provisions would result in a failure of consideration under this Agreement, such invalidity, illegality or unenforceability shall be severed and shall not affect any other provision hereof. Furthermore, the severed provision shall be replaced by a provision which comes closest to such severed provision, or part thereof, in language and intent, without being invalid, illegal or unenforceable.
11.6Force Majeure and Impairment of Performance.
(A)Except for payment obligations, neither party shall be liable to the other for any delay in performance or failure to perform, in whole or in part, due to labor dispute, strike, war or act of war (whether an actual declaration is made or not), insurrection, riot, civil commotion, act of public enemy, epidemic, accident, fire, flood, earthquake, or other act of God, act of any governmental authority, judicial action, or other causes beyond the reasonable control of such party. If any event of force majeure occurs, the party affected by such event shall promptly notify the other party of such event and take all reasonable actions to avoid the effect of such event.
(B)Supplier shall be relieved from its obligations under this Agreement to the extent performance is impaired by the Customer’s failure to perform its obligations under this Agreement or by the acts or omissions of the Customer’s employees or representatives.
(C)Customer is responsible for ensuring that its systems are adequately secured against unauthorized intrusion. Supplier will not be responsible for any losses or damages to the extent arising from Customer’s failure to implement and maintain reasonable data security and transaction monitoring measures in systems under its control or supervision. Customer will promptly advise Supplier if it identifies any activity that may indicate an issue within any of Concentrix’s systems or operations.
11.7Relationship of the Parties. Supplier and Customer are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, fiduciary relationship, or joint venture between the parties. This Agreement does not create any right or cause of action for any third party.
11.8Disputes. Both parties agree to negotiate in good faith the settlement of any disputes that may arise under this Agreement. If necessary, such disputes shall be escalated to appropriate senior management of each party. All negotiations pursuant to this clause are confidential, will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and shall not be admissible in any proceeding between the parties. Except for disputes arising under Section 5 (Proprietary Rights), Section 6 (Confidentiality), and Section 7 (Staffing), in the event that such good faith settlements fail, any and all disputes and controversies of every kind and nature between the parties arising out of or in connection with the existence, construction, validity, interpretation, or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Agreement shall be submitted to binding arbitration, pursuant to the Arbitration Rules of the International Chamber of Commerce (“ICC”), before a single arbitrator in the state of California. In the event the parties cannot agree on the arbitrator, then the President of the ICC (or his/her nominee) shall select an appropriate arbitrator with experience in commercial disputes related to technology services. In the event of any litigation or arbitration arising out of this Agreement or its enforcement by either party, the prevailing party shall be entitled to recover, as part of any judgment or award, reasonable attorneys’ fees and court costs.
11.9Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws principles, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
11.10Notices. All written notices required by this Agreement must be delivered in person or by means evidenced by a delivery receipt and will be effective upon receipt. Notices related to breach, termination, and indemnification must also be provided to the other party at the address specified on the signature page of this Agreement, if any. Additional information or requirements regarding notices may be set out in an SOW.
11.11Waiver. The exercise or waiver, in whole or in part, of any right, remedy, or duty provided for in this Agreement will not constitute the waiver of any other right, remedy, or duty hereunder.