VENDOR TERMS

These Terms («Terms») apply to you as any person or business entity who is a vendor or other seller of goods or services («Vendor») to Levata US, LLC, or any of its subsidiaries or affiliates («Client»)

These Terms form a legally binding agreement between Client and Vendor concerning Vendor's provision of goods or services to Client. If and to the extent there exists any other written agreement executed and in force between Vendor and Client, and any of the Terms conflict with such agreement, such agreement shall supersede these Terms. Vendor and Client may singularly be identified herein as «Party» and collectively as «Parties».

WHEN VENDOR PROVIDES ITS CONSENT BY (A) CLICKING THE «ACCEPT» BUTTON, (B) THROUGH THE ACCOUNT REGISTRATION PROCESS, (C) BY OTHERWISE BY ACCESSING THIS WEB ADDRESS WHICH REFERENCES THESE TERMS, OR (D) SELLING GOODS OR SERVICES TO CLIENT AS A RESULT OF A PURCHASE ORDER OR OTHER REQUEST FROM CLIENT, VENDOR IS AGREEING TO BE BOUND BY THESE TERMS TO THE SAME EXTENT AS IF A PAPER COPY OF THESE TERMS HAD BEEN MANUALLY EXECUTED, AND VENDOR UNDERSTANDS AND INTENDS TO ENTER INTO THESE TERMS ELECTRONICALLY. VENDOR REPRESENTS AND WARRANTIES THAT VENDOR HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE TERMS AND BIND VENDOR TO ITS TERMS. IF VENDOR DOES NOT AGREE WITH THESE TERMS, VENDOR SHOULD NOT GIVE CONSENT, AND ANY CLIENT REQUEST TO PURCHASE GOODS OR SERVICES FROM VENDOR MAY BE REJECTED BY VENDOR. THESE TERMS MAY CHANGE FROM TIME TO TIME AND VENDOR AGREES IT IS THE SOLE RESPONSIBILITY OF VENDOR TO BE AWARE OF THE CURRENT VERSION OF THESE TERMS.

Vendor provides and will provide hardware products («Hardware»), software products («Software»), or services («Services») to Client from time to time. Vendor may also from time to time create, develop, or deploy specific deliverables for Client unique to Client's use (a «Deliverable»). Hardware, Software, Services, and any Deliverable may hereinafter collectively be referred to as «Product».

Specific terms related to any Product may be established pursuant to any individual statement of work («SOW») or other similar agreements, which, shall be governed by these Terms and will comprise all terms associated with such Product.

In consideration of the mutual promises contained herein, the Parties hereby agree as follows:

1. PRODUCTS

1.1. Products. Vendor will provide any Product in accordance with the timetable, specifications and requirements set forth in the applicable SOW.

1.2. Statements of Work. Vendor shall provide any Product to Client and any customer of Client (any an «Authorized Service Recipient»), as described in each SOW in accordance with the terms and conditions of these Terms.

Each SOW shall include the following information, as applicable:

a) a detailed description of any Product to be provided;

b) the date upon which any Product will be delivered or commence;

c) the fees to be paid to Vendor by Client;

d) the Product implementation plan;

e) Deliverables, milestones, and payment schedules

f) any criteria for completion of delivery or implementing any Product;

g) procedures for the testing and acceptance of any Product;

h) an identification of all third-party software, and the license(s) applicable thereto, that will be incorporated in or used with any Product; and,

i) any other terms and conditions agreed upon by the Parties in connection with any Product.

1.3. Personnel. Vendor will provide experienced and qualified personnel to provide any Product. In their performance under these Terms, when Vendor Personnel (as defined below) are present at any Client or any Authorized Service Recipient location, Vendor Personnel will comply with Client or any Authorized Service Recipient requests, rules, policies, and procedures regarding personal and professional conduct. Vendor will, upon reasonable and lawful written request by Client or any Authorized Service Recipient, replace any Vendor Personnel. Each Party will be responsible for the performance of its personnel, including its employees, agents, and subcontractors (collectively, «Personnel») under these Terms.

1.4. Non-Solicitation. During the Term of these Terms or any SOW and for a period of twelve (12) months thereafter, Vendor shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under these Terms or any SOW who is then in the employment of Client. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 1.4, and the hiring of any such employees or independent contractors who freely responds thereto shall not cause a breach of this Section 1.4.

1.5. Non-Compete. For the term of these Terms and for one (1) year after any termination of these Terms, unless Vendor has express, written, prior authorization from Client, Vendor shall not be permitted to enter into any business relationship with any customer or other similarly situated entity of Client who (a) Vendor became aware of as a result of these Terms and, (b) Vendor did not have a preexisting business relationship with prior to the Effective Date (any, a «Restricted Entity»), to provide goods, services, or other deliverables to, a Restricted Entity that are materially similar in nature to the goods, services, or deliverables that a Party provides to such Restricted Entity.

1.6. Existing Relationships. In any event where, prior to the Effective Date, Vendor has a current, pre-existing business relationship with a Restricted Entity, Vendor shall promptly notify Client of such relationship and the Parties shall agree on exceptions, if any, to Section 1.5 above.

1.7. Equipment. Vendor will keep and maintain any equipment provided by or acquired on behalf of Client or any Authorized Service Recipient in Vendor possession in good condition and not dispose of or use it other than in accordance with these Terms or with Client instruction or authorization.

1.8. Information and Security. Vendor agrees to maintain appropriate administrative, technical, and physical safeguards to ensure the security, confidentiality, and integrity of any personal information about the Client, Client Personnel, or any Authorized Service Recipient that Vendor creates, has access to, maintains, or transmits under these Terms. Vendor agrees to exercise reasonable due diligence to limit access of personal information to only those of its Personnel who require such access, and that such Personnel comply with these safeguards. Vendor further agrees to notify the Client within five (5) days of discovery of any security breach or incident involving personal information about the Client, Client Personnel, or any Authorized Service Recipient.

1.9. Third-Party Software. Vendor will identify in any applicable SOW any and all third-party software and the license(s) applicable thereto, that are or will be incorporated in or used with any Product. Before the date on which any Product is to be deployed, Vendor will obtain, and at all times these Terms is in effect, maintain, all necessary licenses and consents applicable to any third-party Software and ensure that Client is permitted to use the Deliverables for the intended use.

1.10. Acceptance. Unless otherwise set forth in any SOW, Client will evaluate any Deliverable for compliance with the terms of these Terms and with any acceptance criteria or specifications described in the SOW. Client shall provide Vendor written notice of acceptance or rejection (email acceptable) of any Deliverable to Vendor within thirty (30) business days after the receipt of the final version of any such Deliverable. Vendor will correct any errors or non-conformities in any Deliverable within ten (10) business days following receipt of notice of rejection thereof.

1.11. Title/Risk of Loss. Title to any Product, if applicable, shall pass to Client upon delivery of such Product to Client or any Authorized Service Recipient at the designated Client or any Authorized Service Recipient location described in any applicable SOW. All risk of loss, damage, theft or destruction to any Product shall be borne by Vendor until any Product is accepted by Client or any Authorized Service Recipient.

1.12. Client Obligations. Client shall:

a) cooperate with Vendor in all matters relating to any Product and appoint and, in its reasonable discretion, replace, a Client employee who has the authority to act on behalf of Client with respect to matters pertaining to these Terms provided, however, that these Terms, any amendments to these Terms, or any subsequent contracts must be executed by a Client officer with the requisite corporate authority to bind Client;

b) provide such direction, information, approvals, authorizations or decisions as Vendor may reasonably request and Client considers reasonably necessary, in order to for Vendor to deliver any Product provided herein; and

c) obtain and maintain all necessary licenses and consents and comply with all applicable law in relation to any Product to the extent that such licenses, consents and law relate to Client business, premises, staff, and equipment, in all cases before the date on which any Product is to be deployed.

1.13. Performance. If Vendor performance of its obligations under these Terms is prevented or delayed solely by any act or omission of Client Personnel, Vendor shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

2. CHANGE ORDERS

2.1. Change Order. If either Party wishes to change the scope or performance of any SOW or any Product, it shall submit details of the requested change to the other Party in writing. Vendor shall, contemporaneously with such request, or if such request is initiated by Client, not more than ten (10) business days after receipt of Client written request, provide a written estimate to Client of:

a) the likely time required to implement the change;

b) any necessary variations to the fees and other charges for any Product arising from the requested change;

c) the likely effect of the change on any Product; and

d) any other impact the change might have on the performance of these Terms or an applicable SOW.

2.2. Acceptance. Promptly after receipt of the written estimate, the Parties shall negotiate and agree in writing on the terms of such change and amend or restate the applicable SOW to reflect such change. Neither Party shall be bound by any changes unless mutually agreed upon in writing as an amendment to these Terms or an applicable SOW.

3. TERM AND TERMINATION

3.1. Term and Renewal. The term of these Terms will begin on the Effective Date and will continue for one (1) year, unless earlier terminated as set forth herein (the «Term»). These Terms will automatically renew for a period of one (1) year (a «Renewal Term») at the end of any Term or Renewal Term unless Client provides notice to Vendor of its intent not to renew at least one hundred twenty (120) days prior to the end of the then-current Term or Renewal Term. If any Product under an applicable SOW extends beyond a Term or any Renewal Term of these Terms, these Terms will continue with respect to such SOW until the satisfactory completion of any Product thereunder.

3.2. Termination for Convenience. Client may terminate these Terms, in whole or in part, on ninety (90) days prior written notice (email acceptable) to Vendor. If Client terminates these Terms pursuant to this Section 3.2, Client will be responsible for any portion of the compensation owed to Vendor for any Product provided through the termination effective date. If any SOW is terminated, such termination does not necessarily terminate the Terms.

3.3. Termination for Breach. Either Party may terminate these Terms or any SOW for material breach or Default (as described below) of the other Party on thirty (30) days prior written notice to the breaching Party. If the breaching Party does not cure the material breach or default within the thirty (30) days, these Terms or the applicable SOW will automatically terminate at such time.

3.4. Events of Default. A Party shall be in default under these Terms upon the happening of any following events or conditions (each a «Default»): (a) default by a Party in the performance of any obligation, covenant, or liability contained in these Terms; (c) any inaccuracy warranty, representation or statement made or furnished by a Party, and (d) dissolution, termination of existence, discontinuance of a Party's business, insolvency, business failure, or appointment of a receiver of any part of the property of, or assignment for the benefit of creditors by a Party or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against a Party or the attachment, levy, seizure or garnishment of any of a Party's property, rights, assets (contingent or otherwise) or any Product.

3.5. Effect of Termination. The termination rights provided herein are absolute and neither Vendor nor Client shall be liable to the other because of the termination of these Terms, or their business relationship, for any compensation, reimbursement, expenditures or statutory indemnities, whether for any investments, leases or commitments, or on account of loss of prospective profits or anticipated sales, or in connection with the business or goodwill of Vendor or Client, or for any other reason whatsoever. Notwithstanding the foregoing, upon termination of these Terms all obligations of the Parties under the following Sections of these Terms shall survive termination of these Terms: Section 4, Section 5, Section 6, Section 7, Section 8, Section 10, and Section 12.

3.6. Return of Materials. Upon expiration or termination of these Terms for any reason:

a) Vendor will (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid, all Client or any Authorized Service Recipient equipment and Client or any Authorized Service Recipient owned inventory, and all Client or any Authorized Service Recipient materials, (ii) provide reasonable cooperation and assistance to Client relating to any Product and in transitioning any Services to an alternate service provider, if any.

b) In no event shall either Party be liable to the other Party for any termination costs arising from the expiration or termination of these Terms.

4. FEES AND EXPENSES; PAYMENT TERMS

4.1. Fees. Subject to the terms and conditions of these Terms, Client will compensate Vendor as set forth in an applicable SOW, which may provide for Vendor to be paid on a time-and-materials, fixed fee, milestone, or other basis.

4.2. Expenses. Client will reimburse Vendor in accordance with Client's Policy for expenses that Vendor reasonably incurs in connection with any Product, provided that such expenses are authorized by Client in writing (email acceptable) in advance or mutually agreed to in an applicable SOW.

4.3. Invoices. Unless otherwise set forth in an applicable SOW, Client will pay Vendor all undisputed amounts within thirty (30) days after receipt of Vendor's invoice (the «Payment Due Date», which will include any reasonable substantiating documentation for expenses as may be requested by Client.

4.4. Disputes. If Client does not notify Vendor of any disputed portion of any invoice within thirty (30) days of invoice date, such invoice, or any undisputed amounts, as applicable, shall be deemed undisputed and due and owing. If Client notifies Vendor of a disputed invoice amount, the Parties will mutually agree to resolve the dispute as soon as practicable. In the event of any valid dispute regarding an invoice, Client shall still timely pay all undisputed amounts and provide Vendor reasonable details as to the nature of the disputed items. If the dispute is resolved and a payment is due to Vendor, Client shall pay such amount the later of (a) the original Payment Due Date, or (b) ten (10) days after the dispute has been resolved. Any unresolved dispute shall be addressed in accordance with the dispute resolution terms described in Section 12.3.

4.5. Taxes. Client is responsible for all applicable taxes, duties or other charges, including sales or use taxes, imposed by any federal, state or local governmental entity on any Product provided by Vendor under these Terms, except for taxes based on Vendor's net income, gross revenue or employment obligations. If Vendor is obligated by applicable law or regulation to collect and remit any taxes relating to any Product, then Vendor will add the appropriate amount to any Client invoices as a separate line item.

4.6. Books and Records. During the term of these Terms and for one (1) year thereafter, Vendor will keep copies of books and records related to amounts Vendor requests to be paid for any Product. Client may, on reasonable notice to Vendor and during normal business hours no more than once annually, examine and make copies of such books and records for purposes of auditing and verifying the fees charged under these Terms and Vendor's compliance with its obligations hereunder.

5. NON-EXCLUSIVITY

5.1. Similar Services. In recognition that Vendor may perform similar services for others, these Terms shall not prevent Vendor from providing services or developing materials that are competitive with those developed or provided under these Terms or any SOW, regardless of any similarity between such services or materials. Subject to the confidentiality restrictions contained in Section 6 of these Terms, Vendor shall be free to use its general knowledge, skills, and experience, ideas, concepts, know-how and techniques used while providing any Product for other engagements. Vendor's other clients shall have the right to use materials incorporating such ideas, concepts, know-how and techniques.

5.2. Pre-Existing Materials. Notwithstanding anything to the contrary herein, any Deliverable owned by Client will not include Vendor pre-existing software, inventions, copyrights, patents, trade secrets, trademarks and other proprietary rights, including ideas, concepts and know-how of Vendor, that existed before the commencement of any Product and that are included in any Deliverable (collectively, the «Pre-Existing Materials»). Vendor hereby grants to Client a non-exclusive, worldwide, perpetual (without regard to any termination or expiration of these Terms), irrevocable, transferrable, fully paid, royalty-free license to use the Pre-Existing Materials to the extent they are included in, and as necessary to use and exploit, any Deliverable.

6. CONFIDENTIALITY

6.1. Definitions. For purposes of these Terms and except as excluded under Section 6.2 below, «Confidential Information» shall include all information of which unauthorized disclosure by a Party, its Personnel, or any Authorized Service Recipient (each a «Recipient») could be detrimental to the interests of the other Party («Disclosing Party») whether or not Disclosing Party identifies including, without limitation, all information of Disclosing Party of the following or similar nature, whether or not reduced to writing: invoices and billings, customer lists, customer and supplier identities and characteristics, agreements, marketing knowledge and information, sales figures, pricing information, marketing plans, business plans, business metrics, strategies, forecasts, financial information, budgets, software (including all enhancements, modifications and derivatives thereof), research papers, projections, procedures, routines, quality control and manufacturing procedures, processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development and test results, specifications, data, know-how, formats, plans, sketches, specifications, drawings, models, employee lists and information and any other information or procedures that are treated as or designated secret or confidential by Disclosing Party or its customers or potential customers. Confidential Information also includes all non-public information or material that by its nature would have commercial value or competitive value in the business of Disclosing Party whether disclosed by or on behalf of Disclosing Party to Recipient.

6.2. Exclusions. Confidential Information does not include information that Recipient can demonstrate: (i) was in Recipient's possession prior to its being furnished to Recipient under the terms of these Terms, and the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (ii) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public; (iii) is rightfully obtained by Recipient from a third-party, without breach of any obligation to Disclosing Party; or (iv) is independently developed by Recipient without use of or reference to the Confidential Information and is evidenced by independent documentation.

6.3. Confidentiality. Recipient shall use the Confidential Information solely for the purposes of these Terms or any SOW and shall not in any way use the Confidential Information to the detriment of Disclosing Party and not authorized by these Terms. Recipient shall not disclose any of the Confidential Information in any manner whatsoever, except as set forth in Section 6.4 or Section 6.5 of these Terms, and shall hold and maintain the Confidential Information in strictest confidence. The Parties expressly agree that nothing in these Terms is meant to inhibit or prohibit a Party's intellectual property development and that Recipient may develop similar products or services so long as no Confidential Information of Disclosing Party is used in violation of these Terms.

6.4. Permitted Disclosures. Recipient may disclose Disclosing Party's Confidential Information to Recipient Personnel or any Authorized Service Recipient who have a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out the purposes of these Terms or any SOW and only if such Personnel are advised of the confidential nature of such Confidential Information and the terms of these Terms and are bound by a written agreement to maintain the Confidential Information according to the terms herein. Recipient shall be responsible for the actions of its Personnel and agrees that such actions shall be deemed actions by Recipient. Recipient hereby agrees to indemnify Disclosing Party against any and all losses, damages, claims, expenses, and attorneys' fees incurred or suffered by Disclosing Party as a result of a breach of these Terms by Recipient.

6.5. Required Disclosures. Recipient may disclose Disclosing Party's Confidential Information if and only to the extent that such disclosure is required by court or administrative order. Notwithstanding the foregoing, Recipient shall provide Disclosing Party a reasonable opportunity to review any such disclosure before it is made and to interpose its own objection to the disclosure. Recipient agrees to provide reasonable assistance to Disclosing Party in any request, filing or objection that Disclosing Party decides in its sole and absolute discretion to make to protect Disclosing Party's Confidential Information.

7. REPRESENTATION AND WARRANTIES

7.1. Mutual Warranties. Each Party represents and warrants to the other Party that:

a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;

b) it has full right, power and authority to enter into these Terms, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;

c) the execution of these Terms by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and

d) when executed and delivered by such Party, these Terms will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

7.2. Vendor Warranties. Vendor represents and warrants to Client that:

a) it shall deliver any Product using Personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resourced to meet its obligations under these Terms;

b) it is in compliance with, and shall deliver any Product in compliance with, all applicable laws;

c) Client or any Authorized Service Recipient will receive good and valid title to any Deliverable, free and clear of all encumbrances and liens of any kind;

d) no Product and Client or any Authorized Service Recipient use thereof infringes or will infringe any intellectual property right of any third-party;

e) any Product will be in conformity in all respects with the requirements or specifications stated in these Terms and the applicable Statement of Work.

7.3. Escrow. If Vendor is developing Software for Client, within thirty (30) days after the SOW Effective Date, Vendor shall deposit a copy of the source code, databases, and related documentation for any Product, as applicable, in an online location to be determined at the sole and absolute discretion of Company (an «Escrow Account»). At any time, after Vendor deposits the source code, databases, and related documentation for any Product, Client can request a full verification of the Escrow Account to assure that they are complete and updated. An independent build guide detailing full rebuild instructions in the event of a release will be produced and distributed to supplement the Escrow Account. Company shall have the right to access the Escrow Account and retrieve its contents in the event of any of the following circumstances that exist for more than thirty (30) days.

a) Vendor entry of an order for relief under Title 11 of the United States Bankruptcy Code.

b) Any making by Vendor of a general assignment for the benefit of creditors.

c) Any appointment of a general receiver or trustee in bankruptcy of Vendor business or property.

d) Any action by Vendor under any state or federal insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation.

e) Any action by Vendor that causes Product to be unavailable to Client due to situations including, but not limited to, Client terminating these Terms due to Vendor breach, Vendor discontinuing, retiring, or otherwise ceasing support for the Product, or any Vendor successor or assign who limits Client access to the Product in any way inconsistent with the terms of these Terms.

7.4. Hardware Warranties. With respect to any Hardware, the warranty for any Hardware shall be the warranty provided by the manufacturer of such Hardware, a copy of which Vendor will provide to Client or any Authorized Service Recipient. Vendor shall not provide any additional warranties except as described in any SOW.

7.5. Software Warranties: With respect to any Software, the warranty shall be as set forth in the SOW for such Software. Vendor makes no representation, warranty or guaranty that any Software will be compatible with specifications or technologies not set forth in the applicable SOW.

7.6. Exclusive Warranties. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCT OR ANY OBLIGATIONS HEREUNDER, AND BOTH PARTIES EXPRESSLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SET FORTH IN THIS AGREEMENT OR THE APPLICABLE SOW ARE EACH PARTY'S SOLE AND EXCLUSIVE REMEDIES FOR WARRANTY CLAIMS AND ARE EXPRESSLY IN LIEU OF ALL OTHER REMEDIES THAT MAY BE AVAILABLE TO A PARTY AT LAW OR IN EQUITY.

8. INDEMNIFICATION

8.1. Indemnification. A Party (the «Indemnifying Party») agrees to indemnify, defend and hold harmless the other Party and its officers, directors, owners, members, employees, agents, affiliates and subcontractors (the «Indemnified Party»), from and against any and all claims, damages, demands, losses, liabilities, actions, lawsuits and other proceedings, judgments, fines, assessments, penalties, awards, costs and expenses (including costs, expenses, and reasonable attorneys' fees) related to third-party claims, whether or not covered by insurance, arising from or relating to (a) any breach of these Terms by the Indemnifying Party; (b) any acts or omissions by the Indemnifying Party, its shareholders, Authorized Service Recipients, or Personnel; (c) any claim arising under Indemnifying Party's failure to comply with any law, rule or regulation related to these Terms; or, (d) any claim that the Indemnifying Party infringes or misappropriates any third-party's intellectual property rights. The indemnification provided under this Section 8.1 will survive termination or expiration of these Terms. Notwithstanding the foregoing, the obligations of this Section 8.1 shall not apply to an Indemnifying Party in any event where the third party's claims arise from (x) the Indemnifying Party acting at the direction of the Indemnified Party, (y) the Indemnified Party's actions constituted gross negligence or willful misconduct, or (z) the Indemnified Party's failure to comply with the law.

8.2. Notification, Rights and Cooperation. The Indemnified Party agrees to give the Indemnifying Party prompt written notice of any claim subject to indemnification; provided that an Indemnified Party's failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party's obligations hereunder except to the extent that such delay prejudices the Indemnifying Party's ability to defend such claim. The Indemnifying Party will have the right to defend against any such claim with counsel of its own choosing and to settle such claim as the Indemnifying Party deems appropriate, provided that the Indemnifying Party will not enter into any settlement that adversely affects the Indemnified Party's rights without the Indemnified Party's prior written consent. The Indemnified Party agrees to reasonably cooperate with the Indemnifying Party in the defense and settlement of any such claim, at the Indemnifying Party's expense.

9. INSURANCE

9.1. Types and Amounts of Coverage. At all times during the Term of these Terms, and for a period of three (3) years thereafter, Vendor shall procure and maintain, at its sole cost and expense, at least the following types and amounts of insurance coverage:

a) Workers Compensation. Worker's Compensation insurance with limits no less than the minimum amount required by applicable law

b) Automobile. Commercial Automobile Liability with limits no less than $1,000,000, combined single limit; and

c) Professional Liability. Error and Omissions/Professional Liability with limits no less than $2,000,000 per occurrence and $2,000,000 in the aggregate.

9.2. Additional Requirements. All insurance policies required pursuant to this Section 9 shall:

a) be issued by insurance companies licensed to do business and admitted in Vendor's state of domicile. All such insurers must be rated no less than A- with a size rating of no less than VII as shown in the most current issue of A.M. Best's Key Rating Guide;

b) waive any right of subrogation of the insurers against Client; and

c) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Client shall be excess and non-contributory.

9.3. Certificate of Insurance. When providing the required limit of insurance using a combination of primary and umbrella and/or excess policies, Vendor shall provide Client with a certificate of insurance which confirms that the umbrella and/or excess policies follow the form to the primary insurance and will drop down in the event of exhaustion of the primary insurance. Upon written request of Client, Vendor shall provide Client with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 9 and shall not do anything to invalidate such insurance. Vendor shall provide Client with at least thirty (30) days prior written notice of cancellation or non-renewal of policy coverage. This Section 9 shall not be construed in any manner as waiving, restricting or limiting the liability of either Party for any obligations imposed under these Terms (including but not limited to, any provisions requiring a Party hereto to indemnify, defend and hold the other harmless under these Terms).

10. DAMAGES AND REMEDIES

10.1. DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY EVENT WHERE A PARTY'S ACTIONS CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY'S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT WILL EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) OR (B) THE FEES INVOICED BY VENDOR TO CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING ANY EVENT OF LIABILITY.

10.2. Remedies In General. Upon the occurrence of any Default or at any time thereafter, a Party may, at its option an without further notice, exercise one or more of the following remedies as a Party in its sole discretion shall elect: (1) demand or, without demand, sue for amounts then due or thereafter accruing under any invoice, bill or other documentation evidencing indebtedness; (2) take possession of any Product whenever found and for this purpose enter upon any premises of a Party and remove such Product, without court order or other process of law, without any liability for damages, suit, action or other proceedings by a Party for such entry and/or removal; and (3) exercise any rights accruing to a Party under any applicable contract or law upon a Default by the other Party.

10.3. Rights and Remedies Not Exclusive. No right or remedy conferred upon or reserved to a Party by these Terms shall be exclusive of any other right or remedy herein or by contract or law provided, all rights or remedies conferred upon a Party by these Terms and by law shall be cumulative and in addition to every other right or remedy available to a Party.

10.4. Time of the Essence. The Parties expressly agree that time is of the essence of these Terms.

11. FORCE MAJEURE

11.1. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached these Terms or any SOW, for any failure or delay in fulfilling or performing any terms of these Terms or any SOW, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's reasonable control, including, without limitation:

a) Acts of God;

b) Flood, fire or explosion'

c) War, invasion, riot or other civil unrest;

d) Actions, embargoes or blockages in effect after the date of these Terms; or

e) National or regional emergency;

(each of the foregoing, a «Force Majeure Event»). A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure and minimize the effects of such Force Majeure Event. During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance.

12. MISCELLANEOUS

12.1. Independent Contractor. Client and Vendor are independent contractors with respect to any Product provided and received under these Terms and any SOW. The provisions of these Terms will not be construed to establish any form of partnership, agency or other joint venture of any kind between Client and Vendor, nor to constitute either Party as the agent, employee or legal representative of the other. All persons furnished by either Party to accomplish the intent of these Terms will be considered solely as the furnishing Party's Personnel and the furnishing Party will be solely responsible for compliance with all laws, rules and regulations involving, among other things, employment of labor, hours of labor, working conditions, workers' compensation, payment of wages, and withholding and payment of all applicable taxes of any nature.

12.2. No Publicity. Neither Party may use the other Party's name or mark in any advertising, written sales promotion, press releases and/or other publicity matters relating to these Terms without the other Party's prior written consent.

12.3. Dispute Resolution.

a) If a dispute or claim arises under or related to these Terms (a «Dispute») that the primary business contacts of each Party are unable to resolve, a Party will notify the other Party of the Dispute in writing (email acceptable) with as much detail as possible.

b) Client and Vendor senior business representatives with full authority to resolve the Dispute will use good faith efforts to resolve the Dispute within ten (10) business days after receipt of a Dispute notice.

c) If the Parties' senior business representatives are unable to resolve the Dispute or agree upon the appropriate corrective action to be taken within such ten (10) business days, then the Dispute shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

d) The place of arbitration shall be determined at the sole discretion of the Party against whom arbitration is being sought, meaning, the Party requesting arbitration shall agree to the location set by the other Party. The arbitration shall be governed by the laws of the State of Delaware applicable to contracts, without regard to any otherwise applicable choice of law provisions.

e) Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

f) The arbitration shall be conducted by one (1) arbitrator in accordance with the American Arbitration Association («AAA») Rules for Expedited Procedures, which arbitrator shall be selected in accordance with the AAA Rules for Expedited Procedures, and which arbitrator shall have had at least ten (10) years' experience in general commercial transactions and contract disputes.

g) In connection with any arbitration proceeding: (a) no arbitrator shall have been employed by either Party hereto during the five (5) year period immediately preceding any arbitration of the Parties; (b) the arbitrator shall be neutral and independent of the Parties; (c) no arbitrator shall be affiliated with any Party's auditors; and (d) no arbitrator shall have a conflict of interest with (including, without limitation, any bias towards or against) either Party.

h) The arbitrator will have no authority to award punitive or other monetary damages not measured by the prevailing Party's actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated herein. The award of the arbitrator shall be accompanied by a reasoned opinion.

i) Either Party also may, without waiving any remedy under these Terms, seek from any court of competent jurisdiction located in Delaware, any interim or provisional relief that is necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal.

j) Pending resolution of the Dispute, both Parties will continue to perform their respective undisputed responsibilities under these Terms.

k) Nothing contained in this Section 12.3 will limit or delay the right of either Party to seek injunctive relief from a court of competent jurisdiction, whether or not such Party has pursued informal resolution in accordance with this Section 12.3.

12.4. Headings. The headings are inserted in these Terms only as a matter of convenience and for reference and are not intended to define, limit, or describe the scope of these Terms nor the intent of any of its provisions.

12.5. Governing Law and Waiver of Jury Trial. These Terms and its validity, construction and performance is governed by the laws of the State of Delaware, including provisions of the Uniform Commercial Code, but excluding the United Nations Convention on Contracts for the International Sale of Goods, and without giving effect to principles of conflict of laws. Sole jurisdiction and venue of any action arising out of these Terms shall be had in the state or federal courts in Delaware, and each Party hereto irrevocably submits to, and waives any objection to, the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. To the fullest extent permitted by law, each Party waives its right to trial by jury in connection with any action hereunder.

12.6. Assignment. Neither Party is permitted to assign or transfer these Terms, in whole or in part, without Client's prior written consent. Any assignment in contravention of this provision will be null and void. The Parties agree that assignment by operation of law in the context of the sale of all or substantially all of a Party's stock or assets shall not constitute an «assignment» for purposes of this prohibition. These Terms will be binding on all permitted assignees and successors in interest.

12.7. Entire Agreement/Amendments. These Terms, including all exhibits that are incorporated herein by reference, contains the entire agreement of the parties regarding the subject matter described herein, and all other promises, representations, understandings, arrangements and prior agreements related thereto are merged herein and superseded hereby (including any provision contained in any Vendor invoice, shipping document or other Vendor documentation that is different from or in addition to these Terms or applicable SOW). The provisions of these Terms may not be amended except by an agreement in writing signed by authorized representatives of both Parties referencing these Terms and stating their intention to amend these Terms.

12.8. Severability. If any provision of these Terms is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect in such jurisdiction and will be liberally construed to effectuate the purpose and intent of these Terms, and the invalidity or unenforceability of any provision of these Terms in any jurisdiction will not affect the validity or enforceability of any such provision in any other jurisdiction.

12.9. Waiver of Breach. The waiver of any breach of any provision of these Terms will be effective only if in writing (email acceptable). No such waiver will operate or be construed as a waiver of any subsequent breach.

12.10. Interpretation. As used in these Terms, including Statements of Work, the use of the term «including» is illustrative and not limiting.

12.11. Order of Precedence. In any event of a conflict between any term of these Terms and any term in any SOW, the term found in these Terms shall apply unless the conflicting term found in the SOW conspicuously and specifically designates that such SOW term is purposefully intended to supersede the term found in these Terms.