Terms & Conditions

IvyTek Services Agreement

This Services Agreement (this “Agreement“), is by and between the undersigned customer (“Customer”) and IvyTek, Inc. (“IvyTek”), and is effective as of the date on the signature page hereto (the “Effective Date“). 

WHEREAS, IvyTek has the capability and capacity to provide the “Services” as defined below; and

WHEREAS, Customer desires to retain IvyTek to provide the Services, and IvyTek is willing to perform the Services under the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, IvyTek and Customer agree as follows:

1. Services. IvyTek shall provide to Customer the services set out in one or more statements of work (the “Services“) to be issued by IvyTek and accepted by Customer (each, a “Statement of Work” or “SOW”). The initial accepted Statement(s) of Work are attached hereto as Exhibits. Additional Statements of Work shall be deemed issued and accepted only if signed by the IvyTek Contract Manager and the Customer Contract Manager, appointed pursuant to Section 2.1 and Section 3.1, respectively.
2. IvyTek Obligations. 
   1. IvyTek shall (i) designate employees or contractors that it determines, in its sole discretion, to be capable of serving as a primary contact and authorized representative with respect to all matters pertaining to this Agreement (the “IvyTek Contract Manager“), and (ii) designate a number of employees or contractors that it deems sufficient to perform the Services set out in each SOW, (collectively, with the IvyTek Contract Manager, “IvyTek Representatives“). For the avoidance of doubt, any authorized officer of IvyTek may act as IvyTek Contract Manager when convenient or necessary. 
   2. IvyTek may make changes in IvyTek Representatives in its sole discretion without notice to Customer.
   3. In the event that any SOW provides for IvyTek to be paid on a time and materials basis, IvyTek shall maintain complete and accurate records of the time spent and materials used by IvyTek in providing the Services for that SOW. 
      
3. Customer Obligations. Customer shall:
   1. Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager“).
   2. Require that the Customer Contract Manager respond promptly to any reasonable requests from IvyTek for instructions, information, or approvals required by IvyTek to provide the Services.
   3. Cooperate with IvyTek in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable IvyTek to provide the Services.
   4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in IvyTek’s provision of the Services.
      
4. Fees and Expenses. 
   1. In consideration of the provision of the Services by the IvyTek and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable SOW. Payment to IvyTek of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Fees will be payable pursuant to the payment terms set forth in each SOW.
   2. Customer shall reimburse IvyTek for all reasonable expenses incurred in accordance with the SOW, within 15 days after the date set forth on IvyTek’s invoice. 
   3. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided that in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, IvyTek’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
   4. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse IvyTek for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which IvyTek does not waive by the exercise of any rights hereunder), IvyTek shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder and such failure continues beyond the payment terms set forth in the relevant SOW. 
      
5. Limited Warranty and Limitation of Liability.
   1. IvyTek warrants that it shall perform the Services: 
      1. In accordance with the terms and subject to the conditions set out in the relevant SOW and this Agreement.
      2. Using personnel of industry standard skill, experience, and qualifications.
      3. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
   2. IvyTek’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
      1. IvyTek shall use reasonable commercial efforts to promptly cure any such breach; provided, that if IvyTek cannot cure such breach within a reasonable time after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 11.2.   
      2. In the event the Agreement is terminated pursuant to Section 5.2(a) above, IvyTek shall within 45 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 6 below), less a deduction equal to the fees for the greater of Customer’s receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.  
      3. The foregoing remedy shall not be available unless Customer provides written notice of such breach within 15 days after delivery of such Service or Deliverable to Customer.
         
   3. IVYTEK MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED  WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. IVYTEK IS NOT LIABLE FOR NONCONFORMITIES ARISING FROM INACCURATE, INAUTHENTIC, OR INCOMPLETE DATA OR INFORMATION PROVIDED BY CUSTOMER, OR FOR FAILURES OR DELAYS ARISING FROM CUSTOMER’S LACK OF COOPERATION. IVYTEK DISCLAIMS ANY AND ALL LIABILITY FOR THE PROVISION, USE, AND FUNCTIONALITY OF THIRD-PARTY SERVICES, SOFTWARE, AND PRODUCTS, INCLUDING SALESFORCE.COM. 
      
6. Intellectual Property. 
   1. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of IvyTek in the course of performing the Services, including any items identified as such in an applicable SOW (collectively, the “Deliverables”) shall be owned by IvyTek unless otherwise stated in an SOW. 
   2. Each party (“Licensor”) hereby grants to the other (“Licensee”)  a limited, non-exclusive, non-transferable, non-sublicensable right and license during the Term to display the other’s name, trademarks, service marks and logos (collectively, “Marks”) for the sole purpose of identifying Licensee as a customer of Licensor, and marketing, and promoting Licensor’s services, provided that (i) either Licensor may require that its Marks be used in accordance with its brand standards, by providing such brand standards to Licensee in writing; and (ii) either Licensor may revoke the license granted to Licensee hereunder by providing written notice of such revocation to Licensee. Except as set forth in this Section, nothing in this Agreement shall grant or shall be deemed to grant to Licensee any right, title or interest in Licensor’s Marks. All use by Licensee of Licensor’s Marks (including any goodwill associated therewith) shall inure to the benefit of Licensor. At no time during or after the Term of this Agreement shall Licensee challenge or assist others to challenge Licensor’s Marks or the registration thereof by Licensor, nor shall Licensee attempt to register any Marks that are confusingly similar to those of Licensor.
      
7. Confidentiality. From time to time during the Term of this Agreement, either party (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information“). For the avoidance of doubt, Confidential Information includes all personally identifying information about Customer’s users, borrowers, and applicants (“PII”). Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession other than by breach of confidentiality obligations prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. During the Term and for 3 years thereafter, the Receiving party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement and with respect to PII and other Customer data, for any purposes allowed by applicable law with adequate deidentification; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving party, or act on its behalf, to exercise its rights and perform its obligations under this Agreement; provided that Receiving Party shall require any member of Receiving Party’s Group to be bound by written confidentiality obligations no less restrictive than those set forth in this Section 7. 

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, and subcontractors. 

Each party acknowledges that a breach or threatened breach of this Section 7 may cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 6.2 by the other party or any of its employees or agents. 

8. PII. The parties acknowledge and agree that IvyTek does not gather, transport, or store PII for purposes of providing the Services. Customer shall comply with all applicable laws and regulations relating to gathering, transporting, processing, storing, and using PII. Customer bears all liability for any breach or noncompliance of applicable laws or regulations relating gathering, transporting, processing, storing, and using PII.  
9. Non-Solicitation. Customer shall not during the Term and for a period of 1 year thereafter, hire, solicit, or attempt to solicit, directly or indirectly, any IvyTek employee or consultant, except with payment of a placement fee equal to 24% of such employee’s or contractor’s total annualized compensation from Customer. Customer shall make available to IvyTek such compensation information for purposes of determining the fee owed pursuant to this Section 9. 
   
10. Indemnification. 
    1. Each party (the “Indemnifying Party” shall indemnify, defend, and hold harmless the other party, including its officers, directors, employees, agents, sub-contractors, and representatives (collectively, “Indemnified Parties”) from and against all third-party suits, actions, liabilities, legal proceedings, claims, demands, losses, costs, and expenses, including reasonable attorney’s fees, for injury to or death of persons or loss of or damage to tangible property, in each case to the extent caused by the negligence or willful misconduct of the Indemnifying Party. 
    2. IvyTek shall defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that any Deliverable infringes upon or misappropriates a United State patent or copyright of a third party. IvyTek shall pay the costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. If any Deliverable becomes, or in IvyTek’s sole opinion is likely to become, the subject of an infringement claim, IvyTek may, at its option, either (i) procure for Customer the right to continue using the Deliverable, (ii) replace or modify that Deliverable so that it becomes non-infringing without any material loss of features or functionality, or (iii) accept return of the Deliverable and give Customer a refund of the fees paid by Customer  for the Deliverable. Notwithstanding the foregoing, IvyTek will have no obligation under this Section 10.2, or otherwise with respect to any infringement claim to the extent based upon, (w) Customer’s specifications or requirements, (x) any use of the Deliverable not in accordance with this Agreement, an applicable SOW, or IvyTek’s intended purpose, (y) any use of the Deliverable in combination with other products, equipment, software, or data not supplied by IvyTek, or (z) any modification of the Deliverable by any person other than IvyTek. THIS PARAGRAPH STATES IVYTEK’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
    3. Customer shall indemnify, defend, and hold IvyTek and its Indemnified Parties harmless from and against any third-party suits, actions, liabilities, legal proceedings, claims, demands, losses, costs, and expenses, including reasonable attorney’s fees, related to (i) Customer’s use of Deliverables in a manner which violates any applicable law or regulation, including failure to obtain required licensing, permitting, or other authorization, or which breach any contract between it and a third party, or (ii) any breach of or noncompliance with any laws or regulations applicable to Customer’s gathering, transporting, processing, storing, or use of PII. 
    4. Each party’s indemnification obligations are contingent upon the Indemnified Party (i) notifying the Indemnifying Party promptly in writing of the covered claim, (ii) giving the Indemnifying Party sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at the Indemnifying Party’s request and expense, assisting in such defense. Notwithstanding the foregoing, the Indemnified Party may participate at its own expense in the defense and any settlement discussion, and will have the right to approve any settlement agreement that involves an admission of fault by the Indemnified Party or imposes non-monetary obligations on the Indemnified Party. 
       
11. Term, Termination, and Survival.
    1. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all SOWs, unless sooner terminated pursuant to Section 11.2 or Section 11.3 (“Term”).
    2. Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party“) if the Defaulting Party:
       1. Materially breaches this Agreement , and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach. Notwithstanding the foregoing, with respect to an uncured material breach of an SOW, Customer may terminate only the affected SOW and all other SOWs shall remain in effect.
       2. Becomes insolvent or admits its inability to pay its debts generally as they become due.
       3. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 7 business days or is not dismissed or vacated within 45 business days after filing.
       4. Is dissolved or liquidated or takes any corporate action for such purpose. 
       5. Makes a general assignment for the benefit of creditors.
       6. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Notwithstanding anything to the contrary in Section 11.2(a), IvyTek may terminate this Agreement or any SOW before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues beyond the payment terms set forth in the applicable SOW; or (b) more than 3 times in any 12 month period;
    4. The rights and obligations of the parties set forth in this Section 11.4 and in Sections 5, 6, 6.2, 10, 11.5, 15, 23, and 24, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
    5. Effect of Termination. Subject to Section 7, upon expiration or termination of this Agreement, each party shall, at the other party’s election, return or destroy the other’s Confidential Information in its possession or control, excluding any archival copies regularly stored on computer systems; provided that such archival copies shall remain subject to the confidentiality provisions set forth in Section 7. 
       
12. Limitation of Liability.
    1. IN NO EVENT SHALL IVYTEK BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT IVYTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 
    2. IN NO EVENT SHALL IVYTEK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO IVYTEK PURSUANT TO THE STATEMENT(S) OF WORK GIVING RISE TO THE CLAIM. 
       
13. Insurance. During the term of this Agreement and for a period of three (3) years thereafter, Customer shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability and cyber risk insurance in sums no less than are customary in the Customer’s industry, with financially sound and reputable insurers. Upon IvyTek’s request, Customer shall provide IvyTek with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name IvyTek as an additional insured. Customer shall provide IvyTek with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against IvyTek’s insurers and IvyTek. 
    
14. Entire Agreement. This Agreement, including and together with any related SOWs, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any SOW, the terms and conditions of the SOW shall supersede and control.
    
15. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice“, and with the correlative meaning “Notify“) must be in writing and addressed to the other party at its address set forth below (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid), or by email. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section 15.

Notice to Customer:	The address set forth on the signature page of this Agreement.
Notice to IvyTek:	219 Rainbow Dr., Suite 11912Livingston, TX 77399
	Attention: Michael Griggs

16. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. 
    
17. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. 
    
18. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    
19. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of IvyTek. Any purported assignment or delegation in violation of this Section 19 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. IvyTek may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of IvyTek’s assets without Customer’s consent.
    
20. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. 
    
21. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by IvyTek shall be under its own control, Customer being interested only in the results thereof. IvyTek shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services.  Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services.  The Services must meet the standards set forth in the applicable SOW. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    
22. No Third-party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    
23. Choice of Law. This Agreement and all related documents including all exhibits and SOWs attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Florida, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida.
    
24. Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, SOWs, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the Middle District of Florida or, if such court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Duval County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
    
25. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, SOWS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    
26. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. 
    
27. Force Majeure. IvyTek shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of IvyTek including, without limitation, acts of God, governmental actions, war, invasion or hostilities, terrorist threats or acts, civil unrest, national emergency, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Customer shall be entitled to give notice in writing to IvyTek to terminate this Agreement.
    
28. Dispute Resolution. 
    1. Any dispute arising out of or relating to this Agreement shall first be addressed by the IvyTek and Customer Contract Managers, who shall negotiate in good faith to reach a reasonable and equitable resolution. If the IvyTek and Customer Contract Managers cannot resolve the dispute within 5 business days, the dispute shall be promptly referred to the responsible senior management of each party for resolution. Neither party shall seek any other means of resolved such dispute until both parties’ responsible senior management have has at least 5 business days to resolve the dispute. If the parties are unable to resolve the dispute in accordance with the foregoing procedure, then either party may, at any time, deliver notice to the other party of its intent to submit the dispute to arbitration, which notice shall specifically identify the issues to be arbitrated (“Arbitration Notice”).
       
    2. Any dispute submitted to arbitration pursuant to Section 28.1 shall be submitted to and resolved exclusively by arbitration conducted before the Judicial Arbiter Group in accordance with its own procedural rules. One arbitrator shall conduct the arbitration in Jacksonville, Florida. All proceedings shall be in the English language. The award rendered by the arbitrator shall be in writing and shall set forth in reasonable detail the fact of the dispute, the decisions of the arbitrator, and his or her reason therefor. The award rendered in any arbitration hereunder shall be final and binding upon the parties and judgment thereon may be entered in any court having jurisdiction for its enforcement.