Performance: BSA’s performance under the Agreement, which includes but is not limited to the preparation of written materials and other items done by BSA in accordance with the Agreement (“Client Materials”), is intended for Client’s use only. BSA has no accountability, obligation, or liability to any third party under the Agreement or otherwise. If Client Materials are provided to anyone other than Client, the Client shall make such party aware that BSA has no liability to them.
Indemnity: Client shall indemnify, defend, and hold harmless BSA, BSA’s affiliates, and each of its/their respective agents, successors, assigns, and any and all members, managers, officers, directors, shareholders, employees or representatives of any of the foregoing, harmless from and against any loss, claim, liability, judgment, cost or expense (inclusive of attorney and expert fees), including but not limited to any and all property damage, delay, business interruption, lost business transactions or opportunities, or lost profits to Client and/or to any one or more third parties and any and all personal injury to Client and/or to any one or more third parties, including death, in the event such loss, claim, liability, cost or expense to any extent whatsoever (even if any entity other than Client is contributory thereto) arises from or relates to any act or omission of Client, its employees or affiliates in connection with the Agreement. Client further agrees to indemnify, defend and hold harmless BSA from and against any and all claims, liabilities, damages, and expenses (including reasonable attorney’s fees and costs) arising out of or related to the Agreement but shall not include any claims arising out willful misconduct of BSA.
Damages: In no event shall BSA or any of its affiliates, representatives or any directors, officers, members, managers, or employees of any of the foregoing be liable to Client, whether based on delay, contract, tort, negligence, warranty, indemnity, strict liability, error or omission or otherwise, for any consequential, special, incidental, indirect, exemplary, multiple or punitive damages or damages arising from or in connection with loss of use or loss of revenue or profit, actual or anticipated or otherwise, and Client hereby releases BSA, and its respective affiliates, representatives, directors, officers, members and managers and employees from any such liability, and Client agrees to defend, indemnify and hold BSA harmless against such claims.
Limitation of Liability: In no event shall BSA be liable to Client, regardless of cause, for any amount in excess of the total amount paid by Client to BSA prior to the occurrence of the event giving rise to BSA’s liability.
Payment: Payment under the terms of this Agreement will be made in the time and manner specified in the Agreement, and in all events, not later than upon receipt of invoices submitted. In the event full payment is not made within thirty (30) days after the invoice date, Client shall pay a service charge on past due amounts from the times they are due at the rate of 1 ½% per month, or 18% per annum. In the event BSA incurs any costs or expenses to enforce the terms and provisions of this contract, or to collect any amounts due hereunder, Client shall pay all such costs and expenses, including reasonable attorneys’ fees at all tribunal levels.
Force Majeure: BSA shall not be responsible for any delays in shipments caused by force majeure, weather, natural disasters, delays created by suppliers, transportation services, or labor disputes, or due to any other circumstances beyond BSA’s control.
Choice of Law, Jurisdiction, and Venue: This Agreement shall be construed and interpreted in accordance with the laws of the State of North Carolina applicable to agreements made and to be performed in said state. Any and all claims, controversies, and causes of action arising out of or relating to this Agreement whether sounding in contract, tort, or statute, shall be governed by the substantive and procedural laws of the State of North Carolina, including its statutes of limitations, without giving effect to any conflict-of-laws rules that would result in the application of the laws of a different jurisdiction. Each of the parties hereto irrevocably (a) consents to the exclusive jurisdiction and venue of the state and federal courts in the State of North Carolina in connection with any matter based upon or arising out of this Agreement; (b) waives any objection to such jurisdiction or venue; and (c) agrees not to commence any legal proceedings related to any matter based upon or arising out of this Agreement except in such courts. In any judicial proceeding between the parties hereto regarding the terms or performance of this Agreement, the prevailing party shall be entitled to receive its costs and expenses incurred in connection with such proceeding, including reasonable attorneys’ fees.
Execution: This Agreement has been duly executed and delivered on behalf of Client by its duly authorized representative, and constitutes the legal, valid and binding obligations of Client, enforceable against Client in accordance with its terms. This Agreement supersedes and cancels all prior negotiations between the parties, and no changes shall be effective unless in writing signed by both parties. When this Agreements is signed by a duly authorized person of each party, all provisions contained therein become integral parts of this contract, and there is no other agreement or understanding of any nature concerning same unless such other agreement or understanding is in writing and is specifically incorporated into this Agreement by attachment hereto. This Agreement may be executed in counterparts, each of which shall be deemed an original and, together, shall constitute one and the same agreement. Scanned, emailed, “pdf”, and/or facsimile transmissions shall be treated as an original signature.
Severability: In the event that one or more clauses of this Agreement are finally adjudicated by a court of competent jurisdiction to be unenforceable, the Client and BSA agree that (i) the court may sever such clause or blue-pencil such clauses to comport with the spirit of this Agreement and (ii) the remainder of this Agreement shall remain in full force and effect and interpreted in a manner consisted with the original intention of the parties.