731 E South Temple, Salt Lake City, UT 84102
Phone: (801) 596-7800
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ARTICLE 1 – DEFINITIONS
1.1 NSON. ‘NSON’ shall mean and refer to any and all of its shareholders, directors, officers, agents, representatives, employees, NSON’s, subcontractors, vendors, or any one or more of them.
1.2 Claim (or Claims). Any and all claims, actions, causes of action, rights, demands, liabilities, damages, costs, expenses, and/or fees (incl. expert and attorneys) of any nature whatsoever actually or allegedly arising directly or indirectly out of or related to NSON’s services, whether or not accrued, known, suspected, discovered, discoverable, and/or latent, including but not limited to breach of contract (express or implied), breach of warranty (express or implied), negligence(professional, simple or gross, sole or joint, active or passive), negligent misrepresentation, breach of legal or fiduciary duty, product liability, strict liability, indemnity, contribution, subrogation, reimbursement, exoneration, and/or violation ofstatute, code, ordinance, rule or regulation.
ARTICLE 2 – PAYMENT
2.1 Invoices shall reflect billing for services performed and reimbursable expenses incurred by NSON. Payment on an invoice is due upon receipt of the invoice. In the event of a dispute regarding an invoice, Client shall pay all undisputed amounts per this Article. NSON may assess a carrying charge of eighteen percent (18%) per annum on payments not made within thirty (30) days of the date of invoice. NSON may, in its sole discretion and without notice, suspend its services
hereunder should Client not pay in full any amount invoiced. NSON further reserves the right, in its sole discretion, to withhold from Client any instruments of NSON’s services pending payment on Client’s account. Client authorizes NSON to conduct a credit check.
2.2 Timely Receipt of Information: Client shall submit all information requested by NSON, including script and sample,
such that it is received at least one full working day prior to the services start date. NSON has scheduled its resources based upon timely receipt of said information and said start date. Failure of Client to provide said information as and when required may delay NSON’s services, in which event Client shall, in addition to all other contracted amounts, pay NSON $500 in liquidated damages for rescheduling of its resources. NSON and Client recognize and agree that such delay damages would be very difficult to ascertain, but that the amount of $500 is a reasonable approximation of such damages.
2.3 Final Costs: The actual fielding parameters of questionnaire length and net effective incidence rate, as defined by the Market Research Association, will determine the final cost per interview of the project. NSON shall have the right to adjust the price if actual questionnaire length and net effective incidence rate differ from the bid figures.
2.4 Other Charges- Client shall be responsible for all taxes, delivery charges and cost for lists and samples unless otherwise
ARTICLE 3 – SPECIAL TERMS AND CONDITIONS
3.1 Relationship. The relationship between NSON and Clients is that of a non-agent, non-fiduciary, independent contractor and client, respectively. Nothing contained herein shall be deemed as precluding NSON from providing identical or similar services to any other person or entity.
3.2 Reporting. Clients shall be solely responsible for preparation and filing of all reports required under federal, state or local campaign, election, tax or other laws. Such government levies are not covered in NSON’s price unless expressly so stated.
3.3 Opinions. NSON’s opinions, if any, represent NSON’s best judgment based upon available information. Any such opinions are subject to change and are based upon factors over which NSON has no control. NSON does not guarantee the accuracy or reliability of any such opinions.
3.4 Delays- Client expressly acknowledges that delays may occur, but that NSON will make all reasonable efforts to provide all services or materials ordered under this contract by the requested date. However, NSON shall in no way be liable in any manner for any failure whatsoever to provide any services or materials by the requested date.
3.5 Representatives. NSON’s and Clients designated representatives are deemed to have authority to bind their respective principals.
3.6 Limitation of Liability. NSON’s liability on any claim of any kind, whether based on breach of contract, negligence, warranty or otherwise, for any loss or damage arising out of, connected with or resulting from this contract or from the performance or breach thereof or from the use of any product or material furnished pursuant to this contract shall be the lessor of the contract price allocated to the product or material which gives rise to the claim or $25,000. In no event shall
NSON be liable for special, incidental or consequential damages, whether for breach of contract or tort.
3.7 Bid Amount. Client understands and agrees that the contract price is dependent upon and determined by NSON based upon the size and volume of work represented by Client. If the size or volume of work is decreased by Client, Client agrees to pay and shall be liable for all damages and costs incurred or suffered by NSON, including, but not limited to, lost profits and special, incidental and/or consequential damages. If the size or volume of work is increased by Client, NSON shall have no obligation to undertake or perform any such increase unless agreed to in writing by NSON.
3.8 Exclusion of Warranties. NSON warrants to Client that the product to be provided under this Agreement will be of the kind and quality described in the contract. (THE FOREGOING WARRANTY IS EXCLUSIVE OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANT-ABILITY OR FITNESS FOR A PARTICULAR PURPOSE). Claims or defects will not be honored unless made in writing within thirty (30) days of receipt of such product or materials and unless Client promptly discontinues use of such product or materials.
3.9 Incentives. Any and all incentives provided for under this Agreement, or any addendum hereto, shall become the sole property of NSON if unused, rejected or unclaimed. NSON shall have the exclusive right, in its sole discretion, to dispose of any such unused, rejected or unclaimed incentives as it deems proper or just under the circumstances.
3.10 Indemnification- Client shall pay any and all reasonable attorney’s fees incurred by NSON to defend against any lawsuits or claims made for services rendered in connection with this contract and shall hold NSON harmless and indemnify NSON against any judgments and costs entered against NSON for any claim whatsoever arising out of NSON’s services rendered under this contract, except for any gross negligence or willful misconduct by NSON, in carrying out its
obligations under the contract.
3.11 Non-disparagement. Client agrees not to, directly or indirectly, make any remarks, comments, messages, communication or other statements, whether written, electronically transferred, or verbal, to any third party, including without limitation the news media, donors, potential donors, industry analysts, competitors, and employees (past and present), that might reasonably be construed to defame, disparage or in any way criticize the personal or business reputation, practices, or conduct of NSON, or their respective employees, directors, officers, affiliates, or representatives (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing). Client further understands and agrees that this section 3.11 (Non-Disparagement) is a material provision of this AGREEMENT and that any breach of this section 3.11 shall be a material breach of this AGREEMENT and that NSON would be irreparably harmed by violation of
this section 3.11. This section 3.11 (Non-Disparagement) shall survive the termination of this AGREEMENT, in perpetuity.
3.12 Access. NSON is entitled to rely on any and all information supplied by, through or on behalf of Client and has no legal or contractual duty to verify the accuracy or reliability of such information.
3.13 Confidential Information. Any and all information disclosed by Client to NSON during the term of this agreement is confidential. Any and all information obtained by Client pertaining to NSON’s methods and operations constitutes proprietary and confidential business information. Except as authorized hereby or relevant to protecting the parties respective interests, both parties shall hold such information in strictest confidence and shall not disclose or disseminate said information to others, or avail itself of said information for the benefit of others, without the prior express written consent of the other party.
3.14 Dispute Resolution. All disputes related to this agreement, either parties’ performance hereunder, NSON’s services, and/or a Claim(s), shall be submitted to mediation and interpreted according to the laws of the State of Utah, before a mutually-acceptable mediator prior to initiation of binding dispute resolution procedures. In the event the parties are unable to agree on a mediator, said mediator shall be appointed by a court of competent jurisdiction and proper venue. The costs of mediation shall be borne equally by the parties. In the event mediation is unsuccessful, said dispute shall be submitted to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association and the Utah Arbitration Act.
ARTICLE 4 – GENERAL TERMS AND CONDITIONS
4.1 Applicable Law. This agreement shall be deemed as being entered into and performed in the State of Utah.
4.2 Assignment; Subcontracting. Neither party shall assign its rights under this agreement without the prior, express, written consent of the other. NSON may subcontract any portion of its services without such consent. This agreement is binding upon the parties respective successors and assigns.
4.3 Force Majeure. Any default in the performance of this agreement caused by any of the following events and without fault or negligence on the part of the defaulting party shall not constitute a breach of contract: act of God, government, or public enemy; strike; embargo; fire, flood, epidemic, unusually severe weather and/or other extraordinary natural event or disaster; and/or quarantine.
4.4 Attorneys Fees. In the event of default hereunder, the defaulting party agrees to pay all costs incurred by the nondefaulting party as a result thereof, including reasonable attorney’s and expert’s fees, whether incurred through formal legal proceedings or otherwise.
4.5 Third Party Rights. No third party beneficiary rights are intended or created under this agreement, nor does this agreement create any cause of action in favor of any third party against either party hereto.
4.6 Faxed and Emailed Signatures: Faxed and emailed signatures will be considered as binding as original copies ofthe signature for the purpose of the document as well as all cost proposals, addendums and timelines.
4.7 Limitation Periods. Any and all statutes of limitation applicable to a Claim(s) shall begin to run and said Claim(s) shall be deemed to have accrued no later than the date upon which NSON last rendered services for which Clients were billed.
4.8 Severability; Waiver. In the event any provision herein, or portion thereof, is invalid or unenforceable, the remaining provisions shall remain valid and enforceable. Waiver of a breach of any provision is not a waiver of a subsequent breach of the same or any other provision.
4.9 Merger; Amendment. This agreement constitutes the entire and integrated agreement between the parties and supersedes all prior or contemporaneous negotiations, representations and/or agreements, whether written or oral, and may be amended only by written instrument duly signed by the parties.
Client representative understands and agrees to the above description of services and terms and conditions. It is further understood that this set of terms and conditions is binding for all projects undertaken between Client and NSON including current and future projects.