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Service Agreement

Intellisite SERVICE AGREEMENT
(For Software, Communications, and Devices)

This Service Agreement for the IntellisiteSM Service Suite (this “Agreement”) applies to the IntellisiteSM Service Order Form (the “Order Form”) entered into by the client so-identified on the Order Form (the “Client”) and the provider so-identified on the Order Form (the “Provider”) and is effective as of the effective date so-specified in the Order Form (the “Effective Date”).

WHEREAS, Provider provides a remote asset monitoring and information delivery solution through the sale and license of one or more of the following:  (i) asset monitoring devices (the “Devices”), (ii) proprietary firmware, (iii) satellite and communications services, (iv) data center services, and (v) proprietary software and internet monitoring information services (the “Web Services”), that together (or in any combination of such components) make up the IntellisiteSM Service Suite of products and services (hereinafter referred to as the “IntellisiteSM Service Suite”); and

WHEREAS, Client has requested, and Provider has agreed to provide, the IntellisiteSM Service Suite on the terms set forth in this Agreement and the Order Form.

NOW, THEREFORE, in consideration of these premises, the mutual covenants and promises contained herein and in the Order Form, together with other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Provider and Client hereby agree as follows:

1.      IntellisiteSM Service Suite.  Subject to the terms and conditions set forth herein, Provider will provide Client, directly or indirectly, with the IntellisiteSM Service Suite as set forth on the Order Form.

 
2.      Client’s Payment.
(a)      Client will pay monthly in advance to Provider the fees and charges for the IntellisiteSM Service Suite provided in this Agreement and/or identified on the Order Form (the “Fees”).  Unless otherwise set forth in the Order Form, invoices for Fees will be transmitted electronically by Provider to Client on a monthly basis.  Fees shall be due and payable by Client within ten days of the date of invoice and will be deemed past due if amounts due are not paid in full within 20 days from the date of invoice.  All payments by Client hereunder shall be payable electronically via ACH wire transfer (bank draft) or to the lockbox account of Provider set forth in the Order Form, or at such other place as Provider from time to time may designate in writing (including via electronic mail).  If Client elects not to receive or pay its invoices electronically, as described above, then Client will be charged an additional $15.00 processing fee for each invoice, payable on the same terms as invoices for the IntellisiteSM Service Suite.  Client agrees that all payments and other sums payable by Client hereunder shall be the unconditional obligation of Client and shall be made without abatement, reduction, set off, counterclaim, or any other defense of any kind or nature, including, without limitation, any arising out of any present or future claim Client may have against Provider or Provider’s licensors or their respective agents or representatives.  Any payments made in a manner other than as set forth herein will not be credited towards Client’s account and will be deemed outstanding.
(b)      Interest will be payable on all past-due Fees at the lesser rate of (i) 18% per annum, or (ii) the maximum rate permitted by applicable law.  Payments will be applied first to past-due amounts (first to accrued interest and then to past-due principal balance until paid in full) and the remainder, if any, to current amounts due and payable. 
(c)      Client will notify Provider in writing within 20 days following the date of invoice of any inaccuracies or good faith disputes with respect to an invoice, the charges therein, and/or the services reflected in the invoice.  In the event of a good faith dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein.  Provider will review and issue a credit for the disputed amount if deemed justified by Provider, in Provider’s reasonable discretion.  If Client fails to notify Provider in writing within 20 days following the date of invoice of any inaccuracies or good faith disputes with respect to such invoice, the charges therein, and/or the services reflected in the invoice, all such claims will be deemed waived.  Upon resolution of the disputed portion of an invoice, any amounts owed to Provider with respect thereto shall be paid with interest at the rate set forth above accruing from the date such amounts were originally due.
(d)      In addition to any other adjustments to the Fees provided in this Agreement, if at any time Provider changes any specifications or requirements for the IntellisiteSM Service Suite in a manner that, in Provider’s reasonable determination, materially affects the costs, conditions, procedures, or levels of service associated with the IntellisiteSM Service Suite, Provider may increase the Fees by an amount that fairly reflects the increased costs resulting from the change, and any such changes shall be reflected in an amendment to the Order Form, executed by Client and Provider.
3.      Taxes and Tariffs.  Client shall pay and reimburse Provider for all taxes in connection with the provision of the IntellisiteSM Service Suite, including sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties.  In the event that Client is required by law to withhold any form of tax, tariff, or duty from any amount payable to Provider under this Agreement, then Client shall reimburse Provider for same and promptly provide Provider with copies of documentation required in connection with such withholding.  Client agrees to reimburse and hold Provider and Provider’s licensors harmless from any deficiency (including penalties and interest) relating to taxes that are the responsibility of Client under this Agreement.  Each party shall be responsible for taxes related to its own net income, employment taxes of its own employees, and for taxes on any property it owns or leases.


4.      Client’s Responsibilities.  In connection with Provider’s provision of the IntellisiteSM Service Suite, Client will be responsible for:
(a)      Providing and maintaining all equipment necessary to enable Provider to provide the IntellisiteSM Service Suite;
(b)      Paying installation and removal costs for the Devices;
(c)      Maintaining the Devices and other related equipment at the data collection points;
(d)      Securing access to the data collection points for the Devices, when needed;
(e)      Paying the cost of labor and travel related to any maintenance of the Devices;
(f)      Providing all data necessary to enable Provider to provide the IntellisiteSM Service Suite contemplated hereby;
(g)      Obtaining, maintaining, and paying for internet access;
(h)      Immediately informing Provider of any change or changes in characteristics of the equipment for which the IntellisiteSM Service Suite is being provided;
(i)      Providing Provider with information and data that is current, correct, and of an appropriate format and level necessary to enable Provider to provide the IntellisiteSM Service Suite;
(j)      The care, custody, supervision, and control of the Devices and of any and all persons or property in the vicinity of the Devices during the time of delivery, operation, and (if applicable) return of the Devices;
(k)      Paying costs related to any change in the location of equipment from which a Device is providing monitoring services (the location of equipment may not be changed without Provider’s prior written approval);
(l)      Utilizing the IntellisiteSM Service Suite in a careful and prudent manner with competent agents, employees, or subcontractors only in accordance with this Agreement and the Order Form; and
(m)      Fulfilling such other tasks and responsibilities as are described in this Agreement or the Order Form.


5.      Disclosure Notice.
(a)      The provision of the IntellisiteSM Service Suite to Client relies on the proper functioning of the equipment forming Client’s infrastructure and the satellite system not under Provider’s control and made available by a third party (such third party satellite system is the “Satellite System”).  Provider’s obligations to provide IntellisiteSM Service Suite to Client is subject to each of the following:
(i)      The proper functioning of the Satellite System;
(ii)      The proper functioning of any third party gateway operator or carrier system relied upon to complete a transmission (such as long-distance, roaming, exchange or interconnection providers); and
(iii)      The availability of capacity on the Satellite System.
(b)      Client acknowledges the following constraints on Provider’s ability to provide the IntellisiteSM Service Suite without disruption:
(i)      Each of Provider’s system, Client’s system, and the Satellite System is inherently capacity constrained;
(ii)      The IntellisiteSM Service Suite may be refused or limited, without liability to Provider, Client, or the Satellite System operator, due to capacity limitations, including capacity limitations due to any repair, testing, upgrade, or modification work on either Provider’s system, the Satellite System, or other systems;
(iii)      Emergency access on the Satellite System by public safety organizations may preempt Client’s use of the IntellisiteSM Service Suite and the Satellite System; and
(iv)      The IntellisiteSM Service Suite  is subject to disruptions and/or deficiencies caused by atmospheric or terrain conditions or in-building conditions.


6.      Term.  The term of this Agreement shall commence upon the Effective Date and, unless sooner terminated in accordance with Section 7, shall continue for a period of one year (the “Initial Term”).  Unless either party delivers to the other party written notice of its election not to renew the Agreement at least 90 days prior to the expiration of the Initial Term, this Agreement shall thereafter renew for successive one-month periods (each a “Renewal Term,” and together with the Initial Term, the “Term”). 
7.      Termination. 
(a)      Either party may terminate this Agreement (i) prior to the expiration of the Initial Term for any reason upon at least 90 days prior written notice, and (ii) thereafter, for any reason upon at least 30 days prior written notice.  If Client terminates the Agreement pursuant to this Section 7(a) during the Initial Term, Client shall pay to Provider (x) all Fees incurred through the date on which this Agreement terminates, plus (y) a termination fee equal to 50% of the remaining Fees that Provider would have otherwise earned pursuant to the Order Form at the time of termination for the remainder of the Initial Term (or such later date if the Order Form would have been in effect beyond the Initial Term) as if the Agreement and such Order Form had not been terminated (the “Termination Fee”).  If Client terminates the Agreement pursuant to this Section 7(a) during any Renewal Term, Client shall pay to Provider all Fees incurred through the date on which this Agreement and the Order Form terminates.  Client acknowledges and agrees that if Client terminates this Agreement prior to the expiration of the Initial Term, Provider will suffer damages and losses that are difficult, if not impossible, to calculate.  Client further acknowledges and agrees that the Termination Fee is not a penalty but, instead, constitutes a reasonable estimate of the losses and damages Provider will suffer by virtue of any such termination and that the same is valid and enforceable against Client.
(b)      In the event a party has committed a material breach of this Agreement, other than a monetary breach (for which there shall be no cure period), the non-breaching party shall give written notice to the breaching party describing the nature of the breach in reasonable detail.  The breaching party shall then have ten days to cure the breach.  If the breach is not cured within the ten-day period, the non-breaching party may give written notice to the breaching party of the termination of this Agreement after the tenth day.  Termination shall be effective upon receipt of such written notice.  If this Agreement is terminated pursuant to this Section 7(b) as a result of a material breach of this Agreement by Client during the Initial Term, Client, in addition to any other damages and/or remedies available to Provider under law or at equity, shall immediately pay to Provider (i) all Fees incurred through the date of termination, plus (ii) the Termination Fee.  If this Agreement is terminated pursuant to this Section 7(b) as a result of a material breach of this Agreement by Client during any Renewal Term, Client shall pay to Provider all Fees incurred through the date of termination, in addition to any other damages and/or remedies which may be available under law or at equity. 
(c)      If a party becomes insolvent or bankrupt or insolvency proceedings have been instituted in connection with such party (either voluntary or involuntary), the other party may give written notice of termination which shall be effective immediately, in addition to any other remedies which may be available under law or at equity.


8.      Hardware.
(a)      Unless otherwise specified in the Order Form, Provider shall deliver to Client all Devices and other tangible components of the IntellisiteSM Service Suite (the “Hardware”), and Client shall accept such Hardware from Provider, F.O.B. Provider’s shipping location.
(b)      Client shall accept or reject the Hardware within a reasonable time after receipt, which in no event shall exceed ten days.  Client will be deemed to have accepted the Hardware if Client does not notify Provider within such time period, in writing, of Client’s rejection thereof.  Any portion of the Hardware rejected as defective or nonconforming must be held for Provider’s inspection and returned at Provider’s request, freight prepaid, to Provider’s headquarters.  If such Hardware is determined to be defective or nonconforming, Provider shall, as the sole remedy available to Client, promptly repair or replace the device pursuant to the terms and conditions of Section 8(e).
(c)      Upon reasonable prior notice, Client shall make the Devices and all related records available to Provider or Provider’s agents for inspection during regular business hours at the location of such Devices.
(d)      Client shall bear all risk of loss, damage, theft, taking, destruction, confiscation, or requisition with respect to the Hardware, however caused or occasioned.  In addition, Client hereby assumes all other risks and liabilities, including, but not limited to, personal injury or death and property damage, arising with respect to the Hardware (unless arising solely through Provider’s willful misconduct), including, but not limited to, those arising with respect to the manufacture, purchase, ownership, shipment, transportation, delivery, installation, leasing, possession, use, storage, and return of any Hardware, however arising.
(e)      Subject to Client’s fulfilling Client’s responsibilities under this Agreement, Provider warrants that each Device, during the one-year period following Provider’s delivery of such Device to Client (the “Limited Warranty Period”), shall be, in all material respects, free from defects in materials and workmanship.  Upon the return (if applicable) of any defective or non-conforming Device during the Limited Warranty Period, as Client’s sole remedy and Provider’s sole obligation, Provider will, directly or indirectly, repair or replace such defective or nonconforming Device with a new or refurbished Device at Provider’s sole cost and expense.  Repairs or alterations made by Client or by third parties (other than authorized Provider distributors or their authorized subcontractors) to any Device will invalidate this warranty for such Device if completed without the prior written consent of Provider.  Additionally, the foregoing warranty does not apply to Devices subjected to misuse or accident, improper installation, maintenance, or application. Provider will not be obligated to provide repairs or replacements should Provider determine that the defect or problem was caused by Client or any third party’s handling, installation, maintenance, or other acts.  Client shall be solely responsible for, and Provider shall have no obligation to honor, any warranties that Client provides to any third party with respect to the Devices.


9.      Intellectual Property. 
(a)      Provider hereby grants Client a personal, nonexclusive, non-transferable license, without the right to sublicense, to use the monitoring web site designated by Provider (the “Provider Web Site”) during the Term solely for Client’s monitoring purposes and consistent with the terms set forth in this Agreement (the “Site License”).  Client may not modify or alter any of the content, information, or documentation contained on the Provider Web Site other than the data entries that are expressly contemplated and permitted by the Provider Web Site to be input by Client.  The Site License granted hereby authorizes the use of the Provider Web Site by Client’s authorized users (as set forth in  the Order Form) during the Term, subject to the terms and provisions hereof, including Section 9(f) hereof, which requires Client’s authorized users to individually accept the “Terms of Use” and “Privacy Notice” provisions provided on and accessible through the Provider Web Site.
(b)      All materials furnished by Provider to Client, including, but not limited to, all forms, brochures, documents, and other materials that are accessible through the Provider Web Site (collectively, “Materials”) are licensed (not sold).  Provider hereby grants Client a personal, nonexclusive, non-transferable license, without the right to sublicense, to use the Materials solely for purposes that are consistent with the terms set forth in this Agreement (the “Materials License”).  Client shall not distribute, alter, or use the Materials for any other purpose.  Client agrees to treat all Materials as Confidential Information.  Upon the termination of this Agreement, Client shall destroy all Materials or, if requested by Provider, return all Materials to Provider.
(c)      The Site License and Materials License are together referred to herein as the “License.”
(d)      Except as expressly authorized herein, Client shall not:
(i)      Copy or otherwise utilize or reproduce any portion of the Provider Web Site or the Materials contained therein, except to the extent necessary for Client to use the Provider Web Site and Materials for their intended purpose, as set forth in this Agreement;
(ii)      Distribute, disclose, market, rent, lease, transfer, or provide or permit access to any third party any portion of the Provider Web Site or the Materials;
(iii)      Use the Provider Web Site or the Materials except as authorized pursuant to this Agreement and except for Client’s internal business programs; or
(iv)      Copy, duplicate, utilize, or access, or permit any third party to copy, duplicate, utilize, or access any or all of the Provider Web Site and/or Materials to compete against or otherwise impair the business of Provider or Provider.
(e)      Subject to the non-exclusive License granted herein, Provider and Provider’s licensors retain all right, title, and interest, including, without limitation, all copyrights, trade secrets, patents, trademarks, service marks, and all other proprietary rights, in and to the Provider Web Site, the Materials, and all of Provider’s Confidential Information.
(f)      In addition to the terms and conditions set forth in this Agreement, use of the Provider Web Site by Client’s authorized users shall be subject to the “Terms of Use” and “Privacy Notice” statements provided on and accessible through the Provider Web Site and which, by this reference, are incorporated herein. Before the first usage of the Provider Web Site by any authorized user of Client, the authorized user will be required to agree to and comply with the “Terms of Use” and “Privacy Notice” provisions before being granted access to the Provider Web Site.  Provider reserves the right from time to time to modify the terms and conditions of the “Terms of Use” and “Privacy Notice” provisions, and the continued use of the Provider Web Site after the date of any such modification shall be deemed consent to such modified terms and conditions.
(g)      Client shall not, and shall not attempt to, (i) circumvent any or all security features of the Provider Web Site, or (ii) use the Provider Web Site or the IntellisiteSM Service Suite to provide similar services or other services to any third parties.
(h)      All trademarks, copyrights, and other intellectual property rights associated with the IntellisiteSM Service Suite and the Provider Web Site (the “Intellectual Property”) are owned or licensed exclusively by Provider or Provider’s licensors.  Client shall not have any rights or ownership in the Intellectual Property.  Client  may not use the Intellectual Property, except for the purposes expressly contemplated in this Agreement, unless it obtains Provider’s prior written consent.  Client agrees that it will not modify, disassemble, decompile, or otherwise reverse engineer the Intellectual Property or any related hardware.  In addition, Client warrants that any information or materials it provides Provider under this Agreement do not infringe any third party copyright, trademark, patent, trade secret, or any other third party intellectual property rights, nor will Provider’s use of such information or materials in accordance with any instructions provided by Client cause Provider to infringe any third party intellectual property rights.


10.      WARRANTY DISCLAIMER.  THE EXPRESS WARRANTIES SPECIFIED HEREIN ARE THE ONLY WARRANTIES MADE BY PROVIDER OR PROVIDER’S LICENSORS.  NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, WHETHER MADE BY PROVIDER OR ANOTHER OR OTHERWISE, THAT IS NOT CONTAINED IN THIS AGREEMENT WILL BE DEEMED TO BE A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF PROVIDER OR PROVIDER’S LICENSORS.  PROVIDER AND PROVIDER’S LICENSORS FURTHER DISCLAIM, AND CLIENT HEREBY WAIVES, ALL IMPLIED WARRANTIES FOR THE INTELLISITESM SERVICE SUITE, THE PROVIDER WEB SITE, THE HARDWARE, OR ANY OTHER SERVICES PROVIDED HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR INTENDED USE, OR PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  EACH PARTY WAIVES ANY LIABILITY OF THE OTHER PARTY (AND CLIENT WAIVES WITH RESPECT TO PROVIDER’S LICENSORS, CONTRACTORS, AND PROVIDERS) IN NEGLIGENCE, TORT, AND STRICT LIABILITY ARISING FROM ANY ACT OR OMISSION OF THE OTHER PARTY IN THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EXCEPT AS AND TO THE EXTENT THAT SUCH LIABILITY ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY.


11.      LIMITATION OF LIABILITY.  NEITHER PROVIDER NOR PROVIDER’S LICENSORS, CONTRACTORS, OR PROVIDERS SHALL BE LIABLE TO CLIENT FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, OR LOST PROSPECTIVE ECONOMIC ADVANTAGE ARISING FROM ANY ACT OR OMISSION IN PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.  NEITHER PROVIDER NOR PROVIDER’S LICENSORS SHALL BE RESPONSIBLE FOR CLIENT’S INABILITY OR FAILURE TO ACCESS THE INTELLISITESM SERVICE SUITE, THE PROVIDER WEB SITE, OR TO OTHERWISE USE THE SERVICES OR THE HARDWARE (INCLUDING, BUT NOT LIMITED, TO OR INABILITY DUE TO HARDWARE OR SOFTWARE FAILURE OR INTERNET CONNECTIVITY).  UNDER NO CIRCUMSTANCES WILL PROVIDER’S OR PROVIDER’S LICENSORS’ LIABILITY EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO PROVIDER BY CLIENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CAUSE GIVING RISE TO THE CLAIM.  THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT.  CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S SOLE REMEDY FOR DAMAGES (IF ANY) DUE TO ANY FAILURE, DISRUPTION, OR DEGRADATION IN SERVICE SHALL BE LIMITED TO THE CHARGES IMPOSED FOR THE AFFECTED SERVICE FOR THE PERIOD SUCH FAILURE, DISRUPTION, OR DEGRADATION OCCURRED.  THIS ALLOCATION OF LIABILITY REPRESENTS THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND IS A MATERIAL INDUCEMENT FOR PROVIDER TO ENTER INTO THIS AGREEMENT. 


12.      Confidentiality and Non-Disclosure.   During the Term, each party may be given access to information (in hardcopy, electronic, or other form) that relates to Client’s, Provider’s, or Provider’s licensors’ past, present, or future research, development, business activities, clients, products, services, and technical or proprietary knowledge (“Confidential Information”); provided, however, that this Agreement does not constitute Confidential Information.  In connection therewith, the following provisions shall apply:
(a)      Each party agrees that all Confidential Information communicated or revealed to it (the “Receiving Party”), either intentionally or unintentionally, by the other party (the “Disclosing Party”) during the Term shall be deemed confidential and proprietary and shall be used by the Receiving Party solely for the purposes of performing its obligations under this Agreement.
(b)      Neither party shall disclose or distribute any of the Confidential Information or other trade secrets to any other person or entity unless specifically authorized in writing to do so by the Disclosing Party. 
(c)      The Confidential Information may not be copied or reproduced without the Disclosing Party’s prior written consent.
(d)      All Confidential Information made available hereunder, including copies thereof, shall be returned or destroyed upon the first to occur of (i) the expiration or earlier termination of this Agreement, or (ii) the request by the Disclosing Party, unless the Receiving Party is otherwise allowed to retain such Confidential Information.  Provider  may retain, subject to the terms of this Section 12, copies of Client’s Confidential Information required for compliance with its recordkeeping or quality assurance requirements; provided, however, that any such copies shall continue to be subject to the obligations of confidentiality set forth in this Section 12.
(e)      Nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without an obligation of confidentiality, (ii) independently developed by or for it, without the use of, or reference to, another party’s Confidential Information, (iii) acquired by it from a third party that is not, to its knowledge, under an obligation of confidentiality with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement.
(f)      If either party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other party, it shall promptly notify  the other of such receipt and tender to it the defense of such demand.  The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to the extent required by law. 
(g)      The provisions of this Section 12 shall survive the expiration or termination of this Agreement.


13.      Indemnification.  Client shall indemnify, hold harmless, and at Provider’s option, defend Provider and Provider’s licensors and their respective owners, partners, officers, directors, affiliates, agents, and employees, from and against all claims, losses, expenses, costs, damages, and liabilities (including reasonable attorneys’ fees and expenses and other costs of litigation) arising, directly or indirectly, from (a) the failure of Client, its partners, officers, directors, agents, employees, and subcontractors to fulfill any of its obligations or covenants under this Agreement, (b) any third party action or claim brought or threatened against Provider or Provider’s licensors in connection with any representations, warranties, or covenants to Client’s customers or other third parties, express, implied, statutory, or otherwise; or relating to, arising out of, or in connection with Client’s products and services, or (c) any loss or damage to property, whether such property is owned by Client or a third party, and for any personal injuries or deaths arising after delivery of the IntellisiteSM Service Suite.  The foregoing indemnification shall not apply to claims to the extent that they are caused directly by Provider’s gross negligence or willful misconduct.  THE FOREGOING INDEMNIFICATION INCLUDES, HOWEVER, ANY AND ALL COSTS, EXPENSES, LOSSES, AND DAMAGES ARISING FROM THE NEGLIGENCE OF PROVIDER AND PROVIDER’S LICENSORS AND THEIR EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PARTNERS, REPRESENTATIVES, AND THOSE ACTING FOR OR ON THEIR BEHALF.  The parties agree that the foregoing indemnities are limited to the extent necessary to comply with applicable state or federal law and that this Agreement shall be deemed to be amended to comply with those laws to the extent such requirements are at variance with the indemnification provisions set forth herein.


14.      Remedies.  If Client is in default hereunder and such default shall be continuing beyond any applicable cure period, Provider may, at its option, seek all contractual, legal, and/or equitable remedies against Client, including, without limitation: (a) proceeding by appropriate court action or actions, either under law or at equity, to enforce performance by Client of its obligations hereunder; (b) recovering damages resulting from any breaches thereof; (c) terminating the Agreement in accordance with Section 7 above; and/or (d) recovering from Client any and all amounts which may have accrued to the date of such termination or may otherwise be payable hereunder, including, without limitation, amounts payable pursuant to Section 7(b).  No remedy referred to in this Section 14 shall be deemed exclusive, but all such remedies shall be cumulative and shall be in addition to all other remedies in Provider’s favor existing under this Agreement, the Order Form, or otherwise at law or in equity.


15.      Independent Contractor.  The relationship of Provider and Client is that of an independent contractor and not of an employee or agent.  Neither party shall hold itself out or act as an employee or agent of the other, nor will either party have any authority to bind or commit the other.   Nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the parties for any purpose.  Neither party shall be deemed a joint employer of the other’s employees, each party being responsible for any and all claims by its employees.  Neither party’s employees shall be deemed “leased” employees of the other for any purpose.

 
16.      Force Majeure.  Neither party shall be responsible for delays in, or suspension of, performance of this Agreement (except Client’s obligation to pay for the IntellisiteSM Service Suite and other expenses described herein) caused by acts of God or governmental authority, strikes or labor disputes, fires, or other loss of facilities, or other similar or dissimilar causes beyond the reasonable control of such party.


17.      Binding Agreement.  This Agreement constitutes a binding obligation of the parties hereto with respect to the matters set forth herein and is enforceable against the parties in accordance with its terms.  Each party represents that it is duly authorized to execute this Agreement and such Agreement does not conflict with or violate any agreement with any other party.


18.      Entire Agreement.  This Agreement and the Order Form contain the entire agreement between the parties relating to the subject matter hereof and shall supersede all previous agreements between the parties, whether written or oral, with respect to the subject matter hereof. This Agreement cannot be modified, altered, or amended except by a writing signed by each of the parties hereto and consented to by Provider’s licensors. 

 
19.      Notices.  All notices, payments, and deliveries shall be deemed to have been sufficiently given when delivered in writing by personal service or by certified first class mail to Provider and Client at their respective addresses or fax numbers indicated on the Order Form.


20.      GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS BETWEEN RESIDENTS OF TEXAS THAT ARE TO BE WHOLLY PERFORMED WITHIN SUCH STATE, EXCLUSIVE OF THE CONFLICT OF LAWS PROVISIONS THEREOF.  THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA LOCATED IN DALLAS, TEXAS, FOR ANY ACTIONS, SUITS, OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN THE COURTS OF THE STATE OF TEXAS OR THE UNITED STATES OF AMERICA LOCATED IN DALLAS, TEXAS, AND HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


21.      Assignment.  Neither Client nor Provider may assign this Agreement, or its rights, duties, or obligations hereunder, without the prior written consent of Provider’s licensors (or Provider if Provider has no licensors).


22.      Third Party Beneficiaries.  Provider’s licensors of the IntellisiteSM Service Suite shall be third party beneficiaries of this Agreement with the right to enforce this Agreement as if a party hereto.