WEB TECTONICS, LLC – INVOICE TERMS AND CONDITIONS

This Terms of Service (this “Agreement”) sets forth the terms under which services will be provided by Web Tectonics, LLC (“WebTec”) to an individual or entity as its customer (“Customer” and together with WebTec, the “Parties”, and each a “Party”).  This Agreement is effective upon Customer’s acceptance of a Statement of Work according to the terms of Section 1.1 (the “Effective Date”).

WebTec and Customer agree as follows:

1. Services.
   • Statement of Work. WebTec shall provide to Customer the services (the “Services”) set out in one or more statements of work, estimates, quotes, invoices, proposals, or other ordering documents accepted by the Parties and incorporating by reference the terms of this Agreement (each, a “Statement of Work” or “SOW”). SOWs shall be deemed issued and accepted upon the earlier time that (i) such SOW is signed by WebTec and Customer, (ii) such SOW is electronically accepted by Customer using a web portal, web link, or other technology used by WebTec to deliver and manage acceptance of SOWs, or (iii) Customer makes any payment to WebTec of fees invoiced under such SOW.
   • Changes. Where WebTec determines that changes to the Services under the SOW are required, WebTec will inform Customer of such changes in a written notice that describes the extent and reason for the changes. If Customer does not wish to accept the changes, Customer may refuse the changes by providing written notice to WebTec within five (5) days of receiving notice of the changes, otherwise, the changes will be deemed to have been accepted by Customer.
   • Timelines. Where the SOW provides any timelines or milestones for the completion of certain Services (“Timelines”), such Timelines are estimates only, and while WebTec will use commercially reasonable efforts to complete Services according to any Timelines, WebTec does not, and cannot ensure that Timelines will be met. In the event that any portion of a Timeline is missed due to Customer demands, Customer delays, unforeseen circumstances, or other factors reasonably outside of WebTec’s control, all dependent portions of the Timeline will be adjusted based on the impact of such delays.  WebTec may adjust any Timeline, at WebTec’s sole discretion, upon written notice to Customer describing the adjusted Timeline and the underlying cause of the adjustment.
   • Third Party Products and Services. WebTec may offer to supply or license certain products or services that are made or provided by a third-party supplier or manufacturer and not WebTec (collectively, “Third Party Products and Services”), including for example web domains, website and software hosting, software payment systems, and other third party software features. Notwithstanding any other provision of this Agreement to the contrary, Third Party Products and Services are solely subject to the license, warranty, indemnity, support, and other terms provided by the third party, if any.  Any warranty or indemnity claims against WebTec in relation to any Third Party Products and Services are expressly excluded.  In no event will WebTec be liable to Customer for any damages to the extent resulting from any Third Party Products and Services.  Third Party Products and Services are provided by WebTec “AS IS” without representation or warranty.  WebTec will assign, and hereby does assign, to Customer any warranties provided by a third party relating to the Third Party Products and Services that WebTec is able to assign.  To the extent that the SOW provides for use of any Third Party Products and Services, WebTec will obtain the license rights for Customer to use those Third Party Products and Services, or those Third Party Products and Services will be licensed directly to Customer by such third party.
2. Software Services. Where the Services include the provision of software-as-a-service (“Software Services”), the following will apply:
   • Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, WebTec hereby grants Customer a non-exclusive, non-transferable right to access and use the Software Services during the term specified on the SOW (“Software Term”), solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. “Authorized User” has the meaning set forth on the SOW or, if none is provided, will mean any of Customer’s employees, consultants, and other personnel to which Customer has provided use of the Software Services.  WebTec hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use any documentation provided with the Software Services during the Software Term solely for Customer’s internal business purposes in connection with its use of the Software Services.
   • Changes to Software Services. WebTec reserves the right, in its sole discretion, to make any changes to the Software Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of WebTec’s services to its customers; (ii) the competitive strength of or market for WebTec’s services; or (iii) the Software Services’ cost efficiency or performance; or (b) to comply with applicable law. In the event that any change under this Section materially impairs or removes primary functions of the Software Services, Customer may, within 30 days of such change, terminate the SOW upon written notice to WebTec.
   • Suspension or Termination of Services. WebTec may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Software Services, without incurring any resulting obligation or liability, if: (a) WebTec receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires WebTec to do so; (b) WebTec believes, in its good faith discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Software Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Software Services; or (iii) this Agreement expires or is terminated; or (c) any undisputed fees owed to WebTec remain unpaid 30 days past when due.
   • Use Restrictions. Customer shall not, and shall not permit any other Authorized User or person to, access or use the Software Services except as expressly permitted by this Agreement and, in the case of third party materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Software Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Software Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software Services, in whole or in part; (d) bypass or breach any security device or protection used by the Software Services or access or use the Software Services other than by an Authorized User; (e) input, upload, transmit, or otherwise provide to or through the Software Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Software Services, or WebTec’s provision of services to any third party, in whole or in part; or (g) access or use the Software Services for purposes of competitive analysis of the Software Services, the development, provision, or use of a competing software service or product or any other purpose that is to WebTec’s detriment or commercial disadvantage.
   • Support Services. The Software Services include WebTec’s standard customer support services (“Support Services”) in accordance with WebTec’s service support schedule then in effect, or as otherwise specified on the SOW.
3. Customer & WebTec Obligations.
   • WebTec Obligations. WebTec will designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions: (a) a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement; and (b) a number of employees or contractors that it deems sufficient to perform the Services set out in the SOW.
   • Customer Obligations. Customer will: (a) designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed in writing; (b) require that the Customer Contract Manager respond promptly to any reasonable requests from WebTec for instructions, information, or approvals required by WebTec to provide the Services; (c) cooperate with WebTec in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable WebTec to provide the Services; (d) take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in WebTec’s provision of the Services; and (e) comply with all applicable laws, rules, and regulations of the jurisdictions in which it accesses and uses the Services, including, but not limited to, all laws, rules, and regulations regarding using, storing, securing, and transmitting data.
4. Fees and Expenses.
   • Payment of Fees. In consideration of the provision of the Services by WebTec and the rights granted to Customer under this Agreement, Customer shall pay the fees as set out in the SOW. On the Effective Date, WebTec will submit an invoice to Customer for Down Payment (defined below). Customer shall pay WebTec the Down Payment within two (2) business days upon receipt of the Down Payment invoice from WebTec. “Down Payment” shall mean the amount identified in each SOW as a down payment, or if no such amount is identified, fifty percent (50%) of the total amount due for each SOW. Customer acknowledges and agrees that WebTec shall have no obligation to provide to Customer any Services unless and until WebTec timely receives the Down Payment and Down Payment shall be non-refundable in all circumstances, including but not limited to if Customer decides to terminate the Services. The Services are provided and will be invoiced to and paid by Customer on a time and materials basis at WebTec’s current hourly rates, and any fees set out on the SOW are solely estimates. Unless otherwise provided in the SOW, said fee will be payable within 30 days of receipt by the Customer of an invoice from WebTec but in no event more than 45 days after completion of the Services performed pursuant to the SOW. If Customer requests any services not specified in the SOW, WebTec may, at WebTec’s sole discretion, provide such services and invoice Customer under the SOW on a time and materials basis at WebTec’s then standard rates.
   • Expenses. Customer shall reimburse WebTec for all reasonable expenses incurred in accordance with the SOW if such expenses have been pre-approved, in writing by Customer, within 15 days of receipt by the Customer of an invoice from WebTec accompanied by receipts and reasonable supporting documentation.
   • Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder, including any penalties and interest arising from Customer’s failure to pay such taxes timely; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, WebTec’s income, revenues, gross receipts, personnel, or real or personal property or other assets. If Customer has tax exempt status, it shall supply WebTec with its tax-exempt certificate and/or number as necessary.
   • Unpaid Fees. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse WebTec for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which WebTec does not waive by the exercise of any rights hereunder), if the Customer fails to pay any undisputed amounts when due hereunder, WebTec shall be entitled to suspend the provision or performance of some or all of the Services. No suspension of the provision or performance of Services will release Customer from any obligation to pay WebTec any amounts due under this Agreement.
   • Payment Method. The SOW may include information for Customer’s method of payment, as may be updated or otherwise provided by Customer from time to time in writing, and which may include payment through a third party (a “Payment Method”).  Customer hereby grants WebTec the permission use Customer’s Payment Method for completion of any payments under the SOW, and to provide Customer’s Payment Method to a third-party for completion of any payments under the SOW as may be needed.  Customer agrees that WebTec and its third-party payment processors may use Customer’s Payment Method for any additional costs or amounts that arise from the SOW, as well as for any renewal or extension of Services under the SOW.  All applicable fees and any other charges Customer may incur in connection with the SOW, such as taxes and possible transaction fees, will be charged to Customer’s Payment Method on the date(s) indicated in the applicable invoice or the SOW. If Customer’s Payment Method is provided through a third party, additional details related to Customer’s Payment Method may be available from the applicable third party.  Customer authorizes WebTec to charge any Payment Method associated with Customer’s account.  If a payment is not successful for any reason, WebTec may suspend performance or provision of some or all of the Services, at its sole discretion. Following any update to Customer’s Payment Methods, Customer authorizes us to continue to charge any newly added or modified Payment Methods, and, to the extent that such newly added or modified Payment Method fails or is unusable for any reason, to continue charging any prior Payment Method.
5. Limited Warranty; Disclaimers.
   • Services Warranty. WebTec warrants that it shall perform the Services: (a) in accordance with the terms and subject to the conditions set out in the SOW and this Agreement; (b) using personnel of industry standard skill, experience, and qualifications; and (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. Customer must report any non-conformity with this warranty in writing within 15 days of completion of the affected portion of Services. As WebTec’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty, WebTec shall use commercially reasonable efforts to promptly cure any such breach at no additional cost to Customer.
   • Disclaimers. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. WEBTEC HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. CUSTOMER UNDERSTANDS THAT WEBTEC CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES OR ANY DELIVERABLE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY CUSTOMER’S PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS FOR ANY RECONSTRUCTION OF ANY LOST DATA. TO THE FULLEST EXTENT PROVIDED BY LAW, WEBTEC WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CUSTOMER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO CUSTOMER’S USE OF THE SERVICES OR DELIVERABLES. CUSTOMER’S USE OF THE SERVICES OR DELIVERABLES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS IS AT CUSTOMER’S OWN RISK. NEITHER WEBTEC NOR ANYONE ASSOCIATED WITH WEBTEC REPRESENTS OR WARRANTS THAT THE SERVICES OR DELIVERABLES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT ANY ASSOCIATED SITE OR SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE DELIVERABLES WILL OTHERWISE MEET CUSTOMER’S NEEDS OR EXPECTATIONS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM WEBTEC OR THROUGH OR FROM THE SERVICES OR DELIVERABLES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.  WEBTEC MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6. Intellectual Property.
   • Background IP. WebTec and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to all documents, data, know-how, methodologies, software, source code, designs, plans, specifications, and other materials, including computer programs, reports, and specifications, provided by or used by WebTec in connection with performing the Services, in each case developed or acquired by WebTec (i) prior to the commencement of this Agreement, or (ii) for use by WebTec’s customers generally (“Background IP”), including all Intellectual Property Rights therein. “Intellectual Property Rights” means any copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights.
   • Deliverables. Upon Customer’s payment of all fees due under the SOW and excluding any Background IP, all other documents, work product and other materials that are provided to Customer as a result of performing the Services under the SOW (collectively, the “Deliverables”), including any Intellectual Property Rights therein, will belong to Customer. Subject to the preceding, WebTec hereby assigns all right, title, and interest in and to the Deliverables to Customer.
   • Background IP License. Subject to Customer’s payment of all fees due under the SOW, WebTec hereby grants Customer a non-exclusive license to use any Background IP that is incorporated in or reasonably required to make use of the Deliverables, in each case free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis solely to the extent reasonably required to enable Customer to make reasonable use of the Deliverables and the Services in accordance with this Agreement.
   • Non-Exclusive Services. Customer acknowledges that WebTec personnel performing Services under this Agreement may perform similar services for others, and this engagement by Customer will not prevent WebTec from providing services or developing materials that are competitive with those developed hereunder for Customer regardless of any similarity between such services or materials. WebTec and its personnel shall be free to use their general knowledge, skills, and experience, and any ideas, concepts, know-how and techniques used in the course of providing Services hereunder on other engagements; and WebTec’s other customers shall have the right to use materials incorporating such ideas, concepts, know-how and techniques.
   • Customer Materials. Customer represents and warrants to WebTec that any elements of text, graphics, photos, designs, trademarks, fonts, or other materials furnished to WebTec for use with the Services or inclusion in the Deliverables (collectively, “Customer Materials”) (i) are owned by the Customer, or (ii) the Customer has permission from the rightful owner to use each of these elements in conjunction with the Services or Deliverables. Unless otherwise provided for on the SOW, Customer represents and warrants that the Customer Materials and any other data, information, or other materials provided by Customer to WebTec in relation to the Services will not include any personally identifiable information, personal data, or private data of Customer, Customer’s personnel, Customer’s customers, or any other party.
   • Feedback. If Customer or any of its employees or contractors provides, sends, or transmits any communications or materials to WebTec by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), WebTec is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to WebTec on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and WebTec is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although WebTec is not required to use any Feedback.
7. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, partners, members, managers, agents, independent contractors, attorneys, accountants, and financial advisors.
8. Term, Termination, and Survival.
   • Term. This Agreement shall commence as of the Effective Date and shall continue thereafter for so long as the SOW remains in effect. The SOW will remain in effect for the term set forth on the SOW or, if no term is provided on the SOW, until WebTec’s completion of Services under the SOW.
   • Termination for Cause. Either Party may terminate the SOW, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (g) engages in behavior that is abusive, harassing, or otherwise demeaning toward WebTec’s personnel, or that undermines the professional integrity or working relationship between the parties.
   • Termination for Convenience. WebTec may terminate the SOW, in its sole discretion, upon 30 days prior written notice to Customer.
   • Client-Initiated Termination.  Customer may terminate the SOW for convenience by providing WebTec with at least thirty (30) days’ prior written notice. Customer will remain responsible for all fees and charges accrued through the end of the notice period. If Customer fails to provide such notice, WebTec reserves the right to continue billing for services rendered during the 30-day period following the cancellation request.
   • Effect of Termination. In the event the SOW is terminated (i) as a result of WebTec’s status as a Defaulting Party under Section 8.2, or (ii) for WebTec’s convenience under Section 8.3, WebTec shall refund to Customer any prepaid and unearned fees for portions of the Services not yet provided. Except as provided, no termination of this Agreement shall release Customer from any obligation to pay WebTec any amount that has accrued or becomes payable at or prior to the date of termination. Upon termination of this Agreement or the SOW, Customer’s data held by WebTec will be deleted and will not be recoverable thereafter. Within ten days after the effective date of any termination, each Party shall return or destroy all materials or media containing any of the other Party’s Confidential Information, including any information, records, and materials developed on the basis of such Confidential Information. The rights and obligations of the Parties set forth in this Section 8, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
9. Limitation of Liability.
   • IN NO EVENT SHALL WEBTEC BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, OR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES, OR BY DELAYS IN OR INTERRUPTIONS OF ACCESS TO THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT WEBTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • IN NO EVENT SHALL WEBTEC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO WEBTEC PURSUANT TO THE SOW.
10. Indemnification by Customer. Customer shall indemnify and hold WebTec harmless from and against all claims, liabilities, damages, and expenses claimed or brought by a third party, including court costs and reasonable attorney fees, arising out of or in any manner connected with (a) Customer’s use of the Services or Deliverables, except to the extent arising from WebTec’s gross negligence or willful misconduct, (b) Customer’s breach of its obligations under Section 3, Section 6, or Section 7, including any claim or allegation that WebTec’s use of the Confidential Information or materials provided by Customer infringe the rights of any third party, or (c) Customer’s negligence, willful misconduct, or violation of law.
11. Entire Agreement. This Agreement, including and together with the SOW and any exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. No additional terms, conditions, obligations, or rights set forth on any Customer purchase order, payment document, written communication, or other document and purporting to apply to this Agreement will apply, and all such Customer terms will be null and void. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of the SOW, the terms and conditions of this Agreement shall supersede and control.
12. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other Party using such contact information as set forth on the SOW.
13. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
15. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of WebTec. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. WebTec may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of WebTec’s assets without Customer’s consent.
17. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
18. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by WebTec shall be under its own control, Customer being interested only in the results thereof. WebTec shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
19. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
20. Dispute Resolution for Customer in United States of America. Any claim or controversy arising out of or relating to this Agreement, including any anticipatory breach or disagreement as to interpretation of this Agreement, that is not resolved by the Parties themselves or through a third-party mediator, shall be settled by binding arbitration in Cincinnati, Ohio administered by Cincinnati Bar Association Arbitration Services pursuant to its rules and procedures in effect at the time the dispute is submitted.  The arbitrator(s) shall decide all discovery issues.  Judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.  Neither Party nor the mediator nor the arbitrator(s) may disclose the existence, content, or results of any mediation or arbitration hereunder without the prior written consent of both Parties.  All fees and expenses of the mediation and arbitration shall be borne by the Parties equally.  However, each Party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs, except that, in arbitration, the prevailing Party shall be entitled to an award of reasonable attorney’s fees.
21. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the state of Ohio, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the state of Ohio.
22. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the courts of the state of Ohio, located in or near the Cincinnati metropolitan area. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such venue. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
23. Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under this Agreement, including exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
24. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 12 and where applicable based on the manner of acceptance of the SOW, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
25. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to WebTec hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities.The Impacted Party shall promptly give notice to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days, the other Party may thereafter terminate the SOW upon 30 days’ written notice.
26. Non-Solicitation.  Each Party shall refrain from soliciting for employment or employing, directly or indirectly, without the written consent of the other Party, any employee, consultant, or subcontractor of the other until 12 months have elapsed following termination of the SOW, or until 12 months have elapsed following termination of the employment of the employee, consultant, or subcontractor, whichever occurs first.  A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section.