Master Subscription Agreement

effective as of March 1, 2016

This Master Subscription Agreement (“Agreement”) is made and entered into as of the Order Form start date (“Effective Date”) of the first Order Form executed between Encite Development Group, Inc., 8420 West Bryn Mawr Avenue, Suite 1030, Chicago, Illinois 60631 (“Vendor”) and the Customer identified and legally described in such Order Form (“Customer”).

This Agreement permits Customer to obtain a subscription to the products and services from Vendor pursuant to any Order Form(s) that reference this Agreement and sets forth the terms and conditions under which those products and services will be delivered. This Agreement shall govern Customer’s initial Order Form as well as any future Order Forms that reference this Agreement. This Agreement includes any and all attachments and Order Forms executed by the parties. Customer agrees that Vendor’s acceptance of any Order Form hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Vendor regarding future functionality or features. Please print this Agreement and store it in a safe and secure place.

CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING “ACCEPT”  AND/OR ACCESSING OR USING ANY SERVICES OF VENDOR. BY (AS APPLICABLE) SIGNING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, CLICKING “ACCEPT” AND/OR ACCESSING OR USING SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING “ACCEPT”  AND/OR ACCESSING OR USING ANY SERVICES OF VENDOR IS DOING SO ON BEHALF OF CUSTOMER, SUCH INDIVIDUAL REPRESENTS AND WARRANTS TO HAVE THE AUTHORITY TO BIND CUSTOMER AND IT AFFILIATES TO THE TERMS OF THIS AGREEMENT.  NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, VENDOR’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S ASSENT HERETO.

The terms and conditions of this Agreement shall govern the Services, including any trial period, to be provided by Vendor under any Order Form submitted by Customer and accepted by Vendor, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement, and supersede any prior proposal, representation, or understanding between the parties. If a term in an Order Form conflicts with a term in this Agreement, the provisions of this Agreement will prevail unless the Order Form specifically states that the term in the Order Form will prevail. The term “Vendor” shall include any third parties which are providing third party services identified in an applicable Order Form.

1. Vendor Products and Services

1.1. Provision of Products. Vendor offers various online software-as-a-service products (“Vendor Products”). Vendor Products are as described in the then-current version of the online video service description for the applicable Vendor Product (“Service Description”), a copy of which is generally available on Vendor’s website located at www.fcscontrol.com. Each Vendor Product is provided on a subscription basis for a set term designated on the Order Form (each, as “Subscription Term”). Vendor also offers Professional Services (as defined herein) related to the Vendor Products. Customer shall pay the required fees and Vendor shall provide the specific Vendor Products and related Professional Services (if any) as specified in the applicable Order Form. Vendor grants to Customer a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited license for Permitted Users to:  (i) access the Hosting Services and use the Vendor Products and Hosting Services solely for internal commercial roofing business purposes; and (ii) access the Service Description and  Documentation and other content on Vendor’s portal website solely for internal commercial roofing business purposes and subject to the then-current terms of use for such portal website.  Customer grants to Vendor a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Vendor Products any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Permitted Users, relating to the Vendor Products.

1.2. General Restrictions. Customer shall not: (a) rent, lease, copy, provide access to or sublicense Vendor Products to a third party or use Vendor Products to provide a service to a third party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to Vendor Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to Vendor), (c) modify any Vendor Product or any Documentation, or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in Vendor Products (including any reports or data printed from Vendor Products), (e) incorporate the Vendor Products into any other offering (whether software as a service or otherwise), (f) publicly disseminate information or analysis regarding the performance of Vendor Products, (g) make the Vendor Products or Hosting Services available to anyone other than Permitted Users, (h) use the Vendor Products or Hosting Services 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, (i) use the Vendor Products or Hosting Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (j) interfere with or disrupt the integrity or performance of the Vendor Products or Hosting Services or third party data contained therein, (k) attempt to gain unauthorized access to the Vendor Products or Hosting Services or their related systems or networks, (l) create, or instruct or authorize any third party to create, derivate works based on the Vendor Products, except as specifically authorized herein, (m) copy, frame or mirror any part or content of the Hosting Services of Vendor Products, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, or (n) access, or instruct or authorize any third party to access, the Hosting Services or Vendor Product in order to build a competitive product or service, or copy any features, functions or graphics of the Vendor Product.

1.3. Security. Customer may access and use Vendor Products solely for its own benefit and only in accordance with the terms and conditions of this Agreement, the Service Description, and the end user technical documentation provided with the Vendor Products (“Documentation”) and any scope of use restrictions designated in the applicable Order Form. Use of and access to Vendor Products, in whole or in part, is permitted to those persons designated by Customer pursuant to the applicable Order Form and terms of this Agreement (“Permitted Users”). User ID, passwords and other credentials for Permitted Users (“Login Credentials”) that are provided to or generated by Customer for Permitted Users to access Vendor Products on Vendor’s systems shall be maintained in strict confidence as Confidential Information (as defined herein) by Customer and Customer shall require that all Permitted Users keep applicable Login Credentials strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using any Login Credentials associated with Customer’s account and shall immediately notify the Vendor of any unauthorized use of the Login Credentials associated with Customer’s account, breach of security, or loss or theft of Login Credentials. Customer acknowledges that while the security of Customer’s account will be maintained through the use of Login Credentials, it is possible for Customer’s account to be accessed by unauthorized third parties via communication between Customer and Vendor using the internet, other network communications, facilities, telephone, or other electronic means. Customer may permit its independent contractors and consultants who are not competitors of Vendor (“Contractors”) and Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of Vendor Products by such Contractor or Affiliate is for the sole benefit of Customer. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. The Affiliate rights granted in this section shall not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Order Form.

1.4. Hosting Services. Vendor has executed, delivered and will maintain a valid and existing written contract with RackSpace US, Inc., 1 Fanatical Place, City of Windcrest, San Antonio, Texas 78218 (“RackSpace”) in order to provide managed shared hosting, virtual private server hosting, or dedicated hosting solutions, as applicable, of the Vendor Products and Customer Data (as defined herein) as set forth on the Order Form(s) (“Hosting Services”) under this Agreement, and will not terminate such contract with RackSpace or engage another provider of Hosting Services without prior notice to Customer.  Vendor may update the content, functionality and user interface of the Hosting Services from time to time in its sole discretion and in accordance with this Agreement.

1.5. Hosting Service Access. In order to use the Vendor Products, Customer must have or obtain access to the internet. Customer is solely responsible for purchasing, installing and maintaining, at Customer’s expense, any third party software and hardware necessary for Permitted Users to access the Hosting Services and use the Vendor Products and Hosting Services. Vendor shall not be liable for any such third party software or hardware, and Customer acknowledges and agrees that any assistance provided by Vendor in connection with such third party software and hardware shall not alter Customer’s responsibility or Vendor’s liability disclaimer under this Section. Customer agrees that Vendor is not providing Customer with access to the internet in order to use the Vendor Products and Hosting Services, and that Customer is solely responsible for obtaining and maintaining such internet access and for providing all equipment necessary to obtain and maintain such internet access. Vendor does not and cannot control the flow of data to or from Vendor’s network, designated hosting facility and/or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the internet (or portions thereof). Vendor cannot guarantee that such events will not occur. Accordingly, Vendor disclaims any and all liability resulting from or related to such events.

1.6. Hosting Service Level. Customer acknowledges and agrees that the Hosting Services being provided as part of this Agreement shall be subcontracted to, by Vendor, and delivered by RackSpace.  The service levels that are applicable for this Agreement are, accordingly, the service levels that are offered by RackSpace and is electronically available at: https://www.rackspace.com/cloud/compare-service-levels (the “SLA”).  All service level credits shall be determined and applied as provided for in the SLA.  Notwithstanding any other provision to the contrary in this Agreement, Vendor hereby assigns to Customer all benefits and rights under the agreement whereby Vendor sub-contracted with RackSpace to provide Hosting Services to Vendor.  Vendor represents and warrants that Vendor has obtained prior written consent of RackSpace for the foregoing assignment. This Section states Customer’s sole and exclusive remedy for failure to meet the service levels.

1.7. Hosting Capacity Limitations. Unless otherwise agreed with Vendor, Customer is limited to a maximum data storage of 4GB of Customer Data or an additional charge may apply.

1.8. Vendor Product Access Restrictions. Customer understands and agrees that in order to gain access to and use the Vendor Products all Permitted Users must have their respective Login Credentials registered with Vendor and comply with Vendor’s Terms of Use and Privacy Policy in effect from time to time as posted on Vendor’s website or otherwise available to users. Vendor will have the right to suspend or terminate any user’s access to Vendor Products upon any breach of those policies by user.

1.9.  Third Party Products and Services. Third parties may from time to time make available to Customer third party online applications and offline software products that may interoperate with the Vendor Product and implementation, customization and other consulting services (“Third Party Products and Services”). Vendor does not warrant, maintain or support any aspect of the Third Party Products and Services, regardless if identified by Vendor as compatible or interoperable with the Vendor Products in any online directory of applications or otherwise, except as specified in an Order Form. No purchase of Third Party Products and Services is required to use the Vendor Products or Hosting Services, except a supported computing device, operating system, web browser and Internet connection and as set forth in Section 1.5.  Customer is solely responsible for the acquisition of such Third Party Products and Services, and any exchange of data between Customer and any provider of Third Party Products and Services, is solely between Customer and the applicable Third Party Products and Services provider. If Customer installs or enables any Third Party Products and Services to interoperably function with the Vendor Product or Hosting Services, Customer acknowledges and agrees that Vendor may allow providers of such Third Party Products and Services to access Customer Data as required for the interoperation of such Third Party Products and Services with the Vendor Product. Vendor shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access granted to such Third Party Products and Services providers. The Vendor Products may allow Customer to restrict such access by restricting Permitted Users from installing or enabling such Third Party Products and Services for use with the Vendor Product.

1.20.  Third Party Software.  Certain Vendor Products may require the use of third party software (“Third Party Software”) embedded in or accessed by the Vendor Products.  All Third Party Software and services will be governed by such third party terms as will be in effect from time to time.  Terms and conditions for embedded Third Party Software may be found in the help file of the Vendor Products. Terms and conditions for all other Third Party Software, including but not limited to operating system software, database software, and data vendor software (including related service fees) will be established as needed between the Customer and the provider of such Third Party Software.  Vendor is not responsible for the licensing of such Third Party Software by Customer. Notwithstanding anything to the contrary contained in this Agreement or any Order Form, the following additional provisions apply to Third Party Software:  VENDOR AND ITS SUPPLIERS ARE PROVIDING THIRD PARTY SOFTWARE ON AN “AS IS” BASIS.  VENDOR AND ITS SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO THIRD PARTY SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER VENDOR NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY THIRD PARTY SOFTWARE INCLUDING WITHOUT LIMITATION, PENALTIES IMPOSED BY GOVERNMENT.  THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Neither Vendor nor its suppliers have any indemnification obligations with respect to Third Party Software. Vendor shall have no obligation to provide maintenance for Third Party Software apart from its use within the Hosted Software.

2. Customer Data

2.1. Generally. “Customer Data” means any business information or other data of any type which is provided by Customer to Vendor in connection with providing the Vendor Products, including without limitation information which Customer inputs, or provides to Vendor for inputting, into the Vendor Products. Customer shall ensure that Customer’s use of Vendor Products and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Vendor that Customer has sufficient rights in the Customer Data to authorize Vendor to process, distribute and display the Customer Data as contemplated by this Agreement and the functionality of the Vendor Products, and that the Customer Data does not infringe the rights of any third party. In connection with Customer’s use of the Vendor Products, certain features may permit Customer to interact or share Customer Data with third party websites or services. If Customer chooses to transmit Customer Data or provide any other information to such third parties, Customer agrees to be bound by any applicable third party terms of use, and Vendor accepts no responsibility or liability for any such third party services.

2.2. Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Vendor. Subject to the terms of this Agreement, Customer hereby grants to Vendor a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide Vendor Products. During the Term of this Agreement and up to 30 days after the effective date of termination of this Agreement, Vendor will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. After such 30-day period, Vendor shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in Vendor’s systems or otherwise in Vendor’s possession or under Vendor’s control. Notwithstanding anything else to the contrary, Customer agrees that Vendor may use and reproduce aggregate anonymized Customer Data (“Trend Data”) provided that Trend Data: (a) does not contain any personally identifying information; and (b) does not identify Customer or any particular user in any way.

2.3. Uploads of Customer Data. Customer shall be responsible for providing all Customer Data to Vendor and shall provide such Customer Data in a format consistent with the technical compatibility requirements set forth in the applicable Service Description (or as otherwise specified by Vendor) (“Technical Requirements”). Errors in loading Customer Data onto Vendor systems due to defective media, erroneous data or failure to meet Technical Requirements may be rejected by the Vendor Products or may be referred back to Customer for resolution and Vendor shall have no responsibility for any related impact on the applicable service.

2.4. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Vendor from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any action taken (or not taken) by Customer based upon use of a Vendor Product, (b) any Customer Data or (c) any service or product offered by Customer in connection with or related to the Vendor Product. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Vendor at Customer’s expense.

3. Ownership

3.1. This is a subscription agreement for access to and use of Vendor Products and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to access and use the Vendor Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise and Customer agrees that Vendor or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Vendor Products, Service Descriptions, Documentation, Professional Services deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, non-Customer specific data and aggregated statistical data contained therein), technology, reports and documentation (collectively, “Vendor Technology”). Further, Customer acknowledges that the Vendor Products are offered solely as an on-line, hosted solution via the Hosting Services, and that Customer has no right to obtain a copy of the Vendor Product itself.

4. Fees and Payment

4.1. Fees. Customer shall pay all fees, costs, and other remuneration in accordance with the structure, arrangement or configuration specified in all Order Forms (“Fees”).  All Fees owing by Customer are set forth in the applicable Order Form and shall be paid by Customer within 30 days of the effective date of the applicable Order Form, unless otherwise specified in the applicable Order Form. Except as otherwise specified herein or in an Order Form, Fees paid are non-refundable. Fees are initially calculated from the applicable Order Form and are adjusted on a monthly basis that begins on the Order Form Effective Date of the first Order Form and each monthly anniversary thereof.  Fees for Properties and Users added in the middle of a monthly period will be incurred for the applicable full monthly period and the monthly periods remaining in the subscription term. Vendor reserves the right to increase Fees on no less than 30 days prior written notification to Customer.

4.2.  Invoicing and Payment. Customer will provide Vendor with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Vendor. If Customer provides credit card information to Vendor, Customer thereby authorizes Vendor to charge such credit card for all Fees listed in or determined from the Order Form of this Agreement for the initial Subscription Term and any renewal Subscription Term(s). Such Fees shall be paid in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Vendor will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Vendor and notifying Vendor of any changes to such information.

4.3. Overdue Fees. If payment for any Fees are not received from Customer by the due date, then at Vendor’s discretion, (a) such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Vendor may condition future renewal Subscription Term(s) and Order Forms on payment terms shorter than those specified in Section 4.

4.4. Suspension of Service and Acceleration. If any amount owing by Customer under this Agreement or any Order Form is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer have authorized Vendor to charge to Customer credit card), Vendor may, without limiting Vendor’s other rights and remedies, accelerate Customer unpaid Fees obligations under this Agreement or any Order Forms so that all such obligations become immediately due and payable, and suspend Vendor’s services to Customer until such amounts are paid in full. Vendor will give Customer at least 7 days’ prior notice that Customer account is overdue before suspending services to Customer.

4.5. Payment Disputes. Vendor shall not exercise Vendor’s rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if Customer is disputing the applicable Fees reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6. Taxes. Unless otherwise stated, Vendor’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, GST, or withholding taxes, or similar taxes or levies, whether domestic or foreign, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer Fees hereunder. If Vendor has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Vendor with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall, in the event Vendor is to pay any sales, transaction privilege, or use taxes to the taxing authority of any federal, state or political subdivision thereof in connection with any Vendor Products, Hosting Services, Third Party Products and Services, Third Party Software, Professional Services or any other product, items, materials or services under this Agreement to Customer, Customer will, upon demand, reimburse, indemnify and hold harmless seller for the amount of any such tax paid, and for the amount of all costs or attorneys’ fees incurred by Vendor in contesting or collecting such tax. For clarity, Vendor is solely responsible for taxes assessable against it based on Vendor’s income, property and employees.

5. Term and Termination

5.1. Term. This Agreement is effective as of the Order Form Effective Date of the first Order Form executed between the parties and expires on the date of expiration or termination of all Subscription Terms.  Each Subscription Term commences on the Effective Date set forth in the applicable Order Form and continues for the period specified in the Order Form.  Except as otherwise specified on the applicable Order Form, all Subscription Terms shall automatically renew for additional periods equal to the expiring Subscription Term or twelve months (whichever is shorter), unless one party gives the other party written notice of non-renewal or termination at least 30 days prior to expiration of the then-current Subscription Term.

5.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter).

5.3. Termination Following Trial Period.  Only if expressly indicated on an Order Form, Customer shall have a period of time as indicated on such Order Form to evaluate the Vendor Products (the “Trial Period”).  The Trial Period shall commence on the first day on which the Vendor Products are capable of being used substantially as intended (the “Go-Live Date”).  At any point during the Trial Period, Customer shall have the right to terminate this Agreement without incurring future financial obligations to Vendor by providing written notice to Vendor.  Upon any such termination, Customer shall promptly pay Vendor all fees incurred up to the date of termination.  Nothing in this Section shall relieve Customer of financial obligations incurred between the Order Form Effective Date of the first Order Form and the effective date of termination. Upon termination of this Agreement under this Section, any data entered by Customer into the Vendor Product or Hosting Services, and any customizations made to the Hosting Services by or for Customer, during or prior to the Trial Period will be permanently lost. Notwithstanding any warranty, disclaimer, or other provision of this Agreement, during the Trial Period the Vendor Product and Hosting Services are provided “as is, where is” with no warranty.

5.4. Termination During Money Back Guarantee Period.  Only if expressly indicated on an Order Form, Customer shall have a period of time as indicated on such Order Form (the “Guarantee Period”) to use the Vendor Products and, at any point during the Guarantee Period, Customer shall have the right to terminate this Agreement and such Order Form for any or no reason at all; provided that Customer delivers to Vendor a fully completed and duly executed Request for Cancellation form provided with such Order Form (or available upon written request from Customer) before the end of the Guarantee Period. The Guarantee Period shall commence on the date of such Order Form. Vendor will, within thirty (30) days after receipt of such Request for Cancellation, reimburse Customer up to the amount of fees paid by Customer up to the date of receipt of such Request for Cancellation.  Upon termination of this Agreement under this Section, any data entered by Customer into the Vendor Product or Hosting Services, and any customizations made to the Hosting Services by or for Customer, during or prior to the Guarantee Period will be permanently lost. Notwithstanding any warranty, disclaimer, or other provision of this Agreement, during the Guarantee Period the Vendor Product and Hosting Services are provided “as is, where is” with no warranty.

5.5. Effect of Termination. Upon any termination of this Agreement for any reason: the license granted herein will immediately terminate and all rights granted herein will automatically revert to Vendor; Customer shall immediately cease any and all use of and access to Vendor Products (including any and all related Vendor Technology), delete (or, at Vendor’s request, return) any and all copies of the Documentation, any Vendor passwords, access codes or Login Credentials and any other Vendor Confidential Information in its possession; and Customer shall immediately pay all amounts due Vendor pursuant to this Agreement. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Vendor Products, and that Vendor may delete any such data at any time, subject to Section 2.2. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Upon the termination of any SOW (as defined herein), Customer shall immediately pay all amounts due Vendor set forth in such SOW, and immediately delete (or, at Vendor’s request, return) any and all copies of the Vendor Products Documentation and any other Vendor Confidential Information in its possession developed pursuant to such SOW. Upon Vendor’s request at termination or expiration of this Agreement or any SOW, Customer will provide Vendor with a written certification signed by a duly authorized officer of Customer stating that Customer has complied with this Section, and with access to Customer’s facilities, upon reasonable advance notice, to confirm compliance with this Section.

5.6. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.2 (General Restrictions), 1.8 (Vendor Product Access Restrictions), 2.4 (Indemnification by Customer), 3 (Ownership), 4.1 (Fees), 4.2 (Invoicing and Payment), 4.3 (Overdue Fees), 4.6 (Taxes), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification), 10 (Confidential Information), and 12 (General Terms).

6. Limited Warranty

6.1. Limited Warranty. Vendor warrants, for Customer’s benefit only, that Vendor Products will operate in substantial conformity with the applicable Documentation. Vendor does not warrant that Customer’s use of the Vendor Products will be uninterrupted or error-free, nor does Vendor warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Vendor’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Vendor’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Vendor determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of Vendor Products or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within 30 days of the date on which the condition giving rise to the claim first appeared, or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.

6.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, VENDOR PRODUCTS, HOSTING SERVICES, PROFESSIONAL SERVICES AND ALL OTHER PRODUCTS, SERVICES, AGREEMENTS, PROPOSALS, REPRESENTATIONS AND COMMUNICATIONS ASSOCIATED THEREWITH OR RELATED THERETO, INCLUDING ARE PROVIDED “AS IS, WHERE IS” AND “AS AVAILABLE”. NEITHER VENDOR NOR ITS SUPPLIERS MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF DATA, CONDITION, DESIGN, OPERATION, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. CUSTOMER ACKNOWLEDGES THAT VENDOR AND ITS AFFILIATES (INCLUDING DIRECTORS, OFFICERS, AND EMPLOYEES) SHALL NOT BE LIABLE FOR DELAYS, ERRORS, OMISSIONS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF VENDOR OR THAT MAY ARISE DURING USE OF THE VENDOR PRODUCTS. VENDOR DOES NOT WARRANT THAT THE VENDOR PRODUCTS WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR FUNCTION WITH ALL OF CUSTOMER’S HARDWARE AND SOFTWARE CONFIGURATIONS AND PLATFORMS. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ERRORS MAY OCCUR DURING OPERATION OF THE VENDOR PRODUCTS. VENDOR AND ANY THIRD PARTY SOFTWARE OR SERVICE PROVIDERS DO NOT GUARANTEE THE ACCURACY, ADEQUACY OR COMPLETENESS OF THE VENDOR PRODUCTS OR THEIR APPLICATIONS, SERVICES, INFORMATION, NETWORKS, AND REPORTS, AND IS NOT AND WILL NOT BE RESPONSIBLE FOR DELAYS, ERRORS OR OMISSIONS INCLUDING LOSS OF ORDERS, FILES OR DATA, DELAYS IN RECEIVING OR TRANSMITTING ORDERS, FILES OR DATA, OR ERRORS IN ORDER, FILE OR DATA COMMUNICATION, WHETHER OR NOT CAUSED BY THE VENDOR PRODUCTS. NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF VENDOR OR ANY THIRD PARTY ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT ON BEHALF OF VENDOR.  ACCORDINGLY, ADDITIONAL ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED UPON AND ARE NOT PART OF THIS AGREEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING, VALIDATING AND APPROVING THE DATA CONTAINED IN THE FILE, REPORT OR OTHER OUTPUT GENERATED BY OR IN CONNECTION WITH THE VENDOR PRODUCTS AND HOSTING SERVICES BEFORE USING OR RELYING ON SUCH OUTPUT.  CUSTOMER ACKNOWLEDGES THAT THE VENDOR PRODUCTS DO NOT CONSTITUTE ANY FORM OF OPINION OR ADVICE OR COMPLIANCE WITH LAWS OR REGULATORY REQUIREMENTS, AND THAT THE USE OF THE VENDOR PRODUCTS AND HOSTING SERVICES IS NOT THE PROVISION OF ANY ADVICE.

7. Additional Services

7.1. Professional Services. Vendor shall provide the consulting services, custom programming, training services, development services and other professional services (“Professional Services”) as identified in the applicable Order Form. The scope of Professional Services shall be as set forth in a Statement of Work (“SOW”) executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Vendor at the per-hour rates set forth in the Order Form (or, if not specified, at Vendor’s then-standard rates) for any excess services. Customer will reimburse Vendor for reasonable travel and lodging expenses as incurred. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms set forth in the applicable SOW, but Vendor shall retain all right, title and interest in and to any such work product, code, custom programming, or deliverables and any derivative, enhancement or modification thereof requested or suggested by Customer or created by Vendor (or its agents).

7.2. Support. Vendor will provide phone and email support to Customer from 6AM to 8PM Central Standard Time, Monday through to Friday, business days. Vendor shall make commercially reasonable efforts to respond to support requests within one business day. Support covers investigating possible defects in the Vendor Products, providing work-arounds to defects, and providing brief answers about Vendor Product functionality. Vendor offers additional training services to answer questions not covered by support, which additional services may be set forth on an applicable Order Form.

8. Limitation of Remedies and Damages

8.1. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION OR HOW CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OR INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THIS SECTION 8.1 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GENERAL RESTRICTIONS,” “CUSTOMER DATA” OR “CONFIDENTIAL INFORMATION”.

8.2. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL VENDOR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO VENDOR DURING THE PRIOR MONTH WHEN SUCH INCIDENT OCCURRED; PROVIDED THAT IN NO EVENT SHALL VENDOR’S AND ITS SUPPLIERS’ ENTIRE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT. THE FOREGOING SHALL NOT LIMIT CUSTOMERS PAYMENT OBLIGATIONS FOR FEES INCURRED UNDER THIS AGREEMENT.

8.3. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

9. Indemnification

9.1. Vendor Indemnification. In the event of a claim against Customer of the infringement or misappropriation of a third party copyright, United States patent or trademark by reason of the use of the Vendor Products by Customer as permitted hereunder or the provision of the Hosting Services (except with respect to Third Party Data and Third Party Software), Vendor shall, at its expense, defend such claim, and pay reasonable costs and expenses and finally awarded damages actually awarded in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Vendor for such defense provided that (i) Customer shall promptly notify Vendor of such claim, (ii) Vendor shall have the sole and exclusive authority to defend and/or settle any such claim and (iii) Customer reasonably cooperates with Vendor in connection therewith. If the use of the Vendor Products by Customer or provision of the Hosting Services has become, or in Vendor’s opinion is likely to become, the subject of any claim of infringement, Vendor may at its option and expense (A) procure for Customer the right to continue using the Vendor Products and receiving the Hosting Services as set forth hereunder; (B) replace or modify the Vendor Products to make it non-infringing so long as the Vendor Products have at least substantially equivalent functionality; (C) substitute an equivalent for the Vendor Products or (D) if options (A)-(C) are not reasonably practicable, terminate this Agreement. Vendor shall have no liability or obligation under this Section 9.1 with respect to any claim if such claim is caused in whole or in part by (1) compliance with designs, guidelines, plans or specifications provided by Customer or work done at Customer’s request for Customer or for a third party, or for the benefit of Customer or a third party who transacts with Customer; (2) any unauthorized use of Vendor Products or use of the Vendor Products by Customer in violation of any restriction or provision of this Agreement; (3) modification of the Vendor Products by any party other than Vendor without Vendor’s express consent; (4) the combination, operation or use of the Vendor Products with other applications, portions of applications, product(s) or services where the Vendor Products would not by itself be infringing; or (5) any action arising as a result of Customer Data or any third-party deliverables or components contained within Vendor Products.  Customer agrees to indemnify, defend and hold harmless Vendor from and against all liabilities, obligations, costs, expenses and judgments, including court costs, reasonable attorneys’ fees and expert fees, arising out of any of the circum­stances stated in subsections (1) – (5) above. THIS SECTION 9.1 STATES VENDOR’S ENTIRE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S EXCLUSIVE REMEDY (AT LAW OR IN EQUITY), WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR ANY CLAIM OF ANY NATURE RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.

9.2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Vendor, its licensors and its affiliates, officers, directors, employees, and agents from and against all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) directly or indirectly brought against Vendor arising out of or in connection with: (i) Customer’s products or services; (ii) Customer’s use of the Vendor  Products in violation of the terms of this Agreement or in a manner not prescribed by Vendor; or (iii) violation by Customer of Customer’s representations and warranties in this Agreement.  Customer shall have the sole and exclusive authority to defend any such claim or action, provided that: (A) Vendor shall promptly notify Customer of such claim or action; (B) Customer shall have the sole and exclusive authority to defend and/or settle any such claim or action (so long as such defense or settlement provides for a full and complete release of all claims against Vendor and does not admit any liability of Vendor, require the payment of money by Vendor or include an assent to a temporary or permanent agreement or order with respect to the use of the Vendor Products); and (C) Vendor will reasonably cooperate with Customer in connection therewith.

10. Confidential Information

10.1. Confidentiality. Each party, in connection with its performance pursuant to this Agreement, will have access to and/or receive information it obtains, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Receiving Party”) from the disclosing party (“Disclosing Party”) that constitutes the confidential property of the Disclosing Party (“Confidential Information”).

10.1.    Definition.  Confidential Information includes, but is not limited to, this Agreement and the terms hereof (including Fees set forth on the Order Form), any SOW, the intellectual property of and information relating to the intellectual property and business practices of Vendor or Customer whether or not reduced to writing or other tangible medium of expression, whether or not patented, patentable, capable of trade secret protection, or protected as an unpublished or published work under the United States Copyright Act of 1976 as amended.  Intellectual property includes, but is not limited to, information relating to research and development, inventions, discoveries, software, improvements, methods and processes, know-how, compositions, works, concepts, designs, ideas, prototypes, models, samples, writings, notes, and patent applications.  Business practices includes, but is not limited to, information relating to intellectual property, business plans, financial information, products, services, manufacturing processes and methods, costs, sources of supply, strategic marketing plans, advertising plans, Customer lists, sales, profits, pricing methods, personnel, and business relationships.  Vendor’s Confidential Information will specifically include, without limitation, the Vendor Products, the instructions therefor, the related documentation, the “look and feel” thereof, the algorithms therein, the source code therefor, and the screen displays thereof.

10.2.    Exceptions.  Confidential Information does not include information that (i) was already known to the Receiving Party prior to its contact with the Disclosing Party as established by Receiving Party’s written records, (ii) information which becomes generally available to the public other than as a result of a breach of this Agreement or other unpermitted disclosures, or (iii) information which is furnished to the Receiving Party by a third party who is lawfully in possession of such information and who lawfully conveys that information.

10.3     Remedies.  The Receiving Party acknowledges that disclosure of any actual, alleged or threatened disclosure or other misappropriation of the Disclosing Party’s Confidential Information in violation of this Agreement by Receiving Party would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to all equitable remedies, including immediate injunctive and other equitable relief and obtaining an order, from a court of competent jurisdiction, restraining any further disclosure or misappropriation of such Confidential Information without the necessity of proving damages or posting bond, and for further relief (including obtaining monetary damages and reasonable attorneys’ fees incurred in enforcing its rights hereunder) as may be appropriate under the circumstances in addition to whatever other remedies it might have at law.

10.4.    Restrictions.  The Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and will not, except in connection with Vendor providing the Vendor Products or other Professional Services hereunder or as otherwise permitted pursuant to this Agreement: (i) use, (ii) disclose, (iii) copy, or (iv) allow access to the Disclosing Party’s Confidential Information without the prior written approval of the Disclosing Party.  The Receiving Party acknowledges and agrees that its obligations with regard to the Disclosing Party’s Confidential Information will continue until such time as one of the exceptions identified in Section 10.2 applies to the subject matter in question. The Receiving Party shall not disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the Disclosing Party’s prior written consent.

10.5.    Disclosure Compelled.  In the event that either party is required by a duly authorized government entity to disclose the other party’s Confidential Information, the party required to make the disclosure will, to the extent permissible under applicable federal and state laws and regulations, give the other party prompt notice of such requirement, make reasonable efforts to disclose the Confidential Information pursuant to a protective order or confidentiality agreement, and cooperate in all respects with the other party in its efforts in connection therewith.

10.6.    Employees and Third Parties.  Customer will make its employees and third parties that have access to or use the Vendor Products aware of the confidentiality provisions of this Agreement and will require its employees and such third parties to execute agreements undertaking obligations consistent with such confidentiality provisions.  Customer will be responsible for any breaches of such confidentiality provisions by its employees or such third parties. Vendor may disclose Confidential Information to its Affiliates as reasonably necessary to provide the Vendor Products.

10.7.    Ownership.  Unless otherwise agreed to in advance in writing, all right, title, and interest in and to any intellectual property and documentation produced by Customer based on Vendor’s Confidential Information, including any derivative works based on the Vendor Products, will be the property of Vendor and such intellectual property will be considered Confidential Information of Vendor. Customer will not perform or permit any act which may in any way jeopardize or be detrimental to Vendor’s intellectual property rights in and to the Vendor Products.

10.8. Trade Secrets. Customer acknowledges that use of Vendor Products will expose Customer to proprietary methodologies, formulae, presentations, user interfaces, and other trade secret materials of Vendor. During the term of this Agreement and for a period of one year following the termination thereof, Customer shall not (directly or indirectly) create or develop any information, products, concepts, systems, or techniques that are similar to or compete with the information products, concepts, systems, or techniques contemplated by or embodied in Vendor’s Confidential Information.

11. Co-Marketing

11.1.  At the request of Vendor, Customer agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Vendor Products to other potential cause and use of Customer’s name and logo on Vendor’s web site and in Vendor promotional materials. Customer agrees that Vendor may disclose that Customer is a customer of Vendor.

12. General Terms

12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and permitted assigns. Neither party may assign or delegate any of its rights or obligations under this Agreement, in whole or in part, whether by operation of law or otherwise, except upon the advance written consent of the other party (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety, without the consent of the other party, in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities not involving a direct competitor of the other party. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.  There are no third party beneficiaries to this Agreement.

12.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law and limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.3. Governing Law. This Agreement will be governed and interpreted in accordance with the laws of the State of Illinois, United States of America without regard to principles of conflict of laws.  The parties consent to the federal and state courts of the State of Illinois, County of Cook, United States of America having exclusive jurisdiction over them. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

12.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. Customer shall pay on demand all of Vendor’s reasonable attorneys’ fees and other costs incurred by Vendor to collect any Fees or charges due Vendor under this Agreement following any Customer breach of Section 4.1 or 4.2.

12.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

12.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

12.7. Entire Agreement. This Agreement, including all Order Forms and any exhibits, schedules or addenda hereto, constitutes the complete and exclusive statement of the mutual understanding of and agreement between the parties and supersedes and cancels all previous written and contemporaneous agreements, proposals, representations and communications, whether written or oral, relating to the subject matter of this Agreement. Customer acknowledges that Vendor Products are on-line, subscription-based products, and that in order to provide improved customer experience Vendor may make changes to Vendor Products, and Vendor will update the Vendor Products Service Description accordingly.

12.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

12.9. Subcontractors. Vendor may use the services of subcontractors for performance of services under this Agreement, provided that Vendor remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Vendor Products as required under this Agreement.

12.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.11.  Non-Solicitation.  Customer acknowledges and agrees that Vendor has invested significant time and resources in training its personnel and that retaining such personnel is critical to meeting its obligations under this Agreement and/or any Order Form or Statement of Work.  Customer agrees not to solicit or hire any individual or entity employed or engaged by Vendor at any time during the Term, and for one (1) year following the earlier of (a) the expiration or termination of this Agreement or (b) the termination of such individual’s or entity’s employment or engagement.  If Customer solicits or hires any such individual or entity in breach of this Section, Customer agrees to pay Vendor liquidated damages in the amount of three (3) times the annual compensation offered by Customer to any such individual or entity in violation of this Section.  Customer further agrees that the foregoing amount is reasonable and necessary to compensate Vendor for the loss of the personnel that Customer has solicited and/or hired and is not a penalty.

12.12.  United States Government Restricted Rights.  If Customer is acquiring the Vendor Products on behalf of any unit or agency of the United States Government, such unit or agency will agree that the Vendor Products and related documentation, are “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Vendor Products are limited by the provisions of this Agreement, pursuant to C.F.R. 12.212 and/or 48 C.F.R. 227.7202-1(a), as applicable.

12.13.  Waiver of Jury Trial.  The parties hereby agree to waive their respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement and/or any SOW.  The parties each acknowledge that the foregoing waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and/or any SOW and that each will continue to rely on the waiver in their related future dealings.  Each party further warrants and represents that each has had the opportunity to have legal counsel review the waiver.  The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver will apply to any subsequent amendments, renewals, supplements or modifications to this Agreement and/or any SOW.

12.14.  Compliance with Laws.  Each party shall, at its own expense, be responsible for current and ongoing familiarity with, and shall at all times comply with all laws, treaties, rules, regulations, orders and other requirements applicable to such party. Without limiting the generality of the foregoing: Customer shall not and shall be responsible to ensure that its Permitted Users do not transfer, either directly or indirectly, the Vendor Products, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and shall otherwise comply with all other applicable import and export laws, rules and regulations; Customer acknowledges and agrees that Customer’s use of the Vendor Products shall comply with all applicable federal, state and local laws, rules and regulations, and applicable exchange rules, regulations and contract terms, including but not limited to any licenses, registrations or other permissions required to conduct the business with which it is using the Vendor Products;  Customer warrants that it shall not intentionally engage in, nor is to its knowledge currently engaged in, the operation of any unlawful transactions and/or business; and Customer shall not use the Vendor Products for any unlawful purpose.  In the event that Vendor believes that Customer is not in compliance with the terms of this Section, Vendor reserves the right to terminate Customer’s access to the Hosting Services and/or Vendor Products at any time with or without notice and without incurring any liability or obligation in connection therewith.

12.15.  Anti-Corruption. Customer represents and warrants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Vendor’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Vendor’s legal department (legal@encitegroup.com).

12.16.  Irreparable Harm.  Customer acknowledges that any breach or violation by it of Sections 1.1 (Provision of Products), 10 (Confidential Information) and/or 12.11 (Non-solicitation) will cause irreparable harm to Vendor and that damages are not an adequate remedy.  Customer therefore agrees that Vendor will be entitled to seek and obtain a court order enjoining, prohibiting and restraining Customer from the continuance of any such violation, in addition to any monetary damages which might occur by reason of a violation of the provisions of this Agreement identified above or any other remedies at law or in equity, including without limitation specific performance, and that in any such action, Customer will not raise as a defense the argument that an adequate remedy for such breach exists at law.  The posting of a bond will not be required for any injunction to be issued in accord with this Section.

12.17.  Dispute Resolution.  If any dispute arises under this Agreement and/or any SOW, the parties will make a good faith effort to resolve the dispute before taking any action.  The parties will meet to discuss the dispute no later than thirty (30) calendar days after either party gives written notice to the other party that such a dispute exists.  Such meeting may be held telephonically if travel is impractical for either party.  At such meeting, an officer of Vendor and an officer of Customer who has authority to resolve the dispute will be in attendance.  No action, suit, or other proceeding may be commenced before the parties have met pursuant to this Section unless immediate injunctive relief is being sought, in which case such meeting will take place at the earliest opportunity after such immediate injunctive relief is sought.

12.18.  Prior Obligations.  Each party represents and warrants that entering into and performing under this Agreement does not conflict with any prior obligations to third parties.

12.19.  Interpretation. Headings in this Agreement and/or any SOW are for the purpose of convenience only.  They are not intended to be a material part of the Agreement or SOW, as applicable, and in the event of any conflict between the heading and the text, the text will govern.  Unless the context otherwise requires:  (i) a term has the meaning assigned to it by this Agreement or any SOW, as applicable; (ii) “including” means “including but not limited to”; (iii) “or” is disjunctive but not exclusive; (iv) words in the singular include the plural, and in the plural include the singular; (v) provisions apply to successive events and transactions (vi) “hereof”, “hereunder” and “hereto” refer to the entire Agreement and/or SOW, as applicable, and not any section or subsection; and (vii) references in this Agreement to sections are to the sections of this Agreement and references in any SOW are to the sections of the SOW.