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Terms and Conditions

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  • Terms and Conditions

1. Services

(A) Service Provider will perform certain services and create and provide certain deliverables, as more particularly described in statements of work (each an “SOW” and collectively “SOWs”) which may be entered into from time to time by the parties and, upon execution, will be incorporated and made part of these General Terms and Conditions for Services (the “Service Agreement”). The SOWs, together with these terms, shall collectively be referred to herein as the “Agreement.” Prior to commencement of the Services, a SOW will be prepared in the form attached hereto as Exhibit A (which is only provided as an example). In the event of a conflict between the terms of an SOW and the terms of this Service Agreement, the terms of the SOW shall supersede and control. The Service Provider shall not be obligated to act until such time that an SOW has been executed by authorized representatives of both parties and the applicable Fee (as defined in Section 2) is paid in full. The existence of this Service Agreement shall not be construed as imposing any obligation upon the Service Provider to agree to a SOW or to otherwise perform any other services for the Client.

(B) Client acknowledges and agrees that Service Provider may use subcontractors and consultants to perform its contracted services stated under this Service Agreement.

(C) Service Provider may represent, perform services for, and contract with other additional clients, persons, or companies as Service Provider, in its discretion, deems fit.

2. Fees and Expenses.

(A) Fees. As consideration for Service Provider’s rendition of the Services, Client agrees to pay the Service Provider the fees set forth in the SOW (the “Fees”). The Fees in an SOW are inclusive of taxes, levies, duties, governmental charges and expenses, except as described in Section 2(B) below.

(B) Expenses. If any additional expenses are incurred which are not included in the Fees, Client agrees to reimburse Service Provider for such expenses incurred by Service Provider in connection with its performance of the Services, but only if and to the extent that any such expenses were pre-approved in writing by Client or are expressly set forth in the applicable SOW.

3. Billing and Payment.

(a) Invoicing. Service Provider shall issue invoices to Client pursuant to the payment schedule set forth in the SOW. Client will remit payment for the invoices in U.S. Dollars. Payments must be made by wire transfer, certified check, bank check or such other method as may be agreed upon by the Service Provider. The Client shall have no right of offset or withholding under this Agreement. Any amounts not paid by the Client when due shall be subject to interest charges, from the date due until paid, at the rate of one- and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to the Service Provider becomes past due for any reason, the Service Provider may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Service Provider’s obligations hereunder or under any SOW.

(b) Installment Plans. Subject to Section 3(a), the Client may elect to make payments for an applicable SOW under an “Installment Plan.” Should the Client elect to make payments under an Installment Plan, the Client shall be charged a non-refundable $30.00 fee. The Installment Plan and charges to Client thereunder shall be subject to the terms and conditions of Service Provider’s payment processing company, which can be found here.

(c) Exchange Rate. For Payments with respect to currencies other than the U.S. Dollars to U.S. Dollars conversion and vice versa, the spot rate will follow the rate that applies when (inclusive of date and time) the payment is made as referred to Google.com.

For the purpose of refunds, all amounts payable shall be in U.S. Dollars. In relation to payable amounts outside the US, the exchange rate shall follow the rate that is reflected in the original payment to which the refund is subjected to.

(d) Foreign Transaction Fee. A foreign transaction (FX) fee is a surcharge on your credit card bill that appears when you make a purchase that either passes through a foreign bank or is in a currency other than the U.S. Dollar (USD). (This fee is charged by many credit card issuers, typically ranging from 1% to 3% of the transaction.)

4. Warranty; Limitations.

(A) Warranty. The Services to be performed hereunder are in the nature of publishing, marketing, promoting, sales, and distribution of books and other digital content. Service Provider does not guarantee in any form the results or achievements of the Services provided or the resulting work product and deliverables. Nevertheless, the Service Provider warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. The Service Provider shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the contracted services hereunder.

(b) Limitation of warranty. unless provided in an applicable SOW, the warranty set forth in this section 4 is exclusive and is in lieu of all other warranties, express, implied, statutory or otherwise with respect to the services, work product or deliverables provided under this agreement, or as to the results which may be obtained therefrom. The service provider disclaims all implied warranties including, but not limited to, the warranties of merchantability, fitness for a particular purpose, or against infringement.

(c)Sales are not guaranteed. The Service provider cannot control the subjective purchasing decisions of consumers or booksellers. The Service provider cannot and does not guarantee sales of any work or the client content. The Service provider makes no guarantees nor promises as to the minimum success of the services or the amount of book sales which may result from any or all of the services.

Intellectual Property Rights; Licenses. Pursuant to an applicable SOW, Service Provider may create one or more deliverables for Client. A deliverable may be made up of one, or any combination of, the following intellectual property, to wit:

INTELLECTUAL PROPERTIES present under this Contract

OWNERSHIP

(1) the Client Content

Owned by CLIENT

(2) Service Provider’s Work Product and Property

Owned by the SERVICE PROVIDER

(3) Third Party Property

Owned by the THIRD PARTY

(4) Client’s License to Service Provider

Owned by CLIENT

Service Provider’s License to Client

Owned by the SERVICE PROVIDER

(A) Client’s Content. As used herein, the “Client Content” may include, but is not limited to, (a) the text and/or manuscript of a book (or similar writing) in its original form as submitted by Client and as edited by Service Provider during the fulfillment of editorial services purchased by Client, (b) graphics, pictures, videos, or other Client intellectual property, and/or (c) other third-party materials, which are owned or authorized in writing by the owners of such materials which are submitted by Client to be incorporated into the final deliverable. CLIENT (and/ or the persons the client exclusively authorized to represent in this agreement) WILL REMAIN THE SOLE AND EXCLUSIVE OWNER(S) OF ALL RIGHT, TITLE, AND INTEREST, INCLUDING COPYRIGHT TO HIS/HER CONTENT.

(B) Service Provider’s Work Product and Property. Service Provider’s Work Product includes the design of any of its deliverables, including but not limited to, book cover design, graphics, illustrations (as defined below), and other content that the Service Provider or its contractors create in the process of providing the Services (with the exception of the Client Content). Service Provider Property includes but is not limited to, imprint logos, imprint names, the Service Provider trademarks, barcodes, and ISBN’s. Service Provider remains the sole and exclusive owner of all right, title and interest, including copyright, in and to the Service Provider Property.

(C) Third Party Property. Third Party Property includes content that is owned by third parties that either party hereto licenses to the other, or otherwise have permission to use of a deliverable. If the Client’s use of Third-Party Property is subject to any restrictions (such as a limit on the number of reproductions of an image), Client is responsible to ensure that the Client complies with those restrictions. ALL RIGHTS, TITLE AND INTEREST IN THE THIRD PARTY PROPERTY SHALL REMAIN WITH THE APPLICABLE THIRD PARTY. The Third Party Property licensed to Service Provider may be used only in the version of a deliverable (in any format) that Service Provider creates, and may not be removed or used in any other versions of the deliverable or other products or materials.

(D) Client’s License to Service Provider. During the Term of the Agreement (as defined in Section 10), with respect to the Client Content and Third-Party Property licensed to the Client for use of a deliverable, the Client authorizes, consents to, and grants the Service Provider (including any third-party contractors hired by Service Provider) the following:

(i) a worldwide right and license to display, exhibit, reproduce, digitize, modify, license, and otherwise use the information that Client provides to Service Provider about Client (such as Client’s name or chosen pen name, image, likeness, appearance, voice, video footage, biographical and personal information, etc.) and information about a deliverable (such as the title, description of the deliverable, excerpts and images from the deliverable, etc.), in all materials created by Service Provider or on Service Provider’s behalf, which incorporates any of the information above, in any format and in all media;

(ii) a worldwide right and license to send free review copies of a deliverable to members of media and other potential reviewers or sellers, in Service Provider’s sole discretion;

(iii) a worldwide right and license to make excerpts or previews of the deliverable available for preview on websites or via other media, including the websites of certain retailers (including but not limited to, Amazon, Google, and Apple) in Service Provider’s sole discretion;

(iv) an exclusive, transferable, worldwide license to manufacture, store, use, display, execute, reproduce (in whole or in part), transmit, modify (for example, for formatting purposes or to create authorized derivative works), import, make, have made, offer to sell, print, publish, market, sublicense, distribute, and sell (individually or as part of compilations of collective works), and license in and to a deliverable for use via any subscription model or lending model, through all distribution channels available now or at a later time, in any language, in any format, and via any medium, now known or hereafter devised, selected in Service Provider’s sole discretion and consistent with the Services;

(v) a right and license to compile and use statistical information regarding sales of the deliverable (if any); and

(vi) during the transition period of ninety (90) days after termination of this Agreement, the non-exclusive, worldwide license to engage in the activities set forth above.

(E) Service Provider’s License to Client. The Service Provider grants the Client a perpetual, non-exclusive, irrevocable, royalty-free, worldwide license to use, store, display, reproduce, transmit, sell, print, publish, market, distribute, sub-license, transfer, and make or have made derivative works, for any purpose whatsoever, the custom illustrations that Service Provider creates pursuant to this Agreement (“Illustrations”). After this Agreement is terminated, Service Provider grants Client a non-exclusive, worldwide license to manufacture, store, use, display, execute, reproduce, transmit, import, make, have made, offer to sell, print, publish, market, sublicense, distribute, and sell Service Provider Work Product and Third-Party Property provided by Service Provider only as it exists in the version of the deliverable that was created by Service Provider. The re-sale of copies of a deliverable purchased previously by Client or a third party is not subject to the terms of this Agreement.

6. Confidentiality.

The parties acknowledge that to perform the Services one party may disclose to the other confidential

and/or sensitive information (“Confidential Information”). The party disclosing information is referred to as the “Disclosing Party” and the party receiving information as the “Receiving Party.” Confidential Information shall mean all information disclosed by the Disclosing Party to the Receiving Party which is non-public and either proprietary or confidential in nature and related to the Disclosing Party’s business or activities including, but not limited to, financial, legal, technical, marketing, sales and business information, which is (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to its employees, subcontractors, consultants and representatives who have a need to know such information to perform the Agreement. The Receiving Party shall only use Confidential Information in furtherance of its performance of the Agreement, and not for any other purpose or for the benefit of any third party. Receiving Party’s obligations to protect the Confidential Information will survive for two years after the termination of this Agreement. These confidentiality obligations shall not apply to any information which: (i) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; or (iv) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation.

In no event shall Service Provider’s use or disclosure of information relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. If the Receiving Party is confronted with legal action to disclose Confidential Information it shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed. All Confidential Information shall remain the property of the Disclosing Party. All copies of Confidential Information shall be returned to the Disclosing Party promptly upon the Disclosing Party’s request or within ten (10) days of the expiration or termination of this Agreement.

7. Waiver of Claims; Indemnification.

(A) Waiver. To the fullest extent permitted by applicable law, Client hereby releases, waives, discharges and covenants not to sue Service Provider, its contractors, and any of their officers, directors, employees, agents, insurers, contractors, successors, and permitted assigns (the “Service Provider Parties”), for any liability to Client, Client’s personal representatives, assigns, heirs, or successors in interest, or for any loss, damage or expenses, or any claims, demands or Actions (as defined below) therefore, arising from or related to, directly or indirectly, to the Service Provider Parties’ use of the rights and licenses granted in this Agreement to fulfill the Services and other obligations under this Agreement, including, but not limited to, claims for intellectual property infringement, infringement of moral rights, defamation, invasion of rights of privacy, rights of publicity, intrusion, false light, public disclosure of private facts, physical or emotional injury or distress or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world. For purposes of this Agreement, “Actions” include any litigation, lawsuit or administrative, governmental, or other proceeding including, but not limited to, government investigations, inquiries, hearings, and other requests, or any appeal thereof. Client acknowledges that Client is solely and fully responsible for the Client Content and that Service Provider will not be liable to Client, or to any third party or other person or entity for the Client Content or Client’s use of Third-Party Property, regardless of whether Service Provider had any knowledge or could have reasonably known of any violation by Client of the above representations or that the Client Content otherwise violates law.

(B) Client’s Indemnity. Client will fully indemnify and hold harmless, the Service Provider Parties from and against any claim, cause of action, demand, Action, proceeding, losses, liability, cost, expense (including reasonable attorneys’ fees) or damages arising out of or resulting from: (i) Client’s gross negligence or willful misconduct (ii) Client’s breach of any terms of this Agreement; (ii) any third-party claims that the Client Content (or Third Party Property used therein) infringe or misappropriate any intellectual property rights of such third-party. Until any claim for indemnity hereunder has been fully satisfied, Service Provider may retain all payments due to the Client, including royalties, if any, and/or the Service Provider may cease providing any further Services; and the Client will have no right to receive a refund of any amounts paid by Client to Service provider.

(C) Service Provider’s Indemnity. The Service Provider agrees to indemnify, defend and hold the Client and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of a justified claim, with finality, should the Services or the Service Provider’s Property infringe on any third party’s intellectual property rights.

(D) Indemnification Procedure. The party seeking indemnification shall provide the indemnifying party with prompt written notice of any claim and give complete control of the defense and settlement to the indemnifying party, and shall cooperate with the indemnifying party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the indemnifying party prompt notice to the extent such lack of notice prejudices the defense of the claim.

8. Limitation of Liability. In no event shall the service provider be liable under this agreement to the client for any incidental, consequential, indirect, statutory, special, exemplary or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, inconvenience, lost business opportunities, damage to good will or reputation, and costs of cover, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen. The Service Provider’s entire aggregate liability for any claims relating to the services or this agreement shall not exceed the fees paid or payable by the Client to the Service Provider under this agreement in the twelve (12) month period immediately preceding the events giving rise to such liability. this section shall survive the termination or expiration of the agreement. No action shall be brought relating to or arising out of this agreement more than one (1) year after the accrual of such cause of action, except for money due on an open account.

9. Cooperation of Client. Client agrees to comply with all reasonable requests of the Service Provider and shall provide the Service Provider’s authorized personnel with access to all documents as may be reasonably necessary for the performance of the contracted Services.

10. Term and Termination:

(A) Term: This Agreement shall commence upon full execution hereof by the parties and thereafter shall

remain in effect until terminated by either party as more fully set forth herein.

(B) Termination for Breach. Either party may terminate this Agreement at any time in the event of a breach by the other party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either party. Termination shall be in addition to any other remedies that may be available to the non-breaching party.

(C) Termination for Convenience: This Agreement be terminated by either party, for any reason with or

without Cause (as defined herein), upon prior written notice to the other party. “Cause” means (a) Client

behaves in an abusive or uncivilized manner towards the Service Provider (including its employees or business partners); (b) the Client Content fails to comply with the Content Guidelines or any applicable laws, at any time; or (c) if Service Provider receives a formal or informal allegation, complaint, demand or Action in any form made by a third party relating to Client, the Client Content or Client’s royalties.

(D) Obligations Upon Termination. Except as provided for herein, termination of this Agreement for any reason shall not discharge either party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Client shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination each party shall return the other’s Confidential Information in its possession at the time of termination.

(E) Refund Provisions. If Service Provider terminates this Agreement without Cause at any time prior to fulfilling the publishing Services and/or marketing Services, Service Provider will Refund 100% of the Fees. If Client terminates this Agreement, or if Service Provider terminates this Agreement for Cause at any time, or without Cause after Service Provider has fulfilled the publishing Services and marketing Services, refunds will be issued as follows:

(i) For publishing Services prior to submission of Client’s manuscript:

(a) 0-30 calendar days after the purchase: 100% of the Fee, less $150 or 10% of the Fee whichever is greater;

(b) 31-60 calendar days after the purchase: 50% of the Fee, less $150 or 10% of the Fee whichever is greater; or

(c) if more than 60 calendar days after the purchase: no refund.

(ii) After submission of Client’s manuscript but prior to final approval, if the refund is not due to failure to comply with Service Provider’s Content Guidelines after submission but before design work begins; 50% of the Fee.

(iii) After design work begins but prior to final approval; 25% of the Fee.

(iv) After Client have given final approval of the deliverable; no refund.

(v) For individual Services (not included as part of a publishing Package) and prior the beginning of

fulfillment of individual Service(s):

(a) 0-30 calendar days after the purchase: 100% of the Fee, less $150 or 10% of the Fee whichever is greater;

(b) 31-60 calendar days after the purchase: 50% of the Fee, less $150 or 10% of the Fee whichever is greater;

or

(c) if more than 60 calendar days after the purchase: no refund.

(vi) If at any time, Service Provider terminates this Agreement because Client’s manuscript and/or the Client Content do not comply with the Content Guidelines, in Service Provider’s sole discretion, Service Provider will refund 100% of the Fee, less a content evaluation processing fee of $300.

As used in this Section 10, “fulfillment” of a Service occurs either when Client returns the author questionnaire, whether or not completed fully or correctly, or when Service Provider or a business partner/contractor notifies Client about the commencement of the Service through an on-boarding email sent by a designated Accounts Manager, whichever occurs first.

11. Representation & Warranties. Client represents and warrants to Service Provider as follows:

(A) Client is either the sole author and sole owner of all intellectual property rights in the Client Content and/or Client is exclusively authorized in writing to represent all coauthors owning all copyrights in the Client Content;

(B) Client is either the owner of, or has secured permission to use any Third-Party Property that Client provides to Services Provider and Client can provide applicable documentation evidencing the same, if requested;

(C) The Client Content complies with all applicable laws and regulations and shall remain compliant throughout the Term;

(D) The Client Content does (or will shortly after executing an applicable SOW) comply with Service Provider’s Content Guidelines;

(E) The Client Content does not: (i) infringe on any intellectual property rights; (ii) violate any right of privacy, publicity or other personal or property right whatsoever; (iii) contain any libelous matter or matter otherwise contrary to law; (iv) contain a recipe, formula, or instruction that may be injurious to the user; or (v) contain any information of a third party deemed private by applicable law (such as social security numbers, dates of birth, or private financial or medical information);

(F) All statements of fact in the Client Content are based on careful investigation and research for accuracy;

(G) To Client’s knowledge, there have not been and are not now, any pending or threatened claims, litigation, or other proceedings pending against Client with respect to the Client Content other claims based on any facts that would constitute a breach of any of Client’s representations and warranties; and

(H) If any of the Client Content changes or otherwise violates this Agreement, Client will immediately notify Service Provider and correct the Client Content or portions thereof.

12. Relationship of the Parties. The relationship of the parties hereto is that of independent contractors.

Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create or

imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents. Neither party has the authority to bind or contract any obligation in the name of or on account of the other party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other party, or otherwise act on behalf of the other. Each party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.

13. Force Majeure. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each party shall use reasonable efforts to notify the other party of the occurrence of such an event within five (5) business days of its occurrence, which notice shall include a description of the force majeure event and an estimate of the length of time such event will delay or prevent performance hereunder.

14. Partial Invalidity. In the event that any part or portion of this Agreement is deemed to be invalid, illegal, or otherwise unenforceable: (1) the parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into this Agreement; and (2) the remaining provisions of the Agreement shall continue in full force and effect.

15. Assignment. Client may not assign, delegate or otherwise transfer this Agreement or it obligations hereunder, in whole or in part, without the prior written consent of Service Provider, with such consent not to be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this section shall be null and void. No permitted assignment or delegation will relieve Client of its obligations under this Agreement, and as such, Client shall remain primarily liable in connection therewith. Service Provider shall be entitled to assign or otherwise transfer this Agreement, in whole or in part, without the prior consent of Client.

16 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the address set forth in the applicable SOW or as otherwise designated by a party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (1) upon receipt by the receiving party; and (2) if the party giving the notice has complied with the requirements of this section.

17. Survival. Following the termination of this Agreement, any provision set forth herein which, by its very nature, is intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting ownership of work product, confidentiality, indemnification, limitation of liability, non-solicitation, accrued payment obligations, and governing law and venue.

18. Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.

19. Attorneys’ Fees. If either party incurs any legal fees associated with the enforcement of this Agreement or any rights hereunder, the prevailing party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other reasonable litigation expenses from the other party.

Collection Expenses. If the Service Provider incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Client agrees to reimburse Service Provider for all such costs, expenses and fees.

Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the______________________ (law of the place of execution). Each Party hereby irrevocably consents to submit to the exclusive jurisdiction of the courts of ___________ for any actions or proceedings arising out of or relating to this Agreement and waive any objection it may now or hereafter have to venue or convenience of forum.

Arbitration Clause. Before referring the same to a competent court of justice, agency or office for resolution as referred to by the immediately preceding paragraph, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the applicable Arbitration Rules as are presently in force.

If any dispute or disagreement shall arise between the Parties in connection with or arising out of this Agreement, either Party may request in writing that the respective chief executive officers or any other duly authorized person of each party meet within ten (10) days and attempt to resolve the dispute. In the event such officers are unable to resolve such dispute within thirty (30) days after such notice, upon written request of either Party, such dispute shall be arbitrated pursuant to the immediately succeeding paragraph below. Except as otherwise provided in this Agreement, any disagreement, dispute, controversy or claim arising out of or relating to this Agreement shall be settled exclusively and finally by arbitration as provided below.

In the event that the Parties fail to resolve a dispute pursuant to the paragraph above, the Party initiating arbitration proceedings may request arbitration. Within ten (10) days after receipt of such a request, each Party’s authorized representative shall confer with the other and attempt to agree upon appointment of a single arbitrator. If such agreement is not accomplished, either Party may request the appropriate Chamber of Commerce to appoint an arbitrator familiar with the industry standards in accordance with its Rules of Conciliation and Arbitration, which rules shall govern the conduct of the arbitration in the absence of contrary agreements by both Parties. The arbitrator shall conduct a hearing within thirty (30) days thereafter in the language and venue previously agreed upon and shall notify the Parties in writing of its decision stating separately findings of fact and determinations of law. The arbitrator shall not have the power to add to or amend this Agreement. The Parties exclude any right of application or appeal to any courts in connection with any question of law arising in the course of arbitration or with respect to any award made. Subject to such limitation, the decision of the arbitrator shall be final and binding, and the arbitrator shall be entitled to grant equitable awards compelling specific performance or restraining any actual or threatened breach of any material obligation of the Agreement. The decision of the arbitrator shall determine and specify how the expenses of the arbitration shall be allocated.

Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.

Headings; Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either party regardless of which party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting party.

Entire Agreement; Modification. The Agreement (along with any attachments incorporated herein) sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communications between the parties, whether written, oral, electronic, or otherwise, relating hereto. Except with respect to Section 5 and any provisions regarding royalties in an applicable SOW, the Service Provider may modify the Agreement, at any time, with thirty (30) days prior written notice to Client. If Client does not accept such modification(s), the Client may terminate this Agreement in accordance with Section 10. Each party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The parties acknowledge and agree that they are not relying upon any representations or statements made by the other party or the other party’s employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.