App Terms and Conditions
Master Services Agreement
This Master Services Agreement (“Agreement”) was last updated August 14, 2024 and is made and entered into by and between Howdy (as defined below) and the applicable counterparty accepting this Agreement or entering into an SOW or other ordering document that references this Agreement, as applicable (“Client”). Client must agree to this Agreement before Client can use Howdy's application, and Client's use of Howdy's application will indicate Client's acceptance of this Agreement. If Client received a login with access to Howdy's application or otherwise accessed Howdy's application on behalf of a company or other organization, Client is accepting this Agreement on behalf of itself and the company or other organization for which Howdy authorized Client's access to Howdy's application and any reference to “Client” in this Agreement shall be deemed a reference to such company or other organization.
RECITALS
WHEREAS, Howdy.com, Inc., a Delaware C-corporation (“Howdy”) is in the business of staffing technology, financial, marketing, and administrative professionals (“Howdy Professional(s)”) for its clients.
WHEREAS, Client (together with Howdy, the “Parties”) desires to engage Howdy to staff Howdy Professionals for Client.
AGREEMENT
NOW THEN, for and in consideration of the mutual promises and covenants herein contained, the Parties agree as follows:
SERVICES
SOWs; Conflicts. Howdy has a staff of Howdy Professionals that will provide consultation services for Client (the “Services”) as described in any applicable statement of work (“SOW”) entered into between Howdy and Client. Any conflict or inconsistency between the provisions of this Agreement and any executed SOW shall be resolved in favor of the SOW. In no event will Howdy be liable for any acts or omissions of any Howdy Professional and except as set forth in Section 8.2, no breach by any Howdy Professional shall be deemed a breach by Howdy.
Affiliates. Howdy may use any of its affiliated entities in the performance of this Agreement and any SOW, including such affiliates in Colombia, Austin Software S.A.S., and Uruguay, Teorun S.A. Howdy will be responsible for its affiliated entities' performance of any obligations under this Agreement and the applicable SOW.
TERM AND TERMINATION
Term. This Agreement commences on the earlier of (i) Client's acceptance of this Agreement; or (ii) the effective date of the first SOW between the Parties, and shall remain in effect until termination or expiration of the last SOW in effect between the Parties, or when there is no SOW in place between the Parties, on Howdy's termination of this Agreement (the “Term”). Each SOW will continue until terminated as set forth herein. If an SOW lists a set duration, it will automatically renew on a month-to-month basis until terminated as set forth herein (unless the SOW expressly states that it will not automatically renew).
Termination by Client.
Client may terminate any SOW upon at least 14 days' prior written notice to Howdy; provided that such notice will only be deemed effective when, following Client's notice to Howdy, Client gives written notice the applicable Howdy Professional or authorizes Howdy to notify the applicable Howdy Professional of such termination. (In other words, the 14 days does not start until both Howdy and the Howdy Professional have received such notice (or when Howdy receives permission from Client provide such notice to the Howdy Professional)). Notwithstanding the foregoing, Client may terminate any SOW immediately upon written notice to Howdy: (i) during the first 7 days of the term of such SOW, and Client will not be liable for any fees under such SOW, or (ii) after the first 7 days but during the first 30 days of the term of such SOW. Client will discuss the termination of any SOW in good faith with Howdy in advance of its notification of termination.
Notwithstanding anything to the contrary, if Client has over 10 Howdy Professionals performing Services, Client (i) must provide at least 4 weeks' prior written notice prior to any termination of any SOW or Howdy Professional; or (ii) may only terminate a maximum of 4 Howdy Professionals or SOWs in any one-week period.
Termination by Howdy. Howdy may terminate any SOW upon written notice to Client; provided that Howdy uses commercially reasonable efforts to provide at least 14 days' prior written notice. If there is no SOW in place between the Parties, Howdy may terminate this Agreement upon written notice to Client.
Effect of Termination. The terms of this Agreement will continue to apply to any active or outstanding SOWs as of the date of expiration or termination of this Agreement. Upon expiration or termination of this Agreement or any SOW for any reason, Client shall immediately pay to Howdy all amounts owed to Howdy pursuant to Section 3 (Fees & Payment) hereof for Services performed up to the effective date of expiration or termination, except as set forth in Section 2.2(a). The termination or expiration of this Agreement or any SOW will not affect any obligations or liabilities accruing prior to such termination or expiration. Sections 2.4, 4, 6, 7, 8.3, and 9 - 15 will survive the expiration or termination of this Agreement or any SOW.
FEES & PAYMENT
Fees. Client shall pay Howdy the fees stated in each applicable SOW (the “Fees”).
Expenses. Additionally, to the extent that Client requests or requires a Howdy Professional to provide any services outside of this Agreement, including but not limited to traveling to any Client premises in order to provide Services, Client shall be solely responsible for all expenses relating to such services. Where any Services are to be carried out at Client's premises, Client shall provide adequate office accommodation and facilities for the applicable Howdy Professional. Client shall also provide the applicable Howdy Professional with all necessary cooperation, personnel, resources, information, equipment, data, and support that may be reasonably required by such Howdy Professional in the performance of the Services.
Time Off. Howdy will charge the Fees as a flat weekly rate to Client as reflected and agreed in the SOW. Howdy Professionals will be entitled to take sick days, vacation days, and government-mandated holidays off. The number of days off a year will be detailed in the applicable SOW. Client will approve any vacation days before the Howdy Professional is allowed to take them. Excessive time taken off by the Howdy Professional outside the scope of the pre-determined time-off set forth in the SOW can result in termination of the SOW based on the Client's discretion.
Automatic Payment. Client will pay Howdy by automatic payment as further described herein. Client will set up a form of automatic payment (EFT, ACH, or CC, the “Automatic Payment”) and hereby authorizes Howdy to charge the Automatic Payment on a weekly basis in arrears (on Friday) for each week's work.
Declined Automatic Payment. If Client's Automatic Payment is declined, Client will pay the outstanding invoice within seven (7) days of the declined payment. Additionally, Howdy reserves the right to charge a late payment interest at the rate of the lesser of (i) 2.5% per month or (ii) the maximum rate permitted under applicable law, until payment is made in full. Howdy reserves the right to immediately cancel this Agreement or any SOW, or suspend Services, or any portion thereof, upon failed Automatic Payment. Client must reimburse Howdy for any fees and costs associated with collection of any past due balances.
Suggested Annual Fees Increase. Howdy compensates the Howdy Professional based on a percentage of the Fees received under the SOW applicable to such Howdy Professional. If Client is satisfied with Services provided by a Howdy Professional, to remain competitive in the marketplace and retain qualified talent, Howdy recommends revisiting the Fees on each annual anniversary of the applicable SOW. Howdy will notify Client of any such proposed increase at least 90 days in advance. Client may elect to increase the Fees at any time by notifying Howdy of such decision. This increase in Fees will be reflected in the next applicable pay cycle for the Howdy Professional after an updated SOW with the new Fees is executed.
CLIENT RESPONSIBILITIES
Howdy Professionals will be providing services to Client under the sole direction of Client, and accordingly, Client shall have sole responsibility for the day-to-day requirements for, and supervision of, any outcome or results achieved or to be achieved by the Howdy Professionals.
Client shall be solely responsible for its compliance with any applicable laws, including in its use of the Services and any Deliverables.
Client will be solely responsible for continuing to ensure that each Howdy Professional remains qualified to perform his or her duties for Client.
STAFFING
Retention. Client will retain the selected Howdy Professional throughout the duration of the SOW. However, Howdy may remove a Howdy Professional for cause, and Howdy Professionals may from time to time voluntarily end their relationship with Howdy.
Replacement. In such an event where Howdy removes a Howdy Professional for cause or a Howdy Professional voluntarily ends their relationship with Howdy, Howdy will have the right (but not the obligation) to replace such Howdy Professional with another Howdy Professional of substantially similar qualification and experience. If Howdy is unable to find a suitable replacement on the same terms, Client's sole and exclusive remedy, and Howdy's sole and exclusive obligation and liability, will be for Client to terminate the SOW and, if desired, enter into a new SOW for a replacement Howdy Professional.
INTELLECTUAL PROPERTY RIGHTS
Definitions. “Deliverables” means any work product or deliverables created by Howdy Professionals in the course of work for Client under an applicable SOW. Deliverables shall exclude all Background Materials. “Background Materials” means any technology, materials, information, developments or intellectual property owned by or licensed to Howdy or Howdy Professionals prior to the start of the SOW or subsequently acquired or developed by Howdy or any Howdy Professional outside of the scope of any work for Client hereunder.
Ownership of Deliverables & Background Materials. Subject to timely payment of any applicable fees hereunder, Howdy hereby assigns to Client all right, title, and interest in and to all Deliverables, including all copyrights therein. To the extent permitted by copyright laws, all Deliverables will be considered “works made for hire” owned by Client. Background Materials will remain owned by Howdy or its licensors, but to the extent any Background Materials are included in any Deliverables, subject to timely payment of any applicable fees hereunder, Howdy hereby grants to Client a non-exclusive, perpetual, irrevocable (except for any breach of this Section 6.2 or other misuse), royalty-free, non-transferable (except pursuant to Section 15.4 (Assignment)), non-sublicensable license to use such Background Materials solely as incorporated in the Deliverables. Except as expressly set forth herein, Client does not obtain any right, title, or interest in or to any Background Materials.
Client Materials. Client shall retain ownership of all content and materials (including, without limitation, graphics, audio, copy text, video, and images) provided by it hereunder (“Client Materials”). Client is responsible for, and represents and warrants that it has all necessary rights to provide, and for Howdy to use, any Client Materials it provides for use in the Services and Deliverables.
Residuals. Nothing in this Agreement or any SOW shall restrict Howdy from using for any purpose, the general knowledge, skills, techniques, ideas, concepts, or know-how arising from the provision of the Services and Deliverables under the applicable SOW that are retained in the unaided memory of any Howdy Professional after performing the obligations of Howdy under such SOW.
TAXES
Howdy is responsible for any taxes relating to Howdy's compensation of the Howdy Professionals. Client shall be responsible for any other taxes levied on or relating to its receipt or use of Services under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on Howdy's net income. In the event that Howdy is required at any time to pay any tax for which Client is responsible, Client shall promptly reimburse Howdy for such payments, subject to the provision to Client of supporting documentation evidencing such payments.
WARRANTIES
Mutual Warranties. Each Party represents and warrants that: (a) it has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; and (b) this Agreement is not in conflict with any other agreement to which it is a party or by which it is bound.
Additional Howdy Warranties. Howdy represents and warrants that: (a) each Howdy Professional assigned under an SOW shall have appropriate skills, training and background for his or her level of competence as specified in the SOW, so as to be able to perform in a competent and professional manner; and (b) unless otherwise specified in an SOW (and excluding any Client Materials and Background Materials), the Deliverables will constitute original work of the applicable Howdy Professional(s). Client's sole and exclusive remedy for any breach by Howdy of its representations and warranties under Section 8.2(a), and Howdy's sole and exclusive obligation and liability, shall be the replacement and termination rights as set forth in Section 5.2 (Replacement). Client's sole and exclusive remedy for any breach by Howdy of its representations and warranties under Section 8.2(b), and Howdy's sole and exclusive obligation and liability, shall be its indemnification obligations as set forth in Section 10.1(a).
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, ALL DELIVERABLES AND SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS”, AND “AS AVAILABLE” BASIS AND HOWDY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT ANY SERVICES OR DELIVERABLES WILL BE COMPLETE, ACCURATE, OR ERROR-FREE. HOWDY DOES NOT GUARANTEE, AND HEREBY DISCLAIMS, ANY PARTICULAR RESULTS OR PERFORMANCE BY ANY HOWDY PROFESSIONAL OR ANY PARTICULAR RESULTS FROM USE OF THE SERVICES OR DELIVERABLES OR THAT A HOWDY PROFESSIONAL WILL MEET CLIENT'S NEEDS AND EXPECTATIONS. CLIENT WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVES, AND HOWDY SHALL HAVE NO LIABILITY FOR, ANY AND ALL CLAIMS RELATING TO CLIENT'S RESPONSIBILITIES IN SECTION 4, THE ACHIEVEMENT OF ANY PARTICULAR RESULTS OR PERFORMANCE BY ANY HOWDY PROFESSIONAL, AND CLIENT'S TESTING, MODIFICATION, USE, DISTRIBUTION, AND RELIANCE ON ANY SERVICES AND DELIVERABLES.
LIMITATION OF LIABILITY
MAXIMUM LIABILITY. EXCEPT AS SET FORTH IN SECTION 9.3 (EXCLUSIONS; ENHANCED CAP) BELOW, EACH PARTY'S AND ITS AFFILIATES' AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE SOW WITHIN THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM (“REGULAR CAP”). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
DISCLAIMER OF DAMAGES. EXCEPT AS SET FORTH IN SECTION 9.3 (EXCLUSIONS) BELOW, NEITHER CLIENT NOR HOWDY OR ITS AFFILIATES SHALL BE LIABLE TO ONE ANOTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND OR ANY LOST OR IMPUTED PROFITS ARISING OUT OF THIS AGREEMENT OR ANY SOW OR ANY TERMINATION THEREOF, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. EACH PARTY HERETO WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
EXCLUSIONS; ENHANCED CAP. THE LIMITATIONS SET FORTH IN SECTIONS 9.1 (MAXIMUM LIABILITY) AND 9.2 (DISCLAIMER OF DAMAGES) ABOVE SHALL NOT APPLY TO: (A) LIABILITIES RESULTING FROM EITHER PARTY'S INTENTIONAL MISCONDUCT, (B) LIABILITIES RESULTING FROM EITHER PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 11 (CONFIDENTIALITY), (C) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION); (D) CLIENT'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT AND ANY SOW, (D) CLIENT'S BREACH OF SECTION 13 (NON-SOLICIT; NON-INTERFERENCE), OR (E) CLIENT'S USE OF ANY SERVICES OR DELIVERABLES IN A MANNER OTHER THAN AS PERMITTED UNDER THIS AGREEMENT; PROVIDED HOWEVER, SPECIFICALLY WITH RESPECT TO DAMAGES ARISING OUT OF (I) EITHER PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 11 (CONFIDENTIALITY) OR (II) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), IN NO EVENT WILL EACH PARTY'S AND ITS AFFILIATES' AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THREE TIMES (3X) THE REGULAR CAP.
Allocation of Risk. The allocations of liability in Section 9 (Limitation of Liability) represent the agreed and bargained-for understanding of the Parties and voluntary allocation between them of the risk associated with Client's use of the Services and any Deliverables and, but for this provision, Howdy would not have made the Services available to Client hereunder. Howdy's compensation reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.
INDEMNIFICATION
Howdy's Indemnities. Howdy shall defend any claim, suit or proceeding brought by a third party against Client or its directors, officers, employees and agents (“Client Indemnitees”) and indemnify and hold such Client Indemnitees harmless from any and all losses, damages, costs and expenses (including reasonable attorneys' fees), in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from: (a) any allegation that the Deliverables (excluding any Client Materials), as provided to Client and used within the scope of this Agreement, infringes any U.S. patent or copyright, or (b) violation of any applicable law by Howdy. Notwithstanding the forgoing, Howdy will have no liability for any claim of any kind if the claim results from: (i) modifications made other than by Howdy; (ii) unauthorized or unlicensed use; (iii) any third-party materials or services; (d) the combination, operation or use of any component of any Deliverables with any technology, materials, or information not supplied by Howdy, to the extent such a claim would have been avoided if the Deliverable was not used in such combination; (iv) use of information, materials, Client Materials or marks provided to Howdy by or on behalf of Client; or (v) compliance by Howdy with designs, plans, directions, or specifications furnished by or on behalf of Client. The provisions of this Section 10.1 (Howdy's Indemnities) set forth Howdy's sole and exclusive obligations, and Client's sole and exclusive remedies, with respect to infringement of any proprietary or intellectual property rights of any kind.
Client's Indemnities. Client shall defend any claim, suit or proceeding brought by a third party against Howdy, its affiliates, or any of its or their directors, officers, employees and agents (“Howdy Indemnitees”) and indemnify and hold such Howdy Indemnitees harmless from any and all losses, damages, costs and expenses (including reasonable attorneys' fees), in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from: (a) any Client Materials, (b) any use of the Services or Deliverables other than as permitted under this Agreement, or (c) violation of any applicable law by Client.
Procedure. As a condition to these indemnification obligations, an indemnified Party hereunder must: (i) provide the indemnifying Party prompt notice of the assertion of any claim; provided, however, that failure to give prompt notice shall not excuse the indemnifying Party from its obligations hereunder except to the extent the failure to give prompt notice materially prejudices the indemnifying Party, (ii) permit the indemnifying Party to assume the full control of the defense and/or settlement thereof; provided that the indemnified Party may participate using independent counsel at its expense, and (iii) cooperate with the indemnifying Party in defending or settling such claim. Notwithstanding the foregoing, an indemnifying Party shall not enter into a settlement which would affect any rights of the indemnified Party without such indemnified Party's prior written consent, which may not be unreasonably withheld.
CONFIDENTIALITY
Definition. “Confidential Information” means any non-public information that is either identified as confidential information at the time of disclosure or should otherwise be reasonably understood to be confidential based on the nature of the information or circumstances of the disclosure, and may include a Party's business, technical, and financial information such as source code and documentation for software, trade secrets, know how, customer lists, vendor information, pricing strategies, marketing and business plans, and the terms of this Agreement and each SOW. The Background Materials are deemed the Confidential Information of Howdy. Confidential Information does not include: (a) information that is in the public domain prior to disclosure to the receiving Party, or becomes part of the public domain through no wrongful act of the receiving Party; (b) information that was in lawful possession of the receiving Party prior to the disclosure by the other Party; (c) information that was independently developed by the receiving Party without use of any Confidential Information of the other Party, or (d) information that was disclosed to the receiving Party by a third party who was in lawful possession of the information.
Protection. The receiving Party will hold the other Party's Confidential Information in confidence using at least the same degree of care it uses to protect its own sensitive information, and in no event less than reasonable care. The receiving Party will: (a) only use the other Party's Confidential Information to fulfill its obligations or exercise its rights in connection with this Agreement or any SOW, and (b) not disclose the other Party's Confidential Information except to its personnel and agents who have a “need to know” in connection with this Agreement or such SOW and who are bound by reasonable obligations of confidentiality regarding such information. Notwithstanding anything to the contrary, Client acknowledges and agrees that Howdy shall have no liability for, and Client hereby waives, any and all claims relating to any unauthorized access to, or use, loss, modification, destruction or disclosure of Client's Confidential Information by any Howdy Professional. Any terms relating to such access to, or use, loss, modification, destruction or disclosure of Client's Confidential Information by a Howdy Professional will be in a separate agreement directly between Client and such Howdy Professional.
Compelled Disclosure. A Party may disclose Confidential Information to the extent required by law, provided that, (a) unless prohibited by applicable law, it has provided prompt written notice of such requirement to the other Party sufficient to enable the other Party to seek a protective order to preserve the confidentiality of such Confidential Information, (b) it shall reasonably cooperate with the other Party (at the other Party's request and expense) so that the other Party may preserve the confidentiality of the Confidential Information to the extent reasonably possible, and (c) it will furnish only that portion of the Confidential Information which is legally required.
NO EXCLUSIVITY
This Agreement is non-exclusive, meaning: (a) Howdy and its affiliates may provide similar services to any third party, including competitors of Client; and (b) Client and its affiliates may obtain similar services from any third party (subject to Section 13 (Non-Solicit; Non-Interference) below), including competitors of Howdy.
NON-SOLICIT; NON-INTERFERENCE
Non-Solicit. Client acknowledges that Howdy invests significant resources in identifying, recruiting, training, and retaining Howdy Professionals. During the Term and for one year thereafter (the “Restricted Period”), Client shall not directly or indirectly solicit, hire, or engage any Howdy Professional (other than under this Agreement) without Howdy's express written consent. A hiring fee equivalent to fifty-two (52) weekly Fees will apply to any hiring of a Howdy Professional by Client during the Restricted Period, unless such fee is expressly waived or modified by Howdy in writing and in its sole discretion. The Parties agree that any such hiring fee constitutes reasonable liquidated damages for Client's breach of this Section and does not constitute a penalty.
Non-Interference. During the Restricted Period, Client shall not induce or attempt to induce any customer, client, vendor, or supplier of Howdy to cease, or reduce its level of, engagement with Howdy.
FORCE MAJEURE
Neither Party will be liable for any failure or delay in performance of any obligation (other than payment obligations) due to causes beyond such Party's reasonable control, including the elements, acts of God, labor disputes, acts of the public enemy and/or terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power systems, sabotage, armed hostilities and riots.
MISCELLANEOUS
Relationship of the Parties. The Parties are independent contractors, and no fiduciary, agency, partnership, joint venture, or employment relationship is created or will be implied as a result of this Agreement. Client does not have any authority to bind Howdy in any respect whatsoever as relates to any third parties.
Publicity. Each of Howdy and Client may use the name and logo of the other Party in commercially reasonable marketing, advertising and/or publicity releases, so long as the relationship between the Parties is accurately portrayed.
Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Assignment. This Agreement, any SOW, or any rights and obligations thereunder, is not assignable, transferable or sublicensable by either Party without the other Party's prior written consent, except that either Party may assign this Agreement and any SOWs in their entirety without the other Party's consent to a successor to all or substantially all of such Party's business through a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided that such assignment is pursuant to a written assignment and assumption agreement between the assigning Party and assignee under which the assignee expressly assumes all of the assigning Party's obligations and duties under this Agreement and any SOW.
Entire Agreement. This Agreement and any SOW is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
No Third-Party Beneficiaries. This Agreement is solely intended for the benefit to the Parties and such permitted successors and assigns; provided, however, that each indemnified Party under Section 10 (Indemnification) is a third-party beneficiary. Except as set forth in the immediately preceding sentence, this Agreement shall not confer any benefit upon or be enforceable by any other person or entity.
Dispute Resolution. Prior to the initiation of formal proceedings with respect to any dispute, the Parties shall first attempt in good faith to resolve such dispute informally by escalating the matter to progressively higher levels of management for discussion.
Governing Law. This Agreement and any SOW shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
Mandatory Arbitration. Any dispute arising out of this Agreement or any SOW, if not resolved through the informal dispute resolution process in Section 15.7, will be settled exclusively through binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and such binding decision, including on the award, rendered by the arbitrator(s) shall have the full force and effect of a binding judgment and may be entered in any court having jurisdiction. Notwithstanding the Commercial Arbitration Rules, the following provisions will apply to such arbitration: (a) Delaware law shall apply, (b) the arbitration will be conducted by a single arbitrator, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the Parties, and (d) the proceedings shall be in the English language and shall take place in Austin, Texas. If 10 or more similar arbitration demands presented by or with the assistance, coordination, or cooperation of the same law firm, group of law firms, cooperating law firms, or organization are allowed to be submitted for arbitration, then this Section 15.9 shall be deemed null and void, and the Parties shall be deemed not to have agreed to arbitrate any disputes. This Section shall in no way be interpreted as authorizing class or mass arbitrations of any kind. The Parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the Parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened breach of confidentiality. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys' fees.
Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices will be sent to the addresses set forth in this Section or in the SOW or to such other address as may be specified by either Party to the other in accordance with this Section. Notices to Howdy should be sent to Howdy.com, Inc., Attn: Legal Department, 1304 E. Cesar Chavez St., Austin, TX 78702 or via email to:legal@howdy.com.
Headings; Interpretation. Headings used in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement. References in this Agreement to any Section are to such Section of this Agreement. The words “include” and “including” shall be construed to mean “including, but not limited to” unless context clearly indicates otherwise. The singular includes the plural, and the plural includes the singular.
Electronic Signature; Counterparts. SOWs hereunder may be executed by electronic signature, and in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and a single instrument. Client's execution of any SOW referencing this Agreement will constitute Client's acceptance of the terms and conditions of this Agreement.