ProjectFirma Services Agreement
Last Revised on 09/21/2022
This ProjectFirma Service Agreement (the “Agreement”), effective as of as the earliest date which you sign a ProjectFirma Service Order Form (the “Effective Date”), is by and between Environmental Science Associates with offices located at 550 Kearny St, Suite 800, San Francisco, CA 94108 (“ESA”) and the organization identified on the ProjectFirma Services Order Form ("Customer").
WHEREAS, Customer wishes to procure from ESA access to the ProjectFirma software platform as described below, and ESA wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1.1 Services. ESA will provide access to the ProjectFirma platform (“Services”) to Customer and the individuals authorized by Customer to use the Services (“Authorized Users”). The Services are described in a Services Order Form or other written or electronic document in which Customer chooses the Services. The Service Order Form is part of this Agreement.
(a) ESA shall provide the Services in substantial conformity with the specifications described in any manuals, instructions or other documents or materials that ESA makes available to Customer and which describe the functionality, components, features or requirements of the Services (“Specifications”); and
(b) The Services will be available 24 hours per day, seven days per week, every day of the year, except for: (i) Scheduled Downtime in accordance with the service level agreement available at https://sitka.projectfirma.com/about/sla (“Service Level Agreement”); (ii) Service downtime or degradation due to a Force Majeure Event (defined below); and (iii) any suspension or termination of Customer’s or any Authorized User’s access to the Services. Customer’s sole and exclusive remedy for any unavailability of the Services is described in the Service Level Agreement.
1.2 Service Support. The Services include ESA’s standard customer support services (“Support Services”), as described in the Service Level Agreement.
1.4 Service and System Control. Except as otherwise stated in this Agreement, as between the parties:
(a) ESA will retain sole control over the operation, maintenance and management of the Services and ESA’s Systems. As used in this Agreement, “Systems” means IT infrastructure, including electronic systems and networks, whether operated directly by ESA or through the use of third-party services.
1.5 Changes. ESA may make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the Services; or (b) to comply with applicable law. Customer may increase or decrease the number of Authorized Users for any Services pursuant to Section 3.4.
1.6 Subcontractors. ESA may from time to time in its discretion engage subcontractors to perform Services.
1.7 Suspension or Termination of Services. ESA may suspend or terminate Customer’s or any Authorized User’s access to the Services without liability, but only if:
(a) ESA receives a legal demand from a court of competent jurisdiction that requires ESA to do so; or
(b) ESA reasonably believes that: (i) Customer or any Authorized User has breached any material term of this Agreement or used the Services beyond the scope of this Agreement; (ii) Customer or any Authorized User is using (or has used) the Services in any fraudulent or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.7 does not limit any of ESA’s other rights or remedies.
2. Fees; Payment Terms
2.1 Fees. Customer shall pay ESA the fees described in the applicable Service Order Form (“Fees”). The Project Firma Service Order Form sets forth a schedule of Fees for designated levels of Service usage.
2.2 Fee Increases. ESA has the right, but not the obligation to adjust Fees no more than once annually by providing written notice to Customer at least 60 days in advance. Customer may terminate this Agreement upon 30 days’ notice to ESA if it does not agree to the fee increase.
2.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on ESA’s income.
2.4 Payment. Customer shall pay all Fees within 30 days after the date of ESA’s invoice. If Customer fails to make any undisputed payment when due, then:
(a) ESA may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law;
(b) Customer shall reimburse ESA for all reasonable costs incurred by ESA in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and
(c) if such failure continues for 10 days following ESA’s written notice, ESA may either: (i) suspend performance of the Services until all undisputed past due amounts have been paid or (ii) terminate the Services and this Agreement, in either case, without liability to Customer.
2.5 No Deductions or Setoffs. All amounts payable to ESA under this Agreement will be paid without any setoff or deduction (other than Service Credits which may be issued under the Service Level Agreement).
3. Authorization and Customer Restrictions
3.1 Authorization. Conditioned on Customer’s payment of the Fees and compliance with this Agreement, ESA authorizes Customer and its Authorized Users to access and use the Services during the Term for Customer’s internal business operations.
3.3 Authorization Limitations and Restrictions.
(a) Except for Authorized Users, Customer shall not, and shall not permit any other person or entity to, access or use the Services.
(b) Unless expressly permitted by ESA or applicable law, Customer shall not:
(i) bypass or breach any security device or protection used by the Services, or access the Services other than by an Authorized User through the use of his or her own valid Access Credentials;
(ii) upload or transmit any Harmful Code (“Harmful Code” means information or materials that contain or activate any technology, including viruses or malware, that permits unauthorized access to or impedes the Services, ESA’s or Authorized Users’ Systems, or those of any third party, or prevents an Authorized User from accessing or using the Services);
(iii) remove or alter any intellectual property notices or license terms from the Services or ESA Materials; or
(iv) access or use the Services or ESA Materials in any manner that infringes or violates any Intellectual Property Right or other right of any third party or that violates any applicable law.
3.4 Audit Right; Fees for Unauthorized Use. ESA may access the account of Customer and any Authorized User only to determine compliance with this Agreement. Customer shall cooperate with ESA in conducting such audits and provide reasonable access requested by ESA to records, systems, equipment, information and personnel. ESA may only examine information directly related to the Customer’s use of the Services.
4. Customer Obligations
Customer is solely responsible for:
4.1 all Customer Data, including its content and use;
4.2 all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services;
4.3 Customer’s Systems;
4.4 the security and use of Customer’s and its Authorized Users’ Access Credentials and related permissions; and
4.5 all access to and use of the Services and ESA Materials
4.6 compliance with all applicable laws regarding the use of the Services;
4.7 Authorized Users’ compliance with all terms in this Agreement; and
5. Data Usage and Ownership; Intellectual Property Rights
5.1 Definitions. For purposes of this Agreement, the following definitions apply:
(a) “Customer Data” means information, data, forms, and other content that is collected from or generated or uploaded by Customer or an Authorized User, by or through the Services. Customer Data excludes System Data and Feedback.
(b) “System Data” means:
(i) aggregated data and other content that is derived by or through the Services from Processing the Customer Data and is sufficiently different from such Customer Data that neither the specific Customer Data nor any Personal Information included in the Customer Data may be reverse engineered or otherwise identified.
(ii) system administrative data, statistical data, and operational information and data generated by or characterizing Customer’s or any Authorized User’s use of the Services.
(c) “Feedback” means all suggestions, comments, and other feedback provided by Customer related to its use of the Services.
(d) “Intellectual Property Rights” means all patent rights, copyrights, trade secret rights, rights of publicity, and other intellectual property rights.
(e) “Personal Information” means any information that identifies a specific individual.
(f) “Process” means to take action with respect to data, including to collect, store, compile, copy, adapt, disseminate, transmit, and analyze. “Processing” and “Processed” have correlative meanings.
(g) “ESA Materials” means software and source code, information, data, documents, and materials, including any deliverables, plans or reports, that are provided or generated by ESA or any subcontractor in connection with the Services, including System Data. ESA Materials also include Feedback, but excludes Customer Data.
(h) “Third-Party Materials” means software, information, data, documents, and materials relating to the Services that are not owned by ESA or Customer.
(i) “ProjectFirma Licensed Materials” means software and source code, information, data, documents and materials that are used to provide the Services which are jointly owned by ESA and licensed to the public under the terms of the Affero General Public License, version 3.
5.2 Ownership of Customer Data. As between Customer and ESA, Customer will remain the owner of all Customer Data, including related Intellectual Property Rights, subject to the permissions granted in Section 5.3.
5.3 Consent to Use Customer Data. Customer hereby irrevocably grants to ESA:
(a) the right to Process Customer Data to the extent necessary to provide the Services to Customer and its Authorized Users; and
(b) the right to Process Customer Data in such a way that renders it System Data. All System Data is owned exclusively by ESA.
5.4 Intellectual Property Rights. ESA will be the exclusive owner of all Intellectual Property Rights in and to all ESA Materials and a joint owner of all Intellectual Property Rights in and to all ProjectFirma Licensed Materials. Customer hereby assigns to ESA all Intellectual Property Rights in and to the System Data and Feedback. Except as expressly provided in Section 5.1(i), nothing in this Agreement grants or licenses to Customer any Intellectual Property Rights in or to the Services, ESA Materials or Third-Party Materials.
6.1 ESA Systems and Security Obligations. ESA will implement, maintain and periodically update as necessary a written information security program, which contains reasonable administrative, technical, and physical safeguards to secure Customer Data, as appropriate to the nature and scope of ESA’s activities and Services.
6.2 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information (except for the contact information of Authorized Users); (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other person or entity to, provide any Prohibited Data via the Services. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
7.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and Personal Information, in each case whether or not marked, designated or otherwise identified as “confidential.”
7.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not under any obligation to maintain its confidentiality; or (d) was independently developed by the Receiving Party without reference to or use of any Confidential Information. As used in this Agreement, “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, subcontractors and legal advisors. Representatives also includes Customer’s Authorized Users.
7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) subject to Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3; and (iii) are bound by confidentiality obligations at least as protective as the terms in this Agreement;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible for any of its Representatives’ non-compliance with, the terms of this Section 7.
7.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then the Receiving Party shall promptly and before such disclosure, notify the Disclosing Party so that the Disclosing Party can seek a protective order. The Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
8. Term and Termination
8.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated as described in this Agreement, will continue for 12 months (“Initial Term”). This Agreement will automatically renew for successive 12-month terms unless either party gives written notice of non-renewal at least 30 days before the expiration of the then-current term. Collectively, these periods are referred to as the “Term.”
8.2 Termination. In addition to any express termination right described in this Agreement:
(a) ESA may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any undisputed amount within 30 days after being due.
(b) After the Initial Term, either party may terminate this Agreement for any or no reason upon 30 days’ notice to the other party.
(c) either party may terminate this Agreement, effective on written notice to the other party, if the other party:
(i) materially breaches this Agreement, and the breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the breaching party receives notice of the breach;
(ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
(iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law; or
(iv) makes a general assignment for the benefit of its creditors.
8.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:
(a) Except for Customer’s extraction rights described in Section 8.4, all rights, licenses, consents and authorizations granted by either party to the other will immediately terminate;
(b) ESA may retain Customer Data: (i) in its backups, archives and disaster recovery systems until Customer Data is deleted in the ordinary course; and (ii) as required by applicable law. In either case, Customer Data will remain subject to all confidentiality and security requirements of this Agreement;
(c) Each party shall promptly return or destroy (at the disclosing party’s request), all documents and materials containing, reflecting, incorporating or based on the disclosing party’s Confidential Information;
(d) If Customer terminates this Agreement pursuant to Section 8.2(b), Customer shall pay Fees for Services until the effective date of termination;
(e) If ESA terminates this Agreement pursuant to Section 8.2(a) or Section 8.2(c) during the Initial Term, all Fees that would have become payable had the Agreement remained in effect until expiration of the Initial Term will immediately be due; and
8.4 Extraction Rights. For a 30-day period after termination or expiration of this Agreement (“Extraction Period”), Customer may access the Services for the sole purpose of extracting Customer Data. Customer is solely responsible for extracting Customer Data during the Extraction Period. Customer’s access rights during the Extraction Period are conditioned on Customer’s payment in full of all outstanding Fees. After the Extraction Period, Customer Data will be permanently deleted (subject to incidental retention as permitted under Section 8.3(b)).
8.5 Surviving Terms. The following provisions will survive any expiration or termination of this Agreement: Section 3.3, Section 7, Section 8.3, Section 8.5, Section 9, Section 10, Section 11 and Section 13.
9. Representations and Warranties
9.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing; and (b) it has the full right and authority to enter into and perform its obligations under this Agreement.
9.2 Additional ESA Warranties. ESA warrants that it will provide the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
9.3 Additional Customer Representations and Warranties. Customer represents and warrants that:
(a) it owns or otherwise has (and will have) the necessary rights and consents related to the Customer Data so that the Customer Data does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, so long as the Customer Data is Processed in accordance with this Agreement; and
(b) it will not provide any Prohibited Data in connection with this Agreement.
9.4 DISCLAIMER OF WARRANTIES. Except for the express warranties set forth in Section 9, all Services, ESA Materials, and ProjectFirma Licensed Materials are provided “as is.” ESA hereby disclaims all warranties, whether express, implied, or statutory, and ESA specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. ESA makes no warranty that the Services, ESA Materials, or ProjectFirma Licensed Materials will meet Customer’s or any other Person’s requirements, operate without interruption (subject to the Service Level Agreement), achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code or error free. All Third Party Materials are provided “as is.”
10.1 ESA Indemnification. ESA shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees (“Losses”) incurred by a Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from:
(a) any allegation that Customer’s use of the Services in compliance with this Agreement infringes a U.S. Intellectual Property Right; or
(b) gross negligence, recklessness or willful misconduct by ESA in connection with this Agreement.
The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) Customer Data or Third Party Materials; (ii) access to or use of the Services, ESA Materials, or ProjectFirma Licensed Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in by ESA; (iii) modification of the Services or ESA Materials other than by or authorized by ESA; (iv) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer; or (v) act, omission or other matter described in Section 10.2.
10.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless ESA and its officers, directors, employees, agents, successors and assigns (each a “ESA Indemnitee”) from and against any and all Losses incurred by a ESA Indemnitee in connection with any Action by a third party to the extent that such Losses arise out of any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of ESA in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including ESA’s compliance with any directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by ESA;
(c) breach by Customer of any of its representations, warranties, or obligations under this Agreement; or
(d) gross negligence, recklessness or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
10.3 Indemnification Procedure. Each party shall promptly notify the other party of any Action. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of any Action. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its indemnity obligations unless Indemnitor can demonstrate that it has been materially prejudiced.
10.4 Mitigation. If any of the Services or ESA Materials are, or in ESA’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or ESA Materials is enjoined or threatened to be enjoined, ESA may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and ESA Materials;
(b) modify or replace the Services and ESA Materials, in whole or in part, to seek to make the Services and ESA Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality; or
(c) by written notice to Customer, terminate this Agreement, provided that Customer will be entitled to a refund of pro-rata refund of any prepaid fees.
THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND ESA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND ESA MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
11. Limitations of Liability
11.1 EXCLUSION OF DAMAGES. EXCEPT FOR THE EXCLUSIONS DESCRIBED IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, DELAY OR INABILITY TO USE THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS UNDER THE SERVICE LEVEL AGREEMENT, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY UNLESS CAUSED BY THE OTHER PARTY’S GROSS NEGLIENCE OR INTENTIONAL MISCONDUCT, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE.
11.2 CAP ON MONETARY LIABILITY. EXCEPT FOR THE EXCLUSIONS DESCRIBED IN SECTION 11.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO ESA OVER THE PRIOR 12 MONTHS IMMEDIATELY PRECEDING THE EVENT CAUSING THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.3 Exceptions. The exclusions and limitations in Section 11.1 and Section 11.2 do not apply to either party’s obligations under Section 10 (Indemnification) or liability for gross negligence or willful misconduct.
12. Force Majeure
12.1 No Breach or Default. In no event will either party be liable for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), if the failure or delay is caused by any circumstances beyond the party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or failures of third-party telecommunications, utilities, data storage/processing, or network services providers. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
13.1 Marketing. ESA may use the Customer’s logos, trademarks and service marks (“Marks”) for the limited purpose of identifying the Customer as a customer of ESA on its website and marketing materials, provided that any such use will not imply endorsement by Customer of ESA or its products. ESA shall comply with the Customer’s usage guidelines and shall not assert any ownership interest in the Marks.
13.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13.3 Notices. All notices under this Agreement will be in writing and delivered to the addresses in the ProjectFirma Service Order Form. Each notice will be deemed to have been received by the party to which it was addressed: (i) when delivered if delivered personally, (ii) when received by the addressee if sent by overnight courier, (iii) on the fifth business day after the date of mailing if sent by certified mail, or (iv) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.
13.4 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.5 Entire Agreement. This Agreement, together with any other documents referenced, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements, written or oral, with respect to such subject matter. If there is an inconsistency among this Agreement and any referenced document, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
13.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without ESA’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any purported assignment, delegation or transfer in violation of this Section 13.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
13.7 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns. This Agreement does not confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature.
13.8 Amendment and Modification; Waiver. No waiver, amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance.
13.9 Severability. If any term or provision of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will be valid and enforced to the fullest extent permitted by law.
13.10 Disputes. The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the State of Oregon, exclusive of choice of law remedies. Any litigation between the parties will be conducted exclusively in state or federal courts in Oregon. The prevailing party in any litigation arising out of or relating to this agreement will be entitled to recover all reasonable attorneys’ fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review.
13.11 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.