MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT (including, any attached exhibits, schedules and other attachments, this “MSA”) is entered into as of the date set forth on the signature page of the Service Order issued in conjunction with this MSA (the “Effective Date”), by and between NATIONAL CREDIT CENTER, INC., a Delaware corporation, together with each Affiliate who accepts a Service Order (“NCC”), and the undersigned client (“Client”). NCC and Client are referred to herein collectively as the “Parties” and each singularly as a “Party”.
1.1. Services. This MSA includes the general terms and conditions set forth on the following pages and all terms and conditions set forth in each NCC service order form signed by Client (“Service Order”). The most current version of this MSA and End User License Agreement (“EULA”) are available for review at nccdirect.com and are binding. The Parties’ complete agreement with respect to the Services includes this MSA, the EULA and all Service Orders, all of which are collectively referred to as the “Agreement”. Client expressly agrees that the terms and conditions of the Agreement shall govern all Services and are a material part of NCC’s agreement to provide such Services, whether or not the same is made express at the time of provision of Services. In the event of a conflict between the terms of this MSA and any Service Order, the terms provided in such Service Order shall prevail.
1.2. Purchase and Sale. NCC and each Affiliate who accepts a completed Service Order hereby agree to make the Services described in such Service Order available to Client, and Client hereby agrees to purchase such Services from NCC and/or its Affiliate, subject to the terms and conditions of the Agreement.
- DEFINITIONS; CONSTRUCTION.
2.1. Defined Terms. Unless otherwise defined in this MSA or in a Service Order, capitalized terms used in the Agreement shall have the definitions assigned below:
“Affiliate” means, with respect to a Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person; provided that, for purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Applicable Law” means any international, federal, state, or local law, statute, rule, regulation, or ordinance applicable to the purchase, resale or use of Services, including the Fair Credit Reporting Act, 15 USC Section1681 et seq. (“FCRA”), the Federal Equal Credit Opportunity Act, and the Gramm-Leach-Bliley Act.
“End User” means any “end user” of credit information under Applicable Law, including each purchaser or end user of products or services that incorporate or are produced by use of the Services.
“Person” means any individual, partnership, a joint venture, corporation, unincorporated organization or association, limited liability company, trust or other entity, or a government or other department or agency thereof.
“Services” means services and products provided by NCC and affiliates pursuant to a Service Order.
2.2. Construction. In the Agreement, unless expressly stated otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any Person includes such Person’s successors and assigns, if applicable, but only if such successors and assigns are permitted by the Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) reference to a gender includes the other gender; (d) reference to any agreement, document, or instrument means such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with its terms; (e) reference to any section or other provision of any legal requirement means that provision of such legal requirement from time to time in effect and constituting the substantive amendment, modification, codification, replacement, or reenactment of such section or other provision; (f) “hereunder,” “hereof,” “hereto,” and words of similar import refer to the Agreement as a whole and not to any particular Article, Section, Service Order or other provision of the Agreement; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/or”; (i) “any” means “any and all”; (j) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (k) a reference to a document, instrument, or agreement also refers to all addenda, exhibits, or schedules thereto; and (l) a reference to a “copy” or “copies” of any document, instrument, or agreement means a copy or copies that are complete and correct and currently in effect.
3.1. Term of MSA. This MSA commences on the Effective Date and shall continue until the third anniversary of the Effective Date (the “Initial Term”). After the Initial Term the Agreement shall automatically be renewed for successive three-year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”) unless either party gives the other notice of its intention not to renew, such notice to be in writing and delivered at least sixty (60) days prior to the end of the then-current Term. Notwithstanding the foregoing, in the event that one or more Service Terms (as defined below) have not terminated at termination of the Term, the Term shall be automatically extended until all Service Terms have terminated in accordance with the Service Orders.
3.2. Term of Service Orders. Each Service Order may set forth the term of the ordered Service (“Service Term”). If a Service Order does not include a Service Term, the Service Term for such Service Order shall be the Term.
3.3. Service Orders for Experian, Equifax and Transunion credit reports and contracted products shall provide that NCC shall be the sole and exclusive provider of such reports and products to the client.
3.4. Service Orders for National Credit Center’s EZApp, CreditVue and TradeVue products Service Term shall be a period of one (1) year from and after the date of the signature on the Service Order; provided that upon expiration of the initial one (1) year period, the Service Term shall automatically renew and continue in full force and effect for successive periods of one (1) year thereafter unless Client provides Notice in writing to NCC no less than thirty (30) days prior to the renewal date of its intent to terminate the Service Term.
- PAYMENT TERMS AND CHARGES
4.1. Charges. Client agrees to pay all charges for Services, based upon the rates set forth in each Service Order subject to increase, from time to time, and all charges for third party services, if applicable (collectively, the “Charges”). All Charges are exclusive of applicable federal, state, and local sales, use and excise taxes and surcharges. Charges paid are not refundable. Client further agrees to pay for additional services requested and received through NCC whether or not expressly described by the Agreement.
4.2. Invoice. NCC will invoice Client monthly or, if different, on a billing cycle set forth in the applicable Service Order. Client shall pay each invoice in full in immediately available U.S. Dollars via ACH, by bank check or via credit card without set off, counterclaim, discount, abatement or demand, and so that payment is received by NCC within twenty-five (25) days of the date of the invoice (“Due Date”). Any invoice not properly disputed as provided below in this Section 4, and not paid in full by the Due Date, will be subject to late payment fees as provided below in 4.3. Client represents that the address provided to NCC for billing purposes is either Client’s business street address or the post office box to which Client receives all of its bills. NCC reserves the right to assess a $25 fee for any check returned for insufficient funds or not paid when presented for payment.
4.3. Any account is delinquent if not paid in full within twenty (25) days after the billing statement date. Client agrees to pay a late charge of one and one-half percent (1.5%) or twenty-five dollars ($25.00) per credit bureau or service/solution, whichever is greater, per month on the delinquent account until paid in full. Client agrees to provide a copy of its most recent invoice from its credit provider to facilitate the credit services price match, as needed. NCC may suspend or terminate providing credit reports and/or ancillary services hereunder until amounts owed by Client have been paid in full.
4.4. Payment Disputes. If Client in good faith disputes in writing the amount or appropriateness of any Charges included in an invoice from NCC (a “Payment Dispute”), Client shall provide written notification to NCC of the Payment Dispute by the Due Date together with substantiating documentation, and provide further information reasonably requested by NCC to resolve the Payment Dispute. Such notification shall not relieve Client of the obligation to make all payments, excluding the disputed amount, by the Due Date. Client and NCC shall exercise reasonable good faith efforts to resolve the Payment Dispute. Failure to contest a charge in writing by the Due Date shall create an irrefutable presumption of correctness of the charge, absent manifest error, and Client shall be deemed to have waived its dispute rights for the applicable invoice and to have agreed to pay such invoice in full.
- TAXES; USF CHARGES; OTHER FEES
5.1. Taxes. Except to the extent NCC charges sales tax, Client shall be liable for and indemnify and defend NCC, its Affiliates, each of their partners, members, shareholders, directors, managers, officers, employees, vendors, insurers, lenders and agents, and each of their successors and assigns (each, a “NCC Party”) against the imposition of taxes, fees, regulatory fees, surcharges, and other charges or impositions on NCC as a result of NCC’s sale of Services or Client’s use of Services (whether imposed on NCC or on its Affiliate) levied or leviable by any local, state, national, international, public or quasi-public governmental entity or foreign government or its political subdivision (excluding taxes based on NCC’s net income or capital or any property taxes) (“Additional Charges”). Additional Charges include (a) all value added, consumption, sales, use, gross receipts, privilege and other similar taxes, and (b) taxes, fees and charges mandated or imposed on NCC by regulatory agencies or others, plus any reasonable administrative charge NCC may establish for its customers for administering these pass-through charges. Client is responsible for the collection and remittance of all federal, state and local sales, use, and governmental assessments, surcharges and fees pertaining to Client’s and/or End Users’ use of the Services. In the event NCC chooses at its sole discretion to pay all or any portion of such taxes and governmental assessments, surcharges or fees, Client shall immediately reimburse (including tax gross up) NCC.
5.2. Tax Exemption Certificate. Should Client claim any exemption of any sales, use, or other tax, then Client shall provide written evidence of such exemption to NCC. Client must make sure that its proof of exempt status remains current. In no event shall NCC be liable for any taxes due by Client; and, Client shall indemnify and defend each NCC Party if any such claim for taxes is made. NCC may, but shall not be obligated to, invoice Client for taxes that are not covered by a tax exemption certificate properly filed with NCC, and Client shall promptly pay such invoice without set off, counterclaim, discount, abatement or demand.
- TERMINATION AND SUSPENSION; CHANGE IN LAW
6.1. Default. Each of the following shall constitute an Event of Default under the Agreement: (a) Client’s failure to pay any invoice within five (5) days from and after the Due Date; (b) Client’s failure to comply with any Applicable Law or requirement of the credit bureaus; (c) Client seeking to become, or becoming subject to, any insolvency, dissolution or cessation of business operations; (d) Bureau request to terminate service to Client; and/or (e) Client breaches any other term or condition of the Agreement.
6.2. NCC’s Rights and Remedies. Upon the occurrence and continuation of any Event of Default, NCC may, in its sole discretion, in addition to any other rights or remedies available to it under the Agreement, at law or in equity, do any or all of the following: (a) draw on any letter of credit, security deposit or other assurance of payment provided by Client; (b) suspend performance under or terminate the Agreement, any Service Order and/or any Service without liability to Client; and/or (c) pursue any other legal or equitable remedy or relief as may be available. Any termination of the Agreement shall not relieve the Client of its obligation to pay any Charges and Additional Charges incurred hereunder prior to such termination.
6.3. Regulatory Changes. If a court of competent jurisdiction, regulatory body or other governmental entity issues a rule, regulation, law or order that has the effect of canceling, changing or superseding any material term or provision of the Agreement (a “Regulatory Requirement”), then the Agreement will be modified in such a way as the Parties mutually agree is consistent with the form, intent and purpose of the Agreement and is necessary to comply with the Regulatory Requirement. If the Parties cannot agree to modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then upon written notice the Party adversely impacted by the Regulatory Requirement may, to the extent practicable, terminate that portion of the Agreement impacted by the Regulatory Requirement.
- INDEMNIFICATION; REPRESENTATIONS AND WARRANTIES
7.1. Indemnity. Client shall defend, indemnify and hold harmless each NCC Party from and against any and all damages, losses, claims, demands, charges, suits, penalties, costs, expenses and other liabilities, whether known or unknown, whether accrued, absolute, contingent, or otherwise, including court costs and reasonable attorneys’ fees, which each NCC Party may incur or may be subjected, arising out of otherwise based upon any of the following: (a) any breach or default by Client of or under any of the provisions of the Agreement or any other agreement or instrument to which NCC, or an Affiliate of NCC, is a party; (b) any misrepresentation or breach of any of the representations and warranties of Client contained in the Agreement; (c) any negligence or willful misconduct of Client, its directors, officers, employees, agents, or representatives; (d) any claims that may be asserted by parties other than Client who have use of or access to the Services through Client; (e) Any lapse in service; and (f) any improper publication or disclosure or other misuse of any actions by any subject or any other third party in connection with any credit report. Client further agrees to defend, indemnify and hold harmless each NCC Party as may be provided in any Service Order.
7.2. LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL ANY NCC PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITTED TO LOST PROFITS OR REVENUES, HARM TO BUSINESS, LOST SAVINGS OR PROFITS, REGARDLESS OF THE FORM OF ACTION AND WHETHER BASED ON WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE AND WHETHER INCURRED OR SUFFERED AS A RESULT OF THE UNAVAILABILITY OF PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THIS AGREEMENT, OR FOR ANY OTHER REASON, EVEN IF CLIENT ADVISES NCC OF THE POSSIBILITY OF THIS LOSS OR DAMAGE. CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF CHARGES LEVIED IN CONNECTION WITH THE AGREEMENT, AND THAT, WERE NCC TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CHARGES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
(b) THE LIABILITY OF THE NCC PARTIES FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH ANY SERVICE ORDER OR SERVICES PROVIDED THEREUNDER WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF THE FEES PAYABLE FOR THE SERVICES MOST DIRECTLY RELATED TO THE CLAIM. THE MAXIMUM AGGREGATE LIABILITY OF THE NCC PARTIES FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT AND THE SERVICES SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE CHARGES ACTUALLY PAID BY CLIENT FOR SERVICES DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE THE EVENT GIVING RISE TO THE INITIAL CLAIM FIRST OCCURRED.
(c) CLIENT ACKNOWLEDGES AND AGREES THAT EACH SERVICE ORDER MAY CONTAIN FURTHER LIMITATIONS ON NCC’S LIABILITY UNDER THE AGREEMENT. BY SIGNING EACH SERVICE ORDER, CLIENT AGREES TO SUCH ADDITIONAL LIMITATIONS ON LIABILITY, WHICH SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, THE LIMITATIONS ON LIABILITY CONTAINED IN THIS MSA.
7.3. Warranty and Disclaimer of Warranty. NCC makes no warranty with respect to the Service or NCC’s performance under the Agreement unless expressly set forth in an applicable Service Order, and then only to the extent expressly stated therein. THE REPRESENTATIONS AND WARRANTIES OF NCC EXPRESSLY SET FORTH IN A SERVICE ORDER CONSTITUTE THE ONLY REPRESENTATIONS AND WARRANTIES OF NCC WITH RESPECT TO SUCH SERVICE ORDER AND THE SERVICES DELIVERED PURSUANT THERETO. SUCH REPRESENTATIONS AND WARRANTIES ARE IN LIEU OF, AND NCC EXPRESSLY DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WRITTEN OR ORAL, STATUTORY OR CONTRACTUAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, INFRINGEMENT, COMPLETENESS, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UNDER NO CIRCUMSTANCES WILL ANY NCC PARTY HAVE ANY LIABILITY FOR INTERRUPTIONS AFFECTING THE SERVICES FURNISHED UNDER THIS AGREEMENT THAT ARE ATTRIBUTABLE TO CLIENT’S EQUIPMENT FAILURES, OR TO CLIENT’S BREACH OF THE AGREEMENT, OR FOR ANY ACT OR OMISSION OF A VENDOR PROVIDING ANY SERVICE OR PRODUCT THAT IMPACTS THE SERVICES PROVIDED UNDER THE AGREEMENT.
8.1. Confidentiality and Proprietary Information.
(a) Each Party agrees that: (i) the provisions of the Agreement; (ii) the intellectual property owned or licensed by NCC (“Intellectual Property”); and (iii) the course of dealing between NCC and Client under the Agreement, is confidential and proprietary information (collectively, “Proprietary Information”) of NCC and will remain the sole and exclusive property of NCC.
(b) Except as provided for in the Agreement, Client shall: (i) not make any disclosure of the Proprietary Information to anyone other than its employees and agents who have a need to know in connection with the performance of the such Party’s obligations under the Agreement; (ii) take measures to protect the confidentiality of the Proprietary Information that, in the aggregate, are no less protective than those measures it uses to protect the confidentiality of its own proprietary information, which, in no event, shall be less than reasonable care; and (iii) advise those Persons to whom disclosure of Proprietary Information is made of the confidential nature of the Proprietary Information and cause such Persons to comply with this Section 8.
(c) If Client or its employees or representatives are requested or legally compelled by a governmental agency, by a court order, or as otherwise required by law, or in any legal or arbitration proceeding relating to the Agreement (an “Authority”) to disclose any of the Proprietary Information, Client agrees that it will provide NCC with prompt notice of these requests so that NCC has the opportunity to pursue legal and equitable remedies. Client will continue to treat the Proprietary Information confidentially as required herein, except and until, and then only to the extent that the Authority orders the Proprietary Information to be produced without confidential treatment. Client shall cooperate with NCC to seek an appropriate protective order or exemption from such requirement or request
(d) Each Party acknowledges and agrees that an actual or threatened breach of any of the promises or agreements of Client contained in this Section 8 will result in irreparable and continuing damage to NCC for which there will be no adequate remedy at law, and NCC shall be entitled without the requirement of posting a bond or other security, to injunctive relief, specific performance and/or other equitable relief as remedies for such breach or threatened breach, and such other relief as may be proper (including monetary damages if appropriate). Such remedies shall not be deemed to be the exclusive remedies for the breach or threatened breach of the Agreement by Client, but shall be in addition to all other remedies available at law or in equity to NCC.
(e) The restrictions and obligations imposed by this Section 8 shall continue in force and effect during the Term and for a period of two (2) years from the date of termination of the Agreement.
9.1. Intellectual Property Rights. NCC and its licensors retain all right, title, and interest in the Services and the Intellectual Property associated therewith. During the Term, NCC hereby grants to Client a limited, non-exclusive, non-transferable, license to use the Intellectual Property associated with the Services under the terms and conditions of the Agreement solely in connection with the use of the Services by Client during the Term in accordance herewith. Client shall not copy, modify, or decompile any Intellectual Property of NCC; make derivative works thereof; or transfer, assign, or sublicense any of NCC’s Intellectual Property to any third party. Except for the limited license set forth in this Section 9.1, NCC expressly reserves all other rights in and to the Services and NCC’s Intellectual Property. On or following any termination or expiration of the Agreement, Client shall not have any continuing right to use any Intellectual Property; shall immediately cease all use; and shall not retain any copies thereof (in any media).
9.2. Notices. All notifications, requests, demands and other communications required or permitted under the Agreement (each, a “Notice”) must be in writing and addressed to the recipient party at the applicable address or addresses specified on the signature page of this MSA and shall be deemed to have been duly delivered or given only when: (a) delivered by hand before 4:30 p.m. Pacific time on a business day; (b) sent by facsimile before 4:30 p.m. Pacific time on a business day and a written confirmation of the transmission is confirmed by the sender’s equipment; (c) the next business day after being deposited for next-day delivery with a nationally recognized overnight delivery service, such as Federal Express; (d) sent by e-mail in a generally accepted protocol before 4:30 p.m. Pacific time on a business day and a confirmation of the transmission is confirmed by the sender’s equipment; or (e) three (3) business days after deposit in the mail, postage prepaid, registered or certified mail, return receipt requested. For the avoidance of doubt, a confirmation of transmission and an automated return receipt shall suffice as confirmation for purposes of (b) and (d), respectively. If any transmitted Notice or reply to a Notice is received in an unintelligible or garbled form, the receiving party shall promptly notify the sending party by Notice. The addresses and/or numbers for receipt of Notices may be changed by a Party in a Notice to the other Party delivered in accordance with the requirements of this Section 9.2.
9.3. Compliance with Laws. Client’s use of the Services shall be in accordance, and comply, with all Applicable Law. Client shall obtain all approvals, consents and authorizations necessary to conduct its business.
9.4. Force Majeure. NCC will not be liable for delays in its performance or failure to perform in whole or in part the terms of the Agreement caused by the occurrence of any contingency beyond its control, including labor dispute, strike, labor shortage, shortage of supplies or materials, vendor issues, war or act of war, insurrection, sabotage, riot or civil commotion, act of a public enemy, epidemic, accident, fire, storm, earthquake, explosion, flood, drought or other act of God, act of any governmental authority, judicial action, equipment failure, outage or technical failure, and any such delay or failure will not be considered a breach of the Agreement.
9.5. Independent Contractors. Nothing in the Agreement, or in the course of dealing between the Parties pursuant to the Agreement, shall be deemed to create between the Parties (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship, other than that of independent contractors with respect to each other. Neither Party shall have the authority to commit or legally bind the other Party in any manner whatsoever, including, but not limited to, the acceptance or making of any agreement, representation or warranty.
9.6. Cumulative Rights and Remedies. Except as may otherwise be provided in the Agreement, the rights and remedies set forth in the Agreement are cumulative and the assertion by a Party of any right or the obtaining of any remedy under the Agreement shall not preclude this Party from asserting or obtaining any other right or remedy, at law or in equity, under the Agreement.
9.7. Assignment. Neither Party may assign or transfer its rights or obligations under the Agreement without the other Party’s written consent, which consent may not be unreasonably delayed or withheld, except that NCC may assign the Agreement to its Affiliates or successor-in-interest (by merger, asset sale, or otherwise) without Client’s consent. Any assignment or transfer without the required consent is void. The Agreement will inure to the benefit of and be binding upon each Party’s permissible successors and assigns, and any successors in interest of client.
9.8. Waivers and Amendments. No waiver of any term or condition of the Agreement will be enforceable unless it is in writing and signed by the Party against whom it is sought to be charged. No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of this right, power or remedy. A waiver by either Party of any of the covenants, conditions or agreements to be performed by the other or any breach thereof shall not operate or be construed as a waiver of any subsequent breach of this covenant, condition or agreement. No waiver of any rights under the Agreement, or any modifications or amendment of the Agreement will be effective or enforceable, unless in writing and signed by both Parties.
9.9. Attorneys’ Fees. If suit or arbitration is brought or an attorney is retained by NCC to enforce the terms of the Agreement or to collect any moneys due under the Agreement or to collect money damages for breach of the Agreement, then NCC will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys’ fees, witness fees, court costs, arbitration fees, costs of collection, costs of investigation and other related expenses incurred in connection therewith. In addition, in matters where Client’s account is referred to collection, Client shall also lose the benefit of any previously applied discounts and shall pay NCC its prevailing retail rates then in effect for all Services received by Client.
9.10. Headings. Headings contained herein are provided for convenience and reference only. They in no way affect or limit the interpretation, contents, or terms of this agreement.
9.11. Governing Law. The Agreement shall be governed by the laws of the State of Nevada without regard to any choice of law principles that could result in the application of the laws of any other jurisdiction.
9.12. Dispute Resolution. Any action brought by either Party hereunder shall be brought exclusively in the state and Federal courts located in Clark County, Nevada. Each Party hereby consents to the exclusive jurisdiction of such courts, and waives any objection to venue or inconvenient forum. CLIENT HEREBY EXPRESSLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT AGAINST CLIENT RELATING TO THE AGREEMENT. THE PARTIES MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION.
9.13. No Third Party Beneficiary. Nothing contained in the Agreement or in any instrument or document executed by any Party in connection with the transactions contemplated hereby shall create any rights in or be deemed to have been executed for the benefit of any Person that is not a Party or a successor or permitted assign of a Party; provided that credit bureaus shall be entitled to inspect and audit records and files of Client as required by law.
9.14. Entire Agreement. The Agreement, including all exhibits, schedules, Service Orders and other attachments incorporated herein, represent the entire agreement between the Parties with respect to the Services and the Agreement and supersede all prior agreements, promises, understandings, statements, representations, warranties, indemnities and inducements to the making of the Agreement relied upon by either Party, whether written or oral.
9.15. Severability. The illegality or unenforceability of any provision of the Agreement does not affect the legality or enforceability of any other provision or portion. If any provision or portion of the Agreement is deemed illegal or unenforceable for any reason, there will be deemed to be made such minimum change in this provision or portion as is necessary to make it valid and enforceable as so modified.
9.16. Authority. Each individual executing below on behalf of a Party hereby represents and warrants to the other Party that this individual is duly authorized to so execute, and to deliver, the Agreement. By its signature below, each Party acknowledges and agrees that sufficient allowance has been made for review of the Agreement by respective counsel and that each Party has been advised by its legal counsel as to its legal rights, duties and obligations under the Agreement.
9.17. Survival. The provisions of the Agreement, which, by their nature, ought to survive the termination of the Agreement, shall so survive, including Sections 4, 6, 8, 9, and 10.
9.18. Time of Essence. Time is of the essence in the performance of all payment obligations under the Agreement.
9.19. Separate Sales. Each purchase of Services shall constitute a separate sale with the same effect as though made under a separate agreement covering the amount thereof.
9.20. Counterparts. The Agreement may be executed in several counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument.
9.21. Electronic Transmission. Each of the Parties agrees that (a) any signature page, consent or signed document transmitted by electronic transmission shall be treated in all manner and respects as an original written document; (b) any such signature page, consent or document shall be considered to have the same binding and legal effect as an original document; and (c) at the request of any Party hereto, any such signature page, consent or document shall be re-delivered or re-executed, as appropriate, by the relevant Party or Parties in its original form. Each of the Parties further agrees that they will not raise the transmission of a signature page, consent or document by electronic transmission as a defense in any action in which the validity of such signature page, consent or document is at issue and hereby forever waives such defense. For purposes of this Agreement, the term “electronic transmission” means any form of communication not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
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