10. INFRINGEMENT CLAIMS.

Provider shall promptly notify Client of any claims regarding claimed infringements of patents, copyrights, trademarks, trade dress, or trade secrets associated with their use of the services, equipment, or software provided by Provider.  In the event any claim or suit is brought against Client on the basis of infringement for any patent, copyright, trademark, trade dress, or trade secret due to Client’s use of the services, equipment, or software supplied by.
Provider, subject to the limitations set forth below, Provider shall defend Client from such claim or suit, provided (i) Client promptly notifies Provider in all reasonable respects in connection with the investigation and defense of any such claim or suit; (ii) Client cooperates with Provider in all reasonable respects in connection with the investigation and defense of any such claim or suit; and (iii) Provider has sole control of such defense and all negotiations for its settlement or compromise.  Client shall permit Provider to, at Provider’s option and expense:  (1) procure for Client the right to continue using the allegedly infringing software, equipment or service; or (2) replace of modify the allegedly infringing software, equipment or service so that it becomes non-infringing.  If a court makes an infringement determination and issues a judgement against Client for liability due to Client’s use of the services or software or equipment provided by Provider, Provider shall indemnify Client (i) for such judgment and (ii) Client’s costs associated with compliance with any such judgment.  If in defending against such a claim, Provider decides to enter into a license agreement or otherwise settle the claims, Provider will pay the license or settlement fee for the allegedly infringing product.  Notwithstanding anything herein to the contrary, Provider shall have no obligation or liability to Client under any provision of this paragraph to the extent that any copyright, trademark,  or trade secrets infringement claim is based upon use of the allegedly infringing software or equipment in a manner that exceeds the scope of use permitted under this Agreement or upon any portion of the allegedly infringing software or equipment which has been modified by or for Client in such a way as to cause it to become infringing.  

11. DEFAULTS AND REMEDIES. 

A. Notwithstanding anything in the Agreement to the contrary, neither Party shall be in default under the Agreement until fifteen (15) days after receipt of written notice of a default from the other Party, or such shorter period as may be provided in the Agreement, regulations and/or guidelines (the “cure period”); provided,  where any such default cannot reasonably be cured within such cure period, the Party alleged to be in default shall not be deemed to be in default under the Agreement if said Party commences to cure such default within said cure period and thereafter diligently pursues such cure to completion, provided that in no event shall the cure period extend beyond thirty (30) days. 

B. In the event of either Party’s failure to comply with any material provision of the Agreement, the non-defaulting Party may, at its option, cure the default of the other Party at the expense of the defaulting Party, without affecting its right to demand, sue for, and collect all of its damages arising out of the other Party’s default, or terminate the Agreement without affecting its right to sue for any other damages to which  it may be entitled.

C. The rights and remedies stated in the Agreement are not exclusive; and the Parties, in the event of a breach or a dispute hereof, are entitled to pursue any of the remedies provided herein, by law, or by equity.

D. No course of dealing between the Parties, or any delay on the part of a Party to exercise any right it may have under the Agreement, shall operate as a waiver of any of the rights hereunder, by law, or equity, nor shall any waiver of any prior default operate as a waiver of any subsequent default, and no express waiver shall affect any term or condition other than the one specified in such waiver and only for the time and in the manner specifically stated.

E.  In the event either Party shall be rendered unable in whole or in part by force majeure to carry out any covenant, agreement, obligation, or undertaking to be kept or performed by such Party under the Agreement, such covenant, agreement, obligation, or undertaking insofar as the same shall be affected by such force majeure, shall be suspended during the continuance of any liability so caused, and such default shall be remedied with all reasonable dispatch.  The term “force majeure” as employed in this section shall include acts of God, strikes, lockouts or other industrial disturbances, acts of a public enemy, war, blockades, riots, epidemics, pandemics, earthquakes, explosions, accidents, repairs to machinery or pipes, the delays of carriers, inability by reason of governmental regulation to obtain materials, acts of public authorities, or other causes whether or not of the same kind as specifically enumerated, not within the control of the Party claiming suspension and which by the exercise of due diligence or the payment of money such Party is unable to overcome. 

No Party shall be entitled to relief under this paragraph unless such Party shall have given the other Party reasonable notice after the occurrence of such event of force majeure. 

F. If it is determined that Client is in default of the Agreement, Client shall be responsible for the remaining term of the Agreement in effect at time of default.

12. CLIENT CONTRACTUAL REMEDIES.

A. If Client in good faith has reason to believe that  Provider does not intend to, or is unable to perform or continue performing under the Agreement,  Client may demand in writing that  Provider give a written assurance of intent to perform.  Failure by Provider to provide written assurance within the number of days specified in the demand, but in no event less than five (5) business days, at Client’s option, be the basis for terminating the Agreement.

B. Client may, at any time, by written order to  Provider, require  Provider to stop all or any part of the work called for by the Agreement for a period of ninety (90) days after the order is delivered to  Provider, and for any further period to which the Parties may agree.  The order shall be specifically identified as a stop work order issued under this clause.  Upon receipt of the order, Provider shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage.  Notwithstanding the above, Client shall remain responsible of its obligations contained herein.  

C. Materials supplied under the Agreement shall fully comply with the Agreement.  The delivery of materials, or a portion of the materials, in an installment that do not fully comply constitutes a breach of contract.  On delivery of nonconforming materials, Client may terminate the Agreement for default under applicable termination clauses in the Agreement, exercise any of its rights and remedies under the Uniform Commercial Code, or pursue any other right or remedy available to it. 

D. Client may, by written notice to   Provider, immediately terminate the Agreement if  Client determines that  Provider has been debarred, suspended or otherwise lawfully prohibited from participating in any public procurement activity, including but not limited to, being disapproved as a subcontractor of any public procurement unit or other governmental body.

13. DISPUTE RESOLUTION PROCESS

Any dispute arising out of or relating to the Agreement, including the alleged breach, termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures:

A. Negotiation.  Upon written notice of any Dispute, the parties shall attempt to resolve it promptly by negotiation between executives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”).

 B. Mediation.  If the dispute has not been resolved by negotiation in accordance with paragraph A, then the parties shall proceed to mediation unless the parties at the time of the dispute agree to a different timeframe. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process. The parties shall agree on a mediator; however, if they cannot agree within 14 days then each party shall appoint one  representative.  The representatives for each side shall agree on a named third-party mediator. The mediation session shall be held within 45 days of the retention of the mediator, and last for at least one full mediation day, before any party has the option to withdraw from the process. 

The parties may agree to continue the mediation process beyond one day, until there is a settlement agreement, or one party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within 30 days of the first mediation session. During the course of the mediation, no party can assert the failure to fully comply with paragraph A, as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until 30 days after the parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. Each side shall bear an equal share of the mediation costs unless the parties agree otherwise. All communications, both written and oral, during Phases A and B are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the Negotiation and/or Mediation process. The process shall be confidential based on terms acceptable to the mediator. 

14. GOVERNING LAW AND FORUM.

 The Agreement will be governed by and construed in accordance with the laws of the state in which the named defendant of a filed suit resides, or if the named defendant is a legal entity jurisdiction shall be in the state where the named defendant operates its business headquarters, without regard to its conflicts of laws principles. The Parties consent to submit to the jurisdiction of the federal or state courts located in the state in which the named defendant of a filed suit resides, or if the named defendant is a legal entity jurisdiction shall be in the state where the named defendant operates its business headquarters; and any action or suit concerning the Agreement or the respective rights and obligations of the Parties may only be brought by the Parties in any federal or state court with appropriate jurisdiction over the subject matter that is located in that state.

 The Parties will not raise, and hereby waive, any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process, or the like in any such action or suit brought in that state. The prevailing Party in any litigation will be entitled to recover its reasonable attorney’s fees and costs of suit from the losing Party.

15.  ASSIGNMENT.  

The Agreement is personal to the original Client executing the Agreement, and the rights of Agreement hereunder will not be assigned or otherwise transferred in whole or in part by Client unless Client requests and receives Provider’s prior written consent. Provider may, with Client’s consent, transfer or assign this Agreement in conjunction with the sale of Provider’s business, any of Provider’s affiliates, subsidiaries, or the sale or transfer by Provider of all or substantially all of its assets.  Provider shall include a provision in its sales contract that buyer shall acknowledge acceptance of this Agreement and that buyer is subject to the terms and conditions of the Agreement prior to close of sale.

16.  NOTICES. 

All formal notices, requests, demands and other communications required or permitted under the Agreement shall be in writing unless otherwise specified in the Agreement and shall be deemed to have been duly made, given, and received by the Parties’ representative at the addresses listed in the Client’s Quote Offer or such different address as the Parties may designate in writing.  Notices may be sent by email with a follow-up hard copy via United States first class, certified, registered, express, postage prepaid, return receipt requested mail, recognized overnight courier or by personal delivery. Notices will be deemed effective on the day received, except if received on a non-business day or after 5:00 p.m. Arizona time on a business day, in which case they will be effective on the next business day after receipt.  Addresses for Notices for Client and Provider are contained in the Client’s Quote Offer.  Client and Provider may change the addresses on ten (10) days prior written notice.

17. OTHER CONDITIONS.

A. Any legal action arising from or in connection with the Agreement, or any Services provided or work performed hereunder, must by brought within two (2) years after the cause of action arises.

B. Neither Party shall publish or use in any advertising, sales promotions, press releases, or other publicity  the other Party’s name, logo, trademarks, or service marks, or otherwise use the other Party’s name, logo, trademarks, or service marks without the prior written approval of the other Party.

C. Nothing in this Agreement shall create or vest in Client any right, title, or interest in the services, other than the right to use the services under the terms and conditions of the Agreement.

D. f any portion of the Agreement is found to be invalid or unenforceable, the remaining portions shall remain in effect and the Parties will begin negotiations for a replacement of the invalid or unenforceable portion. 

E. Provider’s performance obligations under this Agreement shall be solely to Client named in the Client’s Quote Offer and not to any third party.  Other than as expressly set forth herein, the Agreement shall not be deemed to provide third parties with any remedy, claim, right of action, or other right.

F. Provider shall not have any liability for damages or delays due to fire, explosion, lightning, power surges or failures, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, strikes or labor disputes, inability to secure products or transportation facilities, fuel or energy shortages, acts or omissions of communications carriers or suppliers, or other causes beyond its control whether or not similar to the foregoing. 

G. Each of the Parties represent and warrant to each other Party that the Agreement has been duly authorized by all necessary action and that the Agreement constitutes and will constitute a binding obligation of each such Party. 

H. Each Party will comply with all applicable federal, state, local and other laws, regulations, rules, and ordinances applicable to the provision and use of the services under the Agreement.  Provider agrees to notify Client immediately if it becomes aware of any operation related to the Agreement which is not in compliance with applicable law.

I. Provider and Client shall cooperate fully in maintaining in full force and effect during the term of the Agreement. 

J. No amendment, change, modification, or waiver of any of the terms of the Agreement shall be binding unless included in a written agreement and signed by Provider and Client. 

K. Whenever the consent or approval of either Party is required, or a determination must be made by either Party, no such consent or approval shall be unreasonably withheld. 

L. Section captions herein are for convenience only and neither limit nor amplify the provisions of the Agreement.

M. The provisions of the Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of said Provider and Client. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement. 

N. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of the Agreement.