12.1 Entire Agreement; Amendments. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms and conditions in Customer’s preprinted purchase order or order documentation shall be incorporated into the Agreement. In the event that here is a conflict between an Order Form and this CSA, this CSA shall prevail. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
12.2 Independent Contractors. In making and performing this Agreement, Customer and Finalist act and will act at all times as independent contractors, and, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
12.3 Notices. Any notice required by or relating to this Agreement must be in writing and delivered by registered or certified mail, return receipt requested, reputable overnight courier, or personal delivery to the Parties at their respective addresses set forth in the Order Form. Notice shall be deemed received on the date of delivery shown by the corresponding confirmation. A Party may change its address for notification by notifying the other Party in accordance with this paragraph. Any notice required by or relating to this Agreement may also be communicated by email, provided that the sender receives confirmation of the sent email. Such notices will be deemed delivered on the date indicated in such confirmation. For any notice sent by email in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice by means of registered or certified mail or reputable overnight courier.
12.4 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Finalist, and any attempted assignment or delegation absent such consent will be null, void and of no effect. Finalist may assign this Agreement in its discretion.
12.5 No Third Party Beneficiaries. This Agreement does not create any rights for any person who is not a party to it, and no such person may enforce any of its terms or rely on any limitations or exclusions contained in this Agreement.
12.6 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability, and the validity of the remaining parts of the Agreement will not be affected.
12.7 Waiver. Failure to enforce a provision of this Agreement shall not constitute a waiver.
12.8 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure or delay of internet, electronic communications or public utilities, such failure or delay will not be deemed to constitute a material breach of this Agreement.
12.9 Governing Law. This agreement will be governed by and interpreted in accordance with the laws of the State of New York, without regard to conflicts of law principles thereof or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Colorado.
12.10 U.S. Government End-Users. Each software component of the Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Services with only those rights set forth therein.
This Customer Service Agreement was last updated August 2017. Finalist, Inc.