Sendkey® Standard Terms and Conditions

By accepting any Quote for the purchase of the Services (defined herein) from KeyCentrix, LLC, a Kansas limited liability company (“KeyCentrix”), you (“Client”) by accepting the Quote, expressly agree to be bound by these SendKey Service Standard Terms and Conditions (“Standard Terms”).  Each Quote is subject to KeyCentrix’s acceptance and may be accepted or rejected by KeyCentrix in its sole discretion.  Further, these Standard Terms and any Quote that subsequently refers to these Standard Terms are intended to and shall, collectively constitute one agreement (“Agreement”). All Specifications (defined herein) are subject to modification at the discretion of KeyCentrix.  Such modifications shall become effective five (5) business days after KeyCentrix provides notice by publication upon KeyCentrix’s website (http://www.keycentrix.com).  It is understood that each Quote will specify the current charges and costs for the Services to be provided by KeyCentrix under this Agreement.

1. Definitions

For purposes of this Agreement the following defined terms shall have the following definitions:

(a)  The term “SendKey Platform” means the computerized database and automatic notification distribution system utilized by KeyCentrix in the performance of its Services that enables KeyCentrix on behalf of Client to deliver fax, text, voice and/or email communications to Recipients who are selected by Client.

(b)  The term “SendKey Recipient” means any person or organization who is being contacted via the SendKey Platform on behalf of Client as an incident to Client’s business operations.

(c)  The term “SK Recipient Data” means each SendKey Recipient’s information that is downloaded from its information technology infrastructure by the Client and utilized by the SendKey Platform while performing the Services.

(d)  The term “SK Communication” means any fax, text, voice and/or email communication communicated to a SendKey Recipient by Client via the SendKey Platform.

(e)  The term “KeyCentrix IP” is defined in Section 8(c).

(f)  The term “Laws” means any applicable or potentially applicable United States (federal or state) or foreign law, statute, ordinance, code, rule, regulation, order, judgment, decree, requirement or procedure enacted, adopted, applied, enforced or followed by any governmental authority regarding the utilization by Client of, or rendering by KeyCentrix of the Services pertaining to the commercial use of telephones, electronic mail, facsimiles, automated or predictive dialing equipment or other telephony or telecommunications products or services to contact persons, including any and all restrictions, regulations, limitations or prohibitions on commercial, transactional or other advertisement or telecommunication solicitation (whether live, prerecorded, by facsimile, text-messaging, pager or otherwise), and potentially including without limitation for example, the HIPAA Privacy Rule, 45 CFR §160 and §164, the HIPAA Security Rule, 45 CFR §160 and §164, the HIPAA Transaction Rule, 45 CFR §160 and §162, the Security Breach Notification Rule, CAN-SPAM Act, 45 CFR §164, 47 C.F.R. §64 (debt collection), Telephone Consumer Protection Act (47 U.S.C. 227), other applicable consumer protection laws, and any other federal, state or local law or regulation.

(g) The term “Regulatory Matter” is defined in Section 13.

(h)  The term “Service Fees” means the amounts charged by KeyCentrix to Client in exchange for providing the Services, calculated in the manner described on the Quote and payable in accordance with Section 2.

(i)  The term “Services” means the service of providing automated fax, text, voice and/or email communications to SendKey Recipients on behalf of Client via the SendKey Platform and the related non-exclusive conditional software license to utilize the SendKey Platform as herein contemplated.

(j)  The term “Specifications” means the operational instructions, protocols, procedures, minimum system requirements, and authorized user (sender) requirements applicable to the use of the SendKey Platform and use of the Services as the same may be provided by KeyCentrix or published on KeyCentrix’s website from time to time, including any that may be applicable to any subsequent upgrades to the SendKey Platform or modifications of the Services.

2. Payment Terms

(a) Client shall pay to KeyCentrix the Service fees set forth in the Quote, and such fees shall be remitted to KeyCentrix in accordance with the payment terms set forth in the applicable Quote.  In addition to the fees set forth in the Quote, KeyCentrix may invoice any additional costs and expenses reasonably incurred by KeyCentrix in the performance of the Services as incurred.  Provided, all fees shall be subject to adjustment by KeyCentrix in its sole discretion effective upon the first day of each renewal Term (defined herein) or in the event that a third-party telephony infrastructure web service, cellular provider, internet service provider or other transmitter of data used by KeyCentrix to transmit the SK Communications adjusts its rates.  KeyCentrix will invoice, and Client shall also reimburse KeyCentrix for, any such additional costs and expenses reasonably incurred by KeyCentrix in the delivery of the Services.  All payments will be due thirty (30) days from the invoice date commencing on the first calendar month following the execution of this Agreement.  Payments will be remitted by Client, upon receipt of invoice, to KeyCentrix’s address set forth herein or as otherwise directed by KeyCentrix.  Provided, Client may withhold payment of any disputed amount until the resolution of such dispute, but Client shall nevertheless timely remit all other amounts owed under this Agreement at the time of the dispute.  Payments of undisputed amounts will be deemed to be delinquent if not in KeyCentrix’s possession within thirty (30) days from the invoice date.  Disputed amounts, once resolved, shall be remitted by Client within ten (10) days. All amounts paid to KeyCentrix are non-refundable.

(b) Client shall be responsible for any applicable sales, use, value added, or other taxes payable with respect to the Services provided pursuant to this Agreement, or arising out of or in connection with this Agreement.

(c) All sales, property, excise and other federal, state and local taxes (other than those taxes based upon KeyCentrix’s net income) will be added to the Service fees paid by Client.

(d) Past due amounts will be subject to a service charge equal to the lesser of one and one-half percent (1½%) per month or the highest interest rate permitted by law. Without limiting any other remedy available to KeyCentrix, in the event any amount owed by Client is more than sixty (60) days past due, KeyCentrix may suspend the Services at its sole discretion.  Further, in the event any past due amount is placed by KeyCentrix with a third party for collection and/or litigation, Client shall be responsible for all collection costs, legal fees and court costs incurred by  KeyCentrix.  Client agrees to a charge of not less than $40.00 or the highest rate allowed by law for any returned check.

(e) Client must notify KeyCentrix within fifteen (15) days from the invoice date of any dispute related to any invoiced amount in order to contest the same.  KeyCentrix and Client will work together in good faith to resolve such dispute in a timely manner.

3. Term

The initial term of this Agreement will begin on the Go-Live Date and continue for the period set forth on the Quote.  For purposes of this Agreement, “Go-Live Date” shall mean the date that KeyCentrix completes implementation of the Sendkey Platform and the Services are available to Client for use in its day-to-day operations.  Client understands and acknowledges that the Go-Live Date shall be deemed to have occurred when its available for use in its day-to-day operations, regardless of whether Client is open for business or otherwise using the Services in its day-to-day operations. Upon expiration of the initial term of this Agreement, this Agreement shall automatically renew for successive renewal terms as set forth on the Quote, unless written notice of the cancellation thereof is provided by either party in writing by mail, email or fax hereto at least ninety (90) days prior to the last day of the then-current term. The initial term and any renewal term, if applicable, are collectively referred to in this Agreement as the “Term.”

4. Services

KeyCentrix will provide the Services to Client in accordance with the following terms and conditions:

(a) SendKey Recipient Contact Services.  KeyCentrix will provide the Services to Client on a non-exclusive basis.  Client may utilize the SendKey Platform whenever Client wishes to contact any SendKey Recipient at any time of the day or day of the week and as frequently as Client may elect provided such contact does not violate any Laws; and it is expressly understood and agreed that Client shall be solely responsible for making such determinations and Client hereby indemnifies KeyCentrix and its affiliates, including their respective officers, directors, and employees as provided in Section 11.

(b) Installation and Commencement of Services.  KeyCentrix will assist Client in implementing the Services in accordance with the scheduling and pricing set forth on the applicable Quote.

(c) Support.  KeyCentrix will provide to Client during the Term reasonable necessary help desk services via telephone or email as reasonably requested by Client in connection with its utilization of the Services or any problems directly arising regarding the same, subject to the parameters and pricing set forth on the applicable Quote.  It is understood that such support obligation will not include (a) modification, alteration, or circumvention of the SendKey Platform or Specifications or any of its configuration, data files or libraries, or functionality by anyone other than KeyCentrix; (b) failure of Client to maintain its network and systems in a manner that is compatible with the most current release of the SendKey Platform, it being understood that KeyCentrix will provide reasonable advance notice of changes in the SendKey Platform; or (c) improper use, abuse, accident, or neglect, by Client.

(d) Accuracy.  KeyCentrix has no responsibility to verify the accuracy or completeness of any SK Communication or to trace any inaccurate contact information (for example, a telephone number or email address).  Client hereby indemnifies KeyCentrix and its affiliates, including their respective officers, directors, and employees as provided in Section 11 for any SK Communication placed to an incorrect telephone number or email address utilized by Client.

5.  SK Communications

The language of each SK Communication and of any customizable field populated by Client and provided within any SK Communication shall be determined by Client and will not be altered by KeyCentrix.  Furthermore, KeyCentrix has no duty to monitor the content of any SK Communication.  At the same time, KeyCentrix may refuse to broadcast any message of which KeyCentrix becomes aware if KeyCentrix believes in its sole discretion such message to be unlawful, misleading or deceptive.  Client expressly agrees that the discretion reserved by KeyCentrix shall not relieve Client in any manner from Client’s obligation to ensure that all SendKey Recipients who are contacted, and all SK Communications that are transmitted as part of the Services, are done in compliance with all Laws.  Client expressly assumes the risks that all SK Communications comply with all applicable Laws.  Client is solely responsible for researching the Laws applicable to each SendKey Recipient’s residence or physical location to ensure that the method and means of any SK Communication made to them and the content of such SK Communication does not violate any Laws.  Accordingly, Client shall only provide to KeyCentrix the SK Recipient Data for recipients whom Client is legally permitted to contact.  It is understood and acknowledged by Client that KeyCentrix will not be obligated to make any Communications to SendKey Recipients in violation of any Law or who “opt out” of being contacted.

6.  Additional Client Responsibilities

In addition to its other obligations set forth in this Agreement, Client will (a) ensure that Client’s computer system and environment is equipped and configured to be compatible with the Specifications; (b) provide KeyCentrix with reasonable access to Client’s network and systems in order to permit KeyCentrix to retrieve the SK Recipient Data in a format that is acceptable to KeyCentrix and compatible with the SendKey Platform; and (c) provide KeyCentrix with reasonable communication channels to contact Client’s personnel and other resources that may facilitate rendering the Services, including all administrative rights, permissions and security passwords necessary for KeyCentrix to access the SK Recipient Data to or through Client’s secured network and systems.

7.  Exclusive Warranty

KEYCENTRIX WARRANTS THAT (A) IT HAS THE RIGHT TO USE THE SENDKEY PLATFORM IN THE PERFORMANCE OF THE SERVICES IN ACCORDANCE WITH THE LIMITS AND CONDITIONS SET FORTH HEREIN; (B) THE SENDKEY PLATFORM AND SERVICES WILL SUBSTANTIALLY PERFORM IN ALL MATERIAL RESPECTS IN ACCORANCE WITH THE SPECIFICATIONS; AND (C) THE SERVICES WILL SUBSTANTIALLY FUNCTION IN A REASONABLE MANNER CONSISTENT WITH INDUSTRY STANDARDS REASONABLY APPLICABLE TO THE UTILIZATION OF THE SERVICES.  THIS IS THE ONLY WARRANTY MADE BY KEYCENTRIX.  KEYCENTRIX EXPRESSLY DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVES ALL RIGHTS REGARDING, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. KEYCENTRIX DOES NOT WARRANT THAT THE SENDKEY PLATFORM AND SERVICES OR SPECIFICATIONS WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SENDKEY PLATFORM OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE SENDKEY PLATORM OR SPECIFICATIONS WILL OR CAN BE CORRECTED.

THE FOREGOING WARRANTIES SHALL NOT APPLY TO, AND KEYCENTRIX SHALL HAVE NO LIABILITY FOR, ANY NON-CONFORMITY RELATED TO, THE SENDKEY PLATORM OR THE SERVICES IF THE SENDKEY PLATFORM AND SERVICES HAS BEEN (A) MODIFIED BY CLIENT OR ANY THIRD PARTY NOT EXPRESSLY AUTHORIZED BY KEYCENTRIX; (B) USED IN COMBINATION WITH EQUIPMENT OR THIRD-PARTY SOFTWARE OTHER THAN THAT WHICH IS CONSISTENT WITH THE SPECIFICATIONS; OR (C) MISUSED OR ABUSED.

If it is determined that KeyCentrix has breached the above warranty, then as Client’s sole remedy, Client may receive a credit on a dollar-for-dollar basis based upon the amount of Service Fees that have been paid by Client during the time period when the Services did not conform to the foregoing warranties up to a maximum credit of twelve (12) months of Service Fees paid, which amount shall be applied toward future Service Fees during the then remaining Term that would otherwise be due to KeyCentrix, the application of such credit commencing with the month immediately following such determination and until such time as the amount of the credit is exhausted.  Provided, it is understood that if the parties cannot agree whether a breach has occurred, the parties will submit the issue to arbitration and the credit shall commence with the month immediately following the arbiters ruling.  THE FOREGOING WILL BE THE SOLE REMEDY OF CLIENT FOR BREACH OF WARRANTY.

8.  Confidentiality

(a)  It is acknowledged that all SK Recipient Data is the property of Client or, if Client is a “covered entity” as contemplated by applicable health care privacy Laws, such SK Recipient Data is the property of Client or its patients and related prescribing physicians.  While such information is in its possession or control, KeyCentrix shall treat the same in confidence, limit its access, restrict its use and keep it as secure as reasonably possible in compliance with applicable Laws, including with regard to personal health information (“PHI”) specifically the requirements of 45 C.F.R. Parts 160 & 164, subparts A & E.  KeyCentrix shall only use or disclose such information as expressly authorized herein or in any applicable Business Associate Agreement or other contract which KeyCentrix may enter into as an incident to its business relationship with Client.  Further, as to PHI, KeyCentrix shall delete all such SK Recipient Data pertaining to each patient from the SendKey Platform promptly upon transmission of each SK Communication.

(b)  Client and KeyCentrix agree that, except as expressly authorized in writing (including through the use of email) in advance by the other party, neither of them will, either during the existence of this Agreement or at any time thereafter, disclose the terms of this Agreement to any third party except to their respective employees, regulators, auditors, accountants, attorneys or consultants with a need to know such information.  Provided, either party may disclose such information (i) to the extent required by any subpoena or order of any governmental authority; provided that the party that receives the subpoena shall promptly give the other party written notice of such requirement prior to any disclosure so that the other party may have sufficient time to seek a protective order or other appropriate relief; (ii) with regard to information other than PHI,  if the disclosing party can show that it was in possession of the information prior to its disclosure to them from a source other than the other party; (iii) the receiving party lawfully received the information from a third party absent the breach of any applicable confidentiality obligation; or (iv) with regard to information other than PHI, the receiving party can show that the information was independently developed by person who did not have access to the confidential information.

(c)  Client acknowledges and agrees that all copyright, patent, trade secret, and all other intellectual property rights of whatever nature in the SendKey Platform, Services and Specifications (“KeyCentrix IP”) are and shall remain the exclusive property of KeyCentrix, and nothing in this Agreement should be construed as transferring any aspects of such rights to Client or any third party.  Except for the limited license granted to Client in order to utilize the Services, no other right or license is granted to Client, by implication or otherwise regarding the SendKey Platform, and all other rights are expressly reserved exclusively to KeyCentrix.

(d)  Client acknowledges the confidential and proprietary nature of the KeyCentrix IP and agrees that it shall not reveal or disclose any KeyCentrix IP for any purpose to any other person, firm, corporation or other entity, other than Client’s employees with a need to know such KeyCentrix IP to perform employment responsibilities consistent with Client’s rights under this Agreement.  Client shall safeguard and protect the KeyCentrix IP from theft, piracy or unauthorized access in a manner at least consistent with the protections Client uses to protect its own most KeyCentrix IP, but in all cases such measures shall be no less than reasonable.

(e)  Client shall notify KeyCentrix immediately upon discovery of any prohibited use or disclosure of the KeyCentrix IP, or any other breach of these confidentiality obligations by Client or any third party of whom Client becomes aware, and shall fully cooperate with KeyCentrix to help KeyCentrix regain possession of the KeyCentrix IP and prevent the further unauthorized use or disclosure of the KeyCentrix IP.

9.  Physical and Data Security

KeyCentrix will take or cause to be taken all commercially reasonable actions to ensure the continued security of the SendKey Platform and the SK Recipient Data while stored thereon.  KeyCentrix will use not less than commercially reasonable and customary efforts, to maintain the SendKey Platform’s environment, hardware and software in a manner that is designed to detect, prevent, remove and remedy any code, files, scripts, agents or programs from the SendKey Platform that are intended to do harm (including, software viruses, worms, Trojan horses, time bombs and the like), denial of service attacks, hacking and other unauthorized disruption of the providing of the Services.

10.  Limitation of Liability

CLIENT’S EXCLUSIVE REMEDY AND KEYCENTRIX’S SOLE OBLIGATION FOR ANY BREACH OF THIS AGREEMENT IS THE OBLIGATION TO USE REASONABLE EFFORTS TO REPAIR THE AFFECTED SOFTWARE PORTION OF THE SENDKEY PLATFORM WHICH IT CONTROLS OR REPERFORM THE DISPUTED SERVICES.  EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, KEYCENTRIX SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS, DISRUPTION OF SERVICES, AND DAMAGED OR DESTRUCTION OF DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT IN THE EVENT OF KEYCENTRIX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE LIABILITY OF KEYCENTRIX TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT PAID TO KEYCENTRIX BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR CAUSE GIVING RISE TO SUCH CLAIM.  THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.  BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND OF OTHER APPLICABLE LAWS.  THE SERVICE FEES TO BE CHARGED HEREUNDER REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISKS AND THE EXCLUSION OF CONSEQUENTIAL AND SPECIAL DAMAGES SET FORTH IN THIS AGREEMENT.

11.  Risk Allocation and Indemnity

Client assumes the responsibility and risk for the accuracy of all SK Recipient Data, the content of all SK Communications and compliance with all Laws.  Client will be solely responsible for the data backup of all SK Recipient Data and will otherwise use commercially reasonable efforts to protect its data against loss, cost, damage or destruction or breach of privacy, notwithstanding the Services to be performed by KeyCentrix. Client hereby agrees to indemnify and hold harmless KeyCentrix and its affiliates, including their respective owners,  officers, directors, and employees from any claim, suit, loss, cost, damage (including consequential damages), expense (including reasonable attorneys’ fees and expenses), or liability of any nature or kind whatsoever arising out of, as a result of, or in connection with this Agreement, either directly or indirectly, specifically including, but not limited to, any and all claims, valid or spurious, arising from actual or alleged failure of Client to comply with any requirements of this Agreement or any applicable Law.

12. Default and Termination

(a)  Client will be deemed to be in default of its obligations under this Agreement if:

(1)  subject to the withholding right under Section 2, Client fails to pay any amount due under this Agreement within thirty (30) days after the same becomes due and payable or fails to timely remit repayment on three (3) or more occasions during any eighteen (18) month period; or

(2)  Client breaches Sections 8, 17 or 22, regardless of any purported attempt to cure;

(3)  Client commits a material breach of this Agreement and fails to remedy the breach within thirty (30) days after having been given written notice to do so; or

(4)  upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Client or any affiliate of Client under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by Client of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Client or the appointment of a receiver for all or substantially all of Client’s assets or any corporate action taken by the Board of Directors of Client in furtherance of any of the above actions.

In the event of Client’s default under this Section 12(a), KeyCentrix may terminate this Agreement, effective upon notice.

(b)  KeyCentrix will be deemed to be in default of its obligations under this Agreement if:

(1)  KeyCentrix commits a material breach of this Agreement and fails to remedy the breach within thirty (30) days after having been given written notice to do so; or

(2)  upon the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against KeyCentrix or any affiliate of KeyCentrix under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admission by KeyCentrix of its inability to satisfy any debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of KeyCentrix or the appointment of a receiver for all or substantially all of KeyCentrix’s assets or any corporate action taken by the Board of Directors of KeyCentrix in furtherance of any of the above actions;

In the event of KeyCentrix’s default under this Section 12(b), Client may terminate this Agreement, effective upon notice.

(c)  Client acknowledges that the amounts of Service Fees stated in this Agreement are based on KeyCentrix’s expectation that Client shall utilize and pay for such fees associated with the Services for the full length of the initial term and any renewal term, and that it would be very difficult to calculate the damages associated with KeyCentrix’s loss of such Service Fees if Client wrongly terminates this Agreement prior to the end of the Term of this Agreement.  Therefore, Client agrees to pay KeyCentrix the total amount of the average Service Fees (calculated for the prior 12-months or portion thereof if this Agreement terminates prior to the end of the initial term) that would have otherwise become due during the balance of the applicable initial term or during any renewal term in the event that Client wrongly terminates this Agreement, or KeyCentrix terminates this Agreement for cause under Section 12(a).  Further, in the event Client terminates this Agreement at any time before complete implementation of the Services and for any reason other than due to KeyCentrix’s wrongful refusal to implement or provide access to such Services, then Client acknowledges and agrees that it will nonetheless be responsible for paying KeyCentrix the foregoing fees for the entire initial term set forth in Section 3.

13.  Legal Requirements

If there is any applicable Law or any ruling, judgment, decree or interpretation by any court, agency or other governing body having jurisdiction over either party (each a “Regulatory Matter“), and the Regulatory Matter materially and adversely affects, or is reasonably likely to affect, the performance by KeyCentrix or its receipt of compensation under this Agreement or makes this Agreement unlawful, then the parties shall immediately use their best efforts to enter into a new arrangement that complies with such Regulatory Matter and approximates as closely as possible the position of the parties under this Agreement, economically and otherwise, prior to such Regulatory Matter.  If the parties are unable to reach a new agreement within a reasonable period of time (not to exceed ninety (90) days) after the occurrence of the Regulatory Matter (or after its occurrence becomes reasonably certain), either party may terminate this Agreement effective upon notice.

14.  Status

The relationship between KeyCentrix and Client is that of independent contractors and that relationship shall continue as such throughout the Term.  It is further agreed that nothing contained in this Agreement shall be construed to constitute either party as being a partner, joint venturer, or agent of the other.

15.  Expenses of Enforcement

In the event litigation or arbitration is instituted to enforce this Agreement, the prevailing party will be entitled to recover from the other party such sum as the arbiter or court, as the case may be, may judge reasonable as attorneys’ fees at trial and upon appeal, in addition to all other sums provided by law.

16.  Arbitration

In the event of any dispute or controversy arising out of or related to this Agreement, including the interpretation of any provision of this Agreement, which cannot be resolved informally by the parties, such dispute will be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect, except as such rules may be modified by this Agreement or by the mutual consent of the parties.  Any arbitration proceeding conducted hereunder shall be held in Wichita, Kansas and will be enforceable in any court of competent jurisdiction.  BEFORE INSTITUTING ARBITRATION, CLIENT AGREES TO PROVIDE KEYCENTRIX WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO KEYCENTRIX.  IF KEYCENTRIX IS UNABLE TO RESOLVE THE CLAIM WITHIN THIRTY (30) DAYS AFTER RECEIPT OF NOTICE, THEN CLIENT MAY INITIATE ARBITRATION.

17. Successor Interests

KeyCentrix may assign or subcontract, in whole or in part, KeyCentrix’s performance hereunder.  Otherwise, this Agreement may not be assigned absent the consent of the non-transferring party.  Any such attempt by Client to assign in violation of the foregoing restriction shall be null and void. Subject to any limitation upon assignment expressly contained herein, this Agreement will be binding upon and inure to the benefit of the successors, subcontractors, and assigns of the parties.

18. Notices

All notices or other non-operational communications required to be given hereunder shall be in writing and delivered either personally, or by email transmitted to Client at  the physical address or email address set forth in the Quote or transmitted to KeyCentrix at lrodriguez@keycentrix.com or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided therein.  Any notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed.  Communication may also be transmitted via email provided that the transmitting party retains a record of when and to whom the communication was electronically transmitted.  Client shall designate a person as Client’s authorized point of contact for purposes of resolving any service issue.  KeyCentrix shall designate a person as KeyCentrix’s authorized point of contact and contract administrator for purposes of Client notifying KeyCentrix of any contractual concerns, including any actual or alleged breach of this Agreement by KeyCentrix.  In addition, KeyCentrix shall designate a person as KeyCentrix’s authorized point of contact and service manager for purposes of discussing service problems, quality issues and any other service concerns that Client might have from time to time.

19.  Force Majeure

Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including without limitation industrial disputes of whatever nature, power loss or fluctuations, telecommunications failure, hacker attacks, internet slowdowns, acts of God, or any other cause constituting force majeure, provided, however, that the foregoing does not excuse or delay Client’s payment obligations hereunder.  Provided further, in no event will any pandemics, epidemics, or other virus outbreaks (including COVID-19), constitute a force majeure event for Client.  Furthermore, Client acknowledges that, in connection with the Services provided under this Agreement, information shall be transmitted over a local exchange, interexchange and Internet backbone carrier lines and through routers, switches and other devices, owned, maintained and serviced by third party local exchange and long distance carriers, utilities, Internet service providers, and others, all of which are beyond the control and jurisdiction of KeyCentrix.  Accordingly, KeyCentrix assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with the Services provided under this Agreement.  KeyCentrix further makes no warranty and assumes no liability regarding the availability, reliability, or suitability of any Internet service provider or digital subscriber line services.

20.  Limitations of Actions

No actions, regardless of form or basis, arising out of transactions related to this Agreement, including the Services performed or to be performed may be brought by either party more than one (1) year after the cause of action has first accrued except that an action for nonpayment may be brought within two (2) years after the date of last payment owed by Client under this Agreement.

21.  Waiver

Waiver of any breach of this Agreement committed by either party will not constitute a waiver of any other or future breach.  Specifically, KeyCentrix may elect to continue performance notwithstanding a breach committed by Client but KeyCentrix’s performance will not constitute a waiver of such breach nor otherwise limit the exercise of KeyCentrix’s remedies.

22.  Solicitation

Client shall not solicit the employment of nor employ any KeyCentrix personnel during the term of this Agreement and for a period of two (2) years from the effective date of termination, cancellation, or expiration of this Agreement.

23.  Governing Law

This Agreement shall be deemed to have been executed in the State of Kansas and will be governed by and construed in accordance with the laws of the State of Kansas, without reference the rules governing conflicts of law.  The parties hereby agree on behalf of themselves and any person claiming by or through them that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Sedgwick County, Kansas.

24.  Numbers and Headings

As used herein, the singular will include the plural, and the plural, the singular.  All captions are intended solely for convenience and will in no way be deemed to limit or explain any of the provisions of this Agreement.

25. Severability

If any provision of this Agreement is held invalid, such invalidity will not affect any other provisions which can be given effect without the invalid provision.

26.  Survival

Sections 8, 10, 11, 13, 15, 16, 20, 23, and 27 shall survive the expiration or termination of this Agreement for any reason, as well as any other sections that are intended by their nature or context to survive the expiration or termination of this Agreement.

27.  Injunction

Client agrees that KeyCentrix would be irreparably harmed by Client’s breach of its obligations hereunder, and such harm could not be compensated by money damages alone.  Therefore, notwithstanding Section 16, as to matters related to a breach of Section 8, a party will be entitled to obtain injunctive and other equitable relief for the threatened or actual breach by the other party to this Agreement, without the obligation to first post a bond or other security.

28.  Headings

The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation.

29.  Entire Agreement

This Agreement (as defined above) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.  This Agreement may not be amended, except by a writing signed by both parties.  In the event of a conflict between or among the terms set forth in these Terms and Conditions, and any Quote, or any other document made a part hereof, the documents shall control in the following order: these Terms and Conditions shall control unless a Quote expressly provides otherwise by reference to these Terms and Conditions and the contradicting statement or section of these Terms and Conditions, and in such event the Quote with the latest date shall control, and then these Terms and Conditions if the Quote satisfies the foregoing condition, and then any other documents.

30.  Publicity

Client shall not refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers, without the prior written consent of KeyCentrix.  This obligation will survive the cancellation or other termination of this Agreement.  KeyCentrix shall have the right to issue press releases identifying Client as a business customer.

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Last updated: July 16, 2020