MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is entered into effective as of________________________________________________, between Taurus Blue Duck, LLC (“Company”) and the customer (“Customer”) signing below. Recitals: A. Company owns a saltwater disposal facility Customer wishes to use. NOW, THEREFORE, IN CONSIDERATION of the mutual promises, conditions and agreement herein contained and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. TERMS OF AGREEMENT
1.1. Term or Agreement:
This agreement shall remain in full force and effect until canceled by either party in writing at the respective address of said party. Such termination can be made to be effective immediately, and Company and Customer agree that all payment obligations and assumption of responsibility and indemnity provisions shall survive termination of this Agreement.
1.2. Customer Access Code:
As soon as possible after execution of this Agreement, Company shall provide Customer with a unique Customer Access Number (“CAS”). In the event Customer fails to pay when due any amount payable under this Agreement or otherwise breaches any covenant or provision of this Agreement, Company, in addition to and without limiting Company's rights under this Agreement and Texas law, has the unqualified right to disable Customer's CAS or to restrict Customer's access to any and all of Company's facilities without notice to Customer.
1.3. Access to Facilities with CAS:
Once the CAS has been assigned to Customer, Company will allow Customer access to and the right to use pursuant to the terms and conditions of this Agreement certain saltwater disposal facilities of Company specified by Company. Company has the unilateral right to disable the CAS or to restrict Customer's access to any and all of Company's facilities at any time for any reason without notice to Customer. Further, by entering the CAS or by entering Company's facilities, Customer is agreeing to use the saltwater disposal facilities pursuant to and in accordance with the terms and conditions of this Agreement. Customer is solely responsible for maintaining the confidentiality and security of its CAS, and in the event Customer’s CAS is used by an unauthorized person or entity, Customer shall be fully responsible for all charges incurred via such unauthorized use, no matter Master Services Agreement Page 2 of 10 the circumstances associated with such unauthorized use.
1.4. Designated Facilities:
Customer shall be allowed to access and use only those facilities as Company may specify from time to time.
1.5. Information Required by Facilities:
The facilities specified for use by Customer contain an automated system into which Customer must enter its CAS and the amount of saltwater being disposed of along with other information, including, without limitation, the information required under Section 3.2 below. Further, notwithstanding such automated system, Customer must fill out a separate charge ticket for all saltwater to be disposed of at Company’s facilities.
1.6. Accuracy of Information Provided:
Customer and its employees, agents, representatives, drivers, and all others acting on its behalf shall be responsible for accurately and completely entering all requested information into Company's automated system and filling out a separate charge ticket for all saltwater that is disposed of at Company's facility.
Upon the use of the saltwater disposal facilities by Customer, Company shall issue an invoice(s) to Customer, and Customer shall pay all invoices pursuant to and in accordance with the terms and conditions contained in this Agreement and in each invoice, and Customer shall pay the fees and other charges set forth in each invoice for the services described in each applicable invoice.
2. PAYMENT TERMS
Customer shall pay company for saltwater disposal services furnished by Company at the rate set forth in each applicable invoice. All invoices submitted to Customer are due and payable no more than thirty (30) days after the date of the applicable invoice. All invoices submitted to Customer shall be due and payable in Dallas, Dallas County, Texas at the address stated on the Company's invoice.
2.2. Security to Secure Payment:
Company has the unilateral right to require security from Customer to secure payment under this Agreement and the applicable invoices, and such security may include, but is not limited to, a deposit, irrevocable line of credit from an approved lending institution, performance bond for the benefit of Company, or any other mechanism or method of security deemed necessary and acceptable by Company, in Company's sole discretion.
2.3. Interest on Past Due:
Any amounts that remain outstanding after 30 days from the date of the applicable invoice shall accrue interest at the rate of 1.5% per month or at the maximum rate permitted by applicable law, whichever is lower. In the event Customer, in good faith, disputes the amount of any invoice, Customer shall notify Company of such dispute within 5 days of receipt of the applicable invoice and shall pay any undisputed amount included in such invoice within said 30-day period.
2.4. 60 Days Past Due: In the event that any amounts remain outstanding for 60 days or more from the date of the applicable invoice, Company shall have the right to issue invoices associated with the cost of saltwater disposal services directly to the oil and gas operator or working interest owners associated with the oil and gas lease and well that produced said saltwater without limitation or restriction. 2.5. Filing Liens: In addition, and without waiving any other right or remedy available to Company under this Agreement or Texas law, in the event that any amounts remain outstanding for 60 days or more from the date of the applicable invoice, upon demand from Company, Customer shall take, at Customer's sole cost and expense, all steps necessary to timely file and perfect a valid mineral lien pursuant to Chapter 56 of the Texas Property Code against the oil and gas operator or working interest owners associated with the oil and gas lease and well that produced said saltwater. After said lien is properly perfected, Customer shall assign said lien to Company without limitations or restrictions. 2.6. Attorney Fees: If Company engages an attorney to collect any past due amounts owed under this Agreement or any invoice, Customer shall be liable and must immediately upon demand from Company reimburse Company for all attorneys' fees and costs incurred in such collection.
3. USE OF FACILITIES
3.1. Legal Disposal Only:
Customer shall use the saltwater disposal facilities in compliance with all applicable laws, orders, decisions , rules and regulations concerning handling, transportation, storage, and disposal of the applicable substances , including, but not limited to, the rules and regulations of the Texas Railroad Commission and the terms and conditions of Customer's existing permit issued by the Texas Railroad Commission to handle, transport, store or dispose of the applicable substances. Notwithstanding any other provision of this Agreement to the contrary and in addition to any and all other remedies available to Company under this Agreement or Texas law, Customer shall be solely responsible and liable for any and all damages suffered by Company as a result of any failure of Customer to use Company's facilities in compliance with all applicable laws, orders, decisions, rules and regulations concerning handling, transportation, storage, and disposal of the applicable substances. Such damages shall include but not be limited to the amount of any and all fines and costs incurred by Company as a result of any action by any regulatory or other governmental agency.
3.2. Duty to Provide Accurate Information:
Customer acknowledges that Company's facilities are at times not staffed by representatives of Company, and Customer, its agents, representatives or drivers are to be solely responsible for accurately and completely entering all requested information into Company's automated system and accurately and completely filling out a charge ticket for all saltwater or waste that is being disposed of, as applicable. Customer shall provide all the information requested by the automated system and in the charge ticket which may include but is not limited to (a) the date and time of the disposal, (b) the amount of saltwater being disposed of, (c) the full name of the Customer and its representative disposing of saltwater, (d) the oil and gas operator, mineral owner or other entity or person for whom the saltwater is being disposed of, and (e) the full name of the oil and gas lease and well along with all applicable Railroad Commission of Texas identification numbers from which the saltwater to be disposed of was produced. If any of the required information is not inputted into the automated systems or is omitted from any charge ticket, in addition to all other remedies available to Company under this Agreement or Texas law, Company has the right to charge, and Customer shall pay if requested by Company, five cents ($.05) per barrel in addition to the base disposal. In the event Customer fails to provide the accurate number of barrels of saltwater disposed of, in addition to all other remedies available to Company under this Agreement or Texas law, Company has the right to charge, and Customer shall pay if requested by Company, the base cost associated with the disposal of a minimum of 130 barrels of material, in addition to the five cent ($.05) per barrel surcharge referenced above.
3.3. Forbidden Items at Disposal Facilities:
In disposal activities undertaken at Company's facilities, Customer shall not dispose of tank bottoms, cellars, pit bottoms, drilling mud or any other fluids or materials that are, in Company's sole opinion and discretion, harmful to Company's facilities or are in violation of any applicable laws, orders, decisions, rules, regulations or permits concerning handling, transportation, storage, or disposal of substances by Customer under this Agreement. In the event Customer fails to comply with the requirement of this Section 3.3, Company shall, at a minimum and in addition to all other remedies available to Company under this Agreement or Texas law, have the tight to charge, and Customer shall pay if requested by Company, a minimum charge of $30.00 per barrel of fluid or material deposited into any of Company's facilities that violates this Section 3.3.
3.4. Remedies For Improper Use:
Notwithstanding any other provision of this Agreement to the contrary and in addition to any other remedies available to Company under this Agreement or Texas law, Customer shall be solely responsible and liable for any and all damages suffered by Company as a result of any failure of Customer to use the facilities in compliance with the requirements of Section 3 of this Agreement. Such damages shall include but not be limited to the amount of any and all fines and costs incurred by Company as a result of any action by any regulatory agency.
3.5. First Come – First Serve / Adequate Capacity:
Company's saltwater disposal facilities are operated on a "first come, first serve" basis, and therefore fluid levels in the tanks prior to attempted disposal of saltwater by Customer could render the storage tanks at Company's facilities full and unable to accept further saltwater from Customer at Customer's desired time of disposal. Customer shall not use Company's facilities when adequate capacity in Company's tanks for Customer's saltwater is not present. Customer's right to use Company's facilities is expressly contingent upon Company's storage tanks at the facilities having adequate room to accommodate Customer's saltwater, and Company has no obligation to accept Customer's saltwater in the event Company's storage tanks do not have adequate capacity to Master Services Agreement Page 5 of 10 accept and hold Customer's saltwater. Notwithstanding any other provision of this Agreement to the contrary and in addition to any other remedies available to Company under this Agreement or Texas law, Customer shall be solely responsible and liable for any and all damages suffered by Company or third parties as a result of Customer depositing saltwater or other waste into Company's facilities when adequate room is not available in such tanks and a spill or other event causes injury or damage.
3.6. Adjusting Disposal Well Equipment Forbidden:
Customer shall not tamper, alter, adjust, or access any equipment located at Company's facilities during the use of Company's facilities pursuant to this Agreement. Notwithstanding any other provision of this Agreement to the contrary and in addition to any other remedies available to Company under this Agreement or Texas law, Customer shall be solely responsible and liable for any and all damages suffered by Company or third parties to this Agreement as a result of Customer's tampering, altering, adjusting or accessing equipment located at Company's facilities.
3.7. Company Becomes Owner of Product:
After saltwater, waste, skim oil, or any other material is deposited into Company's facilities, such saltwater, waste, skim oil, or other material shall be the sole property of Company, and Company shall be entitled to dispose of such saltwater, waste, skim oil, or other material in whatever manner Company deems appropriate. This subsection 3.7 in no way relieves Customer of its obligations under Section 3 or Section 6 of this Agreement.
4. RELATIONSHIP OF THE PARTIES
4.1. Independent Contractor Status:
Company shall be an independent contractor with respect to the performance of the services contemplated or to be performed under this Agreement. No relationship of master and servant, principal and agent, employer and employee, or a partnership or joint venture shall exist between Company and Customer, its employees, agents, or representatives.
5.1. Insurance Required by Customer:
To support the indemnification provisions in this Agreement but as a separate and independent obligation, Customer shall at Customer's own expense procure and maintain, and cause its subcontractors, at such subcontractors' own expense, to procure and maintain, insurance coverage with reputable insurers. All insurance policies procured and maintained by Customer must be written with insurance companies licensed to do business in the state where work will be performed, and have a rating of A-V-II or better as shown in the most current issue of A.M. Best's Key Rating Guide, under forms of policies satisfactory to Company, in the kinds and amounts set forth below:
5.1.1. Worker's Compensation:
Insurance in accordance with the benefits afforded by statutory worker's compensation acts applicable to the state, territory or district of hire, supervision or place of accident (sole proprietorships with no employees falling within the jurisdiction of any statutory worker's compensation act must certify to that fact to Company in writing), and Customer's Liability Insurance in the amount of $500,000 covering Customer's employees working under or pursuant to this Agreement.
5.1.2. Employer's Liability:
Insurance to include alternate employer in an amount not less than $500,000 each accident.
5.1.3. Commercial (or Comprehensive) General Liability:
Insurance, with a single limit of liability for bodily injury or property damage of $1,000,000 per occurrence ($2,000,000 Aggregate), such coverage to include products/completed operations liability, premises/operations, independent contractors, broad form bodily injury and property damage, personal injury, in rem (if applicable) explosion, collapse and underground damage liability, blanket contractual liability covering the obligations assumed by Customer herein and sudden and accidental pollution liability with regard to Customer and its subcontractors. The Employer's Liability exclusion shall not apply to Company as an additional insured.
5.1.4. Business Automobile Liability Insurance
covering all owned, non-owned, leased, rented and hired motor vehicles, including coverage for loading and unloading, used in performance or connection with this Agreement, with Bodily Injury in the amount of $500,000 for each person and $500,000 for each accident; and Property Damage in the amount of $500,000 for each accident or $500,000 combined single limit for Bodily Injury and Property Damage. If hauling hazardous waste, such insurance must have the MCS-90 endorsement attached and the pollution exclusion deleted.
5.1.5. Excess Liability Insurance
over that required in Section 5.1.1 through 5.1.4 in the amount of $2,000,000, specifically including Contractual Liability.
5.2 No Limit of Liability:
THE INSURANCE REQUIREMENTS SET FORTH IN THIS AGREEMENT IN NO WAY LIMIT CUSTOMER'S LIABILITY OR RESPONSIBILITY UNDER THIS AGREEMENT, NOR SHALL THEY BE CONSTRUED TO BE THE ULTIMATE TYPES AND AMOUNTS OF INSURANCE CUSTOMER SHOULD MAINTAIN TO ADEQUATELY COVER ITSELF FROM THE HAZARDS OF CUSTOMER'S OCCUPATION. 5.3 Premiums Sole Responsibility of Customer: Any and all premiums and deductibles or any other charges due with respect to such policies of insurance shall be assumed by, for the account of and at Customer's sole risk. Customer shall have deductibles acceptable to Company.
5.4 Company Must Be Named Insured:
All policies of insurance referred to herein, except the Worker's Compensation and Employer's Liability, must name Company and its d/b/a's, parent entities, subsidiaries or affiliates listed on Exhibit “A" attached hereto, as Additional Insureds, and must contain a Contractual Liability Endorsement. To the extent of the indemnification obligations assumed by Customer in this Agreement, all such policies of insurance shall be primary to any insurance of Company that may apply to any occurrence, accident, or claim. Customer's policies of insurance shall not contain exclusions for claims arising out of the negligence of Company or any of the other parties named as Additional Insureds. Further, all the above insurance policies must provide that no cancellation or material change will become effective except on thirty (30) days prior written notice to Company.
5.5 Underwriters’ Waiver:
Except were prohibited by law, all policies of insurance pertaining to this Agreement which are procured, held or maintained by Customer and each of its subcontractors, whether required by this Agreement or not, must be endorsed to provide that the underwriters or insurers waive any and all rights against Company and its d/b/a's, parent entities, subsidiaries or affiliates listed on Exhibit “A” attached hereto.
5.6 Proof of Insurance:
Customer shall have its insurance carrier(s) furnish Company with a certificate or certificates evidencing insurance coverage in accordance with the above requirements within seven (7) days of the commencement of the use of Company's facilities under this Agreement. Renewal certificates must be delivered to Company within ten (10) days of policy expiration. Notwithstanding Customer's obligations to furnish, and Company's right to receive, proof of insurance in compliance with the above requirements, any failure of Company to require, or to insist that Customer comply with its obligations to provide, proof of insurance within seven (7) days of the commencement of the use of Company's facilities under this Agreement, or at any other time, will not operate as a waiver of Customer's obligations to provide, procure or maintain insurance in accordance with the above requirements.
6. RESPONSIBILITY FOR LOSS OR DAMAGE, INDEMNITY, RELEASE OF LIABILITY AND ALLOCATION OF RISK
6.1. Responsibilities of Customer:
CUSTOMER SHALL ASSUME ALL RESPONSIBILITY FOR AND SHALL RELEASE, DEFEND, INDEMNIFY AND SAVE HARMLESS COMPANY AND ITS OTHER CUSTOMERS, CONTRACTORS, D/B/A'S, PARENT ENTITIES, SUBSIDIARIES AND AFFILIATES AND ALL OWNERS, OFFICERS, AGENTS AND EMPLOYEES OF EACH FROM AND AGAINST ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE, OR DESCRIPTION, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEY'S FEES, CAUSED BY OR ARISING OUT OF OR IN CONNECTION WITH (a) INJURY TO, ILLNESS OR DEATH TO ANY PERSON DIRECTLY OR INDIRECTLY ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT OR ANY AND ALL ACTS OF CUSTOMER AND ITS CONTRACTORS, AGENTS OR EMPLOYEES IN THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE DISPOSAL OF SALTWATER OR OTHER WASTE AT COMPANY'S FACILITIES; (b) LOSS OR DESTRUCTION OF OR DAMAGE TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, DIRECTLY OR INDIRECTLY ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT OR ANY AND ALL ACTS OF CUSTOMER AND ITS CONTRACTORS, AGENTS OR EMPLOYEES IN THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE DISPOSAL OF SALTWATER OR OTHER WASTE AT COMPANY'S FACILITIES OR (c) ANY MISREPRESENTATION, BREACH OF WARRANTY, OR BREACH OR NONFULFILLMENT OF ANY COVENANT OR AGREEMENT ON THE PART OF CUSTOMER UNDER THIS AGREEMENT. Master Services Agreement Page 8 of 10
6.2. Consequences of Pollution or Contamination:
NOTWINOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER SHALL ASSUME ALL RESPONSIBILITY FOR AND SHALL RELEASE, PROTECT, DEFEND AND INDEMNIFY COMPANY AND ITS OTHER CUSTOMERS CONTRACTORS, D/B/A'S, PARENT ENTITIES, SUBSIDIARIES AND AFFILIATES AND ALL OWNERS, OFFICERS, AGENTS AND EMPLOYEES OF EACH FROM AND AGAINST ALL LOSSES, LIABILITY, DAMAGES, CLAIMS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSE OF LITIGATION, COURT COSTS AND ATTORNEY'S FEES, CAUSED BY OR ARISING OUT OF OR IN CONNECTION WITH (a) POLLUTION OR CONTAMINATION OF ANY KIND, DIRECTLY OR INDIRECTLY ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT OR ANY AND ALL ACTS OF CUSTOMER OR ITS CONTRACTORS, AGENTS OR EMPLOYEES IN THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE DISPOSAL OF SALTWATER OR OTHER WASTE AT COMPANY'S FACILITIES; OR (b) ANY HAZARDOUS SUBSTANCE, HAZARDOUS MATERIAL, OIL AND CONSTITUENTS THEREOF, OR HAZARDOUS WASTE REGULATED BY ANY APPLICABLE LAW INCLUDING BUT NOT LIMITED TO THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE RESOURSE CONSERVATION AND RECOVERY ACT, THE TOXIC SUBSTANCES CONTROL ACT, THE CLEAN AIR ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT, AND ALL OTHER COMPARABLE FEDERAL, STATE AND LOCAL APPLICABLE LAWS AND ALL RULES AND REGULATIONS PROMULGATED THEREUNDER DIRECTLY OR INDIRECTLY ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT AND /OR ANY AND ALL ACTS OF CUSTOMER OR ITS CONTRACTORS, AGENTS OR EMPLOYEES IN THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT, INCLUDING , BUT NOT LIMITED TO THE DISPOSAL OF SALTWATER OR OTHER WASTE AT COMPANY'S FACILITIES . 6.3. Obligations Survives Termination of Agreement: THE RIGHTS AND OBLIGATIONS OF THE PARTIES IN THIS SECTION 6 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
7. LAWS, RULES AND REGULATIONS
7.1. Compliance with All Laws:
The parties shall comply with all laws, rules, and regulations which are now or may become applicable to operations covered by this Agreement or arising out of the performance of such operations. If either party is required to pay any fine or penalty resulting from the other party's failure to comply with such laws, rules or regulations, the party failing to comply shall reimburse the other for any such payment within fourteen (14) days of such payment being made.
7.2. Choice of Jurisdiction:
This Agreement shall be construed, governed, interpreted, enforced and litigated, and the relations between the parties determined, in accordance with the laws of Texas, without regard, however, to any choice of laws or conflicts of law’s provisions which would direct the application of the laws of another jurisdiction. All suits, actions , proceedings, or disputes that arise out of or that relate to this Agreement or the parties' relationship, whether the claims arise from contract or tort, or whether the claims are legal or equitable in nature, must be litigated exclusively in Dallas County, Texas, excluding any litigation that must be brought in another forum because it relates to a mineral lien filing described in Section 2.8 of this Agreement. Company and Customer irrevocably and unconditionally waive any objection to the laying of jurisdiction or venue in Dallas County, Texas for any suit, action, proceeding, or dispute. Both parties have had the opportunity to consult an attorney and have voluntarily agreed to this forum-selection clause. The foregoing choice of forum is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties in any jurisdiction other than that specified in this Section.
7.3. Waiver of Form Non Conveniens:
Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section 7. Both parties acknowledge that Dallas County, Texas is a convenient forum.
8. FORCE MAJEURE:
Except for the duty to make payments when due and the assumption of responsibility and indemnification provisions under this Agreement, neither Company nor Customer shall be responsible to the other for any delay, damage or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, "Force Majeure Event" includes acts of God, action of the elements, warlike action, insurrection, revolution or civil strife, piracy, civil war or hostile action, strikes, differences with workers, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction in the premises or any other group, organization or informal association (whether or not formally recognized as a government), inability to procure material, equipment or necessary labor in the open market, acute and unusual labor, material or equipment shortages, or any other causes (except financial) beyond the control of either party. Delays due to the above causes or any of them shall not be deemed to be a breach of or failure to perform under this Agreement. Neither Company nor Customer shall be required against its will to adjust any labor or similar disputes except in accordance with applicable law.
Company shall be entitled to assign or delegate the rights of Company under this Agreement in whole or in part without Customer's prior consent. Customer shall not be entitled to assign or delegate the rights of Customer under this Agreement without the prior express written consent of Company. The terms, covenants and conditions of this Agreement shall be binding upon and inure to the benefit of their respective heirs, personal representatives, successors, and assigns in the event such an assignment or delegation of the rights under this Agreement occurs.
10. NOTICES AND PLACE OF PAYMENT:
All notices to be given with respect to this Agreement, unless otherwise provided for, shall be given in writing to Company and Customer respectively via certified mail, return receipt requested at the addresses here in above shown. All sums payable hereunder to Company shall be payable at its address hereinabove shown unless otherwise specified herein (See Section 2.1 regarding payments)
If any provision of this Agreement is held to be partially or fully invalid or unenforceable, this Agreement and the applicable invoices shall be deemed to be amended to partially or completely modify such provision or portion thereof to the extent necessary to make it enforceable, or, if necessary, this Agreement and the applicable invoices shall be deemed to be amended to delete the unenforceable provision or portion thereof.
No benefit or right accruing to either party under this Agreement or any applicable invoice shall be deemed to be waived unless the waiver is reduced to writing, expressly refers to this Agreement or the applicable invoice and is executed by a duly authorized representative of the respective party. A waiver in one or more instances shall not constitute a continuing waiver, or a waiver of any other item, unless expressly stated in the written waiver.
13. OPPORTUNITY TO CONSULT WITH COUNSEL:
The parties have been afforded an opportunity to consider this Agreement and the terms and conditions set forth herein, have read and now understand the terms of this Agreement, and have consulted with counsel of their choosing prior to executing this Agreement. Each party acknowledges that it has participated in the negotiation of this Agreement, and no provision of this Agreement may be construed against or interpreted to the disadvantage of any party by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured, dictated or drafted such provision.
14. ENTIRE AGREEMENT:
This Agreement (including all applicable charge tickets and all invoices) constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions, prior agreements and understandings relating to the subject matter hereof. This Agreement may not be modified or amended except by an express written Amendment signed by both parties. The parties hereto have executed this Agreement upon the date(s) below shown in several counterparts, each of which shall considered as an original.
15. DIGITAL SIGNATURE
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