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AGREEMENT
1) EFFECTIVE DATE AND TERM. This AGREEMENT is to become effective on the date first written above, or to the extent applicable, upon the date which CARRIER and COMPANY commenced doing business together, whichever is earlier, and shall remain in effect for a period of one year from such date, and shall automatically renew from year to year thereafter, subject to the right of either party to terminate this AGREEMENT at any time upon ninety (90) days advance written notice to the other party, except as otherwise provided herein.
2) SCOPE OF AGREEMENT. This AGREEMENT shall govern all shipments tendered to CARRIER by COMPANY (or upon COMPANY's instructions), and accepted by CARRIER, whether regulated or non-regulated property, in interstate, intrastate, or international transportation. The Parties expressly acknowledge and agree that the terms of this AGREEMENT, Southern Logistics Inc. Additional exhibits, purchase orders, and any addendums incorporated herein, shall apply to all shipments tendered to CARRIER and shall control over any conflicting terms contained in: (i) the CARRIER's tariffs, circulars, rate sheets or service guides; or (ii) any bill of lading, shipping document, receipt or other transportation document issued for any shipment tendered by COMPANY.
3) STATUS OF PARTIES. The relationship of CARRIER to COMPANY shall, at all times, be that of an independent contractor. Nothing herein shall be construed as establishing an agency, partnership, joint venture, hiring or any form of employer-employee relationship between COMPANY and CARRIER. Neither party shall be responsible for any debts, obligations or liabilities incurred by the other in performance of its business activities, except as expressly provided herein. CARRIER assumes full responsibility for the payment of all: (i) wages, fees, local, state, federal, and provincial payroll taxes, (ii) contributions or taxes for unemployment insurance, workers' compensation insurance and/or claims, (iii) pensions, and other social security or related protection, and (iv) any and all other expenses with respect to the persons engaged by CARRIER in the performance of transportation and related services in connection with this AGREEMENT ("Expenses"). CARRIER shall indemnify, defend and hold COMPANY and its CUSTOMERs harmless against all claims related to or arising from such Expenses. Notwithstanding the foregoing provisions, COMPANY shall be the agent for the CARRIER for the limited and express purpose of billing and collecting freight charges and fees from shippers and receivers, and CARRIER hereby appoints COMPANY as its agent for such express and limited purpose. CARRIER further agrees that a Shipper's insertion of COMPANY's name as the carrier on a bill of lading shall be for the shipper's convenience only and shall not change COMPANY's status as a property company nor CARRIER's status as a motor carrier. This AGREEMENT does not bind either party to mutually exclusive services with each other. Both the COMPANY and CARRIER understand and agree that COMPANY will enter similar agreements with other carriers, and CARRIER may enter similar agreements with other Companies and/or shippers.
4) FREIGHT RATES. For all shipments tendered by COMPANY and accepted by CARRIER under this AGREEMENT, the rates, charges, and fees for the transportation and services shall be set forth in an exhibit, rate confirmation sheet, purchase order or similar document ("Confirmation Sheet") in a form provided by COMPANY. Each Confirmation Sheet shall be issued by COMPANY, shall be deemed accepted by CARRIER upon receipt (includes electronic means of transmission) or response by the CARRIER, and shall be incorporated into this AGREEMENT, provided; however, that if the terms and conditions specified in this AGREEMENT are different from the terms and conditions contained in the Confirmation Sheet, the terms and conditions of this AGREEMENT shall prevail, except the rates, charges, and fees set forth in the Confirmation Sheet. CARRIER agrees and acknowledges that CARRIER's dispatchers and other personnel are authorized to enter into Confirmation Sheets with COMPANY. The rates and charges included in the Confirmation Sheet shall be CARRIER's sole and exclusive compensation for rendering the services set forth thereon. CARRIER agrees that any other rates, tariffs, circulars, pricing authorities or other similar documents published or offered by CARRIER shall not apply to the performance of services under this AGREEMENT. Such written Confirmation Sheet shall include the charges for the shipment and shall also contain, as applicable, the conditions and any additional or accessorial services required to be performed. The Confirmation Sheet shall be sent by COMPANY to CARRIER prior to CARRIER picking up a shipment. CARRIER represents and warrants that there are no other applicable rates or charges applicable to the Services herein, including those contained in any tariff, terms and conditions, or bill of lading, except those established in this AGREEMENT or any Confirmation Sheet. CARRIER shall advise COMPANY at or before incurring Detention, Demurrage, No Loads, Accessorial (including Lumpers), and/or additional charges ("Charges"), otherwise the CARRIER forfeits its right to collect such Charges. Such Charges may be established verbally in order to meet specific shipping schedules, but must be confirmed in writing within 24 hours, via email, in order for the CARRIER to receive compensation for the Charges. CARRIER hereby waives its right to obtain copies of COMPANY's records. Nothing in this section is intended to relieve CARRIER of any other obligations imposed upon it by this Agreement, or to limit any rights of COMPANY to enforce such obligations.
5) PAYMENT. COMPANY shall pay CARRIER for the transportation of property under this AGREEMENT in accordance with the shipping rates as established in any Confirmation Sheet, Purchase Order, or similar document no later than thirty (30) days from receipt by COMPANY of CARRIER's (1) Confirmation Sheet, (2) uncontested invoice, (3) supporting documentation including but not limited to bill of lading, weight ticket, timesheet, and (4) proof of delivery covering such transportation and services. CARRIER agrees that it shall bill COMPANY for all services by the Monday following the service and in an accurate and complete manner. If, after shipment of property under this AGREEMENT, the party responsible for payment of freight charges and fees defaults on its obligation to pay COMPANY for freight charges and fees which COMPANY has already paid to CARRIER, CARRIER agrees that all its right, title and interest in such charges and fees shall be, and hereby are, transferred and assigned to COMPANY for purposes of collection and recovery from the responsible party(s). CARRIER shall look solely to COMPANY for payment of freight bills and agrees to hold the CUSTOMER harmless therefrom and CARRIER agrees to refrain from all collection efforts against any other party unless Company has not paid Carrier an undisputed invoice in accordance with terms and conditions contained herein. The parties shall process all overcharge, undercharge, and duplicate payments, as amended from time to time.
6) SERVICES. Subject to specific shipment instructions, CARRIER shall provide motor transportation services for COMPANY and its CUSTOMERS, as a motor carrier operating under CARRIER's DOT motor carrier authority. CARRIER shall transport freight with reasonable dispatch in accordance with the terms of the Confirmation Sheet in a safe, competent, and efficient manner. CARRIER will promptly notify COMPANY of any delay. CARRIER will protect and preserve all cargo in accordance with prudent industry standards. CARRIER will be responsible for any charges imposed by a CUSTOMER that were caused by actions of the CARRIER, including but not limited to charges for unreasonable delay.
7) EQUIPMENT INTERCHANGE COMPLIANCE. CARRIER warrants that prior to entering a port facility, off site container yard or rail yard to pick up or deliver equipment ("Interchanged Equipment") in the performance of services under this AGREEMENT, it shall have a properly executed equipment interchange agreement with the applicable ocean carrier, rail yard, chassis pool or equipment provider. CARRIER shall assume sole responsibility and care of all interchanged equipment. CARRIER agrees to store Interchanged Equipment in a secured and gated facility with 24-hour surveillance and such location is subject to pre-approval by COMPANY. CARRIER further warrants and represents that it is, and will at all times, remain in compliance with the terms and conditions of any interchange agreement, including all applicable circulars, tariffs or rules which may be referenced therein. CARRIER agrees to indemnify, defend and hold harmless COMPANY from any liability, loss or expense arising from CARRIER's failure to comply with the terms and conditions of any interchange agreement. CARRIER must provide COMPANY with evidence of any equipment interchange agreement upon request. CARRIER shall be liable to COMPANY for any charges incurred by, charged to, or asserted against COMPANY due to CARRIER's failure to comply with the terms of this AGREEMENT.
8) BILLS OF LADING. CARRIER shall issue a bill of lading in its own name, or sign a bill of lading, produced by shipper ("Bill of Lading"), showing the kind, condition and numerical quantity of the property received and delivered by CARRIER at the loading and unloading points. SHIPPER's insertion of COMPANY's name on the bill of lading shall be for SHIPPER convenience only and shall not change COMPANY's status as a property company. CARRIER shall assume full and complete responsibility and liability for all loss and/or damage to, or delay of, any shipment of property while in the possession or control of CARRIER, provided, however, that if the terms and conditions specified in this AGREEMENT are different from the terms and conditions contained in the Bill of Lading, the terms and conditions of this AGREEMENT shall prevail. Failure to issue a Bill of Lading or sign a Bill of Lading acknowledging receipt of the cargo, by CARRIER, shall not affect the liability of CARRIER.
9) EQUIPMENT & LABOR. CARRIER, at its sole cost and expense, shall furnish all equipment required for transportation and services hereunder and shall maintain all equipment in clean condition, good repair and working order, and meet all minimum government vehicle standards. CARRIER shall employ only competent and properly licensed personnel, who shall be well-trained in the care, and safety procedures applicable to shipments being handled and transported. CARRIER has exclusive management, control, and direction of its drivers and acknowledges that COMPANY has no control or input on such decisions. All trailers furnished by CARRIER shall meet the specifications described and identified in the applicable Confirmation Sheet, shall be clean, dry and free of any defects, previously hauled material, contamination, or contaminating odor, and must be suitable in all respects for the transportation of the property of CUSTOMER tendered to CARRIER. CARRIER represents and warrants that the trailers used to provide services under this AGREEMENT shall not have been used to transport garbage, hazardous waste, solid waste or toxic materials.
10) COMPLIANCE WITH LAW. CARRIER shall comply with all applicable DOT and FMCSA laws and regulations as well as any other federal, state, and provincial laws, regulations and ordinances applicable to the operations of a motor carrier. CARRIER represents and warrants that, by accepting tender of a shipment under this AGREEMENT, the time between time of tender and the delivery date designated by COMPANY or shipper is reasonable and can be performed by CARRIER and its drivers without violating any speed, safety, hours of service, or other related regulations. CARRIER will promptly notify COMPANY in the event that (i) any designated delivery date cannot be legally met due to compliance with federal regulations, or (ii) any accident, theft or other occurrence that impairs the safety of or delays the delivery of the shipment. CARRIER further represents and warrants that it shall ensure all equipment used to provide services under this AGREEMENT is compliant with applicable state law. CARRIER must prevent escape of materials loaded on vehicles and adhere to tarping laws. CARRIER shall be liable for and agrees to indemnify, defend, and hold COMPANY and its CUSTOMERS harmless for any penalties or other liabilities imposed upon COMPANY and its CUSTOMER(s) as a result of CARRIER's use of equipment not compliant with any laws, statutes, regulations, or requirements, including but not limited to those set forth above. Upon COMPANY's request, CARRIER shall provide proof of CARRIER's compliance with any such laws, statutes, regulations, or requirements.
11) SAFETY & COMPLIANCE STATUS. CARRIER shall maintain appropriate governmental authority during the term of this AGREEMENT. CARRIER shall immediately provide COMPANY with written notification if, at any time, CARRIER's safety rating issued by any applicable authority is amended or changed to, or, in the case of an initial rating, is first assigned as "Conditional" or "Unsatisfactory." CARRIER shall also provide immediate written notice if it receives an out-of-service order issued by the DOT or any other governmental agency. In the event CARRIER receives notice of a "Conditional" rating or an out-of-service order, CARRIER shall provide COMPANY with the corrective action plan CARRIER has implemented to correct the change in CARRIER'S safety rating. Upon such notice or if COMPANY independently determines that CARRIER does not meet COMPANY's qualifications as a CARRIER, COMPANY may elect to take any action necessary at COMPANY's sole discretion, including, but not limited to, (1) cease using the services of CARRIER, or (2) immediately terminate this AGREEMENT. CARRIER agrees to immediately notify COMPANY in the event that substantially all of the assets of CARRIER are sold or the CARRIER undergoes a change in control or ownership.
12) SUBCONTRACT PROHIBITION. CARRIER shall not re-Company, co-Company, subcontract, assign, interline, warehouse, or transfer the movement of shipments hereunder to any other persons or entity conducting business under a different operating authority, without prior written consent of COMPANY. If CARRIER receives COMPANY's consent, CARRIER shall maintain ANY AUTO or HIRED + SCHEDULED AUTO coverage pursuant to a written operating agreement with any carrier, subcontractor, or owner operator moving the shipment ("Subcontractor"). CARRIER shall ensure that any Subcontractor complies with the terms of this Agreement, any CUSTOMER specifications, and applicable DOT regulations. If requested by COMPANY, CARRIER shall provide information regarding each Subcontractor within 24 hours of COMPANY's request. Additionally, CARRIER's liabilities and obligations under this Agreement will supersede any conflicting language in any agreement between CARRIER and Subcontractor. It is expressly understood that CARRIER's violation of this Section shall be deemed a material breach of this AGREEMENT and shall nullify any limitation of liabilities or damages afforded CARRIER in this AGREEMENT or otherwise. If CARRIER breaches this provision, COMPANY, may terminate this agreement at the COMPANY's discretion. Whether CARRIER obtains COMPANY's consent or not, CARRIER shall be liable to COMPANY or any third party, including the CUSTOMER, shipper, consignee or any third-party payor, for any and all liabilities for losses, damages or delays resulting in any way from the actions of the Subcontractor.
13) INSURANCE. During the term of this AGREEMENT, CARRIER shall procure and maintain, at its sole cost and expense, the following minimum insurance coverages with properly licensed and reputable insurance companies. (a) Commercial Automobile Liability Insurance covering all vehicles utilized by the CARRIER with the minimum combined single limit for bodily injury, death and property damage of $1 million per occurrence (or additional coverage as necessary pursuant to the Confirmation Sheet) covering all vehicles used by CARRIER in performing the services set forth in this AGREEMENT. (b) Motor Truck Cargo Legal Liability Insurance in an amount equal to the full value of the property to be transferred by CARRIER under this AGREEMENT, but in no event less than $100,000 per occurrence. Such cargo liability policy must include coverage for unattended vehicles and shall have no other exclusions or restrictions of any type that would foreseeably preclude coverage related to any cargo loss, damage, or delay claim. In no event shall a rejection of any claim by the CARRIER's insurance alleviate the CARRIER's responsibility for full liability of loss. If CARRIER is transporting temperature-controlled loads, this insurance must contain an endorsement extending coverage to cargo loss or damage occurring due to malfunction of the temperature control equipment. (c) Statutory Workers' Compensation Insurance as required by applicable state law. If CARRIER is self-insured, a certificate of the state of domicile must be furnished by such state agency directly to COMPANY. (d) Any other insurance or surety bond as agreed upon by CARRIER and COMPANY from time to time to meet special insurance requirements of CUSTOMERS or as may be required under the laws, ordinances, and regulations of any governmental authority. At all times during the terms of this AGREEMENT, CARRIER shall comply with the financial responsibility requirements of federal, state, and provincial departments and agencies through which it is regulated and authorized to operate. (e) Prior to performing services under this AGREEMENT, CARRIER shall furnish to COMPANY written certificates obtained from CARRIER's insurance provider showing that the insurance coverages required in this AGREEMENT have been procured, are being properly maintained, stating the expiration date, and specifying that written notice of cancellation or modification of the policy shall be given to COMPANY at least thirty (30) days prior to such cancellation or modification. CARRIER shall also send notification to COMPANY upon the cancellation or modification of any insurance coverage. Upon request, CARRIER shall provide COMPANY with copies of all applicable insurance policies. CARRIER's cargo and liability insurance shall comply with DOT requirements in all respects. COMPANY reserves the right to determine the qualifications for the insurance company utilized by the CARRIER and may accept or reject the insurance company provided by the CARRIER at its sole discretion. The policy limits of an insurance policy shall not limit the amount for which the CARRIER is ultimately liable in any claim or action.
14) INDEMNIFICATION. To the maximum extent provided by law, CARRIER shall defend, indemnify and hold COMPANY its affiliates, the respective directors, officers, employees, agents and representatives of each of the foregoing and its CUSTOMERS harmless from and against all losses, liabilities, damages, claims, judgments, fines, penalties, interest, costs or expenses, including reasonable attorney's fees arising from (i) CARRIER's or its employees, agents, or Subcontractors breach of this AGREEMENT (ii) loss or damage to any property in the possession and/or control of CARRIER or a Subcontractor, and (iii) the acts or omissions of CARRIER or its employees, agents, or Subcontractors. CARRIER agrees that its obligation to defend, indemnify and hold harmless the COMPANY and its CUSTOMERS from and against any and all claims and liabilities resulting from or arising out of transportation operations and services under this AGREEMENT shall survive any termination of this AGREEMENT.
15) LIABILITY FOR CARGO CLAIMS. CARRIER shall maintain sole and exclusive care, custody, and control of all shipments from the time the shipment is picked up by CARRIER for movement until delivery to the consignee accompanied by the appropriate delivery receipt signed by consignee as specified in this AGREEMENT. CARRIER assumes the liability of a common carrier for any loss, delay, damage to any shipments under CARRIER's care, custody, or control. CARRIER will process cargo claims in accordance state and federal requirements.
16) SALVAGE CLAIMS. CARRIER shall waive any and all right of salvage value or resale of any of a CUSTOMER'S damaged goods and shall, at COMPANY's reasonable request and direction, promptly return or dispose, at CARRIER's cost, any and all of a CUSTOMER'S damaged and overage goods shipped by CARRIER. CARRIER shall not under any circumstance, without COMPANY's prior written consent, allow a CUSTOMER'S goods to be sold or made available for sale or otherwise disposed of in any salvage markets, employee stores, or any other secondary outlets. In the event that the CUSTOMER or COMPANY realizes any salvage value for damaged goods, CARRIER shall receive a credit for the actual salvage value of such goods.
17) NO LIENS. CARRIER shall have no right to assert any lien on or against any property transported under this AGREEMENT.
18) NON-SOLICITATION COVENANTS. CARRIER and affiliates of CARRIER and COMPANY agree that COMPANY, at great expense and effort, has developed a broad base of CUSTOMERS that is essential to the successful operations of the COMPANY. CARRIER and COMPANY agree that disclosure of the identity of one or more of COMPANY's CUSTOMERS to CARRIER constitutes valuable consideration. During the term of this AGREEMENT and for a period of one (1) year after its termination, CARRIER shall not, directly or indirectly, solicit or provide transportation or warehousing services to any CUSTOMERS who are serviced by CARRIER under this AGREEMENT unless otherwise agreed to by COMPANY in writing. Solicitation prohibited under this AGREEMENT means participation in any conduct, whether direct or indirect, the purpose of which involves transportation and/or handling of property by CARRIER for which CARRIER does, or did in the past, provide such services for that CUSTOMER under arrangements first made or procured by COMPANY. Solicitation includes conduct initiated or induced by CARRIER or accepted by CARRIER upon inducement by CUSTOMER. If CARRIER should perform services of a transportation or warehousing nature for compensation for any CUSTOMER without prior documented authorization from COMPANY during the applicable time period in violation of this AGREEMENT, CARRIER shall pay to COMPANY within ten (10) days of each such violation an amount equal to twenty-five percent (25%) of all revenues invoiced by CARRIER to the CUSTOMER, together with any and all costs of collection, including reasonable attorney fees, incurred by COMPANY in enforcing this provision.
19) CONFIDENTIALITY. CARRIER shall limit disclosure of all Confidential Information defined below in or related to this AGREEMENT, only to CARRIER's agents, employees, and Subcontractors involved in its execution and performance or who have a need to know the Confidential Information. Throughout the term of this AGREEMENT and for three (3) years thereafter, CARRIER specifically agrees to keep confidential all of COMPANY's and its CUSTOMERS' technical and business information which CARRIER has received or may receive as a result of this AGREEMENT, CARRIER's rates and charges, the Rate Confirmation Sheets, and the performance thereof ("Confidential Information"), and not to reveal or to divulge any Confidential Information to third parties or to use or publish Confidential Information in any manner whatsoever, without obtaining COMPANY's prior written consent; provided, however, that CARRIER shall not be bound to keep confidential any Confidential Information (i) which was known to CARRIER prior to the date of the applicable Rate Confirmation Sheets from sources other than COMPANY or its CUSTOMERS (ii) which is, or becomes, available to the public without fault on CARRIER's part, or (iii) which is disclosed to CARRIER by a party not related, directly or indirectly, to COMPANY or its CUSTOMERS, and such party has a rightful claim to such information. CARRIER shall only use COMPANY's and its CUSTOMER'S technical and business information to provide the transportation and related services required under this AGREEMENT and the Rate Confirmation Sheets. As set forth herein in the section entitled INFORMATION SHARING PROHIBITION, CARRIER shall not share or distribute COMPANY's rates, rate confirmations, communications or user login info or data from any of COMPANY's technology platforms with any third-party. will not (a) share its login credentials to the Select Powered by Knight-Swift Transportation website (the "Select Site"), or to any COMPANY website or application, with any third parties, (b) permit any access to the Select Site or any COMPANY website or applications to any third-parties, and (c) share any content contained on the Select Site, or any COMPANY website or application, either directly or indirectly with any third party.
20) RESOLUTION OF DISPUTES. The parties desire that the provisions of this AGREEMENT will have precedence over any federal or state provisions governing or dealing with the specific provisions of this AGREEMENT. The parties agree that to the fullest extent permitted by law, they expressly waive only those rights and remedies under the Interstate Commerce Commission Termination Act and Interstate Commerce Act as amended, and regulations promulgated thereunder, including Part B of Subtitle IV Interstate Transportation, 49 U.S.C. § 13101, et seq., (the "Acts") that conflict with the provisions of this Agreement. No Party shall challenge any provision of this AGREEMENT on the ground that any such provision or provisions violates the waived rights and remedies under the Acts. To the extent not governed by applicable federal law, the laws of the State of South Carolina will govern the validity, construction, and performance of this Agreement. All controversies, claims, suits, actions, or proceedings arising hereunder shall be adjudicated in the state and federal courts located in Berkeley County, SC and the parties expressly waive any objection thereto on the basis of personal jurisdiction or venue.
21) ENTIRE CONTRACT. The provisions contained in this AGREEMENT properly express and memorialize the complete understanding and agreement between the parties, including those contained in all prior agreements, both verbal or written, and there are no other agreements or understandings between the parties, express or implied, except as set forth herein.
22) LOGO/TRADEMARK. CARRIER shall not use the name, logo, trademarks or trade names of COMPANY in publicity releases, promotional material, customer lists, advertising, marketing or business generating efforts, whether written or oral, without obtaining COMPANY's prior written consent, which consent shall be given at COMPANY's sole discretion.
23) CAPTIONS. The descriptive heading of the sections and subsections of this AGREEMENT are for convenience only and do not constitute a part of this AGREEMENT nor do they affect this AGREEMENT's construction or interpretation.
24) AMENDMENTS. This AGREEMENT may not be modified or amended except by a subsequent written amendment signed by both parties. The AGREEMENT may not be modified by "course of performance," "course of dealing," "usage of trade" or in any other manner than as described.
25) WAIVERS. No provision of this AGREEMENT or any Confirmation Sheet shall be waived by any party unless such waiver is in writing and executed by an authorized representative of the party against whom such waiver is sought to be enforced. Waiver by either party of any failure to comply with any provision of this AGREEMENT by the other party shall not be construed as or constitute a continuing waiver of such provision or a waiver of any other breach of or failure to comply with any other provision of this AGREEMENT.
26) ASSIGNABILITY. CARRIER is expressly prohibited from assigning any of their rights or delegating any of their obligations under this AGREEMENT to any third parties (such as sub-haulers, sub-Companies and any other form of substituted person or entity), unless the express written consent to such assignment or delegation is first obtained from the other party. Any assignment of this AGREEMENT or any Rate Confirmation Sheets, in whole or in part, by CARRIER without the prior written consent of COMPANY shall be void and of no effect. Notwithstanding the foregoing, COMPANY, in its sole discretion, may assign this Agreement to a parent, subsidiary, or affiliate. Affiliate is defined as a party controlling, controlled by, or under common control with COMPANY. CARRIER agrees to immediately notify COMPANY in the event that substantially all of the assets of CARRIER are sold or the CARRIER undergoes a change in control or ownership.
27) ELECTRONIC AND FAX COMMUNICATIONS. During the term of this AGREEMENT, the parties anticipate that they will exchange materials and information in electronic form (collectively "Electronic Materials") either through the other party's websites, e-mail other electronic means (collectively "Electronic Connections") and via fax. COMPANY and its affiliates take reasonable steps to protect Electronic Materials resident on its networks, stored in its electronic media, or available on its websites, and take reasonable steps to prevent harm arising from Electronic Connections. Due to the nature of Electronic Connections and the Internet, COMPANY and its affiliates do not provide, and expressly disclaim, any warranty (i) that Electronic Materials received by the CARRIER will be free of computer viruses or (ii) that Electronic Connections with the CARRIER will be free from harmful effects. It is the CARRIER's responsibility (i) to take reasonable steps to protect Electronic Materials resident on its networks, stored in its electronic media, or available on its websites, (ii) to take reasonable steps to prevent harm arising from Electronic Connections, and (iii) to perform any anti-virus scanning, data backup, security, and other precautions reasonably necessary to safeguard against computer viruses, worms, and other intrusive or damaging code (collectively "Computer Viruses") and other threats posed by Electronic Materials and Electronic Connections. Under no circumstances will COMPANY or its affiliates be responsible for, and CARRIER hereby waives and releases COMPANY and its affiliates from, any liability for any loss or damage caused by Computer Viruses, the CARRIER's receipt of Electronic Materials from COMPANY or its affiliates or Electronic Connections between COMPANY and its affiliates and the CARRIER.
28) BINDING EFFECT. This AGREEMENT shall be binding upon CARRIER and CARRIER's successors and assigns. and shall inure to the benefit of the parties and their representatives, successors and authorized assigns. CARRIER and COMPANY acknowledge and agree that CUSTOMERS are intended third-party beneficiaries to this AGREEMENT and are entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto.
29) SEVERABILITY. If any provision of this AGREEMENT is determined by a court of competent jurisdiction to be contrary to the laws or regulations of any applicable jurisdiction, then such invalid provision shall be severed from this AGREEMENT; however, such determination shall not affect the validity of any other provisions of this AGREEMENT.
30) AUTHORITY OF REPRESENTATIVES TO BIND PARTIES. It is agreed and warranted by the parties that the persons signing this AGREEMENT respectively for CARRIER and COMPANY are authorized to do so. No further proof of authorization is or shall be required.
31) COUNTERPARTS. This AGREEMENT may be executed in any number of identical counterparts and each such executed counterpart shall be deemed a duplicate original hereof.
32) INTERPRETATION. The language used in all parts of this AGREEMENT shall be construed, in all cases, according to its fair and plain meaning. The parties acknowledge that each party and its counsel have had an opportunity to review this AGREEMENT, and that any rule of construction to the effect that ambiguities are to be resolved against the drafter of the agreement shall not be employed in the interpretation of this AGREEMENT.
32) NOTICES. Any notices required or permitted to be given under this AGREEMENT shall be in writing and shall be addressed to the other party at the contact information listed below, as updated from time to time.
