Terms & Conditions

This Master Services Agreement (this “Agreement”) is made as of the last electronic signature date of agreement (the “Effective Date”) by and between Client (“Client”) and Venture Smarter Inc (“Vendor”).

  1. Definitions.

    1. “Documentation” means the then current documentation made generally available by Vendor to its customers regarding the Services.

    2. “End Users” means Client’s employees, contractors and representatives who are authorized to access the Services on Client’s behalf.

    3. “Intellectual Property” means all inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not protected under trade secret laws), and all other subject matter protected under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful art, combinations, discoveries, formulae, manufacturing techniques, technical developments, artwork, software, programming, applets, scripts, and designs.

    4. “Order Document” means a document in substantially the form of Exhibit A (Services and Fees) as may be agreed upon by the parties from time-to-time. No Order Document will be binding unless executed by both parties.

    5. “Schedule of Services” means  a description of professional services to be provided by Vendor, as further described in Exhibits A and B.

    6. “Services” means the provision of access to Vendor’s website: www.venturesmarter.com, software applications and professional services, as more fully described in an Order Document.

    7. “Support Services” means Vendor’s support services as described in this Agreement and in Exhibit A.

  2. [Trial Period. Client will have a period of [thirty (30) days] from the Effective Date to evaluate the Services (the “Trial Period”). During the Trial Period, all terms and conditions of this Agreement will apply, except that (i) no fees will be due from Client other than those set forth on Exhibit A; and (ii) the Services will be provided without warranties or indemnities of any kind, entirely on an “as-is” basis (e.g., the provisions of Sections 11.2(Support and Maintenance), 16.2 (Vendor Warranty), and 177 (Vendor Indemnity) will not apply). At any time prior to the end of the Trial Period, Client may terminate this Agreement on written notice to Vendor. In the event notice of termination is not received prior to expiration of the Trial Period, Client’s payment obligation will commence and all other provisions of this Agreement will apply.]

  3. Term. [The initial term (“Initial Term”) of this Agreement will begin on the Effective Date (and include the Trial Period) and will continue thereafter for twelve (12) months. Thereafter, the Agreement will automatically renew for successive one-year terms (each a “Renewal Term”), unless either party gives written notice to the other of its intent not to renew at least sixty (60) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.”]

  4. Services. Subject to the terms and conditions of this Agreement and Client’s payment of all relevant fees, Vendor grants Client a non-exclusive, non-transferable license during the Term to access and use the Services for Client’s internal business purposes. To the extent any Vendor software is provided to Client for use in connection with the Services, Vendor’s software will be included in the definition of Services and subject to the foregoing license. All software may only be used in support of Client’s use of the Services and for no other purpose.

  5. Restrictions. Client and its End Users may only use the Services as described in this Agreement and the applicable Documentation. Client is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Client. Except as expressly authorized by this Agreement, Client will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Services other than an End User, (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, (iii) use the Services or any Vendor Confidential Information to develop a competing product or service, (iv) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, or (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Service, including any screen displays, etc., or any other products or materials provided by Vendor hereunder. Under no circumstances will Vendor be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Vendor. All such use will be at Client’s sole risk and liability.

  6. Operating Environment. In order to utilize the Services, Client will install and maintain the operating environment(s), if any, specified in the Order Document.

  7. Professional Services. As part of the Services, Vendor may provide certain development, customization, and other similar professional services described in sequentially numbered, mutually agreed upon Schedules of Services in the form attached to Exhibit B (Professional Services). All such Services will be subject to the terms of this Agreement and, in addition, the provisions of Exhibit B (Professional Services). The fees for the professional services are provided in the fee schedule attached to Exhibit B.

  8. Proprietary Rights. Client acknowledges and agrees that (i) all Services are protected by intellectual property rights, as applicable, of Vendor and its vendors/licensors and that Client has no right to transfer or reproduce any Services or any software provided with the Services or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 19 (Confidentiality)) pertaining to, any Services or any part of them and (ii) that Vendor owns all right, title, and interest in and to the Services, including any changes or modifications made to the Services performed under a Schedule of Services, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services. Under no circumstances will Client be deemed to receive title to any portion of the Services, title to which at all times will vest exclusively in Vendor. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Client will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Client will not use any Confidential Information disclosed by Vendor to Client in connection with this Agreement to contest the validity of any intellectual property rights of Vendor or its licensors. Any such use of Vendor’s Confidential Information and data will constitute a material, non-curable breach of this Agreement.

  9. Client Data. Client grants Vendor a non-exclusive, world-wide, royalty-free license to use the data and other information input by Client into the Services (the “Client Data”) for purposes of performing this Agreement. Client will be responsible for obtaining all rights, permissions, and authorizations to provide the Client Data to Vendor for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting Vendor any right, title, or interest in the Client Data. Client grants Vendor a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Client’s use of Services (the “Aggregated Data”) for Vendor’s business purposes, including the provision of products and services to Vendor’s customers; provided the Aggregated Data is combined with similar data from Vendor’s other customers and does not include (directly or by inference) any information identifying Client or any identifiable individual. The Aggregated Data will not be considered Client’s Confidential Information.

  10. Feedback. Client may provide suggestions, comments or other feedback (collectively, the “Feedback”) to Vendor with respect to its products and services, including the Services. Feedback is voluntary. Vendor may use the Feedback for any purpose without obligation of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client grants Vendor an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Vendor’s business, including the enhancement of the Services.

  11. Support and Maintenance.

    1. In General. During the Term, Vendor will provide Client with (a) reasonable telephone support for Client’s technical support needs, (b) error correction, and (c) Service updates and bug fixes that Vendor in its sole discretion makes generally available to its other similarly situated licensees at no charge. [Vendor’s telephone support is available Monday through Friday, 9 a.m. to 5 p.m. EST, except on Vendor holidays.]

    2. Error Correction. Vendor will use commercially reasonable efforts to correct Errors reported by Client in the current unmodified release of the Services.

    3. Exclusions. Vendor will have no obligation to support: (a) services, hardware, or software provided by anyone other than Vendor; or (b) Service issues caused by Client’s negligence, abuse or misapplication, Client’s use of Vendor’s Services other than as specified in the Documentation, or by other factors beyond the control of Vendor.

    4. Client Support Obligations. Client has the following obligations: Client will provide Vendor with reasonable remote access to its systems for purposes of rendering support, and Client will ensure the appropriate Client personnel have been trained in the operation, support, and management of the Services.

  12. Beta Services. Vendor may designate certain new functionality or services to be made available in connection with the Services as “Beta Services.” The Beta Services will not be ready for use in a production environment. Because they will be at an early stage of development, operation and use of the Beta Services may be unpredictable and lead to erroneous results. Client acknowledges and agrees that: (i) the Beta Services will be experimental and will not have been fully tested; (ii) the Beta Services may not meet Client’s requirements; (iii) the use or operation of the Beta Services may not be uninterrupted or error free; (iv) Client’s use of the Beta Services will be for purposes of evaluating and testing the new functionality and services and providing feedback to Vendor; and (v) Client will inform its End Users regarding the nature of the Beta Services. Client’s use of the Beta Services will be subject to all of the terms and conditions set forth herein relating to the Services. Client will promptly report any errors, defects, or other deficiencies in the Beta Services to Vendor. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND. Client waives any and all claims, now known or later discovered, that Client may have against Vendor and its suppliers and licensors arising out of Client’s use of the Beta Services.

  13. Fees.

    1. In general. Client will pay Vendor the fees set forth in the Order Documents and the Schedules of Services. Except as provided in Sections 16.2 (Vendor Warranties), and 21 (Termination), all fees are non-refundable.

    2. Payment of Invoices. Client will pay all invoices within thirty (30) days of invoice date, with all monthly payments owed to be paid in advance by the first day of the month for which such payment applies. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, Vendor may, in its discretion, suspend the Services until the invoice is paid in full.

    3. Taxes. In addition to any other payments due under this Agreement, Client agrees to pay, indemnify and hold Vendor harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Vendor.

    4. Adjustments. On notice of not less than ninety (90) days, Vendor may, at its discretion, adjust any or all fees. Client may terminate this Agreement on written notice to Vendor within thirty (30) days of its receipt of notice from Vendor to adjust the fees; provided, however, that if Client fails to object to such adjustment in writing within the foregoing thirty (30) days then Client will be deemed to have agreed to the adjustment.

    5. Subpoenas and Other Legal Process. In the event Vendor is requested or authorized by Client or is required by government regulation, summons, subpoena or other legal process to produce its documents, the Client Data, or personnel as witnesses with respect to the Services and other services provided to Client under this Agreement, Client will, so long as Vendor is not the subject of the investigation or proceeding in which the information is sought, reimburse Vendor at its then current standard professional services rates for its time and materials services, as well as the fees and expenses of its counsel, incurred in responding to such requests.

  14. USA Patriot Act Notice. The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. Vendor anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.

  15. Client Obligations. Client acknowledges that Vendor’s ability to perform the Services may require Client to perform certain tasks. Client will perform its obligations in accordance with the requirements of this Agreement in a commercially reasonable manner. Furthermore, Client’s failure to perform its obligations may adversely affect Vendor’s ability to meet its performance obligations and the parties agree that if Client fails to perform its material obligations, Vendor will promptly notify Client of the failure and the reasonably anticipated consequences of the failure, and the parties will negotiate in good faith to arrive at an equitable adjustment to the terms of this Agreement to compensate Vendor for any additional effort and costs directly caused by Client’s delay or failure to perform. Further, Client’s failure to perform certain tasks may prevent or disrupt Client from having access to Services or as applicable, corrections or enhancements thereto. Client is responsible for preserving and making adequate backups of its data.

  16. Warranties.

    1. Client Warranty. Client represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 9 (Client Data); (b) any Client Data provided by Client to Vendor for use in connection with the Services does not and will not infringe the Intellectual Property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”); and (c) its use of the Services will be in compliance with all Applicable Law.

    2. Vendor Warranty. During the Term, Vendor represents and warrants (i) the Services will substantially comply with the specifications, if any, set forth in the applicable Order Document(s) and with their then current Documentation; (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) to the best of its knowledge, as of the Effective Date, Client’s licensed use of the Services will not infringe the intellectual property rights of any third party. In the event of a breach of the warranty in this Section 1616.2, Vendor’s sole and exclusive liability and Client’s sole and exclusive remedy will be the provision of Support Services and replacement of a Service if necessary. In the event Vendor is unable through reasonable efforts to correct the defective Service within thirty (30) days from receipt of notice from Client of the breach or such other period of time as agreed upon, Client may elect to terminate this Agreement or the relevant Order Document(s) and receive a refund of any pre-paid, unused recurring fees for the non-conforming Services.


  17. Vendor Indemnity. Vendor will defend and indemnify Client and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Client’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Vendor is contingent upon Client promptly notifying Vendor in writing of such claim, permitting Vendor sole authority to control the defense or settlement of such claim and providing Vendor reasonable assistance (at Vendor’s sole expense) in connection therewith. If a claim of infringement under this Section 177 (Vendor Indemnity) occurs, or if Vendor determines a claim is likely to occur, Vendor will have the right, in its sole discretion, to either (i) procure for Client the right or license to continue to use the Services free of the infringement claim, or (ii) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Vendor, Vendor may, in its sole discretion, immediately terminate the relevant Order Document and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, Vendor will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Vendor, (ii) modification or alteration of the Services by anyone other than Vendor, (iii) use of Services in excess of the rights granted in this Agreement, or (iv) any specifications or other Intellectual Property provided by Client (collectively, the “Excluded Claims”). The provisions of this Section 177 (Vendor Indemnity) state the sole and exclusive obligations and liability of Vendor and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.

  18. Client Indemnity. Client will defend and indemnify Vendor and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Vendor as a result of any claim by a third party arising from (i) Client’s use of the Services in breach of this Agreement or (ii) the Excluded Claims. The foregoing indemnification obligation of Client is contingent upon Vendor promptly notifying Client in writing of such claim, permitting Client sole authority to control the defense or settlement of such claim and providing Client reasonable assistance (at Client’s sole expense) in connection therewith.

  19. Confidentiality.

    1. Definition of Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation: (a) source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (b) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). For the avoidance of doubt, the Services and Documentation are the Confidential Information of Vendor and the Client Data is the Confidential Information of Client.

    2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.

    3. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.

    4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.

    5. Return of Confidential Information. On termination or expiration of this Agreement, the Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.

    6. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 19 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.


  21. Termination.

    1. Termination. This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof. From and after termination, all due sums owed to Vendor by Client will be paid immediately to Vendor.

    2. Suspension of Services. Notwithstanding any other provision of this Agreement, Vendor may, in its sole discretion, suspend Client’s access to the Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Vendor from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) days from the applicable invoice date. Vendor will use reasonable efforts to provide Client with notice prior to or promptly following any suspension of the Services. Vendor will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Vendor to monitor use of the Services.

    3. Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (a) Client’s and all End User’s access to and use of the terminated Services will cease as of the effective date of termination; (b) Vendor will cease to provide the Services, and Client will pay to Vendor all undisputed sums due to Vendor for Services and authorized expenses incurred through the effective date of such expiration or termination (prorated as appropriate); and (c) Vendor, at Vendor’s standard time and materials rates, and Client will cooperate to take reasonable steps to assist Client in making an orderly transition of the Services back to Client or its designees. Specific transition Services may be agreed upon by the parties in a Schedule of Services. Further, the parties will cooperate in the continued safeguarding or return of all Confidential Information, the Client Data and other related documents in accordance with the parties’ respective obligations under this Agreement.

  22. General Provisions.

    1. Affiliates, Subcontractors and Vendors. Some or all of the Services, including support, may be provided by Vendor’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of Vendor may be, in whole or in part, exercised or fulfilled by the foregoing entities. Vendor shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by Vendor.

    2. Publicity. Vendor may identify Client as a customer in its customer listings, Web sites, and other promotional materials. In addition, Vendor may issue a press release regarding the parties’ new relationship under this Agreement.

    3. Force Majeure. Except for the payment of money as described in Section 13 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.

    4. Audit. Upon thirty (30) days’ written notice, Vendor may audit Client’s use of the Services. Client agrees to cooperate with Vendor’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Client’s normal business operations. Client agrees to pay, within thirty (30) days of written notification, any fees applicable to its use of the Services in excess of Client’s license rights as set forth in the applicable Order Document. If Client fails to pay, Vendor may terminate Client’s licenses, Support Services and/or this Agreement. Client agrees that Vendor shall not be responsible for any Client costs incurred in cooperating with the audit.

    5. Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.

    6. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of Delaware, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in New Castle County, Delaware. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.

    7. Non-Solicitation. During the Term and continuing through the one (1) year anniversary of the termination of this Agreement, neither party will actively solicit any technical, sales, or managerial employee of the other party who has performed any material work for the hiring party under this Agreement, and with whom the hiring party has had direct contact under this Agreement, without the other party’s written consent.

    8. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.

    9. Relationship of the Parties. The parties agree that Vendor will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Vendor who perform duties related to this Agreement will remain under the supervision, management, and control of Vendor.

    10. Assignment. Client may not assign this Agreement without the prior written consent of Vendor. Vendor may assign its rights and obligations under this Agreement to its parent or any of their respective affiliates, subsidiaries or joint ventures or to a successor by merger or consolidation without notice to Client, or to any other entity on thirty (30) days written notice.

    11. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.

    12. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.

    13. Survival. The following provisions will survive termination or expiration of this Agreement: 8 (Proprietary Rights), 16.3 (Disclaimer of Warranties), 177 (Vendor Indemnity) (for claims accruing prior to termination), 18 (Client Indemnity) (for claims accruing prior to termination), 19 (Confidentiality), 20 (Limitation of Liability and Damages), 21 (Termination), and 22 (General Provisions).

    14. Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.

Exhibit B

Additional Services

In addition to the terms and conditions of the Agreement, the following terms will apply to additional Services provided under a Schedule of Services:

  1. Performance of Services. Vendor will perform the Services described in those Schedules of Services as may be agreed upon by the parties and attached to this Exhibit. All services will be deemed part of and included in the definition of “Services” under the Agreement. The parties will work together in a joint effort to accomplish the tasks and objectives set forth in the Statement(s) of Work. Each party will use its reasonable efforts to accomplish the tasks assigned to it in the Statement(s) of Work, and to cooperate with and support the other party’s performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other party. Project schedules and deliverable dates, if any, set forth in a Schedule of Services will be deemed to be estimates only, and not guarantees, provided that Vendor will use commercially reasonable efforts to achieve such dates. Vendor will be responsible for delivering and performing only those Services specifically identified in the Statement(s) of Work. In the event of a conflict between the terms of this Exhibit or the Agreement and a Schedule of Services, the terms of this Exhibit and the Agreement will govern. No Schedule of Services will be binding unless and until signed by both parties. Vendor will be responsible for delivering and performing only those services specifically identified in the Statement(s) of Work.

  2. Change Orders. Client will submit all change requests (“Change Orders”) concerning the Services to Vendor in writing. On receiving each Change Order, Vendor will evaluate the request at its then current rates and charges and provide a written response. The written response will include a statement of the availability of Vendor’s personnel and resources, as well as the impact the proposed changes will have on the fee for the Services, delivery dates, milestones, or warranty provisions of this Agreement. If the response is acceptable to Client, Vendor and the parties will amend the applicable Schedule of Services to reflect the change request. The amended Schedule of Services will be effective on execution by both parties and will immediately become subject to the terms and conditions of this Agreement.

  3. Fees. In addition to the fees in the Order Documents and Exhibit A, Client will pay Vendor the fees in the applicable Schedules of Services. All payments will be subject to the provisions of Sections 13.2 (Payment of Invoices), 13.3 (Taxes), and 13.4 (Adjustments) of the Agreement.

  4. Term. The term of the Services to be rendered under a Schedule of Services will be set forth in the Schedule of Services. If no term is specified, the term will be coterminous with the Term of the Agreement. Either party may terminate a Schedule of Services according to the provisions of Section 21 (Termination) of the Agreement.

  5. Client Obligations. Client agrees to provide or otherwise make available to Vendor, at no cost, the equipment, facilities and other materials specified in the Schedule of Services for the performance of the Services. Performance of the Services will proceed according to the Statement(s) of Work, provided that Client furnishes a sufficient number of trained and experienced personnel and delivers all necessary information and materials in a timely fashion, and if not, then Vendor’s obligations which are dependent on such personnel, information, equipment, or materials will be extended to reflect Client’s or Client’s agents’ delay.

  6. License. To the extent Vendor develops as part of the Services any deliverables (the “Deliverables”), including software, the Deliverables will be deemed part of the “Services” and subject to the license provided in Section 4.

  7. Acceptance. Client will have ten (10) business days after Vendor notifies Client in writing that a Service or Deliverable under a Schedule of Services has been completed and is ready for testing or verification to confirm that the Services and/or Deliverable substantially conform to the specifications set forth in the applicable Schedule of Services (the “Acceptance Period”). Vendor’s performance under the applicable Schedule of Services and the associated Services and Deliverables will be deemed accepted by Client, unless Client provides written notice to Vendor before the end of the Acceptance Period that the Services and/or Deliverables do not substantially conform to the specifications in the Schedule of Services. Such notice will describe with particularity the nature of the nonconformance. If Client gives timely notice that Vendor’s performance is nonconforming, Vendor will make and submit to Client changes that may reasonably be required to correct the deficiencies described in the notice. Client will have an additional Acceptance Period from the receipt of the corrected Services and/or Deliverables to confirm they substantially conform to the specifications set forth in the applicable Schedule of Services. The corrected Services and/or Deliverables will be deemed accepted by Client, unless it provides written notice to Vendor before the end of such reevaluation Acceptance Period that the Services and/or Deliverables still do not conform to the specifications. In the event the corrected Services and/or Deliverables are still nonconforming, the foregoing process will continue in ten (10) business day intervals until they are accepted, withdrawn by Client, or the Agreement is terminated. Client will not unreasonably withhold or delay acceptance. Upon acceptance of a Deliverable, Client will promptly pay the designated balance due, if any, under the applicable Schedule of Services. Vendor will not be responsible for non-conformances caused by Client, Client’s agents or third parties.