engineering records. Financial information. Financial projections. Financial statements. Forecasts. Formulas. Hardware items. Ideas. Interpretations. Invention disclosures. Leases. Machine-readable data. Maps. Market projections. Marketing information. Methods. Offers. Operational data. Opinions. Patent applications (when unpublished). Plans. Pricing information. Procedures. Processes. Product development plans. Product information programs. Projections. Proposals. Research data. Research plans. Samples. Server-configuration designs. Source code for computer programs. Specifications. Strategies. Tax bills. Technical information. Technical reports. Technological developments. Test data. Title reports.
Confidentiality of Third-Party Information Information owned or maintained by a third party, when otherwise eligible, is considered Confidential Information to the same extent as if the information were that of the Disclosing Party, if the third-party information is disclosed or made accessible to the Receiving Party, by or on behalf of the Disclosing Party, pursuant to the Agreement.
Exclusions from Confidential Information
At any particular time, the term Confidential Information does not include information that is shown — with reasonable corroboration — to be or to have been, at that time, within one or more of the following categories:
(1) The Receiving Party knew the information before obtaining access to it under the Agreement; or
(2) Both of the following are true:
(A) A third party provided the information to the Receiving Party, and
(B) at the time that happened, the third party was not under a legally-enforceable confidentiality obligation that (i) contained specific obligations that are contained in the Agreement; and (ii) benefited the Disclosing Party (a Comparable Confidentiality Obligation);
(3) The Receiving Party independently developed the information without using Confidential Information; or
(4) The information was published, or otherwise made generally available to one or more others not under a legally-enforceable obligation of confidence benefiting the Disclosing Party, without breach of the Agreement by the Receiving Party; or
(5) Both of the following are true:
(A) The Disclosing Party (or someone authorized by the Disclosing Party) disclosed the information to one or more third parties, and
(B) at that time (or at any time afterwards), at least one of the third parties was not under a Comparable Confidentiality Obligation.
Disclaimer of Unstated Warranties and Licenses
For the avoidance of doubt, EXCEPT to the extent (if any) that the Agreement or another written agreement between the parties expressly states otherwise:
(1) The Agreement does not grant to the Receiving Party, nor to any other individual or organization, any license right or ownership right of any kind, in Confidential Information, nor in other any intellectual property of the Disclosing Party; and
(2) The Disclosing Party DISCLAIMS all warranties, representations, conditions, and terms of quality, express or implied, about Confidential Information, including for example all warranties of completeness or accuracy; all Confidential Information is provided or otherwise made available AS IS, WITH ALL FAULTS.
(c) THE DISCLOSING PARTY WILL NOT BE LIABLE for any use of Confidential Information made by the Receiving Party EXCEPT to the extent (if any) expressly stated otherwise in the Agreement, for example:
(1) in a warranty clause concerning the Confidential Information, if applicable; and/or
(2) in a relevant indemnity obligation concerning the Confidential Information, if applicable.
Marking Requirement for Confidential Information
(a) Information that is made available to the Receiving Party in connection with the Agreement, by or on behalf of the Disclosing Party, will not be considered Confidential Information unless the information is marked as provided in the Agreement.
(b) Except as otherwise stated below, for information to be considered Confidential Information, the information must:
(1) be set forth (or summarized) in tangible form (including for example an electronic storage device); and
(2) be marked with a reasonably-prominent, visually-readable notice such as "Confidential information" or "Subject to NDA."
Secrecy Precautions Obligation
At all times during the Confidentiality-Obligation Period, the Receiving Party must cause the following precautions to be taken to safeguard Confidential Information in its possession, custody, or control:
(1) at least the same precautions as the Receiving Party takes for its own information of comparable significance;
(2) in no case less than those precautions that a prudent person would take in the same circumstances; and
(3) any other particular secrecy precautions stated in the Agreement.
Limitation on Receiving Party Use, Etc.
At all times during the Confidentiality-Obligation Period, the Receiving Party must not disclose, use, or copy Confidential Information, in whole or in part, except as expressly provided in the Agreement.
Obligation to Comply with Law
The Receiving Party is to take prudent measures to ensure that any use, disclosure, or copying of Confidential Information, by or on behalf of the Receiving Party or any party receiving Confidential Information from the Receiving Party complies with applicable law, including for example any applicable law concerning (i) privacy or (ii) export controls.
Duration of Confidentiality Obligation
The obligations apply only during the Confidentiality-Obligation Period; during that time, though, those obligations will continue to apply to Confidential Information, even after any termination or expiration of the Agreement.
Survival of Other Rights and Obligations
For the avoidance of doubt, any termination or expiration of the Confidentiality-Obligation Period:
(1) will not waive or otherwise affect the Disclosing Party's ability to enforce its other intellectual-property rights (for example, copyrights and patents) against the Receiving Party except to the extent, if any, that the parties expressly agree otherwise in writing; and
(2) will not affect any obligation of confidentiality imposed by law.
Disclaimer of Implied Fiduciary Obligations
For the avoidance of doubt, the Receiving Party's undertaking of the obligations of the Agreement concerning Confidential Information is not intended and should not be interpreted as in itself establishing a fiduciary relationship between the parties.
Return or Destruction Obligation
(a) A Specimen of Confidential Information is any copy of, and any physical object embodying, Confidential Information — for example, any paper- or electronic copy and any specimen of hardware — where the copy or physical object is in the possession, custody, or control of: (i) the Receiving Party, and/or (ii) any individual or organization to which the Receiving Party made Confidential Information accessible.
(b) IF: The Disclosing Party makes a seasonable written request following any termination or expiration of the Agreement; THEN: except as provided and (if applicable) the Receiving Party will promptly:
(1) return Confidential Information to (i) the Disclosing Party, or (ii) another individual or organization designated in writing by the Disclosing Party; and
(2) destroy any Specimens not returned.
Requirement to Obtain Advance Consent to Destruction
When returning or destroying The Receiving Party may not destroy any Confidential Information without the prior written consent of the Disclosing Party.
Authorized Uses
Solely during the Authorized Use Period, the Receiving Party may use Confidential Information to the extent reasonably necessary for one or more of the following:
(1) performing the Receiving Party's obligations under the Agreement;
(2) exercising the Receiving Party's rights under the Agreement;
(3) assessing whether to enter into another agreement with the Disclosing Party; and
(4) any other particular authorized uses expressly agreed to in writing by the parties — it is immaterial if one or more of such other authorized uses, if any, falls within any of subdivisions (1) through (3) above.
Preauthorized Disclosures
(a) Solely during the Authorized-Use Period, the Receiving Party may disclose Confidential Information — on a strict need-to-know basis in connection with the Receiving Party's use of Confidential Information permitted by the Agreement — to one or more of the following, if any:
(1) the Receiving Party's officers, directors, and employees, and individuals having comparable status if the Receiving Party is a non-corporate type of organization (for example, managers of a limited liability company and general partners of a general- or limited partnership); and
(2) any other authorized recipients expressly agreed to in writing by the parties, if any. (It is immaterial if one or more such other authorized recipients comes within the scope of sub¬div¬i¬sion (1) above.)
(b) Each individual to whom Confidential Information is disclosed by, or with the authorization of, the Receiving Party must be legally bound to comply with the provisions of the Agreement protecting Confidential Information, either:
(1) by a written agreement containing confidentiality obligations, comparable to those of the Agreement, that apply to Confidential Information; or
(2) as a matter of law, for example where (A) the recipient is an employee of the the Receiving Party and (B) under applicable law an employee is bound to preserve in confidence the confidential information of the employer.
Disclosure Under Subpoena, Etc.
(a) Compulsory Legal Demand refers to a demand for information such as (for example) a subpoena; a search warrant; a civil investigative demand; or a discovery request in a lawsuit; if in each such case, both of the following are true:
(1) the demand for information is initiated or propounded by a third party such as (for example) a litigant or a governmental entity; and
(2) the Receiving Party's compliance with the demand for information may be compelled under penalty of law.
(b) The Receiving Party may disclose Confidential Information in response to a Compulsory Legal Demand, as follows:
(1) The Receiving Party must seasonably advise the Disclosing Party of the Compulsory Legal Demand (to the extent that doing so is not prohibited by law).
(2) The Receiving Party must disclose only so much Confidential Information as is required to comply with the Compulsory Legal Demand.
(3) If so requested by the Disclosing Party, the Receiving Party must provide reasonable cooperation with any efforts by the Disclosing Party to limit the disclosure, and/or to obtain legal protection for the information to be disclosed, in response to the Compulsory Legal Demand.
(4) Upon request by the Receiving Party, accompanied by (and/or supplemented with) reasonable supporting documentation, the Disclosing Party will reimburse the Receiving Party for all reasonable expenses incurred in providing the cooperation referred to in sub¬div¬i¬sion (1), including for example reasonable attorney fees.
(c) For the avoidance of doubt, this sec¬tion does not authorize any disclosure Confidential Information that does not qualify as a Compulsory Legal Demand (for example, a discretionary filing under the securities laws).
Other Legally-Authorized Disclosures
(a) The confidentiality provisions of the Agreement are not to be interpreted:
(1) as precluding the Receiving Party from disclosing Confidential Information — in confidence and to the minimum extent required by law — as part of any of the following:
(A) reporting possible violations of law or regulation to any governmental agency or entity having jurisdiction, including but not limited to the United States Department of Justice, Securities and Exchange Commission, Congress, and any agency inspector general, as well as any other federal, state or local government official; nor
(B) disclosure to an attorney solely for the purpose of reporting or investigating a suspected violation of law;
(C) disclosure in a complaint or other document filed in a lawsuit or other proceeding, if the filing is made under seal;
(D) disclosure to an attorney representing the Receiving Party for use in the court proceedings of a lawsuit alleging that the Disclosing Party retaliated against the Receiving Party for reporting a suspected violation of law, as long as any document containing the Confidential Information is filed in court only under seal and the Receiving Party does not otherwise disclose the Confidential Information except under a court order;
(E) making other disclosures by the Receiving Party that are positively authorized by law or regulation, for example the [U.S.] National Labor Relations Act or other labor- or employment law; nor
(2) as requiring the Receiving Party to obtain the prior consent of the Disclosing Party to make such reports or disclosures; nor
(3) as requiring the Receiving Party to notify the Disclosing Party that it has made such reports or disclosures.
(b) In the interest of promoting the prompt identification and correction of possible violations of law or regulation, the Receiving Party is strongly urged to promptly advise the Disclosing Party of any facts, material to the Disclosing Party or to the relationship between the Disclosing Party and the Receiving Party, that would be contained in any report or disclosure referred to in sub¬div¬i¬sion (a)(1).
Authorization for Certain Copying
(a) During the Authorized-Use Period, but not afterwards, the Receiving Party may make copies and excerpts of Confidential Information, solely to the extent reasonably necessary for use or disclosure permitted by the Agreement.
(b) The Receiving Party must ensure that any such copy or excerpt is marked, with reasonable prominence, as the Confidential Information of the Disclosing Party.
(c) For the avoidance of doubt, the confidentiality obligations of the Agreement apply to all such copies or excerpts.

Deceptive-Practices Prohibition

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Each Obligated Party (namely, each party) is to:
(1) refrain from knowingly engaging in any deceptive practice in connection with its activities relating to the Agreement; and
(2) defend and indemnify the other party against any third-party claim arising out of any breach of sub¬div¬i¬sion (a) by the Obligated Party.

Defect Correction Procedure

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Definitions: Provider; Customer; Defect
(a) Provider refers to a Signatory Party that, under the Agreement, is to provide goods or services to another party.
(b) Customer refers to a party to which Provider provides goods or services under the Agreement.
(c) Defect refers to any failure, by one or more deliverables or one or more services provided under the Agreement, to comply with agreed written specifications (for example, in the Agreement or in a purchase order or statement of work).
Timely Defect Reporting
Provider's obligations in this sec¬tion 18.6 apply to Defects that Customer reports in writing wtihin 60 days after delivery of the relevant deliverable or completion of the relevant service, as applicable (the Defect-Reporting
Correction or Workaround
For any Defect reported in accordance with sec¬tion 18.6.2, Provider — at its own expense — will do one or both of the following before 30 days after Customer's report of the Defect to Provider under sub¬div¬i¬sion (a) (the Defect-Correction Deadline):
(1) correct the Defect, which may include repairing or replacing a defective deliverable and/or re-performing defective services; and/or
(2) deliver a commercially-reasonable workaround for the Defect if Provider reasonably determines the actions in sub¬div¬i¬sion (1) to be impractical.
Backup Remedy: Refund of Defect-Related Payments
IF: Provider does not timely take the action or actions required by this sec¬tion 18.6 in respect of any Defect; THEN: Unless the Agreement expressly states otherwise, at Customer's written request, Provider will promptly:
(1) cause a refund to be made of all amounts paid, by or on behalf of Customer, for the relevant deliverable(s) or service(s); and
(2) cancel any unpaid invoice calling for payment, by or on behalf of Customer, for those deliverable(s) and service(s).
EXCLUSIVE REMEDIES for Defects
Provider's defect-correction obligations stated in sec¬tion 18.6 are Provider's only obligations, and the EXCLUSIVE REMEDIES available to Customer (or any individual or organization claiming through Customer), for any defect in goods or other deliverables or in services.

Disparagement Prohibition

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(a) Obligated Party refers to each party.
(b) No Obligated Party is to disparage any other Signatory Party, nor the products or services of that other Signatory Party, to third parties.
(c) For the avoidance of doubt, another Signatory Party's affiliates and the officers, employees, distributors, resellers, and agents of each of them are not considered third parties for purposes of this provision.

Dispute Escalation

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(a) Whenever requested in writing by either party, the parties will jointly refer any Dispute to the Management for resolution(‘Representative’).
(b) Upon a request for dispute escalation, each party will promptly cause its Representative:
(1) to meet with the other party's Representative at least once by telephone, or if so agreed by the Representatives, by video conference or in person; and
(2) at each such meeting or meetings, to attempt in good faith to settle the Dispute.
(c) A reasonable time in advance of each meeting, each party is to provide the other party with a reasonably-detailed written statement of the providing party's then-current position in the dispute. (A written statement is not required to conform to any particular requirements of format or content.)
(c) All meeting arrangements are to be coordinated by the party making the request for escalation.
(d) Each party will be responsible for its own expenses of all Representatives' meetings.
A party desiring to bring legal action against another party before any tribunal in respect of the Dispute must first escalate the dispute accordance with this clause EXCEPT to the minimum extent, if any, necessary:
(1) to prevent irreparable harm, or
(2) to avoid a bar under an applicable statute of limitations or repose.
All oral, written, and other communications under this clause are to be treated as made in compromise negotiations; neither party will attempt to offer any such communication into evidence, either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction.

Expense Reimbursement
Extensions
Force Majeure
Fraud Proof
Good Faith Commitment
Guaranty
Implied Warranty Disclaimer
Indemnity Procedures
Injunctive Relief
Intellectual Property Ownership
Interest
Letter of Intent
Limitations of Liability
Liquidated Damages
Materiality of Warranties
Mitigation of Damages
Mitigation of Damages WAIVER
Non-Payment Not Infringement
Open-Source Materials
Ownership of Services-Produced IP
Payments
Permits and Licenses Responsibilities
Policy Statements
Primary-Contact Designation
Publicity Approval Requirement
Recordkeeping Requirement
Requirements Upon Termination of Statement of Work
Risk Management & Allocation
Safety Requirements
Savings
Services Performance Obligation
Site Visits & Network Access
Solicitation Restriction
Statements of Work
Subcontracting
Survival
Taxes
Termination
Third-Party Immunity
Unilateral Amendments
Waivers in Writing
Warranty Claims Deadline
Warranty Survival