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2237531/5/13399.000
<br />such risks. Not in limitation of the foregoing, Client hereby assumes
<br />the risk, and Brycer shall have no responsibility or liability of any kind
<br />hereunder, for: (1) errors in the Solution resulting from misuse,
<br />negligence, revision, modification, or improper use of all or any part of
<br />the Solution by any entity other than Brycer or its authorized
<br />representatives; (2) any version of the Solution other than the then -
<br />current unmodified version provided to Client; (3) Client's failure to
<br />timely or correctly install any updates to the Client Access Software;
<br />(4) problems caused by connecting or failure to connect to the Internet;
<br />(5) failure to provide and maintain the technical and connectivity
<br />configurations for the use and operation of the Solution that meet
<br />Brycer’s recommended requirements; (6) nonconformities resulting
<br />from or problems to or caused by non-Brycer products or services; or
<br />(7) data or data input, output, accuracy, and suitability, which shall be
<br />deemed under Client’s exclusive control.
<br />
<br />11. Indemnity. Brycer (the “Indemnifying Party”) will defend and
<br />indemnify Client against any damages, losses, liabilities, causes of
<br />action, costs or expenses arising from Brycer’s breach of this
<br />Agreement, gross negligence or intentional misconduct. Client will
<br />defend and indemnify Brycer against any damages, losses, liabilities,
<br />costs or expenses (including reasonable attorneys’ fees) arising from
<br />Client’s breach of this Agreement, gross negligence or intentional
<br />misconduct. Client acknowledges that Brycer does not create any of
<br />the data and information included in the Solution and is not responsible
<br />for and does not assess or make any suggestions or recommendations
<br />with respect to any such data or information. Client will defend and
<br />indemnify Brycer against any damages, losses, liabilities, costs or
<br />expenses (including reasonable attorneys’ fees), claims, demands, suits
<br />or proceedings made or brought against Brycer by a third party in
<br />connection with Client’s or an Authorized User’s use of the Solution,
<br />or any action or inaction taken by a third party, including, but not
<br />limited to, third party inspectors, in connection with such third party
<br />providing services for Client or otherwise at Client’s or an Authorized
<br />User’s request or direction.
<br />
<br />12. Breach. Brycer shall have the right to terminate or suspend this
<br />Agreement, and all of Client’s rights hereunder, immediately upon
<br />delivering written notice to Client detailing Client’s breach of any
<br />provision of this Agreement. If Client cures such breach within 5 days
<br />of receiving written notice thereof, Brycer shall restore the Solution
<br />and Client shall pay any fees or costs incurred by Brycer in connection
<br />with the restoration of the Solution.
<br />
<br />13. Illegal Payments. Client acknowledges and agrees that it has not
<br />received or been offered any illegal or improper bribe, kickback,
<br />payment, gift or anything of value from any employee or agent of
<br />Brycer in connection with the Agreement.
<br />
<br />14. Beneficiaries. There are no third party beneficiaries to the Agreement.
<br />
<br />15. Force Majeure. Neither party shall be responsible for any failure to
<br />perform due to unforeseen, non-commercial circumstances beyond its
<br />reasonable control, including but not limited to acts of God, war, riot,
<br />embargoes, acts of civil or military authorities, fire, floods,
<br />earthquakes, blackouts, accidents, or strikes. In the event of any such
<br />delay, any applicable period of time for action by said party may be
<br />deferred for a period of time equal to the time of such delay, except
<br />that a party's failure to make any payment when due hereunder shall
<br />not be so excused.
<br />
<br />16. Notices. All notices required in the Agreement shall be effective: (a)
<br />if given personally, upon receipt; (b) if given by facsimile or electronic
<br />mail, when such notice is transmitted and confirmation of receipt
<br />obtained; (c) if mailed by certified mail, postage prepaid, to the last
<br />known address of each party, three business days after mailing; or (d)
<br />if delivered to a nationally recognized overnight courier service, one
<br />business day after delivery.
<br />
<br />17. JURISDICTION AND VENUE. THE AGREEMENT SHALL BE
<br />GOVERNED BY, CONSTRUED AND INTERPRETED IN
<br />ACCORDANCE WITH, AND ENFORCEABLE UNDER, THE
<br />LAWS OF THE STATE IN WHICH CLIENT EXISTS APPLICABLE
<br />TO CONTRACTS MADE IN SUCH STATE AND THAT ARE TO
<br />BE WHOLLY PERFORMED IN SUCH STATE WITHOUT
<br />REFERENCE TO THE CHOICE-OF-LAW PRINCIPLES OF SUCH
<br />STATE. THE PARTIES IRREVOCABLY AGREE THAT ALL
<br />ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR
<br />RESPECT ARISING OUT OF OR FROM OR RELATED TO THE
<br />AGREEMENT SHALL BE LITIGATED ONLY IN COURTS
<br />LOCATED WITHIN THE STATE IN WHICH CLIENT EXISTS.
<br />THE PARTIES HEREBY CONSENT AND SUBMIT TO THE
<br />EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR
<br />FEDERAL COURT LOCATED WITHIN SAID STATE. THE
<br />PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
<br />TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR
<br />PROCEEDING ARISING OUT OF OR RELATING TO THIS
<br />AGREEMENT. THE PARTIES WAIVE ANY RIGHT TO TRIAL
<br />BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR
<br />DEFEND ANY RIGHTS UNDER THE AGREEMENT, AND
<br />AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL
<br />BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
<br />
<br />18. Attorneys’ Fees. The prevailing party in any proceeding in connection
<br />with the Agreement shall be entitled to recover from the non-prevailing
<br />party all costs and expenses, including without limitation, reasonable
<br />attorneys’ and paralegals’ fees and costs incurred by such party in
<br />connection with any such proceeding.
<br />
<br />19. Entire Agreement. The Agreement sets out the entire agreement
<br />between the parties relative to the subject matter hereof and supersedes
<br />all prior or contemporaneous agreements or representations, oral or
<br />written.
<br />
<br />20. Amendment. The Agreement may not be altered or modified, except
<br />by written amendment which expressly refers to the Agreement and
<br />which is duly executed by authorized representatives of both parties.
<br />The waiver or failure by either party to exercise or enforce any right
<br />provided for in the Agreement shall not be deemed a waiver of any
<br />further right under the Agreement. Any provision of the Agreement
<br />held to be invalid under applicable law shall not render the Agreement
<br />invalid as a whole, and in such an event, such provision shall be
<br />interpreted so as to best accomplish the intent of the parties within the
<br />limits of applicable law. The Agreement may be executed by facsimile
<br />and in counterparts, each of which shall be deemed an original, and all
<br />of which together shall constitute one and the same instrument.
<br />
<br />21. Expiration. The rights and obligations contained in these Terms and
<br />Conditions shall survive any expiration or termination of the
<br />Agreement.
<br />
<br />DocuSign Envelope ID: 95DEB6FB-21B6-49A2-9C4C-E9766586FB95
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