Master Services Agreement Template
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This Order Form (“Order”), effective as of the date signed by Company (“Order Effective Date”), is by and between Tandem Mobility, LLC (“Tandem”) with an address of10299 Grand River Rd Ste I #16 Brighton, MI 48116 and the undersigned entity (“Company”). By execution of this Order, Company agrees to be bound by the Tandem Terms of Use attached hereto as Exhibit A (“Agreement”). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Agreement. In the event of any conflict or inconsistency between this Order and the Agreement, this Order shall govern.
Purpose. Under this Order, Tandem will provide:
The right for Users to access and use the number of Tandem Bicycles as set forth below.
A Site Survey to determine the Locations and the Initial Launch Date (each, as set forth below).
A license to use Licensed Software and accompanying Documentation.
Maintenance Services, as further described in the Agreement.
Automated locks and bicycle stations to be used with the Tandem Bicycles, subject to payment of the fees set forth herein.
Tandem Marketing Materials.
Customer services for Users.
A Tandem Customer Success Manager.
Company Contact Information
Address:
Email:
Phone:
Number of Tandem Bicycles to be provided
Estimated Initial Launch Date
Location(s)
Initial Term
Service Lines Fees
Product and One Time Fees
Other Terms
Agreed to by:
TANDEM MOBILITY, LLC
By:
Name:
Title:
Date:
COMPANY: ____________________________
By:
Name:
Title:
Date:
Tandem Terms of Use
These Tandem Terms of Use (collectively, with any Order Form, the “Agreement”) is entered into by and between the Company listed in the Order Form (“Company”), and Tandem Mobility, LLC (“Tandem”). Defined terms used herein shall have the meanings accorded to such terms herein.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge, the parties hereto hereby agree as follows:
Company and may place orders for the Tandem Service by entering into an order form with Tandem (each, an “Order Form”) which Order Forms will among other things specify the number of Tandem Bicycles, the Locations and the estimated Launch Dates and will reference this Agreement. Further, the Company and its Affiliates may enter into expansion order forms (each, an “Expansion Order Form”) to add additional Locations and Tandem Bicycles from time to time as mutually agreed to in writing by the parties. This Agreement will be deemed incorporated by reference into each Order Form and Expansion Order Form.
1. Description of Tandem Service. Pursuant to each Order Form and Expansion Order Form, Tandem will provide the following (collectively, the “Tandem Service”):
a. The right for Users (as defined below) to access and use bicycles provided by Tandem (collectively, the “Tandem Bicycles”). The number of Tandem Bicycles provided by Tandem under this Agreement shall be as set forth in the Order Form and any Expansion Order Form (as such terms are defined below).
b. A Site Survey (as defined below) to determine the Locations (as defined below) and the Initial Launch Date (as defined below).
c. A license to use proprietary bicycle rental management software and mobile application (collectively, the “Licensed Software”) and accompanying User information (the “Documentation”) pursuant to Section 5 below.
d. Maintenance Services as described in more detail herein.
e. Automated locks and bicycle stations to be used with the Tandem Bicycles, subject to payment of the fees set forth in the Order Form.
f. Tandem marketing support and materials (the “Tandem Marketing Materials”).
g. Tandem customer services for Users. Customer representatives shall have sufficient knowledge to answer questions and provide information concerning Tandem Bicycles and related services.
h. A Tandem Customer Success Manager.
2. Term of Agreement; Exclusivity. The initial term of this Agreement will commence on the Order Form Effective Date and, unless terminated earlier in accordance herewith, will continue until all Order Forms have terminated or expired (the “Initial Term”). This Agreement will automatically renew for successive one (1) year renewal terms unless either party gives the other written notice of termination at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). During the Term, Company agrees that Tandem shall be the only bicycle sharing, bicycle rental, and/or shared mobility service promoted and used by Company at Company Locations.
3. Launch Date; Site Survey; Locations.
a. Initial Launch. The parties will mutually agree in writing to an initial launch date (“Initial Launch Date”) in the Order Form. Tandem shall make good faith efforts to provide all contemplated services in accordance with the Initial Launch Date selected, contingent upon timely receipt of Company pre-launch deliverables and other deliverables out of Tandem’s control such as shipping timelines.
b. Initial Locations. Company acknowledges and agrees that Tandem may perform a survey of the site(s) where Company desires that the Tandem Bicycles be installed (the “Site Survey”). The parties will mutually agree on the initial location(s) where the Tandem Bicycles will be installed promptly after completion of the Site Survey (the “Initial Location(s)”). The launch of the Tandem Service on the Initial Launch Date is subject to both Tandem and the Company fulfilling all of their obligations under this Agreement which are required to be fulfilled to enable Tandem to launch the Tandem Service at the Initial Location(s), including without limitation payment of the Product and Service Fees set forth in the Order Form(s).
c. Additional Locations. Additional Locations (each an “Additional Location” and together with the Initial Locations, the “Locations”) and/or Tandem Bicycles may be added from time to time pursuant to an Expansion Order Form. The parties will mutually agree in writing to the estimated launch date of an Additional Location in the applicable Expansion Order Form. The actual launch date of an Additional Location will be the date that Tandem is able to make the Tandem Service available to the Company at the Additional Location. Tandem will notify the Company of the actual launch date of an Additional Location by email. The launch of an Additional Location is subject to both Tandem and the Company fulfilling all of their obligations under this Agreement which are required to be fulfilled to enable Tandem to launch the Tandem Service at the Additional Location(s), including without limitation payment of the Product and Service Fees set forth in the applicable Expansion Order Form.
4. Fees; Payment Terms.
a. Fees. Company will pay to Tandem the nonrefundable product and one time fees in the amounts, if any, described in the Order Form and any Expansion Order Form (the “Product and One Time Fees”). Company will pay to Tandem the nonrefundable recurring fees (the “Service Line Fees”) set forth on an Order Form and any Expansion Order Form. Company will pay all Product and One Time Fees and Service Line Fees within thirty (30) days of an applicable invoice date. The fees are subject to increase upon a Renewal Term, and Company will be notified thirty (30) days prior to a price increase Tandem will invoice. The fees do not include applicable taxes, duties and similar charges, all of which will be invoiced separately to Company on the applicable invoice. Tandem reserves the right to charge interest at a rate of 1.5% per month, or the maximum rate permitted by applicable law, whichever is less, on late payments.
b. Suspension. If Company’s account is more than thirty (30) days past due, Tandem may, upon thirty (30) days prior written notice (which may be by email to Company’s billing contact included in the applicable Order Form) suspend the provision of the Tandem Service until such time as Company’s account is brought current. This right to suspend the Tandem Service is in addition to any and all other rights and remedies under this Agreement and under applicable law, including without limitation Tandem’s right to terminate the Agreement for breach. If Tandem elects to suspend the Tandem Service, Company shall return all Tandem property, including but not limited to, Tandem Bicycles, Tandem bicycle stations, signage and any other Tandem materials (collectively, “Tandem Property”) within seven (7) days of the receipt of the written notice of the suspension unless Company’s account is brought current. If Company fails to bring account current or return the Tandem property within seven (7) days of receiving a suspension notice, Tandem shall be entitled to seek all legal remedies provided under the law and Company will be liable for all fees, costs, and expenses actually incurred by Tandem in connection with Tandem recovering Tandem Property.
5. License Grant.
a. License Grant. Subject to the terms and conditions of this Agreement and payment of the fees described herein, Tandem hereby grants Company a non-exclusive, non-transferable, royalty-free, fully paid up, limited license during the Term to access and use the Licensed Software, as hosted by Tandem or its third party platform provider(s), from locations in the United States and to use the Documentation provided by Tandem solely for Company’s management of the Tandem Bicycles at the Locations.
b. Restrictions. Company will not, and will not permit third parties to, (i) permit any third party to access the Licensed Software except as permitted herein or use the Licensed Software as a service bureau, application service provider, or similar business, (ii) create derivate works based on the Licensed Software, (iii) copy, frame, mirror, delete, alter, or obscure any part or content of the Licensed Software, (iv) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Licensed Software, in whole or in part, nor will Company use any mechanical, electronic or other method to trace, decompile, disassemble, circumvent, or identify the source code of the Licensed Software or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (v) access the Licensed Software in order to: (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Licensed Software, (vi) sell, resell, rent or lease the Licensed Software, (vii) use the Licensed Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (or otherwise use the Licensed Software in violation of the Documentation), (viii) store or transmit virus or other malicious code through the Licensed Software, (ix) interfere with or disrupt the integrity or performance of the Licensed Software, (x) attempt to gain unauthorized access to the Licensed Software or their related systems or networks, or (xi) use the Licensed Software and other third party software or products made available to Company in connection with this Agreement other than as intended. Company shall provide to Tandem a list of authorized users of the Licensed Software.
c. Ownership. Except for the rights granted to Company in this Section, all right, title and interest in and to the Licensed Software and the Documentation, including without limitation all intellectual property embodied therein, shall remain exclusively with Tandem or the respective third party and Tandem reserves all rights therein and thereto. The license granted hereunder includes no rights in or to the source code versions of the Licensed Software or to the object code version of the Licensed Software, other than to the object code version as hosted by Tandem or its third party hosting provider.
6. Maintenance Services. Tandem will provide the following maintenance services with respect to the Tandem Bicycles (the "Maintenance Services"):
a. Tandem maintenance personnel will visit each of the Locations to perform general maintenance and cleaning of the Tandem Bicycles.
b. Tandem will, at Tandem's sole option and expense, will review and make replacements to the Tandem Bicycles as needed.
7. Tandem Membership.
a. Generally. Each person that has been authenticated by Tandem and is a Tandem member in good standing (a “User”) shall be eligible to use the Tandem Bicycles subject to Tandem’s then current policies and procedures, including without limitation the terms and conditions of Tandem's member agreement. To become a Tandem member, a person shall complete Tandem's membership application and, if approved for membership by Tandem, shall enter into Tandem's then-current member agreement and waiver. Tandem may revise the membership application and member agreement from time to time in its sole discretion. In addition, the parties may, as may be mutually agreed, require Users to sign an additional, secondary waiver in the form provided by Company. Tandem owns all right, title and interest in and to any and all information and data submitted to Tandem by Users and prospective Users and Tandem agrees that it will not sell User data.
b. Payment of Membership and Usage Fees. Users shall be responsible for paying, via credit card, the annual membership fee, usage fees, and such additional fees and charges as set forth at admin.movatic.co as adjusted from time to time after written notice to Company and each User through the Licensed Software or via email. All fees paid by Users will be processed by a third party credit card or payment processor. Company agrees to make reasonable efforts to cooperate with Tandem in the setup of any third party processor’s account(s) that will collect the Licensed Software-related fees. Tandem will not receive, process, retain or maintain any credit card data.
8. Consents. Company represents and warrants to Tandem that Company has all rights, licenses, consents, authorizations and permits necessary to permit Tandem to install the Bicycles at the Locations and to provide the Tandem Service at the Locations. Further, Company will:
a. Permit Tandem personnel to access each Location, at mutually agreed dates and times, to perform a Site Survey, take pictures of the Location, and otherwise review and inspect the Location with Company personnel to determine a mutually agreed to area at each Location to install Tandem Bicycles and Tandem stations.
b. Provide the required square footage in a mutually agreed to area at each Location to enable Tandem to install the Tandem stations and Tandem Bicycles and provide the necessary additional space for any mutually agreed to increase in the number of Tandem Bicycles. In addition, if mutually agreed by the parties, (i) Company will accept shipments of the Tandem Bicycles and related materials and will store the Tandem Bicycles and related materials in a secure location until Tandem personnel arrive to install and (ii) Company shall permit Tandem to dispose of shipping materials at the Locations and provide access to Company’s trash and recycling facilities in connection with same.
c. Permit Tandem personnel to access each Location, at a mutually agreed to date and time, to set-up and install the Tandem Bicycles and Tandem Signage at the Locations, including installation of appropriate bicycle stations to be provided by Tandem, and to take pictures of the Tandem Bicycles as installed at each Location. Tandem shall have the right to use the pictures for advertising and marketing purposes, with Company’s prior written consent, which will not be unreasonably withheld.
d. Permit Tandem personnel to access the Locations during normal business hours Monday through Friday, or as may be otherwise mutually agreed, to provide Maintenance Services. Company will provide Tandem with an appropriate number of parking passes or parking validations to be provided to Tandem personnel to enable Tandem personnel to access the Locations without charge.
e. Keep all Locations where Tandem Bicycles are stored clean and debris-free, in substantially similar condition to the condition of the Locations as of the Launch Date for such Locations.
9. Tandem Bicycles.
b. Company acknowledges that the Maintenance Services do not cover abuse, theft, vandalism, accident and/or similar issues while the bicycles are not in use by Users unless Company has elected to include such coverage (“Damage and Theft Coverage”) and has paid the applicable fees set forth in an Order Form or Expansion Order Form for such Damage and Theft Coverage. At Company’s expense, unless Customer has elected Damage Coverage, the Company will, on an annual basis, replace and/or repair up to 10% of the Company Bicycles (but only if it is apparent that such Company Bicycles are vandalized, stolen or damaged while not in use by a User but not for normal or expected wear and tear due to routine usage nor for damage, vandalism, or Company Bicycles stolen while in use by a user), Company automated locks, and/or Company stations that have been vandalized, stolen, and/or damaged by accident or misuse or abuse. No Tandem Bicycles will be replaced more than one time per year.
10. Services; Relationship of the Parties. Subject to the terms and conditions of this Agreement, Tandem will provide the Tandem Service set forth herein and Company will perform the obligations set forth herein. The relationship of the parties to this Agreement is solely that of independent contractors. Neither party will have any authority to contract with third parties on behalf of the other party or to expressly or impliedly represent that it has any such authority, to any person.
11. Insurance. During the Term, Tandem will maintain the following insurance:
a. General Liability Insurance with coverage limits of at least $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate;
b. Worker’s Compensation Insurance in accordance with statutory requirements; and
c. Umbrella coverage in the amount of at least $2,000,000.
Coverage will be placed with insurance carriers with an A.M. Best Rating of not less than A- and financial rating of not less than VII.
12. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES.
a. General. Each party represents and warrants that: (i) this Agreement has been duly approved by all necessary action of such party; (ii) it has full power and authority to enter into and execute this Agreement; (iii) this Agreement is valid, binding and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not result in a violation or breach of and does not contravene, violate or conflict with any provision of applicable law, regulations or obligations to which it is a party.
b. Tandem Service. Tandem represents and warrants that the Tandem Service will be provided in accordance with the terms of this Agreement. As Company’s sole and exclusive remedy, and Tandem’s sole liability, for any breach of the foregoing warranty, Tandem will re-perform the Tandem Service so that it conforms to the requirements of this Agreement.
c. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TANDEM MAKES NO WARRANTIES WITH RESPECT TO THE TANDEM SERVICE OR THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO WARRANTY IS MADE THAT THE TANDEM SERVICE WILL MEET COMPANY’S REQUIREMENTS.
13. Indemnification. Tandem agrees to indemnify, defend, and hold harmless Company and their respective officers, directors, and employees, from any and all claims asserted against Company by a third party (“Third Party Claims”) alleging: (a) the gross negligence or willful misconduct of Tandem or its employees in the performance of the Tandem Service hereunder; or (b) infringement by the Licensed Software or Tandem trademarks of the third party’s intellectual property rights; and Tandem shall indemnify and hold Company harmless from and against all damages finally awarded by a court of competent jurisdiction or agreed to by Tandem in settlement with respect to such Third Party Claims, provided that (i) Company shall provide Tandem with written notice promptly upon learning of any Third Party Claims or complaints that may reasonably result in the indemnification of Company, provided, however, that failure by Company to provide notice to Tandem shall not relieve Tandem of its obligations under this Section unless such failure prejudices Tandem’s defense or settlement of the Third Party Claim; (ii) Company will permit Tandem to control the defense and settlement of the Third Party Claim, provided, however, that Tandem may not settle the Third Party Claim in a manner adverse to Company or which would impose liability on Company without Company’s prior written consent; and (iii) Company will provide Tandem with assistance in the defense and settlement of the Third Party Claim at Tandem’s expense. Company may (at its own cost) engage its own counsel to participate in the defense and settlement of the Third Party Claim. Company will not settle any Third Party Claim without Tandem’s prior written consent. Company agrees to indemnify, defend, and hold harmless Tandem from Third Party Claims: alleging: (c) Company’s failure to comply with any applicable law, statute, regulation, ordinance; (d) Company was grossly negligent or committed an intentional act that caused injury to a person or damage to property; and/or (e) Company’s material breach of the terms of this Agreement.
14. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES, OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SAME. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY’S LIABILITY HEREUNDER WILL EXCEED THE FEES PAID BY COMPANY TO TANDEM IN THE MOST RECENT TERM PRIOR TO THE CLAIM ARISING FOR THE TANDEM SERVICE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY COMPANY’S PAYMENT OBLIGATIONS, OR BREACH OF OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 15. COMPANY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION REPRESENT A REASONABLE ALLOCATION OF RISK THAT IS REFLECTED IN THE FEES PAID BY COMPANY.
15. Confidentiality; Suggestions.
a. Confidentiality. Each party acknowledges that during the term of this Agreement the other party may disclose information, whether orally, visually, or in tangible form, that is proprietary and confidential to the disclosing party and is disclosed or marked as proprietary or confidential (“Confidential Information”) and that the unauthorized disclosure of Confidential Information may cause irreparable harm to the disclosing party. Each party shall only use the Confidential Information to perform its obligations hereunder and will take all reasonable measures to safeguard and prevent the unauthorized disclosure of Confidential Information, but no less than the measures it takes to safeguard its own confidential information, including without limitation disclosing Confidential Information only to those of its employees with a need to know such information to perform their obligations hereunder and which have been advised of the confidential nature of the information and have agreed to protect the Confidential Information to the same extent as Company hereunder. The parties acknowledge that it will be impossible to measure the damages that would be suffered by one party if the other party fails to comply with the provisions of this Section 15 and that in the event of any such failure, such party will not have an adequate remedy at law and shall, therefore, be entitled, in addition to any other rights and remedies, to seek specific performance of the receiving party’s obligations and to seek immediate injunctive relief with respect thereto.
b. Suggestions. Company may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to Tandem with respect to the Tandem Service (collectively, “Suggestions”). Both parties agree that each Suggestion is and shall be given entirely voluntarily. Each Suggestion, even if designated as confidential by Company shall not, absent a signed, written agreement with Tandem, create an obligation of confidentiality for Tandem. Company agrees that it shall not give any Suggestion that is subject to license terms or restrictions that seek to require any Tandem technology, service, product or documentation incorporating or derived from such Suggestion, or any Tandem intellectual property, to be licensed or otherwise shared with Company or any third party. Furthermore, Company hereby assigns all right, title and interest in and to Suggestions to Tandem including without limitation all intellectual property rights therein, and will take any and all actions reasonably requested by Tandem to effect such assignment.
16. Termination.
a. This Agreement may be terminated (i) by Tandem if Company fails to timely make any payment due hereunder (other than with respect to charges then subject to a good faith dispute) and fails to cure such default within ten (10) days of receiving notice in writing from Tandem of such failure (whether or not Tandem avails itself of its right to suspend the Tandem Service); or (ii) by either party in the event (a) the other party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to cure such breach or provide the other party with an acceptable plan for curing such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach; (b) a receiver, trustee, administrator, or administrative receiver is appointed for the other party or its property; (c) the other party makes an assignment for the benefit of creditors; (d) any proceedings should be commenced against the other party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (e) the other party is liquidated or dissolved. Termination shall not relieve Company of the obligation to pay any fees accrued or payable to Tandem prior to the effective date of termination.
b. Upon the termination of this Agreement, each party will promptly destroy or, on the other party’s request, return all of the other party’s Confidential Information, including all copies thereof. The payment and fee provisions set forth herein and each Order Form and any Expansion Order Forms shall survive any termination or expiration of this Agreement with respect to any fees due and owing hereunder. The terms of this Agreement which by their nature should survive termination or expiration of this Agreement shall survive, including Sections 12(c), 13, 14, 15, 16, 17, 18.
17. Notices. Except as otherwise provided in this Agreement, all notices, requests and demands, and other communications required or permitted under this Agreement shall be in writing and sent to the addresses noted in the Order Form or to such changes of address of which one party notifies the other in accordance with this provision. A notice shall be deemed effective: (a) upon delivery, if delivered personally by hand to a party; (b) one (1) business day after deposit, if delivered to a nationally recognized courier service offering guaranteed overnight delivery; or (c) five (5) business days after having been deposited in the United States mail, certified mail, postage prepaid, return receipt requested.
18. Miscellaneous. Each party represents and warrants to the other that it has the authority to enter into this Agreement and is not under any obligation to any third party that would conflict with this Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior and contemporaneous agreements and understandings, oral and written, between the parties with respect to the subject matter hereof. Additional or different terms in any purchase order or similar document will not modify or add to the terms of this Agreement unless mutually agreed in writing by the parties. This Agreement may be amended at Tandem’s discretion, with or without notice. If one party fails to enforce any provision of this Agreement, such party will not be precluded from enforcing the same provision at another time. This Agreement and the rights granted under it may not be assigned or transferred by either party without the written consent of the other party; provided, however, either party will have the right to assign this Agreement to its successor in the event of a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of its assets or stock or business to which this Agreement relates. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be deemed modified to the minimum extent necessary to render the provision enforceable in a manner that most closely represents the original intent of the parties and the remaining terms and conditions of this Agreement will remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to conflicts of laws provisions thereof. The parties agree that any litigation arising between the parties in relation to this Agreement shall be initiated and maintained in the Circuit Court of the County of Washtenaw, Michigan or the U.S. District Court for the Eastern District of Michigan, Southern Division, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts. In the event of any adjudication of any dispute under this Agreement, the prevailing party in such action will be entitled to reimbursement of its attorneys’ fees and related costs by the other party. The paragraph headings contained in this Agreement are for convenience only and are not intended to be used nor may they be used in the interpretation of this Agreement. Neither party will be liable for a delay in performing its obligations under this Agreement to the extent that delay is caused by insurrection, war, riot, explosion, nuclear incident, fire, flood, earthquake, failures of suppliers, utility or telecommunications outages, or other significant event beyond the reasonable control of the affected party, provided the non-performing party immediately notifies the other party and takes commercially reasonable and expedient action to resume performance. This Agreement may be executed in one or more counterparts, each counterpart of which will be deemed to be an original and which together will constitute one and the same instrument. The signature of any of the parties may be evidenced by an electronic or facsimile copy of this Agreement bearing such signature, and such signature will be valid and binding as if an original executed copy of the Agreement has been delivered.
a. Company will use reasonable efforts to report any maintenance or other issues relating to the Tandem Bicycles or the Tandem stations or facility on Company premises. Company shall report any issues to Tandem at and Tandem shall initiate a resolution within 48 business hours. Such reasonable efforts by the Company will be construed to mean only a general visual inspection to look for flat tires, obvious and material cosmetic defects to the bicycles and/or stations, and graffiti. Tandem will respond to all maintenance issues reported by Company as soon as commercially practicable.
