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 Many companies may have already adopted Safe Harbor provisions, but these are no longer valid protections.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. Learn More

Clause Library

Venue

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 convenience 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.

Private Labeling

Reseller shall not private label or brand [NAME] with Reseller’s name or logo or that of a third party but may use Reseller’s logo or brand together with the Company’s branding and other identification provided that such use is not confusing to Subscribers or other third parties.

Jury Trial Waiver

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.

Disclaimer of Warranties

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.

Amendment and Waiver

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.

Compliance with Applicable Laws

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.

Antidilution

“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.”

Arbitration

Arbitration. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in [CITY/STATE]. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of [NAME OF ARBITRATOR], with the following exceptions if in conflict: (a) one arbitrator shall be chosen by [ARBITRATOR]; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding brining an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement.

IF FOR ANY REASON THIS ARBITRATOPM CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELTING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.

Arbitration

  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.

Attorneys

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.

Assignment

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.

Blocked Currency

  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.

Buyout upon Death of a Partner – Closely Held Partnership

Upon the death of a Partner, such Partner’s estate shall sell, and the Partnership shall purchase, such Partner’s entire interest in the Partnership for the price and upon the other terms provided in this Agreement. The procedure upon the death of a Partner shall be as follows:

  1. The Partnership, as beneficiary of the applicable life insurance policy or policies set forth in Exhibit [ ], shall promptly file claims to collect in cash the one-sum death claim proceeds of all such policies.
  2. Upon the collection of such proceeds and the qualification of a personal representative for the deceased Partner, the Partner shall pay over to the personal representative an amount equal to the full proceeds collected, in part or in full payment for the deceased Partner’s interest in the Partnership.
  3. The fair market value of the deceased Partner’s interest in the Partnership shall be determined and approved unanimously by all Partners in consultation with the Partnership’s independent accountants. In the event that all Partners do not agree on the fair market value of the deceased Partner’s interest, the Partnership shall engage an Independent Chartered Financial Analyst (“ICFA”) to make such determination. In the event that any Partner (or the estate of the deceased Partner) dissents from the determination of the ICFA within [ ] days of receiving such determination, such party shall have the option to engage its own ICFA to make a separate determination. If the fair market values determined by the two ICFAs differ by 10% of the higher value or less, the final fair market value for the interest shall be the average of the two values. If the fair market values determined by the two ICFAs differ by more than 10% of the higher value, the two ICFAs shall mutually select a third ICFA to choose one of the two values provided by the first two ICFAs as the final fair market value. In determining the fair market value, the excess of the death claim proceeds over the cash values of the insurance policies on the deceased Partner’s life which are subject to this Agreement at the time of his death shall not be taken into account.
  4. If the one-sum death proceeds of all the policies on the deceased Partner’s life are less than the fair market value of his interest as determined above, the Partnership shall either pay the balance forthwith in cash, or in lieu of such cash payment shall execute and deliver to the personal representative of the deceased Partner an unsecured promissory note (the “Note”) of equal amount, payable to his order.
  5. The personal representative of the deceased Partner shall promptly execute (and shall cause any other party whose signature may be necessary to transfer a complete title to the deceased Partner’s interest to execute) and, concurrently with receipt of the full purchase price for the deceased Partner’s interest (either in cash, or in cash and a Note, as provided above), shall deliver all instruments necessary to transfer the deceased Partner’s interest to the Partnership, free and clear of all taxes and security interests, as of the date of the deceased Partner’s death.
  6. Concurrently with the transfer to the Partnership of the deceased Partner’s interest, the surviving Partners shall execute and deliver to the personal representative of the deceased Partner an instrument or instruments by which the surviving Partners guarantee all the debts and obligations of the Partnership and indemnify the deceased Partner’s estate against all Partnership liabilities and any and all claims by the surviving Partners or by the Partnership’s creditors.
  7. The Partners expressly agree that upon the death of any Partner, the Partnership shall continue without interruption unless a majority in interest of the surviving Partners vote to terminate the Partnership within [ ] days of the death of such Partner.

Buyout upon Death of a Stockholder – Closely Held Corporation

Upon the death of a Stockholder, such Stockholder’s estate shall sell, and the Company shall purchase, all such Stockholder’s shares of [common stock, $[ ] par value per share], in the Company (the “Shares”) for the price and upon the other terms provided in this Agreement. The procedure upon the death of a Stockholder shall be as follows:

  1. The Company, as beneficiary of the applicable life insurance policy or policies set forth in Exhibit [ ], shall promptly file claims to collect in cash the one-sum death claim proceeds of all such policies.
  2. Upon the collection of such proceeds and the qualification of a personal representative for the deceased Stockholder, the Stockholder shall pay over to the personal representative an amount equal to the full proceeds collected, in part or in full payment for the Shares.
  3. The fair market value of the Shares shall be determined and approved unanimously by all Stockholders in consultation with the Company’s independent accountants. In the event that all Stockholders do not agree on the fair market value of the deceased Stockholder’s Shares, the Company shall engage an Independent Chartered Financial Analyst (“ICFA”) to make such determination. In the event that any Stockholder (or the estate of the deceased Stockholder) dissents from the determination of the ICFA within [ ] days of receiving such determination, such party shall have the option to engage its own ICFA to make a separate determination. If the fair market values determined by the two ICFAs differ by 10% of the higher value or less, the final fair market value for the Shares shall be the average of the two values. If the fair market values determined by the two ICFAs differ by more than 10% of the higher value, the two ICFAs shall mutually select a third ICFA to choose one of the two values provided by the first two ICFAs as the final fair market value. In determining the fair market value, the excess of the death claim proceeds over the cash values of the insurance policies on the deceased Stockholder’s life which are subject to this Agreement at the time of his death shall not be taken into account.
  4. If the one-sum death proceeds of all the policies on the deceased Stockholder’s life are less than the fair market value of his Shares as determined above, the Company shall either pay the balance forthwith in cash, or in lieu of such cash payment shall execute and deliver to the personal representative of the deceased Stockholder an unsecured promissory note (the “Note”) of equal amount, payable to his order.
  5. The personal representative of the deceased Stockholder shall promptly execute (and shall cause any other party whose signature may be necessary to transfer a complete title to the deceased Stockholder’s Shares to execute) and, concurrently with receipt of the full purchase price for the deceased Stockholder’s Shares (either in cash, or in cash and a Note, as provided above), shall deliver all instruments necessary to transfer the Shares to the Company, free and clear of all taxes and security interests, as of the date of the deceased Stockholder’s death.

Buyout Upon Other Events – Closely Held Corporation

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.

Buyout

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

Repurchase of Stock of Employees Leaving Employ of Company

In the event that any stockholder who may now or hereafter be an officer, director or employee of the Company terminates such relationship with the Company, then upon the approval of the board of directors of the Company, the Company or any other stockholder shall have the option, for [ ] days following such termination, to purchase all of the stock held by such stockholder, at a price to be determined by the same method as provided by this Agreement in the event of the death of a stockholder. The terminating Stockholder, upon receipt of payment for her shares, shall promptly transfer and assign such shares to the purchaser.

Capitalized Terms

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

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. 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.

Confidentiality

  1. Each party acknowledges that confidential information (including trade secrets and confidential technical, financial and business information) (collectively, “Confidential Information”) may be exchanged between the parties pursuant to this Agreement. Each party shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other party. Each party agrees that it will not disclose or use the Confidential Information of the other party except for the purposes of this Agreement and as authorized herein. Customer will promptly report to Company any unauthorized use or disclosure of Company’s Confidential Information that Customer becomes aware of and provide (at the expense of Company or its licensors) reasonable assistance to Company (or its licensors) in the investigation and prosecution of any such unauthorized use or disclosure.
  2. Notwithstanding Section ___ the recipient of Confidential Information (“Recipient”) may use or disclose the Confidential Information to the extent that such Confidential Information is: (i) already known by Recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of Recipient, (iii) rightfully received from a third party without any obligation of confidentiality, (iv) independently developed by Recipient without use of the Confidential Information of the other party (“Disclosing Party”), (v) approved by the Disclosing Party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as Recipient provides the other party with notice of such requirement prior to any such disclosure and takes all reasonable steps available to maintain the information in confidence.
  3. Each party hereby agrees that the other party would suffer irreparable harm from a breach by any of the covenants or agreements contained in this Section. In the event of an alleged or threatened breach by either party of any of the provisions of this Section, the other party, or its successors or assigns, may, in addition to all other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions hereof. Each party agrees that the restrictions of this Section are reasonable for the purposes of protecting the legitimate interests of the other party.

CONFIDENTIALITY [OPTION 2]

Protection of Confidential Information. Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information but in any event not less than a reasonable degree of care. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party. Neither party shall use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Reseller, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Reseller to the same level of confidentiality contained herein.

Permitted Disclosure. Notwithstanding any provision in this Agreement to the contrary, each party may disclose portions of the other’s Confidential Information (a) to its lawyers and accountants who have a need to know such information and (b) pursuant to an order of a governmental agency or court of competent jurisdiction compelling disclosure, provided that the owner of the Confidential Information shall be given reasonable advance notice of such impending disclosure.

Disposition Upon Termination. Upon the termination of this Agreement for any reason whatsoever, or upon request of a party, each party shall return to the other party, or shall destroy, as the other party shall specify, all copies of all the Confidential Information in such party’s possession. Within five (5) days thereafter, such party shall provide the other party with a certificate, executed by such party or by an officer of such party, confirming that all copies of all such Confidential Information have been returned to the other party or destroyed, as the case may be.

[OPTION 3]

No Confidential Information. It is understood and agreed that Client does not wish to receive from Company any Confidential Information of Company or of any third party related thereto. Company represents and warrants that any information provided to Client in the course of entering into this Agreement or performing any work hereunder shall not be considered Confidential Information or proprietary to Company.

CONFIDENTIAL INFORMATION (DEFINED)

“Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential or is identified in writing as confidential or proprietary within fifteen (15) days of disclosure to the Receiving Party; provided that the following shall be deemed to be Confidential Information even if not so marked or identified: the terms and conditions of this Agreement (including pricing and other terms reflected in all schedules hereto), Velawcity IP Rights, NRAI IP Rights, the Disclosing Party’s business and marketing plans, technology and technical information, product designs, and business processes, any information or materials with the name, sign, trade name or trademark of the Disclosing Party and any information that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. “Confidential Information” does not include any item of information which (a) is or becomes available in the public domain without the fault of the Receiving Party; (b) is disclosed or made available to the Receiving Party by a third party without restriction and without breach of any relationship of confidentiality; (c) is independently developed by the Receiving Party without access to the disclosing party’s Confidential Information; or (d) is known to the recipient at the time of disclosure.

Content Sharing

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.

Counterparts

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.

Dispute Resolution

The parties hereto shall submit any dispute arising under, out of, or in connection with this Agreement to mediation in [STATE] under the applicable mediation rules of the American Arbitration Association. All costs of such mediation shall be borne equally by the parties hereto. If such dispute is not entirely resolved through mediation, any unresolved matters relating to such dispute shall be determined and settled by arbitration in [STATE] pursuant to the rules of the American Arbitration Association for resolution of commercial disputes. Any award rendered therein shall be final and binding on all parties hereto and judgment may be entered thereon in any court of appropriate jurisdiction. All costs of such arbitration may be allocated among and awarded to the parties per the arbitrator’s sole discretion.

[OPTION 2]

Dispute Resolution. Resolution of any and all disputes arising from or in connection with this Agreement (“Disputes”) shall be exclusively governed by and settled in accordance with the provisions of this Section.

  1. The parties shall make a good faith attempt to resolve any Dispute arising out of or relating to this Agreement through informal negotiation between appropriate representatives or each of each party. If at any time either party feels that such negotiations are not leading to a resolution of the Dispute, such party may send a notice to the other party describing the Dispute and requesting a meeting of the senior executives from each party. Within ten (10) business days after such notice of a Dispute is given, each party shall select appropriate senior executives (e.g. director or V.P. level) of each party who shall have the authority to resolve the matter and shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available remedies. During the course of negotiations under this Section 15.4 (a), all reasonable requests made by one party to the other for information, including requests for copies of relevant documents, will be honored. The specific format for such negotiations will be left to the discretion of the designated negotiating senior executives but may include the preparation of agreed upon statements of fact or written statements of position furnished to the other party. In the event that any Dispute arising out of or related to this Agreement is not settled by the parties within thirty (30) days after the first meeting of the negotiating senior executives, either party may commence litigation with respect to the Dispute. However, except as provided below in Section 15.4 (b), neither party shall commence litigation against the other party to resolve the Dispute (i) until the parties try in good faith to settle the Dispute by negotiation for at least thirty (30) days after the first meeting of the negotiating senior executives, or (b) until forty (40) days after notice of a Dispute is given by either party to the other party, whichever occurs first.
  2. Any Dispute regarding the following is not required to be negotiated prior to seeking relief from a court of competent jurisdiction: (i) breach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; or (ii) any other claim where interim relief from the court is sought to prevent serious and irreparable injury to a party. However, the parties to the Dispute shall make a good faith effort to negotiate such Dispute, according to the above procedures, while such court action is pending.

IF FOR ANY REASON THIS DISPUTE CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELTING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.

[OPTION 3]

Disputes. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in [CITY/STATE]. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of [NAME OF ARBITRATOR], with the following exceptions if in conflict: (a) one arbitrator shall be chosen by [ARBITRATOR]; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding brining an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELTING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO

[OPTION 4]

Jurisdiction; Venue.

  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.
  3. 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.

Drag-Along Rights

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.

English Language; Notices

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.

Execution of Documents

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.

Export Provisions

You may not export or re-export the [PRODUCT] outside the United States without [COMPANY]’s express written consent. In the event such consent is received, you must comply with the US Foreign Corrupt Practices Act and all export laws, restrictions, national security controls and regulations of the United States and other applicable foreign agency or authority. You shall not to export or re-export, or allow the export or re-export of the [PRODUCT], any component of [PRODUCT], or any copy of the [PRODUCT] in violation of any such restrictions, laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or to any Group D:1 or E:2 country (or any national of such country) specified in the then current Supplement No. 1 to Part 740, or in violation of the embargo provisions in Part 746 of the US Export Administration Regulations (or any successor regulations or supplement), except in compliance with and with all licenses and approvals required under applicable export laws and regulations, including those of the US Department of Commerce.

[OPTION 2]

Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer further agrees that it shall not export or re-export the Application Software or any copies thereof, either directly or indirectly, outside of the jurisdiction in which Users access such materials, except in compliance with all applicable laws, ordinances and regulations. Customer shall have the exclusive obligation to ensure that any export of the Application Software is in compliance with all applicable export laws and the laws of any foreign country.

[OPTION 3]

Export Control. Notwithstanding anything contained in this Agreement to the contrary, the obligations of the parties hereto and of the subsidiaries of the parties shall be subject to all laws, present and future and including export control laws and regulations, of any government having jurisdiction over the parties hereto or the subsidiaries of the parties, and to orders, regulations, directions or requests of any such government. Each party shall undertake to comply with and be solely responsible for complying with such laws applicable to such party.

First Refusal

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.

Force Majeure

[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.

Foreign Corrupt Practices Act

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.

Governing Law; Venue

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.

Governmental Approval (License)

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.

Headings

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.

HIPAA Requirements

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.

Hart-Scott-Rodino Provision

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.

Independent Contractor; Relationship of the Parties:

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.

Infringement

  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.

Insurance (License Agreement)

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.

Insurance

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.]

International Dispute Resolutions

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.

Indemnification Clauses

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.

Injunctive Relief

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.

Applicable Laws

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.

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAID BY SYNTROLEUM FOR THE SERVICES THAT GAVE RISE TO THE LIABILITY, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER INCLUDING WITHOUT LIMITATION LOSS OF INCOME, DATA OR GOODWILL, INFORMATION, DOWNTIME OR COSTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

[OPTION 3]

Limitation. EXCEPT FOR LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION __ OR LIABILITY ARISING FROM A BREACH BY EITHER PARTY OF SECTION __ (INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY) HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY [COMPANY] HEREUNDER.

Exclusion of Consequential and Related Damages. EXCEPT FOR LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION __ (INDEMNIFICATION) OR LIABILITY ARISING FROM A BREACH BY EITHER PARTY OF SECTION __ (INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY) HEREOF, IN NO EVENT SHALL EITHER PARTY OR ANY THIRD PARTY PROVIDER HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY. EACH PARTY MAY ALSO HAVE ADDITIONAL RIGHTS NOT STATED IN THIS DOCUMENT.

[OPTION 3]

Limitation of Liability. The Company’s liability, including but not limited to Customer’s claims of contributions and indemnification related to any third party claims arising out of [services rendered] by the Company, and for any losses, injury or damages to persons or properties or work performed arising out of or in connection with this Agreement and for any other claim, shall be limited to the amount that is lesser of (i) __________ dollars ($_______) or (ii) payment received by the Company from Customer for [services rendered] giving rise to the claim. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be liable for any special, indirect, consequential, loss of profits, or punitive damages. Customer agrees to limit the Company’s liability to Customer and any other third party for any damage due to any error, omission or negligence to a sum not to exceed the amount that is lesser of (i) __________ dollars ($__________) or (ii) the payment received by the Company for the [services rendered] giving rise to the claim. The limitation of liability set forth herein is for any and all matters for which the Company may otherwise have liability arising out of or in connection with this Agreement, whether the claim arises in contract, tort, statute, or otherwise. Customer’s exclusive remedy for any claim arising out of or relating to this Agreement will be for the Company, upon receipt of written notice, to either (i) use commercially reasonable efforts to cure, at its sole expense, the matter that gave rise to the claim for which the Company is at fault, or (ii) return to Customer all fees paid by Customer to the Company for [services rendered] that gives rise to the claim.

Material Adverse Effect (Option 1)

As used in this Agreement, “Material Adverse Change” or “Material Adverse Effect” means, when used in connection with the Company, any change or effect that is materially adverse to the business, financial condition or results of operations of such entity and its Subsidiaries taken as a whole; provided, however, that (i) any adverse change, effect or effect that is demonstrated to be primarily caused by conditions affecting the United States economy generally or the economy of any nation or region in which such entity or any of its Subsidiaries conducts business that is material to the business of such entity and its Subsidiaries, taken as a whole, shall not be taken into account in determining whether there as been or would be “Material Adverse Change” or “Material Adverse Effect” on or with respect to such entity, (ii) any adverse change, event or effect that is demonstrated to be primarily caused by conditions generally affecting the semiconductor industry shall not be taken into account in determining whether there has been or would be a “Material Adverse Change” or “Material Adverse Effect” on or with respect to such entity, (iii) any adverse change, event or effect that is demonstrated to be primarily caused by the announcement or pendency of the Merger or the transactions contemplated hereby shall not be taken into account in determining whether there has been or would be a “Material Adverse Change” or “Material Adverse Effect” on or with respect to such entity.

Material Adverse Effect (Option 2)

NO MATERIAL ADVERSE CHANGE. There shall have been no material adverse change in the business, condition, assets, liabilities, operations or financial performance of the Acquired Corporation since the date of this Agreement, except for (a) any such material adverse change that is demonstrated to have resulted directly from changes that occurred after the date of this Agreement in general business conditions in the electronic design automation industry, and (b) any material adverse change in the Company’s financial performance that is temporary in nature and is demonstrated to have resulted directly from the public announcement or the pendency of the Merger.

Material Adverse Effect (Option 3)

For purposes of this Agreement, the term “Material Adverse Effect” when used in connection with an entity means any change, event, violation, inaccuracy, circumstance or effect that is materially adverse to the business, assets (including intangible assets), capitalization, financial condition or results of operations of such entity and its parent (if applicable) or subsidiaries taken as a whole; provided, however, that the following shall not be considered a “Material Adverse Affect”: (i) changes, events, violations, inaccuracies, circumstances and effects that are caused by conditions affecting the United States economy as a whole or affecting the industry in which such entity competes as a whole, which conditions do not affect such entity in a disproportionate manner, (ii) a shortfall in revenues of such entity as a result of delays in customer orders (including any effects on such entity’s operating income which result directly from such revenue shortfall), which delays result from the announcement and pendency of the Merger, or (iii) the loss of employees resulting from the announcement and pendency of the Merger.

Material Adverse Effect (Option 4)

MATERIAL ADVERSE CHANGE. There shall not have occurred any material adverse change in the business, assets (including intangible assets), financial condition or results of operations of the Company since [DATE]. For purposes of this condition, none of the following, individually or in the aggregate, shall be deemed to constitute such a material adverse change: (i) any failure of the Company to record revenue or deferred revenue at any particular level subsequent to [DATE]; (ii) the lack of success of the Company in hiring new employees; or (iii) the lack of success of the Company in retaining existing employees, other than those employees who in the aggregate are material to the Company’s ability to commercialize its technology.

Material Adverse Effect (Option 5)

For purposes of this condition, a reduction in the trading price of Common Stock, whether occurring at any time or from time to time, as reported by [AMEX/NASDAQ/NYSE] or any other automated quotation system or exchange shall not constitute a material adverse change.

Minority and Women Owned Business Enterprises

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]

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.

No Finder’s Fee

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.

No Other Rights Conferred.

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.

No Waiver

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.

Non-Contravention

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.

Non Competition

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.

Notice Provisions [OPTION 1]

All notices and other communications required or permitted hereunder will be in writing and will be delivered by hand or sent by overnight courier, fax or e-mail to:

if to [NAME OF PARTY]:

_________________________

_________________________

_________________________

fax:_____________________

e-mail:__________________

Attention:_______________

with a copy to:

_________________________

_________________________

_________________________

fax:_____________________

e-mail:__________________

Attention:_______________

[insert other recipients as appropriate]

Each party may furnish an address substituting for the address given above by giving notice to the other parties in the manner prescribed by this Section [ ]. All notices and other communications will be deemed to have been given upon actual receipt by (or tender to and rejection by) the intended recipient or any other person at the specified address of the intended recipient.

Notice Provision [OPTION 2]

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.

Notice of Offer a/k/a Rights of First Offer

  1. In the event Company desires to effectuate a Change of Control, it shall give a notice (the “First Offer Notice”) to Investor. The First Offer Notice shall specify the price and terms of such Change of Control transaction. The First Offer Notice shall constitute an offer by the Company to effectuate a Change of Control such that Investor becomes the acquiring party at the price and on the terms and conditions set forth in the First Offer Notice. The Investor, if it desires to accept such offer, shall, within 30 days after the giving of the First Offer Notice, give Company written notice to such effect (the “Acceptance Notice”).
  2. Failure to Accept Offer. If Investor shall fail to give the Acceptance Notice within such 30 day time period, Investor shall be deemed to have consented to the proposed Change of Control and Company may effectuate a Change of Control at the price and upon the terms and conditions set forth in the First Offer Notice at any time within twelve (12) months of the expiration of the time period for the giving of the Acceptance Notice.
  3. Acceptance of Offer. If Investor gives Company an Acceptance Notice within the proscribed time period, then on such business day as Investor shall set forth in the Acceptance Notice, which shall be not less than 30 days nor more than 90 days after the giving of the Acceptance Notice, Investor shall consummate the Change of Control for the purchase price stated in the First Offer Notice and upon the other terms and conditions of the First Offer Notice. The closing shall be held at such place as the parties to the sale may mutually agree, on the date selected as provided above.

Press Releases

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.

Privacy

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.

Procurement Authorization.

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.

Public Disclosure or Publicity

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. 

Publicity and Marketing

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.

Relationship of the Parties

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.

Release

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.

Restriction of Use

[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.

Right of First Refusal

  1. If at any time Company or any Company shareholder desires to sell any of Shares pursuant to a bona fide offer from the Investor’s direct competitor (the “Proposed Transferee”), Company or the Selling Shareholder shall submit a written offer (the “Offer”) to sell such Shares (the “Offered Shares”) to Investor on the terms and conditions, including price, not less favorable to Investor than those on which Company proposes to sell such Offered Shares to the Proposed Transferee. The Offer shall disclose the identity of the Proposed Transferee, the number of Offered Shares proposed to be sold and the price thereof, the total number of Shares owned by the Remaining Stockholders, and the terms and conditions of, and any other material facts relating to, the proposed sale.
  2. Investor 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 Shares in place of the Proposed Transferee. If Investor desires to purchase any of the Offered Shares, it shall notify Company and/or the Selling Shareholder of such election during Option Period, stating the number of Offered Shares 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 Shares.

[OPTION THREE]

FOUNDER RIGHTS OF FIRST REFUSAL

Company Right of First Refusal.

  1. If at any time a Founder desires to sell for cash any of her Shares pursuant to a bona fide offer from a third party (the “Proposed Transferee”), the Founder (the “Selling Founder”) shall submit a written offer (the “Offer”) to sell such Shares (the “Offered Shares”) to the Company on terms and conditions, including price, not less favorable to the Company than those on which the Selling Founder proposes to sell such Offered Shares to the Proposed Transferee. The Offer shall disclose the identity of the Proposed Transferee, the number of Offered Shares proposed to be sold and the price thereof, the total number of Shares owned by the Selling Founder, and the terms and conditions of, and any other material facts relating to, the proposed sale.
  2. The Company shall have an option for a period of [ ] days (the “Company Option Period”) following its receipt of the Offer to purchase some or all of the Offered Shares in place of the Proposed Transferee. If the Company desires to purchase any of the Offered Shares, it shall notify the Selling Founder of such election during the Company Option Period, stating the number of Offered Shares 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 Shares.

Investors’ Right of First Refusal.

  1. If the Company does not elect to purchase all of the Offered Shares before the expiration of the Company Option Period, then the Selling Founder shall promptly distribute the Offer to all Investors, and each Investor shall have the right for a period of [ ] days following receipt of the Offer (the “Investor Option Period”) to purchase, at the price and on the terms and conditions contained in the Offer, the number of Offered Shares (its “Pro Rata Fraction”) equal to the number of Offered Shares that the Company did not elect to purchase (the “Remaining Offered Shares”) multiplied by a fraction, the numerator of which shall be the number of Shares then owned by such Investor and the denominator of which shall be the aggregate number of Shares then owned by all Investors (calculated in each case on a Fully-Diluted Basis).
  2. If any Investor fails purchase its Pro Rata Fraction of Remaining Offered Shares, each other Investor shall have the right to purchase up to its Pro Rata Fraction of any shares not purchased by such Investor. Such right must be exercised by an Investor by initially accepting the Offer as to more than its Pro Rata Fraction. If, as a result thereof, such oversubscriptions exceed the total number of Remaining Offered Shares available, the oversubscribing Investors shall be cut back with respect to their oversubscriptions on a pro rata basis in accordance with their respective Pro Rata Fractions or as they may otherwise agree among themselves.
  3. If an Investor desires to purchase all or any part of the Remaining Offered Shares, the Investor shall notify the Company and the Selling Founder of such election during the Investor Option Period, stating the number of Remaining Offered Shares such Investor desires to purchase (which number may exceed its Pro Rata Fraction). 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 Shares (subject to the aforesaid limitations as to an Investor’s right to purchase more than its Pro Rata Fraction).
  4. Sales of the Offered Shares to the Company or to Investors pursuant to this Section 3 shall be made at the offices of the Company on the [ ]th day following the date the Offer was made (or if such day is not a business day, then on the next succeeding business day) and shall be effected by the Selling Founder’s delivery to each purchaser of a certificate or certificates evidencing the Offered Shares to be purchased by it, duly endorsed for transfer to such purchaser, against payment to the Selling Founder of the purchase price therefor by such purchaser.
  5. If the Company and the Investors do not, in the aggregate, purchase all of the Offered Shares, the Offered Shares not so purchased may be sold by the Selling Founder at any time within [ ] days after the date the Offer was made, subject to the provisions of Section 4, Section 5 and Section 6 of this Agreement. Any such sale shall be to the Proposed Transferee, at not less than the price and upon other terms and conditions, if any, not more favorable to the Proposed Transferee than those specified in the Offer. Any Offered Shares not sold within such [ ]-day period shall continue to be subject to the requirements of a prior offer pursuant to this Section 3. Offered Shares that are sold pursuant to this Section 3 to any person who is not a party hereto shall no longer be subject to this Agreement.

Severability

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.

Successors and Assigns

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.

Survival

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.

Tag-Along Rights (Co-Sale Rights)

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.

Taxes

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.

Term

[OPTION 1]

Term.  [This Agreement shall be effective from the Effective Date and shall continue for a period of [NUMBER] (__) year(s) thereafter (the “Term”), unless sooner terminated as otherwise provided in Section  hereof (Termination) and can be renewed by mutual agreement between the parties.]

[OPTION 2]

Term.  The initial term of this Agreement (the “Initial Term”) shall commence on the Effective Date and shall continue for a period of [NUMBER] (__) years thereafter, unless sooner terminated as otherwise provided in Section __ (Termination) hereof. After the Initial Term, this Agreement shall automatically renew for additional [NUMBER] (__) year periods (each a “Renewal Term”, and together with the Initial Term, the “Term”) subject to at least [NUMBER] (___) days’ advance written notice of termination by either party prior to expiration of the Initial Term or Renewal Term then in effect.

[OPTION 3]

Term.  The term of this Agreement shall be ________ (__) months from the Effective Date, and may be extended for additional ______ (__) month periods upon mutual agreement of the parties at least thirty (30) days prior to the anniversary of the Effective Date.]

[OPTION 4]

Term; Termination.

  1. Term.  This Agreement shall expire on the [    ] anniversary of the Effective Date (the “Termination Date”)[, provided that this Agreement shall automatically renew for additional one-year periods on the Termination Date and each anniversary thereof unless either party gives notice to the other at least [    ] days prior to the date on which this Agreement would otherwise expire.]
  2. Termination for Cause.  Either party may terminate this Agreement with [    ] days’ written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during such notice period, the breaching party fails to cure such breach.
  3. Events of Default.  This Agreement may be terminated by the nondefaulting  party if any of the following events of default occur:  (a) if a party materially fails to perform or comply with this Agreement or any provision hereof; (b) if either party fails to strictly comply with the provisions of Section __ (Confidentiality) or makes an assignment in violation of Section __ (Nonassignability); (c) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, (d) if a petition under any foreign, state or United States bankruptcy act, receivership, statute or the like, as they now exist or as they may be amended from time to time, is filed by party; or (e) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within [NUMBER (__)] days.
  4. Effective Date of Termination.  Termination due to a material breach in Sections __ (Grant of Rights), __ (Derivative Products), __ (Protection of Licensor’s Intellectual Property) or __ (Confidentiality) shall be effective upon notice.  In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.

Trademarks and Servicemarks.

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.

USA Patriot Act Notice

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.

Usury

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.

Warranty

[COMPANY] warrants that the ____________ will be free from defects [NUMBER] (__) days from the date of delivery of the [PRODUCT] is delivered to you. Your sole remedy in the event of a breach of this warranty will be that [COMPANY] will, at its option, replace any defective [MERCHANDISE] returned to [COMPANY] within the warranty period. [COMPANY] does not warrant that the [PRODUCT] will not meet your requirements or that operation of the [PRODUCT] will be uninterrupted or will be error-free.

The above warranty is exclusive and in lieu of all other warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement, and any warranty, guarantee or representation as to (1) [specifics], or (2) [additional specifics]. This above warranty gives you specific legal rights. You may have other rights, which vary from state to state.

This above warranty gives you specific legal rights. You may have other rights, which vary from state to state.

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.

Web development (submission to search engines)

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.

Directors, Officers, Employees and Agents

The Company shall indemnify, to the fullest extent permitted by law, any person who was or is a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal administrative, investigative or otherwise, and whether by or in the right of the Company, its stockholders, a third party or otherwise (a “Proceeding”), by reason of the fact that he is or was a director, officer, employee or agent of the corporation (an “Indemnitee”), or is or was a serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against all expenses (including, but not limited to, attorneys’ fees), liability, loss, judgments, fines, excise taxes, penalties and amounts paid in settlement actually and reasonably incurred by him in connection with such Proceeding, including expenses incurred in seeking such indemnification. However, such indemnification shall exclude (i) indemnification with respect to any improper personal benefit which such Indemnitee is determined to have received and of the expenses of defending against an improper personal benefit claim unless such Indemnitee is successful on the merits in such defense, and (ii) indemnification of present or former officers, directors, employees or agents of a constituent corporation absorbed in a merger or consolidation transaction with this corporation with respect to their activities prior to such transaction, unless specifically authorized by the board of directors or stockholders of the Company. Such indemnification shall include prompt payment of expenses incurred by an Indemnitee in defending a Proceeding in advance of the final disposition of such Proceeding, upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amounts if it shall ultimately be determined that he is not entitled to be indemnified by the Company, which undertaking shall be an unsecured general obligation of the Indemnitee and may be accepted without regard to his ability to make repayment.

Employees and Agents at option of corporation

The corporation may, to the extent authorized from time to time by the board of directors, grant rights to indemnification and to an advancement of expenses, to any person who was or is a party or is threatened to be made a party to or is otherwise involved in any proceeding by reason of the fact that he is or was an employee or agent of the corporation or is or was serving at the request of the corporation, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

Records and Reports; Audit Rights

[PARTY] shall maintain accurate, complete records of its marketing, sales and support services activities under this Agreement. The Company or its representatives may, upon reasonable notice to [PARTY] and during normal working hours, inspect those agreements and business records of [PARTY] necessary to verify [PARTY’S] compliance with this Agreement. The audit will be conducted at the Company’s expense unless the results of such audit establish that [PARTY] has underpaid the Company by more than ____ percent (__%) of the amount due over the audited period, in which case [PARTY] shall pay all amounts due and bear the expenses of the audit. All information obtained by the Company or its representatives conducting the audit will be [PARTY’S] Confidential Information subject to the terms hereof.

No Private Labeling

Reseller shall not private label or brand [NAME] with Reseller’s name or logo or that of a third party but may use Reseller’s logo or brand together with the Company’s branding and other identification provided that such use is not confusing to Subscribers or other third parties.

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. 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.

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