TERMS OF USE & SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (collectively, with the Order Form(s), this “Agreement”) is entered into and effective as of the Effective Date by and between Impact and the Customer identified on the Order Form hereto.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. Certain Definitions. In addition to any terms defined locally within this Agreement, the following terms are used in this Agreement:

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” “controlling” and “controlled,” as used in this definition, means (i) the ownership of at least fifty percent (50%) of the equity or beneficial interest of the entity; (ii) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (iii) the power to direct or cause the direction of the management and policies of such party by any means.

“Authorized User” means Customer’s and its Affiliates’  employees, contractors and agents accessing or using the Licensed Application solely on behalf and for the benefit of Customer and solely in connection with the operation of Customer’s and its Affiliates’ commercial real estate-related business.

“Business Day(s)” means Monday through Friday excluding all federal and state holidays.  

“Business Hour(s)” means hours between 8:30 am CT and 5:00 pm CT on Business Days.  

“Customer Data” means all data or information submitted by Customer or an Authorized User into or through the Licensed Application.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Licensed Application” means the executable, object code version(s) of Impact’s proprietary software application(s), identified on any Order Form executed by the parties, and any Updates thereto.

“Order Form” means the document, substantially in the form of the cover page of this Agreement or as otherwise agreed by the parties, by which Customer orders the Licensed Application and any additional software or Service(s) from Impact.  Each Order Form shall reference the Effective Date of this Agreement and forms a part of this Agreement.  No Order Form shall be binding on the parties until signed by an authorized representative of each party.

“Services” means any service(s) specified in an Order Form or a Statement of Work (as defined in Section 2.5) , and may include without limitation support services and Configuration Services (as defined in Section 2.4).

“Third-Party Services” has the meaning set out in the Order Form.

“Update(s)” means any modifications, enhancements, bug fixes, or other updates to the Licensed Application generally provided to the customers of Impact at no additional cost.

  1. Subscription to Licensed Application.

  1. Provision of Licensed Application. Impact shall provide the Licensed Application and Services (if applicable) to Customer pursuant to this Agreement and any Order Forms executed by the parties and maintain the Licensed Application during the Term. Customer agrees that its license of the Licensed Application and any additional software or Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Impact with respect to future functionality or features.

  2. License Grant.  Subject to the terms and conditions herein, Impact hereby grants to Customer during the Term a limited, non-exclusive, non-transferable (except in connection with a permitted transfer of this Agreement), non-sublicensable right and license in the United States to (i) access and use one (1) instance of the Licensed Application in accordance with this Agreement; and (ii) permit Authorized Users to access and use the Licensed Application solely in connection with the operation of Customer's and its Affiliates’ internal, domestic commercial real estate-related business.

  3. Impact Responsibilities. Impact shall: (i) provide access to the Licensed Application in accordance with the terms hereof; (ii) use commercially reasonable efforts to make the Licensed Application available to Customer at all times (other than planned downtime for maintenance) ; (iii) provide support for the Licensed Application in accordance with Section 4 hereof; and (iv) provide Customer with Updates as they are made available by Impact; and (v) maintain a business continuity plan in accordance with good industry practice and shall invoke such plan in the event of any unplanned downtime, disaster or Force Majeure Event.

  4. Configuration.  Impact shall provide the services necessary and the parties shall work together in good faith to deploy and configure the Licensed Application for Customer and in accordance with any agreed specifications, including without limitation, providing all reasonable configuration, implementation, project management and training relating to the Licensed Application (the “Configuration Services”).  Customer shall provide any and all necessary information and assistance to Impact, including without limitation access to Customer’s facilities, hardware and equipment, as reasonably requested by Impact in order to facilitate the performance of the Configuration Services.  The fees for the Configuration Services will be as set forth in the Order Form.  

  5. Statement(s) of Work.  From time to time after the Effective Date of this Agreement, Customer may request that Impact perform certain services in addition to those set forth herein (the “Additional Services”).  The Additional Services shall be performed pursuant to mutually agreed upon Statements of Work, (the “Statement of Work”).  Statements of Work will be numbered serially, will be signed by authorized representatives of each party prior to performing any Additional Services under such Statement of Work, and will specify, where applicable: (i) a description of the Additional Services to be performed; (ii) the period of time during which Impact is to perform such Additional Services; (iii) the rate Customer shall pay for such Additional Services performed; and (iv) such additional terms and conditions as the parties may mutually agree upon. Impact shall notify Customer immediately it becomes aware of any unauthorized access to, or loss of,  Customer Data or other security breach, and respond without delay to all queries and requests for information from the Customer about any such incidents, whether discovered by Impact or Customer.

  1. Use of the Licensed Application.

  1. Customer Responsibilities. Customer acknowledges and agrees that, as between Customer and Impact, Customer is solely responsible and liable for all acts and omissions of any Authorized User, including without limitation, the access and use of the Licensed Application by any Authorized Users and for such Authorized User’s compliance with this Agreement and the restrictions contained herein. Customer shall: (i) have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, unless such Customer Data is modified by Impact; and (ii) use reasonable endeavours to prevent unauthorized access to, or use of, the Licensed Application, and notify Impact promptly of any such unauthorized access or use.

  2. Use Restrictions. Customer and its Authorized Users shall not: (i) except as expressly permitted herein, license, sublicense, sell, resell, rent, lease, transfer, distribute, disclose, assign, pledge, time share or otherwise commercially exploit or make the Licensed Application available to any third party, including disclosing any information, data, content or other outputs from the Licensed Applications with third parties; (ii) use the Licensed Application to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Licensed Application to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates a third party’s rights; (iv) use the Licensed Application to send or store Malicious Code; or (v) knowingly interfere with or disrupt the integrity or performance of the Licensed Application or the data contained therein.  

  1. Support Services.  

  1. Support Obligations. Subject to Customer’s payment of any Annual Support Fees set forth on any Order Form, Impact shall use commercially reasonable efforts to provide support to Customer in accordance with this Section 4.  Without prejudice to Impact’s obligations to remedy errors in the Licensed Application of which it becomes aware, Customer agrees to promptly notify Impact via phone and email upon first discovering an error in the Licensed Application.  Impact shall determine the severity of each error. Impact shall provide Customer with a telephone number to call to report Level 1 Severity Errors after Business Hours or on non-Business Days. Impact does not support, and is not responsible for supporting, Third-Party Services.

  2. Severity Levels.  “Level 3 Severity Errors” means reproducible errors in the Licensed Application that cause minimal impact to Customer’s use of the Licensed Application. “Level 2 Severity Errors” means reproducible errors in Licensed Application that cause inconsistencies or impairments in Customer’s use of the Licensed Application.   “Level 1 Severity Errors” means reproducible errors in Licensed Application that cause severe impact to Customer’s use of the Licensed Application (e.g., work stoppages or system crashes).  

  3. Response Times.  For Level 3 Severity Errors Impact will respond to requests for support from Customer within two (2) Business Days and to provide a resolution, which may consist of a fix, workaround or other solution (in each case that results in Customer receiving the same functionality as immediately prior to the error) in Impact’s reasonable determination in the next Update of the Licensed Application.  For Level 2 Severity Errors, Impact will respond to requests for support from Customer within eight (8) Business Hours and to provide a resolution, which may consist of a fix, workaround or other solution (in each case that results in Customer receiving the same functionality as immediately prior to the error)  in Impact’s reasonable determination, as soon as.  For Level 1 Severity Errors, Impact shall respond to requests for support from Customer within four (4) Business Hours and to provide a resolution with priority over any Level 2 Severity Errors.

  1. Fees & Payment.

  1. Invoicing. Customer shall pay any and all undisputed fees specified in this Agreement and/or any Order Form or Statement of Work executed by the parties in full within thirty (30) days of receipt of the invoice.  Any amount not received by Impact when due and not disputed in good faith shall be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less.  All fees under this Agreement and any Order Form are quoted in, and payable in, United States dollars.  Customer is responsible for updating and providing to Impact complete and accurate billing and contact information.  

  2. Taxes.  Customer shall pay all taxes or duties (including withholding or value added taxes) imposed by any federal, state, or local governmental entity for the Licensed Application or any other service provided in connection with this Agreement, excluding only taxes based solely on Impact’s net income and provided that such taxes are clearly stated on the invoice.  If Impact has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer.

  1. Proprietary Rights.

  1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Impact reserves all rights, title and interests in and to the Licensed Application and Services, including all intellectual property and proprietary rights therein. Customer acknowledges that no rights are granted to Customer hereunder other than as expressly set forth herein.  The parties acknowledge and agree that in the event Customer or any of its Authorized Users misappropriate, violate or take any action that may result in conflict with or limitation of Impact’s intellectual property rights in the Licensed Application, Impact may terminate this Agreement immediately upon written notice to Customer.

  2. No Reverse Engineering. Neither Customer nor any Authorized User shall (i) modify, copy or create derivative works from on the source code of the Licensed Application; (ii) frame or mirror any content forming part of the Licensed Application; or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to obtain or perceive the source code of the Licensed Application (or any component thereof) to build a publicly available, competitive product to the Licensed Application; or (iv) remove, alter, or obscure any proprietary notice or legend of Impact, its suppliers, or licensors upon any and all copies of the Licensed Application.

  3. Customer Data. As between Impact and Customer, Customer exclusively owns all rights, title and interests in and to all Customer Data. Impact shall have the right to use the Customer Data for purposes of developing, improving and providing the Licensed Application and Services.

  4. Suggestions & Feedback. All suggestions and feedback provided by Customer, its Affiliates and/or its Authorized Users relating to the Licensed Application, Services and any other Impact applications and services, including, without limitation, any suggested features, upgrades, improvements, enhancements or modifications (collectively, “Feedback”), is deemed to be Impact’s Confidential Information which Impact may use for any purpose.

  1. Confidentiality.

  1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of either party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Licensed Application, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party on a non-confidential basis without breach of any obligation owed to the Disclosing Party.

  2. Confidentiality Obligations. Each Receiving Party shall use commercially reasonable efforts to avoid the loss, unauthorized disclosure and/or unauthorized use of any Confidential Information of the Disclosing Party.  Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same or substantially similar manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). The Receiving Party shall restrict the possession and use of Confidential Information to its personnel who have a need to know and are bound by confidentiality obligations no less stringent than those contained herein. Receiving Party shall promptly notify the Disclosing Party of any facts known to such Party regarding any unauthorized disclosure or use of the Confidential Information.

  3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

  4. Return or Destruction of Confidential Information. Upon termination of this Agreement for any reason or upon the Disclosing Party’s written request, Receiving Party shall promptly: (a) return or destroy, at the Disclosing Party’s direction, all material embodying the Confidential Information of the Disclosing Party in Receiving Party’s possession, custody or control; and (b) if requested by Disclosing Party, certify in writing that Receiving Party has complied with the obligations set forth herein.

  5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

  1. Warranties & Disclaimers.

  1. Impact Warranties. Without prejudice to Customer’s rights and remedies under this Agreement and under law, Impact warrants that: (a) the Licensed Application shall be free from errors and defects and, if any such errors or defects arise, it shall remedy such defects in accordance with Section 4; (b) the Licensed Application will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer Data); (c) the Services shall be performed with reasonable skill and case, in accordance with good industry practice and by personnel that have the necessary skills and training to provide the Services and if there is any failure to comply with this warranty, Impact shall reperform the Services at no additional costs and to meet such warranty; (d) Customer’s use or receipt of the Licensed Applications and/or the Services in accordance with this Agreement does not infringe the intellectual property rights of any third party to Impact’s knowledge; and (e) that is will have in place and actively implement throughout the Term appropriate technical and organizational security measures to ensure the protection of all Customer Data and any other data provided by Customer to Impact in connection with this Agreement.

  2. Mutual Warranty. Each party represents and warrants that it: (a) has the legal power to enter into this Agreement; and (b) has and shall comply with all applicable laws (including data privacy laws) in exercising its rights and performing its obligations under this Agreement..  

  3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, IMPACT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, RESULTS, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  IMPACT DOES NOT WARRANT THAT THE LICENSED APPLICATION, OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS. IMPACT DOES NOT WARRANT THAT THE DATA INCLUDED IN THE SERVICES IS ACCURATE OR UP-TO-DATE. IMPACT DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR THIRD PARTY SERVICES. THE CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE BY IMPACT AS TO THE FITNESS OF THE THIRD-PARTY SERVICES FOR THE CUSTOMER’S INTENDED PURPOSE. THE INFORMATION PROVIDED BY THE APPLICATION DOES NOT CONSTITUTE LEGAL OR FINANCIAL ADVICE.

  4. Customer assumes the full and sole responsibility and liability as to its use of any Third-Party Service(s). Customer shall have the sole responsibility to verify that the Licensed Application and any Third-Party Services meet Customer’s requirements, and to ensure the accuracy of Customer Data, except in respect of any Customer Data that has been modified by Impact.

  1. Indemnification.

  1. Indemnification by Impact.  Subject to this Agreement, Impact shall indemnify and defend Customer from and against all loss, damage, costs and expenses (including legal fees) whensoever and howsoever incurred, arising out of or in connection with any claim, action, suit or proceeding brought by or on behalf of a third party  against Customer alleging that the receipt or use of the Licensed Application or the Services by Customer in accordance with this Agreement infringes the rights of a third party (each, an “Infringement Claim”). Customer shall: (i) promptly give written notice to Impact of any Infringement Claim; (ii) give Impact sole control of the defense and settlement of the Infringement Claim (provided that Impact shall not settle any Infringement Claim unless it unconditionally releases Customer of all liability and there is no admission of any wrongdoing by Customer); and (iii) provide to Impact, at Impact’s cost, all reasonable assistance in relation to defending such Infringement Claim.

  2. Indemnification by Customer.  Subject to this Agreement, Customer shall indemnify and defend Impact from and against all loss, damage, costs and expenses (including legal fees) whensoever and howsoever incurred, arising out of or in connection with any claim, action, suit or proceeding brought by or on behalf of a third party against Impact for Customer’s negligence, intentional misconduct or allegation that Customer’s use of the Application or the Services violates applicable law or any regulation, professional standard or rule applicable to the real estate industry. Impact shall: (i) promptly give written notice to Customer of any such claim; (ii) give Customer sole control of the defense and settlement of such claims (provided that Customer shall not settle any such claims unless it unconditionally releases Impact of all liability and there is no admission of any wrongdoing by Impact); and (iii) provide to Customer, at Customer’s cost, all reasonable assistance in relation to defending such claim.  

  1. Limitations of Liability.

  1. Unlimited liability. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE THE LIABILITY OF: (A) IMPACT IN RESPECT OF THE INDEMNITY UNDER SECTION 9.1; (B) EITHER PARTY IN RESPECT OF FRAUD, WILLFUL ABANDONMENT, WILLFUL DEFAULT OR ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED IN ACCORDANCE WITH APPLICABLE LAW; OR (C) CUSTOMER’S OBLIGATION TO PAY UNDISPUTED FEES IN ACCORDANCE WITH THIS AGREEMENT.

  2. Exclusion of Consequential and Related Damages. SUBJECT TO SECTION 10.1, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS 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 DAMAGES.

  3. Limitation of Liability. SUBJECT TO SECTIONS 10.1 and 10.2, 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, IN EACH PERIOD OF TWELVE MONTHS FROM THE EFFECTIVE DATE EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER IN THAT TWELVE MONTH PERIOD. THE LIMITATIONS SPECIFIED IN THIS SECTION 10.3 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

  4. Limitation of Liability for Indemnification. SUBJECT TO SECTIONS 10.1 and 10.2, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE INDEMNITY UNDER SECTION 9 EXCEED TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000).

  5. Essential Basis of the Bargain.  The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.  

  1.         Term & Termination.

  1. Term. This Agreement commences on the Effective Date and continues for the duration selected on the Order Form until the expiration or termination (as provided for herein) of this Agreement.

  2. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon written notice to the other party in the event of a material breach of this Agreement by the other party which remains uncured thirty (30) days after receipt of written notice thereof; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such petition or other proceeding is not dismissed within ninety (90) days of the filing thereof.

  3. Effect of Termination.  Upon any termination or expiration of this Agreement, all rights granted to the Customer hereunder shall cease and each party shall (i) immediately discontinue all use of the other party’s Confidential Information; (ii) delete the other party’s Confidential Information from its computer storage or any other media; (iii) return to the other party or, at the other party’s option, destroy, all copies of such party’s Confidential Information then in its possession; and (iv) promptly pay all undisputed amounts due and owing hereunder.   Upon any expiration or termination of this Agreement, Impact agrees to reasonably cooperate with Customer in the transfer of any Customer Data to Customer or a third-party then designated by Customer in writing in an electronic, industry-standard format mutually agreed upon by the parties.

  4. Survival. The provisions of Sections 1, 3, 5, 6, 7, 8.3, 9, 10, 11.3, 11.4 and 12 shall survive expiration or termination of this Agreement for any reason.

  1. Miscellaneous.

  1. Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

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

  3. Insurance. During the Term of this Agreement, Impact shall maintain insurance in accordance with good industry practice, including commercial general liability insurance and errors and omissions insurance.

  4. Force Majeure.  Except as otherwise expressly provided in this Agreement, neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of any acts of God, acts of government, flood, fire, earthquakes, epidemic, pandemic, civil unrest, acts of terror, or strikes or other labor problems (other than those involving Impact personnel), , and such events were not in the contemplation of the parties as at the Effective Date (each, a “Force Majeure Event”). Customer shall not be liable to pay any fees for any Licensed Applications or Services that are not provided due to a Force Majeure Event.

  5. No Personal Liability.  The parties agree that (i) there shall be no personal liability on the part of any shareholder, director, or officer (other than in their capacity as Authorized Users, if applicable) of either party with respect to any of the terms, covenants and conditions of this Agreement, and (ii) each party waives all claims, demands and causes of action against the other party’s shareholders, officers, and directors in the event of any breach of this Agreement

  6. Notices.  All notices under this Agreement will be in writing and sent by certified mail or email to the other party to the address or email address as set forth on the Order Form hereto (as it may be modified by the recipient by written notice to the other).  All such notices will be effective upon delivery. Email notification does not apply to notification of formal legal proceedings which must be sent by recorded delivery). All legal notices to Impact shall be copied to:

Impact Capitol, LLC

Attn: Bridget Sheehan

9601 Pinkney Ct

Potomac, MD 20854

bridget@impactcapitoldc.com

  1. Waiver & Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

  2. Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.

  3. No Assignment. Neither party shall assign its rights or transfer or delegate/subcontract its obligations under this Agreement without the other party’s prior written consent, and absent such consent, any attempted or purported assignment, transfer or delegation/subcontracting by such party shall be null, void and of no effect.  

  4. Governing Law; Jurisdiction. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. The state and federal courts located in New  York County, New York  shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. 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.

  5. Entire Agreement. This Agreement, including all addenda hereto and all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form the provisions of the Order Form shall prevail.

  6. Interpretation. The headings of the various sections in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement or this Agreement. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. References to including shall be construed as including but not limited to.

  7. Modifications. The Agreement may be modified only pursuant to a writing executed by authorized representatives of both Parties. The Parties expressly disclaim the right to claim the enforceability of any oral modifications to this Agreement or any amendments based on course of dealing, waiver, reliance, estoppel or other similar legal theory.

  8. Injunctive Relief. Notwithstanding anything herein to the contrary, each Party shall be entitled to seek injunctive or equitable relief whenever the circumstances permit such Party to seek such equitable relief in a court of competent jurisdiction.

  9. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.  Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

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