GENERAL TERMS AND CONDITIONS
In consideration of the mutual promises and conditions contained herein, the Parties agree to the Specific Terms and Conditions, executed by the Parties, as well as the following provisions. Capitalized terms used but not defined herein shall have the respective meanings given to them in the Specific Terms and Conditions of this Agreement.
1. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; (b) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms. Each Party further represents and warrants that its Marks and the other Party’s use thereof in accordance with this Agreement will not infringe, misappropriate, or otherwise violate any rights of any third party.
2. RELATIONSHIP BETWEEN 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.
3. TERM; TERMINATION. This Contract shall terminate upon the End Date specified in the Specific Terms and Conditions, unless extended, in writing, by the Parties.
4. NOTICES. All notices, claims, demands, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand, with written confirmation of receipt; (b) when received by the addressee if sent by a nationally recognized overnight courier, receipt requested; (c) on the date sent by facsimile or email of a PDF document, with confirmation of transmission, if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Any notice to you shall be addressed to the billing address set forth in the Specific Terms and Conditions and any notice to AmPA! shall be addressed to the attention of the Executive Director at Austin Pets Alive!, 1156 West Cesar Chavez, Austin, Texas 78703, or to such other address that may be designated by the receiving Party from time to time in accordance with this section.
5. License to Utilize Marks.
6. FORCE MAJEURE. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, except for the obligation to make payments to the other Party, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities, whether war is declared or not, terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Party suffering a force majeure event (“Impacted Party”) shall give notice within ten days of the force majeure event to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice, either Party may thereafter terminate this Agreement upon ten days’ written notice.
7. DUTY TO COOPERATE. Upon a Party’s reasonable request, the other Party shall execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
8. INTERPRETATION; SEVERABILITY. For purposes of this Agreement, words denoting the singular have a comparable meaning when used in the plural, and vice versa; and words denoting any gender include all genders. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
9. AMBIGUITIES; WAIVER. Any ambiguous language in this Agreement shall be interpreted as to its fair meaning, and not strictly for or against either Party, regardless of whether either Party drafted the Agreement. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10. CHOICE OF LAW; SUBMISSION TO JURISDICTION. This Agreement and all related documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Texas, without giving effect to any choice or conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
Any claim, dispute, or other matter in question arising out of or related to this Agreement or the licenses granted hereunder, if not resolved or settled through negotiations among the Parties, shall be subject to mediation as a condition precedent to other dispute resolution. Any legal suit, action, proceeding, or dispute arising out of or related to this Agreement, the licenses granted hereunder, or the transactions contemplated hereby or thereby shall be instituted exclusively in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and County of Travis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, proceeding, or dispute.
11. DEFAULT; PREVAILING PARTY. In the event of a default under this Agreement, the defaulting Party will reimburse the non-defaulting Party for all costs and expenses reasonably incurred by the non-defaulting Party in connection with the default, including without limitation, attorneys’ fees. Additionally, in the event a suit, action, or other legal or administrative proceeding is filed to enforce this Agreement or with respect to this Agreement, the prevailing Party will be reimbursed by the other Party for all costs and expenses incurred in connection with the suit or action, including without limitation, reasonable attorneys’ fees.
12. INDEMNIFICATION; INSURANCE; LIMITATION OF LIABILITY. You shall defend, indemnify, and hold harmless AmPA! and its owners, officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from your acts or omissions; and (b) your breach of any representation, warranty, or obligation under this Agreement.
You shall maintain in force adequate insurance with policy limits sufficient to protect and indemnify AmPA! and its affiliates, and each of their owners, officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from your conduct, acts, or omissions or the conduct, acts, or omissions of your agents, contractors, servants, volunteers, or employees. Your insurance shall be written for no less than the following amounts: (1) automobile insurance - $500,000; (2) comprehensive general liability insurance (including applicable umbrella insurance) - $1,000,000; and (3) workers compensation insurance - $500,000.
Notwithstanding any language to the contrary herein, AmPA!’s liability to you or to any third party, for any damage arising from the performance of this Agreement shall not exceed the value of this Agreement or One Thousand Dollars ($1,000), whichever is less.
13. NO CONSEQUENTIAL OR INDIRECT DAMAGES. In no event shall AmPA! be liable for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages arising out of, or relating to, and/or in connection with any breach of this Agreement, regardless of: (a) whether such damages were foreseeable; (b) whether or not you were advised of the possibility of such damages; and (c) the legal or equitable theory, contract, tort, or otherwise, upon which the claim is based.
14. NO THIRD-PARTY BENEFICIARIES; SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Both you and AmPA! are bound by this Agreement. All parties who lawfully succeed to their rights and responsibilities are also bound. Neither Party may 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 the other Party's prior written consent. No delegation or other transfer will relieve the delegating or transferring Party of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this section is void.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
16. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto.