This Professional Services Agreement (the "Agreement"), effective as of ____________ ("Effective Date"), is
entered into by and between PCLAW TIME MATTERS LLC having its principal place of business at 2235 Gateway Access
Point, Raleigh, North Carolina 27607 or PCLAW TIME MATTERS CANADA INC. having its principal place of business at
55 Commerce Valley Drive West, Markham, Ontario ("Company"), and ______________ having its principal place of
business at ____________ ("Client"). In mutual consideration of the mutual promises set forth in this Agreement,
the parties agree as follows:
1.1 Scope of Services. Subject to the terms and conditions of this Agreement, Company will perform those
services ("Services") with respect to the Company products separately purchased by Client ("Company
Commercially-Available Software") as set forth in one or supplemental document(s) ("Service Specs"), attached
hereto as Exhibit A and as amended and/or supplemented from time to time by the mutual written agreement of the
parties and incorporated herein by reference. A Service Specs will be, at a minimum, a written document that (i)
references this Agreement, (ii) describes the Services to be performed (and if said Services shall include the
creation of object code, such object code is defined herein as "Deliverable"), (iii) specifies the corresponding
rate schedule or other fee information, and (iv) is signed by both parties or is issued by one party and signed
by the other party. Company will use commercially reasonable efforts to complete the Services by the applicable
dates set forth in the attachment ("Target Dates").
1.2 Change Orders. Any changes to the scope of the Services must be made in writing and signed by both parties
("Change Order") or if the Change Order is made via email to the other party's designated contact person, the
receiving party will have five business days to reject the Change Order. If said rejection is not made within
the 5 business day period, the Change Order is deemed mutually accepted. Each accepted Change Order will be
incorporated herein by reference and subject to the terms and conditions of this Agreement.
2. Client Duties and Responsibilities
Client will make available in a timely manner for Company's use, at no charge to Company, all technical data,
computer facilities, programs, files, documentation, test data, sample output, or other information, resources,
and personnel required by Company as set forth in the applicable document for the performance of the Services.
Client will be responsible for, and assumes the risk of any issues or problems resulting from the content,
accuracy, completeness, competence, or consistency of all Client computer facilities, programs, files,
documentation, test data, sample output, or other information, resources, and personnel supplied by Client.
Client will provide, at no charge to Company, reasonable office space and equipment at Client's facilities (such
as copiers, fax machines and modems) as Company requires in performing the Services.
3. Interdependencies; Client and Third Party Delays
Client acknowledges that meeting the Target Dates is contingent upon timely completion of activities by Client
as contemplated by the parties under this Agreement including, without limitation, those activities designated
to Client in Article 2 above and/or in the applicable Service Specs document ("Client Obligation"). Client will
immediately advise Company in writing as soon as it becomes aware of any developments that may delay completion
of a scheduled Deliverable including, without limitation, Client's failure or inability to perform a Client
Obligation. The Target Dates (though only an estimate) will be equitably adjusted by the parties (but in no
event less than a day-for-day adjustment) in writing in the event of: (a) any delay caused by Client's failure
or inability to perform a Client Obligation; (b) any delay due to Client's request for changes (whether pursuant
to a Change Order or otherwise); (c) any delay due to a third party's act, failure to act or delay in performing
any obligation whatsoever; or (d) any other delay incurred as a result of Client's action(s) or omission(s). No
such delay will relieve or suspend Client's obligation to pay Company under Article 4 and, in addition to such
payment obligations, Client will pay for any and all costs and expenses incurred by Company relating to
re-staffing as a result of any delay caused by Client.
4. Fees and Payment
4.1 Fees and Expenses. Client will pay Company all fees set forth in Exhibit A ("Fees"). Such fees assume that
the Services commence within one hundred eighty (180) days after the Effective Date. If the Services do not
commence on or before the date that is one hundred and eighty (180) days after the Effective Date, such fees
will automatically be adjusted to Company's then-current rates and fees for such services. Client will reimburse
Company for all reasonable costs and expenses incurred by Company in its performance of the Services under this
Agreement including, reasonable travel and lodging expenses.
4.2 Payment. Unless otherwise set forth in the applicable Service Specs, Client will make all payments under
this Agreement in U.S. or Canadian dollars within thirty (30) calendar days after the date of Company's invoice.
In addition to any other remedy available to Company for late payments, Client will be obligated to pay Company
interest on the overdue amount at the rate of one and one half percent (1.5%) per month or the maximum rate
allowed under law, whichever is less, for each month, or partial month, calculated from the date such payment
was due until the date paid. Client will reimburse Company for all costs incurred by Company (including
reasonable attorneys' fees, collection fees and court costs, if any) in connection with any collection efforts
related to or arising out of this Agreement.
4.3 Taxes. The Fees for the Services do not include any excise, sales, use, value added or other taxes, tariffs
or duties that may be applicable to the Services. When Company has the legal obligation to collect such taxes,
tariffs or duties, the amount of such taxes, tariffs and duties will be invoiced to Client, and Client will pay
such amount unless Client provides Company with a valid tax exemption certificate authorized by the appropriate
taxing authority. All payments by Client for the Services will be made free and clear of, and without reduction
for, any withholding taxes. Any such taxes which are otherwise imposed on payments to Company will be Client's
sole responsibility. Client will provide Company with official receipts issued by the appropriate taxing
authority or such other evidence as is reasonably requested by Company to establish that such taxes have been
5. Term and Termination
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue in effect unless
earlier terminated pursuant to the terms of this Agreement.
5.2 Termination for Convenience. Either party may terminate this Agreement upon sixty (60) calendar days'
written notice. Unless otherwise agreed by the parties, termination pursuant to this Section 5.2 will not
relieve Company of its obligations under any open Service Specs, which obligations will continue to be
governed by this Agreement. Termination pursuant to this Section 5.2 will not relieve Client of its obligation
to pay for any Services or expenses performed pursuant to any Service Specs.
5.3 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party
has materially breached any provision of this Agreement and has not cured such breach within thirty (30)
calendar days after receiving written notice from the non-breaching party describing such breach in reasonable
detail and stating the non-breaching party's intent to terminate this Agreement.
5.4 Suspension of Services. Notwithstanding any other provision of this Agreement, Company may, in its sole
discretion, suspend Services and the delivery of a Deliverable if: (a) Client materially breaches any of its
obligations under this Agreement including, without limitation, failure by Client to pay any amount under this
Agreement within thirty (30) days after the date of Company's invoice therefor; or (b) Company determines that
Client may be unable to make any scheduled or expected payment. Any such suspension by Company: (i) will not
constitute termination of this Agreement or any Service Specs (and Client will continue to be bound by its
obligations under this Agreement); (ii) will be deemed to modify the Target Date outward to the same extent as
the period of delayed payment, performance or other material breach, without penalty to Company; (iii) will
entitle Company to reimbursement by Client for any and all costs and expenses incurred by Company in
connection with any such suspension; and (iv) may be cancelled or revoked in Company's sole discretion.
Without limiting the foregoing, any such suspension will be considered a delay caused by Client pursuant to
5.5 Return of Materials. Upon any expiration or termination of this Agreement, except as necessary to
exercise the rights granted by Company to Client pursuant to Section 7.2, each party will return promptly or,
at the other party's request, destroy all documents and other tangible objects containing or representing
Confidential Information of the other party except to the extent that such documents must be retained to
satisfy auditing or regulatory requirements. If requested by the other party, each party will provide the
other party with written certification of compliance with the foregoing obligations under this Section 5.3.
5.6 Survival. Notwithstanding any expiration or termination of this Agreement, all payment obligations
incurred prior to expiration or termination will survive, and the following provisions will survive: Articles
4, 6, 7, 9 and 10, and Sections 5.5, 5.6 and 8.2. All other rights granted under this Agreement will cease
upon expiration or termination of this Agreement.
6. Confidential Information
6.1 "Confidential Information" means any information disclosed under this Agreement by either party
("Disclosing Party") to the other party ("Receiving Party") that: (a) is in written, graphic, machine readable
or other tangible form and is marked "Confidential," "Proprietary" or in some other manner to indicate its
confidential nature; (b) oral information disclosed by the Disclosing Party to the Receiving Party pursuant to
this Agreement, provided that such information is designated as confidential at the time of disclosure and
reduced to a written summary by the Disclosing Party, marked in a manner to indicate its confidential nature
and delivered to the Receiving Party within ten (10) calendar days after its oral disclosure; and (c)
information otherwise reasonably expected to be treated in a confidential manner under the circumstances of
disclosure. Notwithstanding the foregoing, the following information will be deemed the Confidential
Information of Company whether or not so designated upon disclosure or confirmed in writing: (i) Company
pricing; (ii) Company Pre-Existing Technology and Company Work Product (both defined in Section 7); and (iii)
any know-how, designs, layouts, configurations, methods, processes, formulae, specifications, functionality,
performance data, test results or error or bug information provided by Company to Client under this Agreement
or otherwise obtained by Client from use or examination of the Deliverables. Confidential Information may also
include information of a third party that is in the possession of the Disclosing Party and is disclosed to the
Receiving Party under this Agreement. Confidential Information will not include any information that: (1) was
publicly known and made generally available in the public domain prior to the time of disclosure by the
Disclosing Party; (2) becomes publicly known and made generally available after disclosure by the Disclosing
Party to the Receiving Party through no action or inaction of the Receiving Party; (3) was already in the
possession of the Receiving Party without confidentiality obligations at the time of disclosure by the
Disclosing Party as shown by the Receiving Party's files and records immediately prior to the time of
disclosure; (4) is obtained without confidentiality obligations by the Receiving Party from a third party
without a breach of such third party's obligations of confidentiality; or (5) is independently developed by
the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
6.2 Non-Use and Non-Disclosure. The Receiving Party will use the Disclosing Party's Confidential Information
solely for the purposes of performing its obligations and exercising its rights under this Agreement. The
Receiving Party will not disclose any Confidential Information of the Disclosing Party to third parties or to
such party's employees, except that, subject to Section 6.3 below, the Receiving Party may disclose the
Disclosing Party's Confidential Information to those employees and contractors of the Receiving Party who are
required to have the information in order to perform Receiving Party's obligations and exercise the Receiving
Party's rights under this Agreement, provided however that such employees or contractors are subject to a
confidentiality agreement with terms no less restrictive than those contained herein. If the Receiving Party
is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the
Receiving Party will provide the Disclosing Party with prompt written notice of such requirement prior to such
disclosure so that the Disclosing Party may seek a protective order or other appropriate relief. Subject to
the foregoing sentence, the receiving party may furnish that portion (and only that portion) of the
Confidential Information that it is legally compelled or is otherwise legally required to be disclosed;
provided, however, that the Receiving Party provides such assistance as the Disclosing Party may reasonably
request in obtaining such order or other relief at the Disclosing Party's option and expense.
6.3 Maintenance of Confidentiality. The Receiving Party will use commercially reasonable efforts to prevent
unauthorized use or disclosure of the Disclosing Party's Confidential Information. The Receiving Party will
ensure that its employees who have access to Confidential Information of the Disclosing Party have signed a
non-use and non-disclosure agreement in content at least as protective of the Disclosing Party's Confidential
Information as the provisions of this Agreement prior to any disclosure of the Disclosing Party's Confidential
Information to such employees. The Receiving Party will promptly return all copies of the Disclosing Party's
Confidential Information as requested by such Disclosing Party at any time in writing; provided, however, the
parties agree that Company's continued access to Client's Confidential Information which is required for the
Services will be deemed a Client Obligation.
6.4 Authorized Disclosure. Notwithstanding any other provision of this Agreement, each party may disclose the
terms of this Agreement: (a) subject to Section 6.2, in connection with the requirements of an initial public
offering or other filing in connection with applicable securities law; (b) in confidence, in connection with a
merger or acquisition or proposed merger or acquisition, or the like; (c) in confidence, to accountants,
banks, attorneys and financing sources and their advisors; and/or (d) in confidence, in connection with the
enforcement of this Agreement or rights under this Agreement.
7. Proprietary Rights
7.1 Definitions of Proprietary Rights.
(a) "Intellectual Property Rights" means all current and future worldwide patents and patent applications
(including, without limitation, all reissues, divisions, renewals, extensions, continuations and
continuations-in-part), inventions (whether patentable or not), copyrights (including, without limitation,
rights in audiovisual works and moral rights), trade secrets, trademarks, service marks, trade names, and all
other intellectual property rights and proprietary right, whether arising under the laws of the United States
(with respect to Client’s located in the United States) or Canada (with respect to Clients located in Canada),
or any other country, state or jurisdiction.
(b) "Company Pre-Existing Technology" means any Technology (defined below) made, conceived, or reduced to
practice by Company or its contractors or agents prior to or independently of this Agreement, and all
modifications, enhancements and derivative works thereof, including all Intellectual Property Rights in and to
any of the foregoing.
(c) "Company Work Product" means any Technology made, conceived, or reduced to practice by Company or its
contractors or agents during performance of the Services (but excluding all Company Pre-Existing Technology),
and all modifications, enhancements and derivative works thereof, including all Intellectual Property Rights
in and to any of the foregoing.
(d) "Technology" means all inventions (whether patentable or not), discoveries, literary works and other
works of authorship (including, without limitation, software in object code and source code format), designs,
know-how, ideas and information.
(a) Rights. Subject to the terms and conditions of this Agreement, Company grants Client a limited,
non-transferable (subject to Section 10.8), non-sublicenseable, nonexclusive right, under Company's
Intellectual Property Rights in the Deliverables (excluding all Company Commercially-Available Software), to
use and reproduce the Deliverables solely for Client's internal business use in conjunction with Client's use
of the Commercially-Available Software as authorized by Company in writing and solely for so long as Client is
authorized to use such Company Commercially-Available Software. Except as expressly granted in this Article,
Company retains all right, title and interest in and to all Company Pre-Existing Technology, Company Work
Product and Deliverables, including all Intellectual Property Rights therein.
(b) Use Restrictions. Client shall not itself, or through any affiliate, agent, or third party: (a)
decompile, disassemble, reverse engineer, or otherwise attempt to (i) derive source code or underlying ideas,
algorithms, structure or organization from the Deliverables or (ii) defeat, avoid, bypass, remove, deactivate
or otherwise circumvent any software protection mechanisms in the Deliverables, including without limitation
any such mechanism used to restrict or control the functionality of the Deliverables (except that the
foregoing provision shall not apply to the extent that such activities may not be prohibited under applicable
law); (b) sell, lease, license, sublicense, distribute or otherwise provide to any third party or any other
person the Deliverables, in whole or in part; (c) modify or create derivative works of the Deliverables; (d)
use or reproduce the Deliverables, except as specifically permitted under this Agreement; or (e) use the
Deliverables to provide processing services to any third party or otherwise use the Deliverables on a service
bureau basis. Client shall not remove, alter, cover or obfuscate any patent, copyright, trademark or other
proprietary notices, labels or marks of Company or its licensors on or in the Deliverables, and Client shall
reproduce such notices, labels and marks on any copies of the Deliverable that Client make in connection with
Client's permitted use of the Deliverables pursuant to Section 7.2(a). Client shall promptly notify Company of
any unauthorized use, disclosure, reproduction, or distribution of the Deliverables, which comes to Client's
attention, or which Client reasonably suspects. Client is solely responsible for obtaining all equipment, and
the compatibility thereof with the Deliverables, and for paying all fees including, without limitation, all
taxes and any related costs or fees, necessary to use the Deliverables.
7.3 Client Materials. Subject to the terms and conditions of this Agreement, Client grants Company and its
contractors and agents a limited, nontransferable (subject to Section 10.8), fully-paid, royalty-free,
non-sublicenseable, nonexclusive right during the term of this Agreement to use, reproduce, modify, prepare
derivative works of, perform, display, transmit, make, have made and import any pre-existing Technology
provided by Client to Company or its contractors or agents in connection with the performance of the Services
under this Agreement as necessary or useful to perform the Services. Except as expressly set forth in this
Article 7, Client retains all right, title and interest in and to any client materials, including all Client
pre-existing Intellectual Property Rights.
8. Limited Warranties and Disclaimer
8.1 Limited Warranty. With respect to each Deliverable, Company warrants to Client that, for a period of 90
calendar days after the date of delivery of such Deliverable to Client ("Deliverable Warranty Period"), such
Deliverable will substantially conform to any applicable functional specifications for such Deliverable that
are described in the applicable Service Specs or any Change Order thereto. If any Deliverable does not perform
as expressly warranted in this Section 8.1, Client will notify Company in writing and Company will, at its
sole option and expense: (a) replace or modify such Deliverable with a Deliverable that performs as expressly
warranted in this Section 8.1; or (b) if Company determines that the foregoing is not commercially reasonable,
accept return of such Deliverable (if applicable) and refund to Client the Fees paid by Client associated with
such Deliverable under this Agreement. The foregoing limited warranty does not cover repair or replacement of
or refunds for any Deliverable if the nonconformity to such limited warranty is caused, in whole or in part,
by: (i) alteration, modification or correction other than by Company; (ii) software, hardware or interfacing
not provided or specified in the applicable Service Specs by Company; (iii) abuse, misuse or improper
installation; or (iv) a change to Client's computing environment that would affect the specific Deliverable.
THE FOREGOING PROVISIONS OF THIS SECTION 8.1 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF COMPANY, AND THE
EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY IN THIS SECTION 8.1.
8.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, COMPANY DOES NOT MAKE ANY OTHER
REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR
ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT, IN CONNECTION WITH THIS AGREEMENT. COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT
WARRANT THAT THE DELIVERABLES OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT'S REQUIREMENTS,
THAT THE OPERATION OF THE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE
DELIVERABLES WILL BE CORRECTED.
9. Limitation of Liability
EXCEPT FOR ANY BREACH OF ARTICLE 6 OR SECTION 7.2(b), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOST DATA, REVENUE OR PROFITS, HOWEVER CAUSED AND ARISING UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT
LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR
NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL
COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE NET AMOUNT COMPANY HAS
ACTUALLY RECEIVED FROM CLIENT UNDER THE SERVICE SPECS APPLICABLE TO SUCH CLAIM.
10.1 Independent Contractors. The relationship of the parties under this Agreement is that of independent
contractors. Neither party will be deemed to be an employee, agent, partner, franchisor, franchisee nor legal
representative of the other for any purpose and neither will have any right, power or authority to create any
obligation or responsibility on behalf of the other.
10.2 Export Control. Client agrees not to export, or re-export, or cause to be re-exported, any Company
materials or portion thereof, to any country which, under the laws of the United States or Canada, Client is
or might be prohibited from exporting its technology.
10.3 Non-Solicitation. Client acknowledges and agrees that the employees of Company who perform the
Services are a valuable asset to Company and are difficult to replace. Accordingly, during the term of this
Agreement and for a period of one (1) year thereafter, Client shall not solicit, whether directly or
indirectly, the employment of any Company employees without the prior written consent of Company. If Client
violates this Section 10.3, the parties agree that Client shall pay to Company the sum of one hundred
thousand dollars ($100,000) as liquidated damages. The parties further agree that precise monetary damages
for Client's violation of this Section 10.3 would be difficult to ascertain and that the foregoing sum
represents a fair and conservative approximation of cost of recruitment, hiring and training that would be
incurred by Company.
10.4 Independent Development. Nothing in this Agreement (including, without limitation, the receipt of
information under this Agreement) shall: (a) limit Company's development, marketing or distribution of
software or other technology involving any functionality or ideas, whether similar to those disclosed by
Client or otherwise; (b) limit Company from undertaking similar efforts or discussions with third parties
who may compete with Client; or (c) create obligations binding in any way on Company limiting or restricting
the assignments, activities, or training of employees or contractors of Company.
10.5 Subcontractors. Company may, in its sole discretion, use third party contractors to fulfill its
obligations under this Agreement.
10.6 Notices. Any notice, other than a Change Order, required or permitted under the terms of this
Agreement or required by law must be in writing and must be delivered (a) in person, (b) by first class
registered mail, or air mail, as appropriate, posted and fully prepaid to the appropriate address set forth
in the preamble to this Agreement, or (c) via facsimile. Notices will be considered to have been given at
the time of actual delivery in person, four (4) business days after deposit in the mail as set forth above,
or upon receipt of facsimile confirmation. Either party may change its address for notice by notice to the
other party given in accordance with this Section.
10.7 Governing Law. With respect to Client’s located in the United States, this Agreement will be
interpreted and construed in accordance with the laws of the State of New York, United States, without
regard to conflict of laws principles, and any action arising out of or relating to these terms may be
brought only the state and federal courts located in the City and State of New York, and Client hereby
consents and submits to the personal jurisdiction of such courts for the purpose of litigating any such
With respect to Client’s located in Canada, this Agreement shall be governed in all respects by the laws of
Province of Ontario, without regard to its conflicts of law principles, and any action arising out of or
relating to these terms may be brought only in Toronto, Ontario, Canada and Client hereby consents and submits
to the personal jurisdiction of such courts for the purpose of litigating any such action.
The United Nations Convention on the Sale of Goods will not be applicable to this Agreement or any of the
transactions contemplated by the Agreement.
10.8 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise
transferred by either party, in whole or in part, whether voluntarily or by operation of law, including by way
of sale of assets, merger, consolidation or otherwise, without the prior written consent of the other party;
provided Company will have the right to assign this Agreement without the prior written consent in the event
of a transfer to a Company affiliate. Subject to the foregoing, this Agreement will be binding upon and will
inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation
of this Section 10.8 will be null and void.
10.9 Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this
Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions
of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party's
rights under this Agreement and will not in any way affect the validity of the whole or any part of this
Agreement or prejudice such party's right to take subsequent action. No exercise or enforcement by either
party of any right or remedy under this Agreement will preclude the enforcement by such party of any other
right or remedy under this Agreement or that such party is entitled by law to enforce.
10.10 Severability. If any provision or portion thereof, of this Agreement is found to be invalid, unlawful
or unenforceable to any extent, such provision of this Agreement will be enforced to the maximum extent
permissible by applicable law so as to affect the intent of the parties, and the remainder of this Agreement
will continue in full force and effect. The parties will negotiate in good faith an enforceable substitute
provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect
of such provision.
10.11 Construction. If there is a conflict between any term in the body of this Agreement and any term of the
applicable Service Specs, the term in the body of this Agreement will prevail with respect to such conflict.
This Agreement and any instrument referred to herein or executed and delivered in connection herewith, will
not be construed against any party as the principal draftsperson hereof or thereof. The section and paragraph
headings used in this Agreement are inserted for convenience only and will not affect the meaning or
interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are
cumulative, and the exercise of any express remedy by either party herein does not by itself waive such
party's right to exercise its other rights and remedies available at law or in equity.
10.12 No Third Party Beneficiaries. The parties hereto expressly agree that there are no third party
beneficiaries of this Agreement.
10.13 Force Majeure. Neither party will incur any liability to the other party on account of any loss or
damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or
failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and
without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts
of God, strikes, lockouts, riots, acts of war, failures of the Internet, earthquakes, fire and explosions, but
the inability to meet financial obligations is expressly excluded.
10.14 Entire Agreement. This Agreement (including the Exhibits and any addenda hereto signed by both parties)
contains the entire agreement of the parties with respect to the subject matter of this Agreement and
supersedes all previous communications, representations, understandings and agreements, either oral or
written, between the parties with respect to said subject matter. No terms, provisions or conditions of any
purchase order, acknowledgement or other business form that either party may use in connection with the
transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the
parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object
to such terms, provisions or conditions. This Agreement may not be amended, except by a writing signed by both
10.15 Execution. This Agreement may be executed and delivered by facsimile and the parties agree that such
facsimile execution and delivery will have the same force and effect as delivery of an original document with
original signatures, and that each party may use such facsimile signatures as evidence of the execution and
delivery of this Agreement by all parties to the same extent that an original signature could be used. IN
WITNESS WHEREOF, the parties by their duly authorized representatives have executed this Agreement as of the
Date: September, 2019