Client SaaS

This agreement (“Agreement“) is entered into between ORGANIZATION NAME, defined on Signatures page (“Client”) and Sabramedia, LLC (“Sabramedia”), to be effective as of Client’s signature date (“Effective Date”) on the Signatures page.

Pigeon Service Level Agreement (SLA). This Agreement sets forth the terms and conditions under which Sabramedia agrees to license to Client certain hosted software and provide all other services necessary for productive use of such software including customization / integration, user identification and password change management, data import / export, monitoring, technical support, maintenance, training, backup and recovery, and change management (the “Services“) as further set forth on an Exhibit A (sequentially numbered) in the form of the Exhibit A attached hereto or in other statements of services containing substantially similar information and identified as an Exhibit A. The Agreement shall remain in effect unless terminated as provided for herein.
1. Mutual Obligations. In exchange for the Pigeon system performed by Sabramedia, we, the Client, agree to pay to Sabramedia access fees, group-rate fees and a percentage of all Pigeon fees (as set forth in this agreement and defined below) transacted through the websites (domains and related subdomains) using Pigeon as long as Pigeon is in use.
2. Subdomain. The Client agrees to update their primary domain’s DNS with a subdomain A Record that references the IP address designated by Sabramedia as the Pigeon server (E.g., PrimaryDomain.com would have an A Record for my.PrimaryDomain.com that points to the IP address designated as the Pigeon server).
3. Hosting and Security. All hosting and security is provided by Sabramedia via leased RackSpace Cloud server technology. Security Socket Layer certificates with 256-bit encryption are setup and maintained by Sabramedia via recognized SSL providers. The SSL provider maintains a $100,000 USD warranty on certificate security.
Currency. All dollar ($) amounts referenced heretofore are based on the United States Dollar (USD), unless otherwise noted.
Client Payments. Pigeon connects with a payment gateway further specified outside of this agreement to pass all digital monetary transactions directly to the Client.

Pigeon Fees. The table below determines the monthly license access fee and transaction rates. Pigeon fees include anything commerce-related transacted through Sabramedia's Pigeon system, such as subscriber-based memberships or temporary passes paid online, advertising accounts managed through Pigeon, and products purchased through Pigeon. Individual payments for content access managed outside of Pigeon have no attached transaction fee. The Pigeon transaction rate and revenue category is defined in the following plans. Additional revenue models can be negotiated on a per incident basis, especially in Enterprise scenarios.

Plan	Monthly Access Fee	Transaction Rate
Standard	$99 if greater than monthly transaction fees	10% Digital / 1% Print

Pigeon Impressions (CPM**) - if applicable.  An additional fee is applied for scenarios that don’t incorporate paid access as a focus like free-registration-access. A traffic volume fee is factored as a Pigeon fee in order to properly cover costs and growth of the Client’s site. The CPM table is followed below:

Monthly Impressions*	Monthly Fee
First 1 Million	$0.20 CPM**
Next 1 Million	$0.17 CPM
Next 3 Million	$0.15 CPM
Next 5 Million	$0.13 CPM
Above 10 Million	$0.10 CPM

*Impressions - The number of times the Pigeon Server and API are called. You can estimate approximate Pigeon Server impressions based on the number of page views in your site traffic analytics. The impressions will be somewhat higher due to third-party indexers passing through. The Pigeon API impressions are accrued based on the needs of your custom application.  **CPM - Cost Per Thousand

Bulk Email Fees - If applicable Transactional email is part of the Pigeon platform. Bulk email is optional. If the bulk communication module is used, the following rates apply.

Monthly Level

Monthly Fee

Unlimited

$0.70 CPM
Payment Schedule. The Client will setup a credit/debit card or ACH agreement with Sabramedia for recurring transactions and said fees to begin the month following Pigeon setup and launch. Fees are debited by Sabramedia within the first week of every month and after the Sabramedia Transaction Statement has been delivered via email notification covering the previous month’s transactions and the following month’s access fee.
Sales Tax. Any sales tax identified as a part of any revenues accrued by the Client are not included in the Sabramedia fee calculations.
No Suspension of Services. Sabramedia shall not suspend any part of the Services where: (a) Client is reasonably disputing any amount due to Sabramedia; or, (b) any unpaid but undisputed amount due to Sabramedia is less than ninety (90) business days in arrears.

Branding. Sabramedia reserves the right to identify Pigeon as the services provider in the footer of the Pigeon server subdomain(s).
Services; Support; Maintenance.
1. Sabramedia provides technical support for Pigeon-related software issues during regular business hours. Hosting and server up-time falls under our technical lease agreement with RackSpace Cloud and their server engineers.
2. Maintenance. Sabramedia shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services, as described in the Documentation, is available to Authorized Users; (b) the functionality of the Services in accordance with the representations and warranties set forth herein, including but not limited to, the Services conforming in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Exhibit A and the Documentation; (c) the Service Level Standards can be achieved.
3. Customization / Integration Services. Sabramedia shall provide the Customization / Integration Services, if any, described in an Exhibit A. The Services Fees shall be inclusive of the fees for the Customization / Integration Services.
4. Training Services. Sabramedia shall provide the Training Services, if any, described in an Exhibit A. The Services Fees shall be inclusive of the fees for the Training Services.
Termination
1. Procedure for Service Agreement Termination Without Cause. In order to terminate this Agreement the party desiring to terminate must give a minimum of (30) calendar days notice of intent to cancel the agreement. The Client will have access to the Sabramedia Pigeon system until the termination of this Agreement. Upon receipt of the cancellation notice, both parties will mutually agree on a service termination date. Sabramedia agrees to cooperate in transitioning Client customer data to the Client and/or any Client-authorized third-party service provider. The scope of the cooperation includes willing communication, and giving the Client and/or chosen third party service provider access to a database dump of all customer data managed by Pigeon. 
  
  The month that all Client sites using Sabramedia Pigeon are successfully transitioned to Client and/or any Client-authorized third-party service provider will be the final payment of revenue fees made by Client to Sabramedia. Successful transition to Client and/or third-party provider means the scope of previously mentioned cooperation has been met and the DNS records of Client sites using Sabramedia Pigeon points to the Client’s and/or third-party provider's web host servers.
2. Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the nonbreaching party’s reasonable satisfaction, within thirty (30) calendar days after written notice of the breach, the nonbreaching party may terminate this Agreement for cause as of a date specified in such notice.
3. Payments upon Termination. Upon the termination of this Agreement, Client shall pay to Sabramedia all undisputed amounts due and payable hereunder, if any, and Sabramedia shall pay to Client all amounts due and payable hereunder, such as Performance Credits and prepaid fees, if any.
4. Procedure if Sabramedia Fails to Serve the Pigeon system In the case Sabramedia fails to serve or provide the Client access to the Pigeon system due to Sabramedia business failure, closure, or legal termination for whatever reason AND Sabramedia is not able to transition, sale, or turn over to a competent entity the obligations of this Agreement, Sabramedia will provide the following responsibilities to the Client so the Client can continue operation without interruption:
  1. Server fee obligations with Rackspace covering the Client’s usage in the cloud so the service will continue to operate.
  2. Direct access to the production codebase of the Client’s node in the cloud.
  3. Direct access to the Client’s database node.
  4. A forked branch of the Pigeon system codebase on Github.
    
    If such a transaction by which the Client takes over the said responsibilities, the Client may only use the Pigeon system codebase, database, server access, and all Sabramedia or Pigeon system related intellectual property for their business, and may not resell, redistribute, or serve companies or any organization other than or outside of the specified Client organization with said Pigeon system codebase, database, server access, and all Sabramedia or Pigeon system related intellectual property.
Representations and Warranties.
1. Mutual. Each of Client and Sabramedia represent and warrant that:
  1. it is a business entity duly incorporated, validly existing, and in good standing under the laws of its state of incorporation;
  2. it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
  3. the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;
  4. it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and,
  5. there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.
2. By Sabramedia. Sabramedia represents and warrants that:
  1. it is in the business of providing the Services;
  2. the Services are fit for the ordinary purposes for which they will be used;
  3. it is possessed of superior knowledge with respect to the Services;
  4. it acknowledges that Client is relying on its representation of its experience and expert knowledge, and that any substantial misrepresentation may result in damage to Client;
  5. it knows the particular purpose for which the Services are required by Client;
  6. it is the lawful licensee or owner of the Services (excluding any Client Data therein) and has all the necessary rights in the Services to grant the use of the Services to Client;
  7. the Services and any other work performed by Sabramedia hereunder shall not infringe upon any United States or foreign copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement;
  8. it shall disclose any third-party (which shall, for purposes of this Agreement, be deemed a subcontractor) whose intellectual property is incorporated into the Services or who is necessary for the performance of the Services and it shall maintain in-force written agreements with such third-party, if any, for the term of this Agreement including Exhibit A;
  9. it has the expertise to perform the Services in a competent, workmanlike, and professional manner and in accordance with the highest professional standards;
  10. it will use its best efforts to ensure that no computer viruses, malware, or similar items (collectively, a “Virus”) are introduced into Client’s computing and network environment by the Services, and that, where it transfers a Virus to Client through the Services, it shall reimburse Client the actual cost incurred by Client to remove or recover from the Virus, including the costs of persons employed by Client;
  11. the Services are free of any mechanism which may disable the Services and Sabramedia warrants that no loss of Client Data will result from such items if present in the Services;
  12. in the case of Client’s reasonable dispute of any Sabramedia invoice, it shall not withhold the performance of Services, including, without limitation, access and use of the Services, Technical Support, Maintenance, and extract of Client Data; and,
  13. the Services will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in the applicable Exhibit A and the Documentation.
  14. that it has implemented and will maintain reasonable security policies, procedures and practices appropriate to the nature of Personal Information collected, used, managed, stored and disposed by Sabramedia to protect such information from unauthorized access, destruction, use, modification, or disclosure, and that it is in compliance with, and will retain compliance, with all applicable laws and any recognized industry standard guidelines and requirements relating to credit, debit card and/or electronic check service processing, settlement, funding and account management rules of individual bank card or payment card companies such as Visa, MasterCard, American Express, Discover Card, or private label providers.
Client Data
1. Ownership. Client’s data (“Client Data,” which shall also be known and treated by Sabramedia as Confidential Information) shall include: (a) Client’s data collected, used, processed, stored, or generated as the result of the use of the Services; and, (b) personally identifiable information (“PII”) that is reasonably linked specifically to a customer’s computer or mobile device and is collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s name, social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit/debit card gateway identifiers, or unique persistent identifiers such as IP address and Unique Device Identifier, or an individual’s name in combination with any other of the elements listed herein. Client Data is and shall remain the sole and exclusive property of Client and all right, title, and interest in the same is reserved by Client. This Section shall survive the termination of this Agreement.
2. Sabramedia Use of Client Data. Sabramedia is provided a limited license to Client Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Client Data only to the extent necessary in the providing of the Services. Sabramedia shall: (a) keep and maintain Client Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Client Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement, Exhibit A, and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Client Data for Sabramedia’s own purposes or for the benefit of anyone other than Client without Client’s prior written consent. This Section shall survive the termination of this Agreement and shall at all times be subject to Client’s Privacy Policy.
3. Extraction of Client Data. Sabramedia shall, within one (1) business day of Client’s request, provide Client, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Sabramedia), an extract of the Client Data in the format specified by Client.
4. Backup and Recovery of Client Data. As a part of the Services, Sabramedia is responsible for maintaining a backup of Client Data and for an orderly and timely recovery of such data in the event that the Services may be interrupted. Unless otherwise described in Exhibit A, Sabramedia shall maintain a contemporaneous backup of Client Data that can be recovered within two (2) hours at any point in time. Additionally, Sabramedia shall store a backup of Client Data in an off-site “hardened” facility no less than daily, maintaining the security of Client Data, the security requirements of which are further described herein. Any backups of Client Data shall not be considered in calculating storage used by Client.
5. Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Client Data or the physical, technical, administrative, or organizational safeguards put in place by Sabramedia that relate to the protection of the security, confidentiality, or integrity of Client Data, Sabramedia shall, as applicable: (a) notify Client as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with Client in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by Client; (c) in the case of PII, at Client’s sole election, (i) notify the affected individuals who comprise the PII as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence; or, (ii) reimburse Client for any costs in notifying the affected individuals; (d) in the case of PII, provide third-party credit and identity monitoring services to each of the affected individuals who comprise the PII for the period required to comply with applicable law, or, in the absence of any legally required monitoring services, for no less than twelve (12) months following the date of notification to such individuals; (e) perform or take any other actions required to comply with applicable law as a result of the occurrence; (f) without limiting Client’s obligations of indemnification as further described in this Agreement, indemnify, defend, and hold harmless Client for any and all Claims (as defined herein), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Client in connection with the occurrence; (g) be responsible for recreating lost Client Data in the manner and on the schedule set by Client without charge to Client; and, (h) provide to Client a detailed plan within ten (10) calendar days of the occurrence describing the measures Sabramedia will undertake to prevent a future occurrence. Notification to affected individuals, as described above, shall comply with applicable law, be written in plain language, and contain, at a minimum: name and contact information of Sabramedia’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Sabramedia has taken to protect the affected individual; what steps the affected individual can take to protect himself or herself; contact information for major credit card reporting agencies; and, information regarding the credit and identity monitoring services to be provided by Sabramedia. This Section shall survive the termination of this Agreement.
Property Rights.
1. Pre-existing Materials. Client acknowledges that, in the course of performing the Services, Sabramedia may use software and related processes, instructions, methods, and techniques that have been previously developed by Sabramedia (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Sabramedia.
2. No License. Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.
3. The provisions of this Section shall survive the termination of this Agreement.
Indemnification; Limitation of Liability.
1. General Indemnification. Sabramedia agrees to indemnify, defend, and hold harmless Client and its officers, directors, agents, and employees (each, an “Indemnitee“) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim,” and collectively, the “Claims“), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of Sabramedia, its officers, directors, agents, employees, and subcontractors, during the performance of this Agreement, including, without limitation, Claims arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property; (b) any payment required to be paid to subcontractors, if any, of Sabramedia; (c) any material misrepresentation or breach of warranty of any representation or warranty set forth in this Agreement; or, (d) any material breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted directly from the acts or omissions of an Indemnitee.
2. Proprietary Rights Indemnification. Sabramedia agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Sabramedia is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that Client is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Sabramedia shall, at its expense: (a) obtain for Client the right to continue using such Services; (b) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Client; or, (c) in the event that Sabramedia is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Sabramedia shall reimburse to Client any prepaid fees and the full cost associated with any Transition Services.
3. Indemnification Procedures. Promptly after receipt by Client of a threat, notice, or filing of any Claim against an Indemnitee, Client shall give notice thereof to Sabramedia, provided that failure to give or delay in giving such notice shall not relieve Sabramedia of any liability it may have to the Indemnitee except to the extent that Sabramedia demonstrates that the defense of the Claim is prejudiced thereby. Sabramedia shall have sole control of the defense and of all negotiations for settlement of a Claim and Client shall not independently defend or respond to a Claim; provided, however, that: (a) Client may defend or respond to a Claim, at Sabramedia’s expense, if Client’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against an Indemnitee; and, (b) Client shall have the right, at its own expense, to monitor Sabramedia’s defense of a Claim. At Sabramedia’s request, Client shall reasonably cooperate with Sabramedia in defending against or settling a Claim; provided, however, that Sabramedia shall reimburse Client for all reasonable out-of-pocket costs incurred by Client (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
4. Third-Party Beneficiaries. For the purposes of this Section and Sabramedia’s obligations hereunder, non-party Indemnitees are third-party beneficiaries of this Agreement in accordance with its terms. Any action or consent taken by Client on its own behalf is binding upon the non-party Indemnitees for the purposes of this Section. Other than as provided for in this Section, this Agreement is for the sole benefit of the signatories hereto and their permitted successors and assigns. Nothing, express or implied, in this Agreement is intended to create or be construed to create any rights of enforcement in any persons or entities who are neither signatories to this Agreement nor non-party Indemnitees.
5. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, EXCEPT THE INDEMNIFICATION PROVISION OF SECTION II ABOVE, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT INCLUDING BUT NOT LIMITED TO INDEMNIFICATION UNDER SECTION 11.2 HEREOF; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. This Section shall survive the termination of this Agreement.
General,
1. Relationship between Client and Sabramedia. Sabramedia represents and warrants that it is an independent contractor with no authority to contract for Client or in any way to bind or to commit Client to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Client. Under no circumstances shall Sabramedia, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of Client. In recognition of Sabramedia’s status as an independent contractor, Client shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Sabramedia or Sabramedia’s agents or staff, if any. Client shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Sabramedia nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Client.
2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Indiana and the federal laws of the United States of America. Sabramedia hereby consents and submits to the jurisdiction and forum of the state and federal courts in the Indiana in all questions and controversies arising out of this Agreement.
3. Attorneys’ Fees and Costs. In any arbitration, litigation, or other proceeding, informal or formal, by which one party either seeks to enforce this Agreement or seeks a declaration of any rights or obligations under this Agreement, the non-prevailing party shall pay the prevailing party’s costs and expenses, including but not limited to, reasonable attorneys’ fees.
4. Compliance with Laws; Client Policies and Procedures. Both parties agree to comply with all applicable federal, state, and local laws, executive orders and regulations issued, where applicable. Sabramedia shall comply with Client policies and procedures where the same are posted, conveyed, or otherwise made available to Sabramedia.
5. Cooperation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Sabramedia will cooperate with any Client supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to Client, including, without limitation, the Successor Service Provider. Sabramedia agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
6. Force Majeure; Excused Performance. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Sabramedia fails to use its best efforts to minimize such delays, the delays shall be included in the determination of Service Level achievement. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance. A force majeure event does not excuse Sabramedia from providing Services and fulfilling its responsibilities relating to the requirements of backup and recovery of Client Data. In no event shall any of the following constitute a force majeure event: (a) failure, inadequate performance, or unavailability of Sabramedia’s subcontractors, if any; or, (b) configuration changes, other changes, Viruses, or other errors or omissions introduced, or permitted to be introduced, by Sabramedia that result in an outage or inability for Client to access or use the Services. Within thirty (30) calendar days following the Effective Date and on an annual basis thereafter until the termination of this Agreement, Sabramedia shall provide its then-current business continuity plan (“Business Continuity Plan”) to Client upon Client’s request. The Business Continuity Plan shall include: (a) Services and Client Data backup and recovery procedures; (b) fail-over procedures; and, (c) how Sabramedia will interact with its business continuity suppliers, if any. Sabramedia shall test its Business Continuity Plan on an annual basis until the termination of this Agreement and shall provide the test results to Client upon Client’s request.
7. Advertising and Publicity. Sabramedia shall not refer to Client directly or indirectly in any advertisement, news release, or publication without prior written approval from Client.
8. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
9. Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.
10. Assignment of Agreement. This Agreement and the obligations of Sabramedia hereunder are personal to Sabramedia and its staff. Neither Sabramedia nor any successor, receiver, or assignee of Sabramedia shall directly or indirectly assign this Agreement or the rights or duties created by this Agreement, whether such assignment is effected in connection with a sale of Sabramedia’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of Client. In the case of an assignment by Sabramedia, Sabramedia represents and warrants that it has all requisite rights and power to transfer any agreements or other rights with third-parties whose software is incorporated into the Services or who are necessary for the performance and use of the Services. Client, at Client’s sole election, may assign any and all of its rights and obligations under this Agreement to any company that succeeds to substantially all of Client’s business.
11. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
12. Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Client and Sabramedia as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
13. Cumulative Remedies. All rights and remedies of Client herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Sabramedia for the enforcement of this Agreement, and temporary and permanent injunctive relief.

Exhibit A

If applicable, custom development and services are further specified here that are not defined in this agreement.