2. License & Access.
4. Warranty & Disclaimer.
5. Limitations of Liability; Disclaimer of Consequential Damages.
6. Hiring of Personnel
7. Term.
The term ("Term") of the Agreement shall be one year, unless earlier terminated as provided in this Exhibit and subject to consecutive, automatic one year extensions absent notice of termination by either party at least thirty (30) days before the end of the then-current one year period. Consultant may terminate the Agreement without cause upon 60 days' prior notice to Customer or may immediately suspend performance and/or terminate its obligations by notice to Customer in the event of: (a) unauthorized use of the Software; (b) violation of Section 2 or 3 of this Exhibit B or material breach of another provision of the Agreement; (c) any Customer-caused disruption of access by Consultant or another customer to the Software; or (d) any materially adverse change that prevents Customer's satisfactory fulfillment of the terms of the Agreement. Customer may terminate the Agreement by written notice in the event of a material breach of the Agreement by Consultant without cure. In the event of expiration or termination of the Agreement for any reason, Customer shall be obligated to pay Consultant for any fees and charges accrued through the end of the Term. Upon suspension of Consultant's performance or upon termination or expiration of the Agreement for any reason, Customer's passwords and/or user ID(s) will be invalidated.
8. Miscellaneous
8.1
The Agreement (which includes Exhibit A, any schedules referenced in Exhibit A, and this Exhibit B) constitutes the complete and exclusive statement of all agreements and mutual understandings between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous oral or written proposals, communications and understandings. Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by the other party or their representatives which are not embodied herein, and that no other agreement, statement or promise not contained in the Agreement shall be valid or binding. Any modification of the Agreement shall be effective only if it is in writing, signed and dated by all parties.
8.2
No rights under the Agreement may be assigned or transferred by Customer without the prior written permission of Consultant. Any attempted assignment without such consent will be void. As used herein, the terms "assign," "transfer" and their variants shall include a change of control of Customer from that existing at the beginning of the Term. Consultant may subcontract the performance of all or part of its obligations under the Agreement, provided that any such subcontracting arrangement will not relieve Consultant of any of its obligations hereunder.
8.3
If any provision of the Agreement, or the application of any provision to any person or set of circumstances, is determined to be invalid or unenforceable to any extent, the remainder of the Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law. If any provision of the Agreement is determined to be invalid or unenforceable for any reason, then the Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be replaced by a provision determined by a mutually agreed independent business attorney to be within the original spirit and intent of the Agreement. If the parties are unable to agree on such attorney, either party may request the American Arbitration Association to identify such attorney.
8.4
The Agreement shall be governed by and construed in accordance with the laws of the State of Texas without reference to its conflicts of law principles. Any controversy arising out of or relating to the Agreement or the construction, application, performance or breach of any of its terms, provisions, or conditions, shall on written request of either party, be resolved exclusively by submission first to mediation and then, if still unresolved, to binding arbitration. Any mediation or arbitration shall be conducted in Austin, Texas in accordance with the rules of the American Arbitration Association for Commercial Disputes ("Arbitration Rules") unless the parties stipulate otherwise. The arbitrator(s) shall not render any award or decision inconsistent with the terms and conditions of the Agreement including its limitation of liability provisions. If any arbitration or action at law or in equity is necessary to enforce or interpret the terms of the Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements incurred both before and after any judgment or decision in addition to any other relief to which such party may be entitled. Each party waives any right to adjudicate any controversy in any other court or forum, except that a party may seek interim equitable relief before the start of arbitration and such other injunctive relief to the extent not available by arbitration. Jurisdiction and venue for all purposes shall be in Travis County, Texas.
8.5
The parties agree that electronic mail shall be deemed to be a written instrument signed by the person electronically indicated as the sender of such e-mail. Any notice, invoice or communication required or permitted to be given hereunder shall be made in writing and shall be deemed to have been given to the intended recipient upon (i) hand delivery, (ii) actual or attempted delivery to such party's address according to evidence of delivery by a recognized independent courier service, (iii) electronic facsimile transmission according to the facsimile transmission confirmation receipt, or (iv) electronic confirmation of electronic mail delivery, in each case at the address, telecopy number or e-mail address listed for such party in Exhibit A of the Agreement. Either party may designate a different address by giving notice to the other in accordance with this Section.
8.6
If, after the Agreement is executed, the economic situation changes substantially, or if events constituting force majeure or other events beyond Consultant's control arise as a result of which Consultant would no longer be interested in implementing or completing the project described in Exhibit A, then Consultant will have the option either to rescind or terminate the Agreement or to extend the agreed delivery periods or schedules. In the event Consultant exercises these rights, Consultant shall have no liability to Customer and Customer will not be entitled to assert any claims against Consultant. Customer agrees to cooperate with Consultant and to provide Consultant with all necessary files and other information and assistance required for Consultant to successfully complete its obligations under the Agreement.
8.7
Whenever in the Agreement the singular number is used, the same shall include the plural where appropriate (and vice versa), and words of any gender shall include each other gender where appropriate. As used in the Agreement, (i) "or" means "and/or"; (ii) "business day" means any day on which banks in Texas are open for business; and (iii) "including" or "include" means "including without limitation." Unless otherwise expressly provided, the remedies set forth in this Agreement are exclusive and not cumulative. Each party will comply with all laws, regulations and other legal requirements that apply to their obligations under this Agreement, including all tax and data protection laws. Section and other headings are for convenience only and shall not be used in construing this Agreement. The term Section shall be construed as a subsection when the context requires and single-digit section references include all subsections and provisions therein. Time is of the essence for purposes of this Agreement. The parties are sophisticated and were or could have been represented by legal counsel during the negotiation of the Agreement. Accordingly, the parties believe the presumption of any laws or rules relating to the interpretation of contracts against the drafter thereof should not apply, and hereby waive any such presumption and agree that the Agreement shall be construed fairly and not against either party.
8.8
The terms and conditions of this Exhibit that by their sense and context are intended to survive after performance of the obligation hereunder shall survive termination or expiration of the Agreement, including the payment obligations of Section 1 and Sections 2.2, 2.3, 3, 4, 5, 6 and 8 of this Exhibit.
8.9 NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.