Contractor Terms and Conditions - Effective July 1st, 2024

Alcar Company Terms and Conditions

Effective: July 1st, 2024

The SOW is subject to these Alcar Company Terms and Conditions (“Terms and Conditions”). The SOW, and these Terms and Conditions are collectively the “Agreement”. Capitalized terms not defined in these Terms and Conditions are defined in the SOW.

1. Parties. “Company” refers to the Company/consultant set forth on the SOW, and “Alcar” refers to Alcar Inc. Company and Alcar are each a “Party” and collectively, “Parties”.
2. Scope. The Agreement constitutes the entire agreement and understanding between Alcar and Company with respect to the subject matter contained in the SOW, and supersedes all prior written and oral agreements, discussions, communications, or representations between the Parties relating to the subject matter herein (including any additional, different, or conflicting terms on any Company forms, emails, or papers). As such, Company acknowledges and agrees that (a) the terms and conditions of the Agreement will prevail notwithstanding any additional, different or conflicting terms, and (b) it is not relying on any statement or representation not contained in the Agreement. Without limiting the foregoing, in no event will any click wrap or other electronically accepted agreement (excluding any electronic signature of the Agreement) constitute a license or binding agreement, including even if Alcar accepts such terms. To the extent any terms set forth in any SOW or these Terms and Conditions, the Terms and Conditions will control. Notwithstanding the foregoing, a SOW may amend these Terms and Conditions only if the amended terms contained in such SOW: (i) apply only to that individual SOW and not any other SOW, and (ii) specifically identify the provision(s) of these Terms and Conditions they amend.
3. Acceptance of Agreement. Company accepts the Agreement by: (a) verbal acceptance communicated to Alcar; (b) signing the SOW; (c) commencing work on the SOW in any manner, or (d) providing the Services (as defined in the SOW) within the time stated in the SOW. Either Party may request, in writing, revisions to the SOW (“Revised SOW”). Company will not commence and/or furnish any goods and/or services pursuant to a Revised SOW until the Parties have signed the Revised SOW.
4. Service Level Agreement. The Parties may adopt a service level agreement (“SLA”) as specified in an SOW or at any time by written agreement signed by the Parties. Once a SLA is adopted, the SLA cannot be amended, terminated or revoked except by a written amendment to the Agreement signed by the Parties. Unless otherwise stated in the SLA, Company will inform Alcar within one (1) business day of any failure to meet any SLA. Company will issue Alcar service level credits, if any, set forth in the applicable SLA (“SLA Credits”). Alcar may apply any SLA Credits to any charges otherwise payable to Company by Alcar.
5. Company Personnel; Independent Contractor Relationship.

a. Personnel. While at any location of Alcar or an Alcar customer (“Customer”), Company, its personnel, and its employees, affiliates, contractors, subcontractors, agents, representatives, suppliers, vendors, and/or any third party, engaged by Company or performing services on Company’s behalf (collectively, “Personnel”) will comply with all reasonable requests, standards, rules, and regulations of Customer communicated to Company, including personal and professional conduct, and any security and/or privacy requirements, as well as conduct themselves in a businesslike manner. In addition, Company is solely responsible for: (i) the acts and/or omissions of Personnel; (ii) payment of all Personnel compensation, including all legal and contractual benefits; (iii) withholding, reporting and paying all taxes (including employment taxes) and/or governmental fees relating to Personnel; and (iv) complying with any federal, state or local employment/contractor laws, rules and regulations, as well as any other employer/contracting duties and obligations, including workers compensation insurance. Company is providing the goods and/or performing the Services as an independent contractor to Alcar. Company will accept directions provided by Alcar pertaining to the goals to be attained and the results required to be achieved by Company, but Company will be solely responsible for the manner and hours in which the Services are performed under the Agreement. Notwithstanding the foregoing, or anything to the contrary in the Agreement, nothing in the Agreement will in any way be construed to constitute Company and/or Personnel as an agent, employee or representative of Alcar. Without limiting the foregoing, Company agrees that (x) Personnel (except for Company) will not seek payment (either directly or indirectly) from Alcar, and (y) neither Company nor Personnel will receive any Alcar-sponsored benefits. If Company and/or any Personnel are reclassified by a state or federal agency or court as an Alcar employee, Company and/or such Personnel will become a reclassified employee and will receive no benefits from Alcar, except those mandated by applicable state or federal laws, directives, rules, and/or regulations (collectively, “Laws”), even if by the terms of Alcar’s benefit plans or programs of Alcar in effect at the time of such reclassification, Company and/or such Personnel would otherwise be eligible for such benefits. Neither Company nor Personnel are authorized to bind Alcar to any liability or obligation or to represent that Company or Personnel has any such authority. Company will ensure that Personnel comply with the Agreement. Company’s use or provisioning of any Personnel will not relieve, waive, or diminish any obligation Company has under the Agreement.

b. Non-Exclusive Basis. The Parties acknowledge and agree that the provision of Services under the Agreement will be on a non-exclusive basis, and that Alcar does not guarantee to Company any minimum amount of goods or services except as may be specifically set forth in the applicable SOW. Company may perform services similar to the Services for others during the Term and thereafter, subject to Company’s confidentiality obligations pursuant to Section 9, below.

c. Removal. Alcar may request removal and/or replacement of any Personnel upon notice to Company. Upon such request, Company will promptly remove such Personnel from performing Services hereunder and, except if otherwise instructed by Alcar (which may be by email), promptly replace such Personnel with other Personnel reasonably acceptable to Alcar. Removal of any Personnel will not relieve, waive, excuse, or diminish any obligations Company has under the Agreement.

d. Background Checks. Company represents and warrants that Company conducts criminal and financial background checks on Personnel. Company will conduct a criminal and financial background check on all Personnel, prior to such Personnel undertaking any action in connection with the Agreement. Except where prohibited by applicable Law, any Personnel convicted of a felony, or having been convicted, whether a felony or not, of fraud, dishonesty, and/or any crime or violation relating to data and/or Information Systems, will not be involved or take any action or inaction in relation to the Agreement.

1. Acceptance of Services. Alcar has 30 days from the receipt of the Service, or part thereof, (“Acceptance Period”) to inspect, test, and accept or reject the Service, or part thereof, in writing. Company will provide (at no additional cost to Alcar) such assistance as Alcar may reasonably require while inspecting and testing any Service, or part thereof, that Alcar determines does not conform to the Agreement. Alcar may reject any Service, or part thereof, that Alcar determines does not conform to the Agreement and/or any documentation related to the Services. If Company is unable to correct a non-conforming Service, or part thereof, at no additional cost to Alcar, within ten (10) days of notification of non-conformance, Alcar will, at its option, be entitled to: (i) a refund of all fees, costs and expenses incurred in connection with such non-conforming Service; or (ii) offset or adjust payments for such non-conforming Service, against current or future payments to Company. In addition, should Alcar desire from Company the Service, or part hereof, as it exists at that point, Company will deliver to Alcar the Service, or part thereof, within five (5) days of Alcar’s request, and Alcar will be obligated, subject to the Agreement, to compensate Company for all fees set forth in the SOW to date owed for that Service, or part thereof, and Alcar will be entitled to take over development of the Service/project, or at Alcar’s option, part thereof. If Alcar does not provide written notice of acceptance or rejection by the end of the Acceptance Period, then the Service or part thereof will be deemed rejected. For purposes of this Section, Alcar may provide notice via email. Neither Alcar’s acceptance nor rejection of any Service, or part thereof, will relieve, waive, or diminish any obligation Company may have under the Agreement.
2. Compensation; Payment Terms.

a. Compensation. Subject to Company’s strict compliance with the Agreement, and unless otherwise specified in the SOW, Alcar will pay Company within 30 days of receipt of a valid invoice provided that the Services have been accepted pursuant to Section 6, above.

b. Payment Disputes. Alcar may withhold payments for any item(s) on Company’s invoice that Alcar reasonably disputes. Pending resolution of the dispute(s), Alcar’s non-payment of disputed items will not constitute a default and will not entitle Company to suspend, or delay furnishing Services or terminate the Agreement, in whole or in part. Alcar may offset amounts owed by Company to Alcar against amounts owed by Alcar to Company.

c. Taxes. Amounts payable for Services will not include any taxes, government fees and/or government surcharges (collectively, “Taxes”), and Company will be solely responsible for all Taxes, unless Alcar expressly agrees otherwise in a signed writing; provided however, in no event will Alcar be liable for any income or employment or employment related Taxes imposed on Company and/or related to Personnel, or any other Taxes or charges assessed against Company or associated with the operation of Company’s business. Company agrees to report as income all compensation received by Company pursuant to the Agreement, and to pay all Taxes on such income.

1. Security.

8.1 Data Security. Company represents, warrants, and covenants that it will (and will cause its Personnel to) establish and maintain physical, administrative, and technical controls, screening, and security procedures and other safeguards to ensure against the destruction, loss, disclosure or alteration of any Alcar Customer Data, which procedures and safeguards will be at least equal to or more protective than Company’s procedures and safeguards for Company’s most confidential and sensitive data; provided however, in no event will Company use less than reasonable care. Further, such procedures and safeguards will comply with all Laws. Without limiting the foregoing, only those Personnel of Company with a need to have access to Alcar Customer Data to provide the Services will have access to Alcar Customer Data, but only for the limited purpose of providing the Services, and only during the time(s) they need access for the purpose of providing the Services. Company will not commingle Alcar Customer Data with any other data. If Company or its Personnel become aware of a breach or potential breach of security relating to Alcar Customer Data, Company will immediately: (iii) notify Alcar in writing; (iv) investigate the breach or potential breach; (v) inform Alcar of the results of such investigation; and (vi) assist Alcar and Customer in maintaining the confidentiality of such Alcar Customer Data. In addition, Company will demonstrate to Alcar’s reasonable satisfaction that Alcar Customer Data will not be disclosed or accessible to Company’s other customers. As between Alcar and Company, Alcar Customer Data collected, used, or stored by Company, will be the sole and exclusive property of Alcar. “Alcar CustomerData"” means any and all data and information provided by, relating to, of or concerning Alcar’s Customers.

8.2 Customer Data.

a. “Personal Information” is any information about a Customer that: (i) can be used to identify, contact or locate a specific individual; (ii) can be used in conjunction with other personal or identifying information to identify or locate a specific individual, including, for example, a persistent identifier, such as a customer number held in a “cookie”; or (iii) is defined as “personal information” (or similar term) by applicable Law. Company represents, warrants, and covenants that: (1) Company will not collect, use, or disclose in connection with the Agreement any Personal Information without Alcar or Customer’s prior express written consent (email acceptable); (2) any collection, use, or disclosure of Personal Information will comply with the Agreement, including all Laws; (3) any collection, use, storage, or transfer of Personal Information, expressly authorized under the Agreement, will be solely for and/or on behalf of Alcar and/or Customer, and not for or on behalf of Company, its Personnel, and/or any third-party, and Company will not, at any time for any reason, collect, use or disclose any Personal Information except as necessary for the purpose of carrying out its duties as specified in the SOW; (4) Company will not collect or accept information from children under the age of 18; (5) Company will not, without the prior written consent of Alcar or Customer (email acceptable), transmit or provide access to Personal Information to anyone outside the United States; (6) with respect to any Personal Information from Customers located in the European Union, Company will provide at least the same level of privacy protection as is required by applicable Law; (7) Company will utilize individual user accounts for each Personnel or process that accesses Personal Information (shared accounts or group accounts are prohibited); (8) Company will maintain accurate logs of individual access to Personal Information, including who accessed Personal Information, precisely what Personal Information was viewed, and when the access took place; further provided that the logs will be maintained for at least four (4) years from the date the applicable Personal Information was accessed; and (9) Company will encrypt all Personal Information at rest and when being transmitted using at least TLS with 2048bit keys (in motion), and either PGP/ GPG or AES with 2048bit key length (at rest), or as otherwise agreed to by Alcar and/or or Customer in writing (email acceptable).

1. If Company receives any inquiry or complaint relating to Personal Information, Company will immediately notify Alcar, and immediately provide Alcar all relevant information, as well as any additional information requested by Alcar. If Alcar notifies Company that it requires assistance in investigating or responding to the inquiry or complaint, Company will fully cooperate with Alcar, including: (i) furnishing Alcar with complete information concerning its collection, use and disclosure of the Personal Information; and (ii) responding, if requested to do so, to any inquiry by a regulatory authority and/or to any complaint. If any inquiry or complaint gives rise to regulatory or court proceedings, Company will cooperate in the conduct of such proceedings, including attending hearings and assisting in securing and giving evidence and obtaining the attendance of witnesses.

1. In the event of any termination or expiration of the Agreement, Company will immediately return to Alcar and/or Customer, as directed by Alcar, all Personal Information held by Company pursuant to the Agreement.

8.3 Access to Alcar and/or Customer’s Information Systems. If access to Alcar and/or Customer’s Information Systems is required by Company in connection with the Services, access may be granted solely to enable Company to perform its obligations under the Agreement. Access to Alcar and/or Customer’s Information Systems and/or Sites will be limited to those specific Information Systems, time periods, and Personnel authorized in writing by Alcar and/or Customer prior to such access (email acceptable). Company represents, warrants, and covenants that it will (and will cause its Personnel to) maintain the highest security standards to ensure that the access granted to Company will not impair the integrity and availability of Alcar and/or Customer’s Information Systems. “Information System"” means (a) any information or communications system, including net-services, computer systems, data networks, software applications, broadband/satellite/wireless communications systems, and/or telecommunications systems; and (b) the means of access to such systems, including all authentication methods.

1. Confidentiality.

a. Definition of Confidential Information. “Confidential Information” means any non-public information that relates to the actual or anticipated business, strategies, and/or products of Alcar and/or Company, as the case may be, or their respective affiliates, including their respective technical data, trade secrets, know-how, research, product plans, products and/or services and markets therefor, customer lists, customer information (regarding for example the identity, address, health plan or insurance status, medical history, diagnosis and/or treatment of customers), vendors, suppliers, software, processes, formulas, marketing, finances, and other business information (i) disclosed either directly or indirectly, in writing, orally, or by inspection of premises, equipment, or other property, or (ii) that should reasonably be understood to be confidential by its nature or due to the circumstances in which it is disclosed or otherwise made available to the receiving Party. Alcar Confidential Information includes Customers who Company became acquainted during the Term. Notwithstanding the foregoing, Confidential Information will not include any information which: (1) was publicly known or made generally available prior to the time of disclosure by the disclosing Party to the receiving Party; (2) becomes publicly known or made generally available after disclosure to the receiving Party through no wrongful action or inaction of the receiving Party; (3) is in the rightful possession of the receiving Party, without confidentiality obligations, at the time of disclosure as shown by receiving Party’s pre-existing or then-contemporaneous written records; or (4) is independently developed by the receiving Party without use or reference to the disclosing Party’s Confidential Information, or violating the terms of the Agreement, as shown by documents and other competent evidence in the receiving Party’s possession.

b. Nonuse and Nondisclosure. During and after the Term of the Agreement, the receiving Party will hold in the strict confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of the disclosing Party’s Confidential Information, and: (i) Company will not use Alcar Confidential Information for any purpose whatsoever other than as necessary for the performance of the Services on behalf of Alcar and/or its affiliates; and (ii) the receiving Party will not disclose the Confidential Information of the disclosing Party to any third party without the prior written consent of an authorized representative of the disclosing Party, except that the receiving Party may disclose the disclosing Party’s Confidential Information to any third party on a need-to-know basis for the purposes of the Agreement; provided, however, that such third party is subject to nonuse and nondisclosure obligations at least as protective of the disclosing Party and the disclosing Party’s Confidential Information as set forth in Section 9. The receiving Party may also disclose Confidential Information of the disclosing Party to the extent compelled by applicable Law; provided however, prior to such disclosure, the receiving Party will provide prior written notice to the disclosing Party (if permitted by Law) permitting the disclosing Party (if it desires) to seek a protective order or such similar confidential protection as may be available under applicable Law. Notwithstanding the foregoing, each Party may disclose the terms and conditions of the Agreement: (1) as required by applicable Laws, including requirements to file a copy of the Agreement (redacted to the extent reasonably permitted by applicable Law), or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities; (2) in confidence, to legal counsel; (3) in confidence, to accountants, banks, and financing sources and their advisors who are subject to reasonable confidentiality restrictions for the purposes for which they are receiving the information; and (4) in connection with the enforcement of the Agreement or any rights hereunder.

c. Ownership. The receiving Party agrees that no ownership of the disclosing Party’s Confidential Information is conveyed to the receiving Party. Without limiting the foregoing, Company will not use or disclose any Alcar property, intellectual property rights, trade secrets or other proprietary know-how of Alcar to invent, author, make, develop, design, or otherwise enable others to invent, author, make, develop, or design any products and/or services for any third party.

d. Other Confidential Information. Company agrees that Company will not improperly use, disclose, or induce Alcar to use any proprietary information or trade secrets of any former or concurrent employer or contracting party of Company or other person or entity with which Company has an obligation to keep such items in confidence. Company also agrees that Company will not bring onto Alcar’s and/or its affiliates’ premises or transfer onto Alcar’s and/or its affiliates’ technology systems any unpublished document, proprietary information, or trade secrets belonging to any third party, unless disclosure to, and use by, Alcar has been consented to in writing by an authorized representative of such third party.

e.Third Party Confidential Information. Company recognizes that Alcar has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on Alcar’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Company agrees that at all times during the Term and thereafter, Company owes Alcar and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to use it or to disclose it to any person, firm, corporation, or other third party except as necessary in carrying out the Services for Alcar consistent with Alcar’s agreement with such third party.

f. Press Releases. Neither Party will issue or make, directly or indirectly, any press releases or other public announcements relating to the Agreement or the underlying transaction(s) between Alcar and Company without the prior written approval of the other Party (email acceptable). Each Party reserves the right to withhold approval in its sole discretion.

1. Return of Alcar and/or Customer Materials.Upon the termination or expiration of the Agreement, or upon Alcar’s request, Company will promptly deliver to Alcar, and will not keep in Company’s possession, custody or control, recreate, or deliver to anyone else, any Alcar and/or Customer property, including Confidential Information, all embodiments of any deliverables provided by Company and/or Customer, all electronically-stored information and passwords to access such property, and any reproductions of any of the foregoing items that Company may have in Company’s possession, custody, or control.
2. Ownership.

a. Assignment of Deliverables. Company agrees that all right, title, and interest in and to any original works of authorship, concepts, deliverables, materials, notes, records, drawings, designs, inventions, improvements, products, services, developments, discoveries, trade secrets, and/or other proprietary information or intellectual property right, conceived, discovered, authored, invented, developed or reduced to practice by Company, solely or in collaboration with others, and arising out of, or in connection with, performing the Services, and any updates and derivatives thereto, and any copyrights, patents, trademarks, trade secrets, mask work rights and/or other intellectual property rights relating to the foregoing (including moral rights) (collectively, “Deliverables”), are the sole property of Alcar. In addition, Company agrees that all Deliverables that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act, and that Alcar will be the author of such copyrightable works. Company also agrees (i) to promptly make full written disclosure to Alcar of any Deliverables, and (ii) to confirm Alcar’s full right, title and interest and to all Deliverables, including to the extent that title to any of the Deliverables do not vest in Alcar as the author, or such works may not be considered “works made for hire”, by delivering and assigning (or causing to be assigned), and hereby irrevocably assigning (and agreeing to assign) fully to Alcar, all right, title and interest in and to the Deliverables. Company agrees that the foregoing includes a present conveyance to Alcar of all right, title and interest in any Deliverables that are not yet in existence. To the extent that moral rights (including rights of attribution and integrity) cannot be assigned under applicable Law, Company hereby irrevocably waives and agrees not to enforce any and all moral rights, to the extent permitted under applicable Law.

b. Pre-existing Materials. Subject to Section 11.a., above, Company agrees that if, in the course of performing the Services, Company incorporates into any Deliverable or utilizes in the performance of the Services any pre-existing deliverables, materials, notes, records, drawings, designs, products, services, invention, discoveries, original works of authorship, developments, improvements, trade secrets, concepts, and/or other proprietary information or intellectual property right owned by Company or in which Company has an interest (“Pre-Existing Materials”): (i) Company will provide Alcar with prior written notice of Pre-Existing Materials; and (ii) Alcar is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Pre-Existing Materials, without restriction, including as part of or in connection with such Deliverable, and to practice any method related thereto. Company will only utilize Pre-Existing Material which it owns or has an interest, and Company will not incorporate any deliverables, materials, notes, records, drawings, designs, products, services, trade secrets, inventions, improvements, developments, concepts, discoveries, original work of authorship and/or or other proprietary information or intellectual property right owned by any third party into any Deliverable and/or the Service without Alcar’s prior written permission.

c. Further Assurances. Company agrees to assist Alcar, or its designee, at Alcar’s expense, to secure Alcar’s rights in Deliverables in any and all countries. This includes: (i) the disclosure to Alcar of all pertinent information and data with respect thereto; (ii) the execution of all applications, specifications, oaths, assignments and all other instruments that Alcar may deem necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to Alcar, its successors, assigns and nominees the sole and exclusive right, title, and interest in and to all Deliverables; and (iii) testifying in a suit or other proceeding relating to such Deliverables. Company agrees to keep and maintain adequate, current, accurate, and authentic written records of all Deliverables made by Company (solely or jointly with others) during the Term, and for a period of four (4) years thereafter. Such records are and remain the sole property of Alcar at all times and upon Alcar’s request, Company will deliver (or cause to be delivered) such records to Alcar, or its designee.

d. Attorney-in-Fact. Company agrees that, if Alcar is unable because of Company’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Company’s signature with respect to any Deliverables, including for the purpose of applying for or pursuing any application for any United States or foreign patents, mask work, copyright, or trademark registrations covering the Deliverables assigned to Alcar in Section 11.a., above, then Company hereby irrevocably designates and appoints Alcar and its duly authorized officers, agents and/or representatives as Company’s agent and attorney-in-fact, to act for and on Company’s behalf to perform, execute and file any papers and oaths, and to perform any other acts, with respect to intellectual property rights in Deliverables with the same legal force as if executed by Company. This power of attorney will be deemed coupled with an interest, and will be irrevocable.

1. Warranties. Company represents, warrants, and covenants that: (a) it and its subcontractor(s) (i) is/are a validly existing business entity(ies) and has/have all rights, licenses, permits, qualifications and consents necessary to perform its and/or their respective obligations pursuant to the Agreement, and (ii) will comply with all Laws, including in connection with the Services; (b) neither the Services nor any Company property, nor any combination thereof with any Alcar and/or Customer property, (i) infringes or misappropriates any intellectual property right of any third party, and/or (ii) breaches and/or violates the privacy and/or any other right of any third party; (c) the Services and the media on which the Services are performed and/or delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any Alcar or User Information System(s); (d) it and its Personnel will deliver and perform all Services in a professional and workmanlike manner in accordance with standards generally accepted in Company’s industry; (e) the Services furnished hereunder are and will be (i) free from defects in design, materials and workmanship, (ii) of merchantable quality and fit for the purposes for which they are intended by Alcar, and (iii) free and clear of all liens, claims and encumbrances; and (f) the Services will conform with all specifications and other descriptions furnished to and/or approved by Alcar Neither receipt of Services, nor payment therefore will constitute a waiver of any warranty herein. If Company breaches any representation, warranty, or covenant, without waiving any rights or remedies, Alcar may return for refund or credit at Alcar’s sole discretion, or require prompt correction or replacement of nonconforming Services.
2. Term; Termination.

a. Term. The Term of the Agreement begins on the Effective Date and continues until the earlier of: (i) the End Date Set forth in the SOW; or (ii) termination as provided in Section 13.b., below (“Term”).

b. Termination. Alcar may terminate a SOW, or any part thereof, and/or the Agreement, with or without cause, upon one (1) day prior written notice (email acceptable). Alcar may also terminate the Agreement immediately and without prior notice if Company refuses to or is unable to perform the Services or is in breach of any material provision of the Agreement. Company may terminate the Agreement immediately by written notice to Alcar if Alcar is in breach of any material provision of the Agreement and such breach is not cured within 30 days after written notice thereof is received by Alcar.

c. Effects of Termination. Alcar will pay Company for the Services accepted by Alcar as of the effective date of termination. Alcar will have no responsibility for the Services performed, after the effective date of termination. Alcar will not be responsible for any penalties, re-stocking fees, or similar charges resulting from termination of the Agreement, or part thereof. Upon termination of the Agreement, Company will: (i) provide the Services until the effective date of termination (except as otherwise instructed in writing by Alcar); (ii) terminate the Services in an efficient, workmanlike and cost-effective manner; (iii) cooperate with Alcar in the transition as requested by Alcar; and (iv) within 30 days of such termination, deliver to Alcar, without offset or deductions, a prorated refund of any prepaid fees, including any service or maintenance fees, and payment of any accrued SLA credits.

d. Survival. All definitions, and Sections 1, 2, 5, 7 (for accrued but unpaid compensation), 8, 9, 10, 11, 12, 13(c), and 14 through 20, will survive termination or expiration of the Agreement.

1. Indemnification. Company will indemnify, defend and hold harmless Alcar, its affiliates, and their shareholders, owners, directors, officers, employees, contractors, agents, representatives, successors and assigns (collectively, “Indemnitee”), from and against all actual or alleged taxes, losses, damages, liabilities, demands, claims, judgments, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) providing and/or performing the Services; (b) any breach of the Agreement, and/or any negligent, reckless or intentionally wrongful act or omission, by Company and/or Personnel; and/or (c) Company and/or Personnel not providing or performing the Services as independent contractors to Alcar (collectively, “Claim”). Alcar will at Company’s sole expense reasonably cooperate to facilitate the settlement or defense of any Claim. Company is solely responsible for defending any Claim against an Indemnitee: (d) subject to such Indemnitee’s right to participate with counsel of its own choosing at its own expense; and (e) subject to Alcar right at any time to take over such defense. Company will not agree to any settlement that imposes any obligation or liability on an Indemnitee, or that does not provide a full release of each Indemnitee, without such Indemnitee’s prior express written consent.
2. Limitation of Liability. IN NO EVENT WILL ALCAR BE LIABLE TO COMPANY OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER ALCAR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR ANY COMPENSATION OWED BY ALCAR TO COMPANY PURSUANT TO THE AGREEMENT, AND WITHOUT LIMITING THE PREVIOUS SENTENCE, IN NO EVENT WILL ALCAR’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT EXCEED $500.
3. Insurance. Company will procure, as of the Effective Date, insurance, in the amount, form and manner reasonable to: (a) cover Company’s obligations pursuant to the Agreement; and (b) protect Alcar and its affiliates should Company breach its obligations pursuant to the Agreement. Without limiting the foregoing, Company will procure at least the following insurance: comprehensive general liability and errors and omissions insurance, each on an occurrence policy form, and each with policy limits equal to or greater than $1,000,000 per occurrence (combined single limit) and $2,000,000 in the aggregate, covering operations by or on behalf of Company, including coverage for (i) broad-form contractual liability, (ii) personal injury liability/advertising injury, and (iii) workers’ compensation insurance in the minimum amounts required by applicable Law. In addition, a Certificate of Insurance adding Alcar as additional insured and evidencing the required liability coverage and limits of liability must be furnished to Alcar before Company provides the Services, but in no event later than 10 days after the Effective Date, and at such other times as requested by Alcar. Company will keep all liability insurance coverage required by the Agreement in effect for at least six (6) years after the expiration or termination of the Agreement. All policies, if any, providing insurance on a “claims made” basis will provide coverage applicable to loss or damage arising out of acts or injuries that occur at any time that liability insurance is required to be maintained by Company by the Agreement. In no event will Company’s insurance limit or diminish in any way Company’s obligations or liability to Alcar under the Agreement.
4. Choice of Law; Venue. The Agreement and any dispute relating thereto will be governed by the laws of the State of Nevada, without regard to its conflicts/choice of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. For purposes herein, the Parties expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Clark County, Nevada.
5. Notices. Alcar may give notices to Company by email, recognized overnight mail, first class mail at the address set forth on the applicable SOW. Company will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: Chief Legal Officer, Alcar Inc., 8255 Las Vegas Blvd S. Unit 1212, Las Vegas, NV 89123.
6. Non-Disparagement. Without limiting any of Company’s other obligations under the Agreement, Company agrees that it will not make statements or representations to any other person, entity or firm which may cast (a) Alcar, any Customer, or any of their respective affiliates, directors, officers, employees, or agents, and/or (b) Alcar or any Customer’s products and services in an unfavorable light, which are offensive, or which could adversely affect Alcar or Customer’s name or reputation, or the name or reputation of any of their respective affiliates, directors, officers, employees, or agents. The Parties agree that the provisions of this Section are material terms of the Agreement.
7. Miscellaneous. Company may not assign, transfer, delegate, or subcontract any part of the Agreement without Alcar’s prior written consent, and any assignment, transfer, delegation, or subcontract in violation of this provision will be null and void. If a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, invalid or unenforceable, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. No modification of or amendment to the Agreement, nor any waiver of any rights under the Agreement, will be effective unless in writing signed by the Parties. Waiver by Alcar of a breach of any provision of the Agreement will not operate as a waiver of any other or subsequent breach. Any rights not expressly granted in the Agreement are reserved by Alcar or Company, as applicable, and all implied licenses are disclaimed. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of the Agreement. As used in the Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will”, “shall”, and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Each Party acknowledges that it has had the opportunity to review the Agreement with legal counsel of its choice, and there will be no presumption that any ambiguities will be construed or interpreted against the drafter.

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