Master Services Agreement
The Master Services Agreement is between Lexcom (“Vendor”, “we,” “us” or “our”) and the client who orders Lexcom products and services (“you,” “your” or “Client”).
This Master Services Agreement governs your purchase and use of all Services offered by Lexcom, as may be further described in this Agreement or any Order. This Agreement applies to you and your employees, agents, contractors, or other users who obtain Services from Lexcom (each such person or entity being a “User”). You must register with Lexcom and accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement is the complete and exclusive agreement between you and Lexcom regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
Your use of Lexcom Services is governed by this Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, and the terms of your Order. When we use the term “Agreement” in any of the Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, or an Order, we are referring to all of them collectively. If there is any inconsistency or conflict between the provisions of any these documents, then the documents will be given precedence in the following order: (a) the Master Services Agreement, (b) the Acceptable Use Policy, (c) the Services Level Agreement, and (d) the terms of your Order.
Acceptable Use Policy. means Vendor’s Acceptable Use Policy found at http://lexcom.ca/acceptable-use-policy.html which Vendor may update from time to time.
ACH. means Automated Clearing House.
Business Day. means 8:00 a.m. – 8:00 p.m. Central Standard Time (CST), Monday through Friday, excluding federal public holidays in the United States and Canada for Services provided in North America.
Cancellation Date. is defined based on the date of the Cancellation Request, or final day of a contract term.
Cancellation Request. means a written based service cancellation request submitted via support ticket. To schedule your account for cancellation, please email Vendor at firstname.lastname@example.org and submit a ticket with a heading of “Cancellation Request”. This will ensure that your account is processed for cancellation and will generate an email that will be sent to you. Upon receiving the request we will determine the full details of the request, as well as the offline date of your server. Vendor is not responsible for continued invoicing if the above method is not followed. Unless specifically outlined in the agreement, services will follow the Cancellation Date policy.
Cloud Based Services. means publically available Cloud services such as Microsoft Azure, Microsoft Office 365, Amazon AWS, Salesforce.com and any other platforms outside of Vendors control that may be resold by Vendor.
Contract Auto Renewal. means that all contract terms will automatically renew on a month to month bas.
Confidential Information. means all documents , data, information and other material of one party which is provided, obtained or accessed by the other party or its subcontractors, agents or employees as a result of the performance of its obligations under this Master Services Agreement, but does not include documents, data, information or material:
a) which are in the public domain; or
b) which are acknowledged in writing by the party who provided it, to not constitute confidential information.
EFT. means Electronic Funds Transfer.
Runbook. means the scheduled maintenance tasks to be performed to proactively maintain the Services ordered by Client.
Services. means the products and services described in the Order.
Service Level Agreement. means Vendor’s Service Level Agreement found at http://lexcom.ca/service-level-agreement.html which Vendor may update from time to time.
Vendor. Is defined conditionally as Lexcom Systems Group, Inc.
Vendor’s Website. means www.lexcom.ca.
2) OBLIGATIONS, RIGHTS AND RESPONSIBILITIES
2.1 Vendor Obligations.
For all Orders accepted by Vendor and subject to the Master Services Agreement, Vendor agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with Vendor’s Service Level Agreement.
2.2 Clients Obligations.
You agree to do each of the following:
(a) pay when due the fees for the Services and applicable charges;
(b) use reasonable security precautions in light of your use of the Services;
(c) cooperate with Vendor’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement;
(d) keep your billing contact, information, and other account information up to date;
(e) immediately notify Vendor of any unauthorized use of your account or any other breach of the security of the Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law or the Acceptable Use Policy, then Vendor’s reasonable determination will control;
(f) pay all federal, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes assessed with respect to the Services;
(g) provide Vendor with accurate factual information to help Vendor determine if any tax is due with respect to the provision of the Services, and if Vendor is required by law to collect taxes on the provision of the Services, then you must pay Vendor the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax;
(h) verifying Vendor performance for Disaster Recovery as it relates to Clients Recovery Time Objective and Recovery Point Objective.
2.3 Acceptable Use Policy.
By agreeing to the terms and conditions of this Agreement, you agree to Vendor’s Acceptable Use Policy, which is expressly incorporated herein by reference.
2.4 Intellectual Property Rights.
You warrant, represent and covenant to Vendor that:
(a) you are at least 18 years of age if an individual;
(b) you possess the legal right and ability to enter into this Agreement;
(c) you and your Users will use the Services only for lawful purposes and in accordance with this Agreement, Vendor’s Acceptable Use Policy, and all applicable Vendor policies and guidelines, as contained in this Agreement posted on the Vendor Website; and
(d) you and your Users have obtained all license or other rights necessary to install or use any software or products in conjunction with your use of the Services.
(e) Vendor owns all Intellectual Property of any Services provided to You.
(f) You retain an unlimited, unrestricted license to utilize the Intellectual Property within your business, however may not resell the Intellectual Property without the written consent of Vendor.
During the term of any Service Agreement, and for a period of Twenty-four (24) months thereafter, Client agrees not to, directly or indirectly, solicit, recruit or employ any employee of Vendor without the prior written consent of Lexcom. Client agrees to pay to Vendor a commission of $25,000 in the event this Section 2.5 is breached.
(a) Keep Confidential The parties will keep confidential and secure all Confidential Information of each other party which is provided, obtained or accessed by one party or its subcontractors, agents or employees as a result of the performance of its obligations under this Agreement and shall not disclose such Confidential Information except as permitted under 2.6(d).
(b) Standards The parties will safeguard all Confidential Information of each other party in the same manner and to the same extent as it safeguards Confidential Information of its own.
(c) Authorized Disclosure Confidential Information of one party may be disclosed by the other party:
i) to its subcontractors, agents or employees, insofar as necessary for the performance of this Agreement, provided that such subcontractors, agents and employees are made aware of and agree in writing to comply with the provisions of this section;
ii) with the written consent of the party which provided the Confidential Information; or
iii) where the disclosure is required by law, provided that notice of such requirement is given to the party which provided the Confidential Information, prior to disclosure.
(d) Notwithstanding anything else in this Master Services Agreement:
(i) the parties acknowledge that the obligations of the Client are subject to The Local Authority Freedom of Information and Protection of Privacy Act (Saskatchewan) (the “Act”) and the provisions of such Act shall override the terms of this Agreement in the event of any inconsistency or conflict; and
(e) Marketing Provided always that the prior written consent of Client is obtained, Vendor may, for the purposes of marketing, disclose Client’s name and a general description of the Services provided to Client pursuant to this Master Services Agreement; but shall not indicate in any way that Client endorses Vendor’s services.
(f) Survival Subject to section 12.6(g), this section 2.6 shall survive the expiration or other termination of this Master Services Agreement for a period of five (5) years following such expiration or termination, or such longer period as is prescribed by applicable law.
12.8. Survival Regarding Specific Matters This section 2.6 shall survive the expiration or other termination of this Agreement in perpetuity with respect to:
(a) Confidential Information constituting personal, investment, portfolio, business, corporate or other information of one or more of Lexcom’s Clients or clients, and
(b) any obligations imposed on Lexcom and its employees, officers, directors, agents and permitted subcontractors pursuant to section 12.6(a).
2.7 IP Addresses.
Vendor will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. Vendor may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses.
2.8 Third Party Products.
For your convenience, Vendor may provide you access to Third Party Products through certain Third Party Vendors. Neither Vendor nor any Third Party Vendor makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Vendor or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and Vendor will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.
2.9 Additional Requirements for Using Microsoft Software.
If Microsoft software is provided to you as part of the Services, then additional restrictions may apply, including but not limited to limits on the number of authenticated users of the Microsoft Windows Server Operating Systems under Microsoft Corporation’s licensing terms.
Vendor is not responsible for any security breaches affecting servers or accounts under your sole control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify Vendor immediately, and Vendor will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.
2.11 Data Location.
Vendor maintains datacenter infrastructure located in Canada. Vendor cannot guarantee the location of data for any Cloud Based Services outside of the Vendors control.
2.12 Physical Security
Vendor will ensure that the following controls are in place for any Datacenter that Vendor uses in its Services.
• 24x7x365 CCTV Monitored Security
• Perimeter Fencing with Gates
• Interior and Exterior Hi-Res Cameras
• Biometric Scanned Entry with Mantrap
• All passwords are stored in secure vaults that are audited regularly.
Vendor will use CSAE 3416 or SSAE 16 Type II Certified datacenters for hosting of Services.
The features to ensure this are:
• N+1 UPS Systems with A+B Feeds;
• High Density Power;
• N+1 Generators;
• Power sourced from two separate power grids;
• High Priority Diesel Refueling;
• Pre-action dry pipe sprinkler system with clean agent;
• Raised floor;
• Highly Redundant Internet Service;
• Redundant Power in every Rack.
2.14 Offsite Backup Service
Vendors Offsite Backup Services are responsible for:
• Daily inspection of data backups;
• Remediation of backup issues;
• Verifying offsite replication;
• Providing computing capacity including bandwidth, disk space and computing capacity.
Unless outlined in writing, Vendors backup policy is to retain 30 days of backups.
• Vendor estimates Recovery Time of approximately .5 GB / Min;
• Client is solely responsibile for subscribing to Offsite Backup Services that align with Clients requirements for Disaster Recovery;
• Vendor will make every attempt to ensure that Clients data is protected however Client is ultimately responsible for ensuring data is protected properly by scheduling regular Disaster Recovery Tests. ;
3) TERM AND PAYMENT FOR SERVICES
3.1 Credit Authorization. Client hereby authorizes Vendor and gives consent to Vendor under applicable privacy laws for Vendor to obtain credit information and bank and other financial references regarding Client for the purpose of assessing Client’s credit worthiness, and Client will promptly execute and deliver to Vendor such further documents and assurances and take such further actions as Vendor may from time to time reasonably request in order to carry out the intent and purpose of this section.
3.2 Payment. All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
(b) For recurring billing, Services are billed at the end of each month and unless credit terms are extended in writing, payments are due immediately from the date of invoice.
(c) for non-recurring fees (such as fees for initial set-up, backup overages, bandwidth overages, paid for support request and any other non-recurring service) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Vendor’s option; provided that Vendor may wait to charge your credit card until the total aggregate fees due are at a minimum billable amount. Unless otherwise agreed in the Order or modified via request, your billing cycle will be monthly, beginning on the date that Vendor first makes the Services available to you.
(d) Unless you have made other arrangements, Vendor will charge your credit card and/ or ACH or EFT on the due date. If you pay by credit card or ACH or EFT, then Lexcom will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.
(e) Charges that are not disputed within 30 days of the date charged are conclusively deemed accurate.
(f) You also will be responsible for any costs Vendor incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney’s fees, court costs, or collection agency fees.
(g) You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
(h) Non Sufficient Funds Fees (NSF) – Vendor has the right to charge you NSF fees if your payment method is check (cheque) and it was returned by the bank due insufficient funds. The fees are Thirty (USD$ 30), Thirty (CAD$ 30) in the United States, and Canada respectively.
(i) If you pay by credit card or ACH or EFT, then Vendor will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account. You agree that you will notify Vendor of any changes to your account, your billing address, or any information that Vendor may reasonably require in order to process your payments in a timely manner.
(j) Payment for invoices that are not formally and rightfully deemed as disputed may be subject to interest at a rate of one and one-half percent (1.5%) per month accruing from date the invoice was due.
(k) Lexcom may, at its sole discretion, choose to reduce or eliminate the extention of credit terms to Client.
3.3 Refunds and Disputes: Except where expressly provided in this Agreement, all payments to Vendor are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to Vendor within 30 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.
3.4 Term: This Agreement will be for the “Initial Term” as further described in Schedule 1. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide Vendor the Cancellation Request as provided in this Agreement.
3.5 Termination. This Agreement may be terminated in one of the following ways:
(a) by you without cause and for convenience by providing the Cancellation Request;
(b) by Vendor without cause by providing you with a written notice at least 60 days prior to the termination date.
(c) by Vendor in the event you do not pay any undisputed fees due hereunder within or after 10 days of the due date;
(d) by you or Vendor, if a party commits a material breach of or fails to perform any obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the terminating party specifying such breach or failure; or
(e) as otherwise provided in this Agreement or the Acceptable Use Policy.
3.6 Termination Liability.
If you terminate this Agreement before the end of the Initial Term other than for Vendor’s material breach, then you will be required to pay:
(a) actual amounts that have been invoiced for the Services provided to the date the Agreement is terminated as determined by the Cancellation Date, and
(b) for non-monthly Agreements, the difference between the monthly rate for the Services listed on the Order at the time of the Order, and 50% of the monthly rate for each of the remaining months for the remainder of the Initial Term. For the discount calculation, your liability will be limited to the period from the commencement of the Initial Term to the Cancellation Date.
3.7 If Client is in Default. If Client is in default of any of its obligations under this Agreement, then Vendor may in its sole discretion do any of the following:
(i) without notice suspend access to the Client’s service,
(ii) if Client’s default is in non-payment of any sums due to Vendor, exercise all the rights and remedies available under applicable law.
3.8 Data Retention / Server Reclaim Policy.
Vendor makes no guarantees about retaining any data stored on Vendor’s systems or servers following expiration or termination of this Agreement. Unless otherwise requested, Vendor will delete such data on your next billing date following termination of any Hosting Services by either you or Vendor. You will not have access to your data stored on Vendor’s systems or servers during a suspension or following a termination.
3.9 Quality Policy.
Vendor technicians strive to maintain a high standard of quality and professionalism in all work performed for Clients. The time required to complete a task will reflect the time necessary to complete the work to Lexcom's standards. Although all efforts are made to accomodate a Client's specific time and budget requirements, Lexcom may decline to perform a task in the event we feel the requested approach will not reflect Lexcom's minimum quality standards, or is unlikely to achieve a satisfactory result.
Vendor may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Vendor will provide written notification to your account administrator in advance of posting any modifications to the Vendor Website. Any modifications are effective upon posting of the revisions on the Vendor Website. Your continued use of the Services following Vendor’s posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to Vendor within 30 days of the posting of any modifications of this Agreement by Vendor.
5) LIMITATION OF LIABILITY AND INDEMNITY
5.1 Monitoring User Activity.
Users voluntarily engage in the activity of Internet use and bear the risks associated with that activity. Vendor exercises no control over and expressly disclaims any obligation to monitor its customers and other Users with respect to breaches of this Agreement or any content of the information made available for distribution via the Services, including without limitation any information passing through Vendor’s host computers, network hubs and points of presence, or the Internet, or any content posted any User may post on any website. In no event will Vendor, and its affiliates and subsidiaries have any liability to you or any third party for unauthorized access to, or alteration, theft, or destruction of information distributed or made available for distribution via the Services through accident, or fraudulent means or devices.
5.2 Interruption of Service
Except as set expressly provided in Vendor’s Service Level Agreement, Vendor will not be liable for any temporary delay, outages, or interruptions of the Services. Further, Vendor is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure). Vendor cannot guarantee that (a) access to the Services will be uninterrupted or error-free, (b) defects will be corrected, or (c) the Services will be secure.
5.3 Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY VENDOR OR ANY THIRD PARTY VENDORS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS AND NEITHER VENDOR, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. VENDOR, AND THEIR AFFILIATES AND SUBSIDIARIES HEREBY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.4 Limitation of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR VENDOR’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, VENDOR’S LIABILITY TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO VENDOR UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS. THE FEES FOR THE SERVICES SET BY VENDOR UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.
5.5 Client Indemnity.
Client agrees to indemnify, defend, and hold harmless Vendor, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by Client arising out of any breach of this Agreement by you, your Users, or your customers.
5.6 Vendor Indemnity.
Vendor agrees to indemnify, defend, and hold harmless Client, its parent company, and their affiliates and subsidiaries, and all employees, officers, directors, partners, representatives or any such entity, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorney’s fees) asserted against or suffered by Vendor arising out of any breach of this Agreement by you, your Users, or your customers.
Vendor agrees to indemnify, defend, and hold harmless Client from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs, or expenses (including, without limitation, reasonable attorneys’ fees) asserted against or suffered by Client arising out of any claim alleging that the Services as provided by Vendor infringe any third party’s intellectual property rights.
6) GOVERNING LAWS
6.1 Services Rendered in Canada.
With respect to Services rendered by Vendor in Canada, this Agreement will be governed by, and construed in accordance with, the laws of Canada and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the Province of Saskatchewan; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.
6.2 Services Rendered in United States.
With respect to Services rendered by Vendor in the United States of America, this Agreement will be governed by, and construed in accordance with, the laws of the state of Texas and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the state of Texas; provided, however, that neither party will be prevented from enforcing any related judgment against the other party in any other jurisdiction.
7) MISCELLANEOUS PROVISIONS
Client and Vendor are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between Client and Vendor. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Client may not sell, assign or transfer your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of Vendor, and any attempted assignment or delegation without such consent will be void. Vendor and Client agree that, except as otherwise expressly provided in this Agreement, the Order, or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement. To the extent any portion of this Agreement is determined to be unenforceable by a court of competent jurisdiction, such unenforceability will not invalidate this Agreement as a whole, but only that specific portion held to be unenforceable, and all other terms and conditions contained in this Agreement will remain in full force and effect. Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain if full force and effect, and no termination or expiration of this Agreement will relieve either party from any liability arising out of any breach of this Agreement occurring prior to said termination or expiration. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent such failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including, without limitation, acts of God, government restrictions (including without limitation the denial or cancellation of any export or other necessary license), wars, insurrections, acts of terrorism, failure of suppliers, subcontractors, and carriers, or third party to substantially meet its performance obligations under this Agreement. Unless otherwise specified herein, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.