Contract Cause Library

Legal Update:

Companies receiving, either directly or through third parties, personal data from Europe will need to comply with the new requirements. Many companies may have already adopted Safe Harbor provisions, but these are no longer valid protections. When considering whether this applies to your company, evaluate all data and information that your company currently receives, stores, accesses, or handles in any way.

A

This Agreement may be amended only by a written agreement executed by the parties hereto. No provision of this Agreement may be waived except by a written document executed by the party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.

“The conversion price of the [Series __] Preferred Stock will be subject to a [full ratchet] [weighted rachet] adjustment to reduce dilution in the event that the Company issues additional equity securities (other than shares (i) reserved as employee shares described under the Company’s option pool, (ii) shares issued for consideration other than cash pursuant to a merger, consolidation, acquisition, or similar business combination approved by the Board; (iii) shares issued pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial institution approved by the Board; and (iv) shares with respect to which the holders of a majority of the outstanding [Series __] Preferred waive their anti-dilution rights) at a purchase price less than the applicable conversion price. In the event of an issuance of stock involving tranches or other multiple closings, the antidilution adjustment shall be calculated as if all stock was issued at the first closing. The conversion price will also be subject to proportional adjustment for stock splits, stock dividends, combinations, recapitalizations and the like.”

Reseller shall, at its own expense, comply with all applicable laws and make, obtain, and maintain in force at all times during the term of this Agreement, all filings, registrations, reports, licenses, permits and authorizations required under applicable law, regulation or order required for Reseller to perform its obligations under this Agreement.

  1. All disputes, claims, or controversies arising out of or relating to this Agreement or any other agreement executed and delivered pursuant to this Agreement or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby that are not resolved by mutual agreement shall be resolved solely and exclusively by binding arbitration to be conducted before [ ] or its successor (the “Arbitrator”). The arbitration shall be held in [LOCATION] before a single arbitrator and shall be conducted in accordance with the rules and regulations promulgated by the Arbitrator unless specifically modified herein.
  2. The parties covenant and agree that they will participate in the arbitration in good faith. In the case of temporary or preliminary injunctive relief any party may proceed in court without prior arbitration for the limited purpose of avoiding immediate and irreparable harm. The provisions of this Section [ ] shall be enforceable in any court of competent jurisdiction.
  3. Each of the parties hereto irrevocably and unconditionally consents to the exclusive jurisdiction of the Arbitrator to resolve all disputes, claims or controversies arising out of or relating to this Agreement or any other agreement executed and delivered pursuant to this Agreement or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby. Each party further irrevocably waives any objection to proceeding before the Arbitrator based upon lack of personal jurisdiction or venue and further irrevocably and unconditionally waives and agrees not to make a claim in any court that arbitration before the Arbitrator has been brought in an inconvenient forum. Each of the parties hereto hereby consents to service of process at the address to which notices are to be given. Each of the parties hereto agrees that its submission to jurisdiction and its consent to service of process are made for the express benefit of the other party hereto.

Except pursuant to a merger or acquisition resulting in the acquisition of all or substantially all of the Company’s assets or capital stock (in which case the Company may assign this Agreement without Reseller’s consent), neither party may assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights and obligations hereunder, whether voluntarily, by operation of law or otherwise, without the other party’s prior written approval.

Notwithstanding any of the foregoing, [NAME OF PARTY] shall have the right, in its sole and absolute discretion, to employ attorneys of its own choice and to institute or defend any matter, claim, action or proceeding and to take any other appropriate steps to protect all rights and interest in and title to the [PRODUCT] and every element thereof, and, that in connection, to settle, compromise in good faith or in any other manner dispose of any claim action, proceeding and to satisfy any judgment that may be rendered, in any manner.

B

  1. In the event that any payment required to be made to [PAYEE] pursuant to this Agreement cannot be made when due because of the exchange control of any applicable jurisdiction and such payment remains unpaid for 12 months, [PAYEE] may, by notice served to [PAYOR], elect any of the following alternative methods of handling such payment:

    1. If the currency can be converted into currency other than US dollars for purposes of foreign remittance, [PAYEE] may elect to receive such payment in any convertible currency as it may specify and, in such case, the amount payable in the currency so selected shall be determined by reference to the mid-market rate of exchange on the date such transfer is made.
    2. [PAYEE] may elect to have payment made to it in local currency deposited to the credit of [PAYEE] in a bank account in such country designated by [PAYEE], in which event [PAYOR] shall furnish to [PAYEE] evidence of such deposit.
    3. [PAYEE] may elect to receive payment in shares of common stock, $[ ] par value per share, of [PAYOR] at such price as [PAYEE] and [PAYOR] may agree to at such time.]
  2. All expenses of currency conversion and transmission shall be borne by [PAYOR] and no deduction shall be made from remittances on account of such expense. [PAYOR] shall prepare all applications, reports or other documents which may be required by the government of the applicable country in order that remittances may be made in accordance with this Agreement.

In the event that any Member is deemed insolvent through a voluntary or involuntary bankruptcy, makes an assignment for the benefit of his creditors, or is deemed physically or mentally incompetent for a period in excess of three (3) months, the Remaining Member shall have the option, for a period of sixty (60) days following receipt of notice of such qualifying event, to purchase all of the Membership Interests held by such member. Notice shall be provided to such Member or his legal representative in accordance with this Agreement. The price, terms and methods of exercise of the option shall be the same as provided in this Agreement in the event of the death of a Member. In the event this option is not exercised as to all of the Membership Interests held by such member within the time allotted, such member or his successor-in-interest shall continue to hold the Membership Interests subject to the provisions of this Agreement

In the event that any stockholder is deemed insolvent through a voluntary or involuntary bankruptcy, or makes an assignment for the benefit of his creditors, or is deemed physically or mentally incompetent for a period in excess of [ ] months, the event of incompetency as described in [NAME OF INSURANCE POLICY] now owned by the Company [state policy], the Company and the remaining stockholders shall have the option, for a period of [ ] days following receipt of notice of such qualifying event, to purchase all of the shares held by such stockholder. Notice shall be provided to such stockholder or his legal representative in accordance with this Agreement. The option shall be exercisable first by the Company and thereafter by the remaining stockholders. The price, terms and methods of exercise of the option shall be the same as provided in this Agreement in the event of the death of a stockholder. In the event this option is not exercised as to all of the shares held by such stockholder within the time allotted, such stockholder or his successor-in-interest will continue to hold the stock subject to the provisions of this Agreement.

C

Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the [NAME OF] Agreement.

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The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.

[OPTION 2]

Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) ”or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time.

Each party shall make available to the other party for use on its Site its knowledge base of material including charts, forms, outlines and other material as may be useful to enhance the other party’s offerings with respect to such party’s lines of business. Distributor and Company shall work together on establishing mutual standards for ensuring that the information contained on each other’s Site is maintained and updated and is current and accurate.

This Agreement may be in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one instrument.

D

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Warranty of Merchantability

The [software] is provided by [Licensor] to Company “as is” without warranty of any kind, express or implied. [Licensor] makes no warranty to Company that the [Software] shall operate in accordance with the Documentation or otherwise perform in any functional manner. [Licensor] shall have no liability with respect to any failure of the [Software] to perform in any manner.

EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, [LICENSOR] MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE [SOFTWARE] AND DOCUMENTATION, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.

WARRANTY [OPTION 2]

Disclaimer of Warranties, Liability. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 14.1 HEREOF, THE COMPANY PROVIDES THE SERVICE “AS IS” AND DOES NOT WARRANT ITS EFFECTIVENESS, — USEFULNESS OR RELIABILITY. THE WARRANTY IN SECTION ____ IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT; PROVIDED, HOWEVER, THAT THE COMPANY DOES NOT WARRANT THAT THE SERVICE WILL PERFORM UNINTERRUPTED OR ERROR FREE. IN NO EVENT SHALL THE COMPANY OR ITS AGENTS OR AFFILIATES BE LIABLE TO RESELLER OR OTHER THIRD PARTIES FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION AND LOST DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, IN NO EVENT WHATSOEVER SHALL THE CUMULATIVE LIABILITY OF THE COMPANY AND ITS AFFILIATES OR AGENTS HEREUNDER EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO THE COMPANY HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

Disclaimer of Other Representations. Reseller shall be responsible for providing a warranty and remedies (if any) directly to its Subscribers and shall not extend a warranty that exceeds or modifies the limited warranty set forth in Section ___. All representations made or agreements executed by Reseller pursuant to this Agreement shall be Reseller’s sole responsibility. Furthermore, each such agreement shall contain an acknowledgment by any third party that it is not relying on any representations or warranties made by the Company except for those warranties expressly made in the Company’s EULA.

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In the event that a Stockholder or any group thereof proposes to sell or otherwise dispose of (a “Disposition”) at least [80]% of the outstanding shares of Common Stock of the Company as of the date hereof (assuming the conversion of all securities of the Company convertible into Common Stock) to a party unaffiliated with such Stockholder(s) (a “Purchaser”), such Stockholder(s) (the “Selling Stockholders”) shall provide notice of such proposed Disposition (“Seller’s Notice”) to each of the other Stockholders no later than [20] days prior to the proposed closing of such Disposition, and the Selling Stockholders shall have the right to require such other Stockholders to sell the Shares owned by them to the Purchaser at the same price and upon the same terms as are applicable to the sale of Shares by the Selling Stockholders.

E

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This Agreement is in the English language only, which language shall be controlling in all respects. Any versions of this Agreement in any other language will be for accommodation only and will not be binding upon either party. All communications and documentation for the Service to be furnished under this Agreement shall be in the English language. Any notice, report, approval or consent required or permitted hereunder shall be in writing and shall be deemed to have been given if (i) delivered personally; (ii) mailed by registered air mail postage prepaid; or (iii) sent by facsimile followed by a hard-copy confirmation, to the respective addresses of the parties set forth below or as may be otherwise designated by like notice from time to time.

The Company, its officers and directors, the personal representative of any deceased stockholder], and all other parties bound by this Agreement shall promptly execute and deliver any and all papers or instruments necessary or desirable to carry out the provisions of this Agreement.

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F

If at any time a Member desires to sell any of his Membership Interests the Member (the “Selling Member”) shall submit a written offer (the “Offer”) to sell such Membership Interests (the “Offered Interests”) to the remaining Member (“Remaining Member”) on terms and conditions, including price, not less favorable to the Remaining Member than those on which the Selling Member proposes to sell such Offered Interests to the Proposed Transferee. The Offer shall disclose the identity of the Proposed Transferee, the number of Offered Interests proposed to be sold and the price thereof, the total number of Membership Interests owned by the Selling Member, and the terms and conditions of, and any other material facts relating to, the proposed sale.

The Remaining Member shall have an option for a period of thirty (30) days (the “Option Period”) following its receipt of the Offer to purchase some or all of the Offered Interests in place of the Proposed Transferee. If the Remaining Member desires to purchase any of the Offered Interests, it shall notify the Selling Member of such election during the Option Period, stating the number of Offered Interests it desires to purchase. Such notice shall, when taken in conjunction with the Offer, be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of such Offered Interests.

[FIRST OPTION]

Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, flood, natural disaster, war, [actual or threatened] act of terrorism or other similar cause beyond such party’s control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this Agreement if such condition continues for a period of [ ] days.

[SECOND OPTION]

Both parties shall not be liable to the other for any loss, injury, delay (except for any payment obligations), expenses or damages arising out of any cause or event not within its reasonable control including, but not limited to: riots, wars or hostilities between any nations; acts of terrorism; acts of God, fires, storms, floods or earthquakes; strikes, labor disputes, vendor delays, or shortages or curtailments of raw materials; labor, power or other utility services; governmental restrictions or trade disputes; manufacturing delays; or other contingencies.

[THIRD OPTION]

Except for the obligation to make payments, nonperformance of either party shall be excused to the extent performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Purchase Orders thereunder by a written notice to the defaulting party.

Each party shall defend, indemnify and hold the other party harmless from any claim, suit, damages and expenses (including, but not limited to, attorneys’ fees) arising out of (i) the license, servicing and related activities pursuant to this Agreement with respect to the software programs or Technology provided by the Company; (ii) the failure of a party to comply with all applicable laws, rules, and/or regulations; (iii) the failure of a party to comply with the terms and conditions of this Agreement; or (iv) any negligent act or omission of a party. The Parties acknowledge that the Company and [SERVICE PROVIDER] and all of their affiliates are subject to the Foreign Corrupt Practices Act (“FCPA”). The FCPA makes it unlawful, among other things, for a U.S. company or anyone acting on its behalf to make or offer payment, promise to pay, or authorize the payment of anything of value to: (i) any officer or employee of, or any person acting in an official capacity for, a foreign government or any department, agency or corporation thereof, or any foreign political party, party official or candidate, or (ii) any person, while knowing that all or a portion thereof will be offered, given or promised, directly or indirectly, to anyone described in (i) above, for the purpose of: (a) influencing any act of decision by such person in his official capacity, or (b) inducing him to use his influence with a foreign government to affect, either by action of inaction, any act or decision of such government to obtain or retain business for any person. In performing its obligations hereunder, [SERVICE PROVIDER] and its owners, employees and agents will conduct no activities which might cause the Company, or any of its affiliates, owners, employees or agents, to be in violation, directly or indirectly, of the FCPA. [SERVICE PROVIDER] further agrees to comply with all relevant provisions of the FCPA regarding its actions in relation to this Agreement and any agreement of the Company with any [FOREIGN COUNTRY] or other counter party and with all relevant laws of the U.S.A. and the [FOREIGN COUNTRY] and any other national or international governing bodies with jurisdiction over the subject matter of this Agreement. Should [SERVICE PROVIDER] cause the Company, directly or indirectly, be in violation of the FCPA or other applicable laws, the Company shall have the right to modify this Agreement, and any agreements resulting from this Agreement, and to recover damages from [SERVICE PROVIDER], based upon the ruling of the administrative body or court finding such violation.

G

This Agreement will be construed in accordance with and governed by the laws of the [ ], without giving effect to the conflict of law principles of the [ ].

OR

This Agreement shall be governed by the laws of [STATE], as applied to agreements entered into and to be performed entirely within [STATE] without regard to the principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods. Unless otherwise elected by the Company in writing for a particular instance (which the Company may do at its sole option), the sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts having within their jurisdiction the location of the Company’s principal place of business. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by [STATE] state or U.S. federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

OR

The Agreement shall be governed and construed by the laws of the State of Delaware. Any litigation instituted relating directly or indirectly to this Agreement shall be filed before a court of competent jurisdiction in the State of Delaware or before a court of competent jurisdiction in the States of either [STATE] or [STATE] applying Delaware law.

OR

The state and federal courts located in [COUNTY], [STATE] shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

As promptly as possible after execution of this Agreement, the Licensee agrees to submit copies of this Agreement to any governmental agency in any country in the Territory where approval of a license agreement is necessary and agrees to promptly prosecute any such application diligently. This Agreement shall only become effective in such country or countries upon receipt of appropriate approval from the applicable governmental agency.

H

This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose. The English language version of this Agreement shall be definitive and shall control over any translation.

Vendor acknowledges that many Purchasers are “covered entities” as that term is defined at 45 C.F.R. §160.103. Vendor agrees to comply with the Administrative Simplification Provisions of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C.A. §1320d et seq. (“HIPAA”) and any current and future regulations promulgated thereunder, including without limitation the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security standards contained in 45 C.F.R. Parts 160, 162 and 164 (the “Federal Security Regulations”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162 (the “Federal Electronic Transaction Regulations”), all as amended from time to time and collectively referred to herein as the “HIPAA Requirements”. Vendor agrees not to use or further disclose any Protected Health Information (as defined in the Federal Privacy Regulations) or EPHI (as defined in the Federal Security Regulations) other than as permitted by the HIPAA Requirements and the terms of this Agreement. Vendor will make its internal practices, books, and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services (“HHS”) to the extent required for determining compliance with the HIPAA Requirements.

Each of [COMPANY 1], [COMPANY 2] and Purchaser shall as promptly as practicable, but in no event later than [ ] Business Days following the execution and delivery of this Agreement, file or cause to be filed with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required for the Acquisition and any supplemental information requested in connection therewith pursuant to the HSR Act. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act. Each of Purchaser, [COMPANY 1] and [COMPANY 2] shall furnish to the other parties such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. [COMPANY 1], [COMPANY2] and Purchaser shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request. Each of [COMPANY 1], [COMPANY 2] and Purchaser shall use its reasonable efforts to obtain any clearance required under the HSR Act for the Acquisition. Any such supplemental information shall be in substantial compliance with the HSR Act. Each party shall bear its own expenses in connection with such filings under the HSR Act.

I

General. [ ] agrees to indemnify and hold harmless [ ], and each of them, jointly or severally, against any loss or liability whatsoever, including reasonable attorney’s fees, caused by any action or proceeding before any court or government agency, commission, division or department of any state, federal or local governing body, which is brought by [ ] or its successors-in-interest, if such action or proceeding arises out or is related to any claim, demand or cause of actions released herein.

[ ] will indemnify, defend and hold harmless [ ], and each of them, jointly and severally, for any taxes, assessments, penalties or interest payments that they may at any time incur by reason of any demand, proceeding, action or suit brought against them arising out of or in any manner related to local, state or federal taxes allegedly due in connection with the payment set forth above.

[OPTION 2]

Company agrees to, and will indemnify, defend and hold harmless Customer and its directors, shareholders, officers, agents, employees, successors and assigns from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including attorneys’ fees and expenses) and other liabilities arising from, in connection with or related in any way to, directly or indirectly, (a) its performance with this Agreement (b) any breach or alleged breach of any of the representations and warranties, undertakings or agreements made by it under this Agreement, (c) its activities under this Agreement, including without limitation, any unauthorized use by it or any of its subcontractors of any portion of the Customer Materials or the Product, or (d) any act or omission of its, its directors, officers, agents, employees or subcontractors. Customer will promptly notify Company of any such claim. Company will bear full responsibility for the defense (including any settlements); provided however, that (i) Company will keep Customer informed of, and consult with Customer in connection with the progress of such litigation or settlement; and (ii) Company will not have any right, without Customer’s written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Customer.

[OPTION 3]

Indemnification of Licensor. Licensee agrees to defend, indemnify and hold Licensor and its officers, directors, agents and employees harmless against all costs, expenses and losses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against Licensor based on the manufacture or sale of the Licensed Products including, but not limited to, actions founded on product liability.

Indemnification of Licensee. Licensor agrees to defend, indemnify and hold Licensee and its officers, directors, agents and employees harmless against all costs, expenses and losses (including reasonable attorneys’ fees and costs) incurred through claims of third parties against Licensee based on a breach by Licensor of any representation or warranty made in this Agreement.

Independent Contractor.  It is expressly agreed and understood that during the term of this Agreement, Company’s relationship to Client will be that of an independent contractor and that this Agreement shall for any purpose whatsoever or in any way or manner create any employer-employee relationship.  Accordingly, Company shall have sole and exclusive responsibility for the payment of all federal, state and local income taxes, for all employment and disability insurance and for Social Security and other similar taxes with respect to any compensation or benefits provided by Client hereunder.  Company shall assume and accept all responsibilities which are imposed on independent contractors by any applicable statute, regulation, rule of law or otherwise.

No Agency.  Client does not undertake by this Agreement or otherwise to perform any obligation of Company, whether by regulation or contract.  In no way is Company to be construed as an agent or to be acting as the agent of Client in any respect.  Company is not authorized to bind Client or to incur obligations and liabilities on behalf of Client.

Non-exclusive Relationship. Nothing in this Agreement shall be construed as limiting the Company’s marketing or distribution activities or its appointment of other resellers, distributors, sales representatives, sub-resellers, licensees or agents of any kind in any place.

  1. Disclaimer of Warranty. [Licensor] makes no warranty, express or implied, to Company as to any claimed or actual infringement by the [Software] of a third party’s patents, copyrights, trademarks, trade secrets and/or other intellectual property rights.
  2. Claims. In the event of any such claim or allegation against Company of infringement, Company shall immediately cease use of the [Software] and immediately notify [Licensor] of such claim or action. [Licensor] shall have the sole and exclusive authority to defend and/or settle any such claim or action, and Company agrees it will fully cooperate with [Licensor] in connection therewith.
  3. Certain Actions in Response to Infringement. If the use of the Software by Company has become, or in [Licensor’s] sole opinion is likely to become, the subject of any claim of infringement, [Licensor] may at its option terminate this Agreement.
  4. Limitation of Indemnification for LICENSOR. [Licensor] shall have no liability or obligation hereunder with respect to any infringement claim by any third party.

THIS SECTION ____ STATES [LICENSOR’S] ENTIRE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND COMPANY’S EXCLUSIVE REMEDY, WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.

The parties agree that any unauthorized use of the Service or unauthorized disclosure of Confidential Information of either party, or a breach of this Agreement adversely affecting either party’s intellectual property rights would cause irreparable injury to the injured party for which monetary damages would not be an adequate remedy and the injured party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.

Reseller shall secure and maintain during the term of this Agreement, insurance policies from carriers adequately protecting Reseller and the Company against any loss, liability, or expense whatsoever, relating to product liability, worker’s compensation, personal injury, fire, theft, death or property damage. Reseller shall furnish the Company with certificates evidencing such insurance, which certificates shall contain provisions requiring the carriers to give the Company at least thirty (30) days prior written notice of any cancellation or material change in any such policy.

[OPTION 2]

Insurance: During the term of this Agreement, Company shall procure and maintain at its own expense, insurance, which is satisfactory to [OTHER PARTY], of the following type and in the following amounts: (i) statutory workers’ compensation in accordance with all federal, state and local requirements; (ii) Professional Liability Insurance with a limit of not less than ________ dollars ($___); (iii) Employer’s Liability Insurance with a limit of not less than __________ dollars ($___); and (iv) Comprehensive General Liability Insurance having the broadest form of coverage consistent with the highest standards in the industry, with combined single limits of __________ dollars ($_____) per each occurrence as respects personal injury, including death and property damage. Company will furnish [OTHER PARTY] with certificates of insurance or other appropriate documentation (including evidence of renewal of insurance) evidencing all coverage referenced in this Section and naming [OTHER PARTY] as an additional insured and an additional loss payee.

[OPTION 3]

Insurance: The Company shall maintain insurance against fire, theft, and damage to the Products in an amount equal to or in excess of this price pursuant to this Agreement. The Company shall also maintain errors and omissions insurance in the amounts of [AMOUNT] per occurrence and [AMOUNT] in the aggregate for the Company’s manufacturing defects. Customer shall maintain insurance against fire, theft and damage to any Customer property held by the Company, including without limitation in-circuit test fixtures, capital equipment, Returned Product and other Customer materials and property in the Company’s possession. Customer shall maintain errors and omissions insurance in the amounts of [AMOUNT] per occurrence and [AMOUNT] in the aggregate for product liability.

[OPTION 4]

Insurance: Licensee shall, throughout the Term, obtain and maintain at its own cost and expense from a qualified insurance company licensed to do business in [STATE] and having a Best rating of B+ or better, standard product liability insurance naming Licensor and its officers, directors, employees, agents, and shareholders as additional insured parties. Such policy shall provide protection against all claims, demands, and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Licensed Products or any material used in connection therewith or any use thereof. The amount of coverage shall be as specified in Schedule F attached hereto. The policy shall provide for [ ] days’ notice to Licensor from the insurer by registered or certified mail, return receipt requested, in the event of any modification, cancellation, or termination thereof. Licensee agrees to furnish Licensor a certificate of insurance evidencing same within [ ] days after the Effective Date, and in no event shall Licensee manufacture, distribute or sell any Licensed Products prior to receipt by Licensor of such evidence of insurance.]

Licensee shall, throughout the Term, obtain and maintain at its own cost and expense from a qualified insurance company licensed to do business in [STATE] and having a [Best] [Moody’s] rating of B+ or better, standard product liability insurance naming Licensor and its officers, directors, employees, agents, and shareholders as additional insured parties. Such policy shall provide protection against all claims, demands, and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Licensed Products or any material used in connection therewith or any use thereof. The amount of coverage shall be as specified in Schedule [ ] attached hereto. The policy shall provide for [ ] days’ notice to Licensor from the insurer by registered or certified mail, return receipt requested, in the event of any modification, cancellation, or termination thereof. Licensee agrees to furnish Licensor a certificate of insurance evidencing same within [ ] days after the Effective Date, and in no event shall Licensee manufacture, distribute or sell any Licensed Products prior to receipt by Licensor of such evidence of insurance.

For disputes outside of the United States, the parties may mutually agree upon binding arbitration to resolve any such international dispute that arises under this Agreement. Arbitration will be initiated with notice which shall state the issues to be resolved. The hearing shall be held at a mutually agreeable location and the arbitration will be conducted in the English language. Each party may be represented by counsel.

A judgment on the arbitrator’s ruling may be entered in any court having jurisdiction over the parties. The reasonable fees and expenses of the arbitrator shall be borne equally by the parties. Each party shall be responsible for its own costs and expenses in connection with the arbitration. The parties knowingly and voluntarily waive their rights to have such international dispute tried and adjudicated by a judge and jury except as expressly provided herein.

J

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L

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M

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Policies. The parties hereby acknowledge their respective corporate policies and practices to not only encourage, but to expand the participation of Minority and Women Owned Business Enterprises (“MWBEs”) in their procurement processes, and their desire to work together to encourage their use of MWBEs in fulfillment of the obligations under this Agreement. As used in this Agreement, MWBEs shall be defined to include any company certified as a minority or women owned business by the National Minority Supplier Development Council or any local affiliates thereof, or any Federal, National, State, Municipal, or Local agencies that certify minority and/or women owned businesses in accordance with PL. 95-507.  

Contracting with MWBEs.  [Vendor] recognizes and acknowledges that, in conjunction with [Company’s] efforts to involve MWBEs in its contracting process, [Company] may enter into purchasing agreements with MWBEs that will enable Participants to purchase supplies and/or equipment comparable to those listed as Products under this Agreement. In such event, notwithstanding any other terms of this Agreement to the contrary, the Parties agree that, if [Company] enters into any such agreement(s) with any MWBEs, such will not be deemed to be a breach of this Agreement by [Company], nor will any purchases by Participants or their Affiliates from MWBEs be deemed to be a breach of this Agreement. 

Reporting of MWBE Activity.  [Vendor] shall, on a quarterly basis, identify and report in writing to [Company] all MWBE activities in which it participates, specifically identifying such activities and purchases relating to Products and Services obtained under this Agreement.  These reports shall be submitted using the format shown on Exhibit C of this Agreement. Quarterly reports shall be submitted even if there have been no MWBE dollars expended during the applicable reporting period. [Vendor] shall only report those activities related to goods and services necessary for, and directly related to, the fulfillment of [Vendor’s] obligations under this Agreement.  [Vendor] shall identify in such reports any first and second tier MWBEs it or its subcontractors have used during the reporting period.  The MWBE contact for [Vendor] shall be [CONTACT PERSON/ADDRESS]. All quarterly reports shall be sent to [COMPANY CONTACT/ADDRESS]

N

Client does not undertake by this Agreement or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as an agent or to be acting as the agent of Client in any respect. Company is not authorized to bind Client or to incur obligations and liabilities on behalf of Client.

Each party represents that it neither is nor will be obligated for any finder’s or broker’s fee or commission in connection with this transaction. The Investor will indemnify and hold harmless the Company from any liability for any commission or compensation in the nature of a finders’ or broker’s fee for which the Investor or any of its officers, employees, consultants or representatives is responsible. The Company will indemnify and hold harmless the Investor from any liability for any commission or compensation in the nature of a finder’s or broker’s fee for which the Company or any of its officers, employees, consultants or representatives is responsible.

Nothing contained in this Agreement shall be construed as conferring by implication, estoppel or otherwise upon either party hereunder any license or other right except the licenses, rights and uses expressly granted hereunder to a party hereto.

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Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

Company Covenant. During the Term and for a period of [NUMBER] (__) years thereafter, Company shall not, directly or indirectly, either as a partner, owner, shareholder, advisor or consultant, or in any other capacity whatsoever, of any entity whatsoever conduct, or assist others in conducting, or be financially involved in any manner in, any business that is a [OTHER PARTY] Direct Competitor.

[OTHER PARTY] Covenant. During the Term and for a period of [NUMBER] (__) years thereafter, [OTHER PARTY] shall not, directly or indirectly, either as a partner, owner, shareholder, advisor or consultant, or in any other capacity whatsoever, of any entity whatsoever conduct, or assist others in conducting, or be financially involved in any manner in, any business that is a Company Direct Competitor.

Termination of Covenant. The obligations set forth in the Sections above (Company Covenant and [OTHER PARTY] Covenant) hereof shall terminate upon a Change of Control.

Reasonableness of Covenant. Each party specifically acknowledges that it is aware that the business of the other party is international in scope and that geographical limitations on the covenants set forth in this Section __ (Non-Competition) are therefore not appropriate. Each party further acknowledges that the scope of each of the covenants contained in this Section __ (Non-Competition) is reasonable as to time, persons and area, are necessary to protect the legitimate business interests of the other party, that the other party has been induced to enter into this Agreement upon such party’s representation that such party will abide by and be bound by the above restrictions, and that such restrictions do not now, and will not in the future, present such party with any hardship or inconvenience. Such covenants are regarded by each party hereto as divisible and if any such covenant is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or persons or in too broad a geographic area, it shall be interpreted to extend over the maximum period of time, range of activities or persons, or geographic area as to which it may be enforceable. The provisions of this Section __ (Non-Competition) shall survive the termination of the Agreement.

Remedies. If either party breaches (or threatens to breach) this Section __ (Non-Competition), the non‑breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the necessity of posting bond, it being specifically acknowledged by the parties that any other available remedies are inadequate.

The execution, delivery and performance of this Agreement and the Services Agreement by the Company, and the consummation by the Company of the transactions contemplated hereby and thereby, including the issuance of the Warrants and the issuance of the Shares upon exercise thereof, do not and will not (i) contravene or conflict with the Articles of Incorporation or Bylaws of the Company; (ii) constitute a material violation of any provision of any federal, state, local or foreign law, rule or regulation binding upon or applicable to the Company; or (iii) constitute a default or require any consent under, give rise to any right of termination, cancellation or acceleration of, or to a loss of any benefit to which the Company is entitled under, or result in the creation or imposition of any lien, claim or encumbrance on any assets of the Company under, any contract to which the Company is a party or any permit, license or similar right relating to the Company or by which the Company may be bound or affected in such a manner as would have a Material Adverse Effect on the Company.

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Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses first set forth above. Notice shall be deemed to have been given upon: (a) personal delivery; (b) the first business day after sending notice via nationally recognized overnight courier; or (c) three (3) business days after depositing notice in the United States mail, sent Certified Mail Return Receipt Requested. Notices to Company shall be addressed to the attention of its Chief Executive Officer. Notices to [Party 2] shall be addressed to the attention of its Chief Executive Officer. Either party may change its address for notice by giving notice of such address change in the manner provided herein.

P

At a mutually agreed time, but in any event no later than [ , 20 ], Licensee and Licensor shall issue a joint press release announcing the relationship contemplated by this Agreement in a form reasonably agreed upon by both parties in advance of release. Thereafter, each party shall obtain the other party’s prior written approval of all press releases that such party proposes to issue with respect to this Agreement and the transactions contemplated by this Agreement. Licensee also shall obtain Licensor’s prior written approval of all other press releases that Licensee proposes to issue with respect to the Licensed Product.

It is Company’s policy to respect Customer’s privacy. Company will not monitor, edit, or disclose any personal information about Customer or Customer’s Company account, including its contents, without Customer’s prior permission unless Company has a good faith belief that such action is necessary to: (a) conform to legal requirements or comply with legal process; (b) protect and defend the rights or property of Company; (c) enforce this Agreement or protect Company’s business or reputation, including upon termination, cancellation or suspension of this Agreement by Company; (d) respond to request for identification in connection with claim of copyright or trademark infringement by Customer or a claim by a third party that Customer is using the Service in connection with an infringing, illegal or improper activity; or (e) act to protect the interests of Customer or others. Customer agrees that Company may access its account, including its contents, as stated above or to respond to service or technical issues.

CUSTOMER HEREBY GRANTS COMPANY THE RIGHT TO SEND CUSTOMER COMMUNICATIONS VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION RELATING TO THE SERVICE THAT COMPANY DEEMS IMPORTANT FOR CUSTOMER TO KNOW.

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Customer shall provide the Company with a [NUMBER] (__) day rolling forecast, updated monthly (“Forecast”), of Customer’s purchases of Products.  Customer authorizes the Company to purchase minimum buy items and reel quantities to support materials requirements planning including non-cancelable or non-returnable components. Customer shall be responsible for and will pay the Company on demand for all non-cancelable or non-returnable components purchased pursuant to such Forecast. Customer may, at its option, limit the amount of components that may the Company procure by notifying the Company in writing.  If Customer so limits the amount of components that the Company may procure in excess of Forecasts and Purchase Orders, and the Company is unable to deliver Products timely as set forth in Purchase Orders as a result of such limits, the Company shall not be responsible for its inability to deliver Products timely.  Customer shall be liable and invoiced for the sales prices of all Products manufactured or partially manufactured specifically to fulfill Customer’s canceled Purchase Orders/Forecasts, prior to the date of any expiration or termination.

Sanctioned Public Disclosure. Except press releases and other promotional literature that may be directly related to the Products, the Company will not issue any press release that refers to the [other party] without such party’s prior written approval.

OR

Publicity.  Company may not make any disclosure or announcement relating to this Agreement without the prior written consent of [OTHER PARTY], which shall not be unreasonably withheld.  Company may not use [OTHER PARTY’S] name in any endorsement or for any other purpose without [OTHER PARTY’S] prior written consent.  Provided that this Agreement has not been terminated due to a breach or default by Company, pursuant to Section ___, Company may reference the services rendered under this Agreement when asked for references from other potential customers.

Marketing and Publicity.  [Customer] grants the Company the right, to be exercised at the Company’s sole discretion, to use [Customer’s] comments,  name, the names of [Customer’s] employees and agents, and the [Customer’s] trade name and trademark in the Company’s promotions, press releases, public relations, advertisements and other sales and marketing activities.  Such right shall be unlimited in duration and no compensation shall be required for the Company’s exercise of such right.

No Publicity.  The Company shall not, at any time use the Customer’s name, trademarks, trade names or any other protected property for any publicity, press releases, marketing or other activities without the Customer’s prior written permission.

R

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Nothing contained herein shall be construed as creating a partnership, employment relationship or agency relationship between [PARTY 1] AND [PARTY 2] or as authorizing either party to act as agent for the other. Each party shall maintain their separate identity.

The [PARTY 1] hereby remises, covenants not to sue, release, acquits, waives and forever discharges and relieves [PARTY 2] and all of its parents, subsidiaries, and affiliates and the officers, directors, agents, attorneys and employees of each in their capacities as such (hereinafter refereed to as “Releasees”) of, from, regarding and/or on account of any and all rights, benefits, interest, liabilities, claims, demand, actions, causes of action, suits, debts, covenants, obligations, accounts due, contracts, rights to payment, damages, lost profits, costs, fees, counterclaims, attorney’s fees, interest, penalties, offset, setoff, losses and claims and defenses of any nature and kind whatsoever, whether at law, equity or in administrative proceedings, whether at common law (tort, contract or other theory) or pursuant to federal, state or local statute, rule, ordinance or regulation, whether vested or contingent, whether known or unknown, whether liquidated or unliqudated, whether matured or unmatured whether disputed or undisputed, which any or all of them ever had, now have or which may result from the existing, past or present state of things, from the beginning of the world to the date hereof, against or related in any way to Releasees arising out of or relating to the [circumstances].  It is hereby further understood and agreed that the acceptance and delivery of this release by the [PARTY 1] shall not deemed or construed as an admission of liability by the [PARTY 1], and the [PARTY 1] expressly denies liability of any nature whatsoever arising from or related to the subject of this Release.

[PARTY] shall not (a) create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code, (or the underlying ideas, algorithms, structure or organization) from the Service, or any part thereof, or aid or permit others to do so, except and only to the extent expressly permitted by applicable law; (b) remove or alter any trademark, logo, copyright or other proprietary notices or markings in the Service; or (c) copy, modify or create any Derivative Work of, the Service or any portion thereof.

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S

In the event that any provision of this Agreement is held to be unenforceable under applicable law, this Agreement will continue in full force and effect without such provision and will be enforceable in accordance with its terms.

Except as otherwise expressly provided in this Agreement, this Agreement will be binding on, and will inure to the benefit of, the successors and permitted assigns of the parties to this Agreement. Nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights or obligations under or by reason of this Agreement, except as expressly provided in this Agreement. Except as specifically provided herein, the parties may not assign their rights under this Agreement. The Company may not delegate its obligations under this Agreement.

Rights and obligations of a party hereto which arose prior to the expiration or termination of this Agreement shall survive such termination or expiration and continue in full force and effect until terminated in accordance with their terms.

T

In the event that a Selling Stockholder proposes to sell, in a single transaction or series of related transactions, at least [ ] Shares, and the Company and the Offeree Stockholders do not elect to exercise their right of first refusal to purchase all Shares offered by the Selling Stockholder, such Offeree Stockholders shall have the right to participate in such sale as set forth in this Section [ ]. Within 30 days of the date of the Seller’s Notice, the Offeree Stockholders may elect, by providing such Selling Stockholder with written notice, to offer for sale some or all of their Shares to the Purchaser at the price set forth in the Seller’s Notice. In the event the Purchaser agrees to purchase less than all of the Shares that the Selling Stockholder and such Offeree Stockholders (the “Electing Stockholders”) offer for sale, the Selling Stockholder and each Electing Stockholder shall be entitled to sell to the Purchaser its pro rata share of the Shares (in the proportion that the number of Shares offered to be sold by the Selling Stockholder or Electing Stockholder bears to the sum of all Shares offered to be sold by the Selling Stockholder and the Electing Stockholders, or in such other proportion as may be agreed to by the Selling Stockholder and the Electing Stockholders). An Electing Stockholder shall effect its participation in the sale by promptly delivering to the Selling Stockholder for transfer to the Purchaser one or more certificates, properly endorsed for transfer, which represent at least the number of Shares that such Electing Stockholder elects to sell. The stock certificate(s) that the Electing Stockholder delivers to the Selling Stockholder shall be transferred to the Purchaser in accordance with the Seller’s Notice, and the Selling Stockholder (or Purchaser) shall concurrently remit to such Electing Stockholder that portion of the sales proceeds to which such Electing Stockholder is entitled by reason of its participation in such sale.

Reseller shall bear and be responsible for the payment of all taxes in the Territory associated with the purchase or license of any Subscriptions (other than taxes based on the Company’s net income) fees, duties or other amounts, however designated, including value added and withholding taxes which are levied or based upon such charges, or upon this Agreement. Reseller shall pay all such Taxes unless Reseller presents the Company with an exemption certificate acceptable to the taxing authorities.

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Trademark Ownership. Reseller acknowledges and agrees that the Company owns all the Company trademarks, service marks and tradenames placed on the Site or otherwise used with respect to the Service by the Company (the “Marks”) and that any and all goodwill derived from the use of the Trademarks by Reseller hereunder inures solely to the benefit of the Company.

Authorized Use of Trademarks. During the Term, Reseller shall market the Service under the Marks. The Company reserves the right to change its Marks at any time. All advertising and other materials not provided by the Company in which the Marks are used shall be subject to the prior written approval of the Company, which approval will not be unreasonably withheld. Reseller shall not add to the Site any logo, marking or information that has not been approved in advance by the Company in writing. Whenever the Marks are used, Reseller shall indicate that such Marks are the property of the Company. Reseller shall have the right to indicate to the public that it is an authorized Reseller of the Service and use (within the Territory) the Marks to advertise and identify such the Service. The Company shall have the right to audit Reseller’s use of the Marks for such purposes and require Reseller to modify such use as may be required by the Company.

[PARTY] Marks. Reseller shall use no trademarks, trade names, service marks or other proprietary indicia in association with the Service other than the Marks, including any trademark or tradename owned by Reseller.

Defense of Trademarks. Reseller shall not at any time, whether during or after the Term, challenge, or assist others in challenging, the Company’s Marks or other proprietary rights, or do, cause to be done, or tolerate any act or thing contesting or in any way impairing or tending to impair any said right, title, and interest of the Company. Unless requested to do so by the Company in writing, Reseller shall not register, directly or indirectly, any trademark, service mark, trade name, company name or other proprietary or commercial name or right that is identical or confusingly similar to the Marks or any other Company IP Rights or that constitute translations thereof into the language(s) spoken within the Territory.

Right to use [PARTY]’s Name. The Company shall have the right to indicate to the public that Reseller is a reseller of the Service on the Site and in other Company marketing collateral and use Reseller’s name and logo to do so, subject to the prior approval of Reseller, which approval will not be unreasonably withheld.

U

Agent (for itself and not on behalf of each Lender) hereby notifies the Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Parties, which information includes the name and address of each of the Credit Parties and other information that will allow Agent to identify the Parties in accordance with the Patriot Act.

It is expressly stipulated and agreed to be the intent of Lender and Guarantor to, at all time, conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between Lender and Guarantor, including, without limitation, this Guaranty and other Loan Documents to which the Guarantor is a party, are hereby limited to the provision of this Section which shall override and control all such agreements, whiter now existing or hereafter arising and whether written or oral (however, reference to the term “oral” shall not oral agreements). In no way, nor in any event or contingency (including, but not limited to, prepayment, default, demand for payment or acceleration of maturity), shall the interest taken, reserved, contract for, charged, chargeable, received or collected under this Agreement or any other Loan Document to which Guarantor is a party exceed the maximum nonusurious amount permitted by applicable law (the “Maximum Amount”). If, from any possible construction of any agreement, document or instrument (including without limitation, this Agreement or any other Loan Document to which Guarantor is a party, interest would other wise be payable in excess of, or is adjudicated to be payable in excess of, the Maximum Amount, any such construction shall be subject to the provisions of this Section, and ipso facto, such agreement, document or instrument shall be reformed and the interest payable shall be reduced to the Maximum Amount, without the necessity of execution of any amendment or new document. If Lender shall ever receive anything of value that is characterized as interest under applicable law and that would apart from this provision be in excess of the Maximum Amount, an amount equal to the amount that would have been excessive interest shall, without penalty, be applied to any other amounts due and payable under any Loan Document to which Guarantor is a party, and not to the payment of interest, or promptly refunded to Guarantor or the other payor thereof if and to the extent such amounts that would have been excessive exceeds such unpaid principal amount or such other amounts. The right to accelerate any interest that has not otherwise accrued on the date of such acceleration, and Lender does not intend to take, reserve, contract for, charge, receive or collect any unearned interest in the event of acceleration. All interest paid or agreed to be paid to Lender shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated term (including any renewal or extension) of the indebtedness to which it relates so that the amount of interest thereof does not exceed the Maximum Amount. As used in this Section, the term “applicable law” shall mean the applicable laws of the State of [STATE] or the federal laws of the United States, whichever law allow the greater interest, as such laws now exist or may be changed or amended or come into effect in the future be construed to modify or negate any provisions hereof regarding the absence or ineffectiveness of.

V

  1. Each party hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any [STATE] state court sitting in the County of [NAME] or any federal court of the United States of America sitting in the District of [ ], and any appellate court from any such court, in any suit action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each party hereby irrevocably and unconditionally agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in such [STATE] state Court or, to the extent permitted by law, in such federal court.
  2. Each party hereby irrevocably and unconditionally waives, to the fullest extent it may legally do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in [STATE] state court sitting in the County of [NAME] or any federal court sitting in the District of [ ]. Each party hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court and further waives the right to object, with respect to such suit, action or proceeding, that such court does not have jurisdiction over such party.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, suit or proceeding arising out of or relating to this Agreement.

W

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Client agrees to supply Provider with applicable keywords and descriptions to be used for purposes of search engine submissions. Provider agrees to make every good faith effort to submit Client’s web site to various search engines, however, Provider shall have no responsibility to guarantee the inclusion of Client’s web site in any search engine, and shall not be responsible for any delay in the submission process due to circumstances beyond Provider’s reasonable control. Client understands that Provider cannot guarantee any ranking of Client’s web site in any search engine or indices nor the appearance of a web site link to Client’s web site on any particular search engine.

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This website provides general information and materials related to contract management. This website does not provide legal advice. Agile Contract Management is not a law firm nor does it provide legal advice. You should contact an attorney to obtain advice with respect to any particular legal issues or questions.