Terms of Use Agreement

1. DEFINITIONS

   1. "Application" means the software as a service product licensed to You under this Agreement as detailed in Your Order Form.

   2. "Authorized User(s)" means You and Your employees, consultants, contractors or agents for whom You have paid the applicable Fees and who are authorized to use the Services, and have been supplied user identifications and passwords by Company at Your request.

   3. "Company Site" means www.salonultimate.com or any other website located at a URL designated by Company from time to time.

   4. "Documentation" means the User Guide and any other written materials provided to You during the Term of this Agreement and identified as Documentation.

   5. "Fees" means the fees set forth on the applicable Order Form.

   6. "Installed Software" means OpenSpend software installed on a computer at Your location.

   7. "Order Form" means the ordering document representing Your request to subscribe to the Services and that specifies, among other things, the quantity and type of Services and Installed Software ordered, the subscription account term, and the applicable Fees.

   8. "Pre-existing Information" means, among other things, information that was in Company’s possession prior to the time it is provided to You by Company, including, but not limited to, its knowledge-base of metrics and frameworks for industries and professional functions.

   9. "Services" means, collectively, Company’s provision of the Application, Installed Software and Support to You under an Order Form.

   10. "Support" means the provision of phone, email and support forums as provided at www.salonultimate.com/support-terms.

   11. "Taxes" shall have the meaning ascribed to it in Section 5.6 of this Agreement.

   12. "User Guide" means the online documentation for the Services provided to You and/or accessible via the Company Site, and as updated by Company from time to time. You acknowledge that You have had the opportunity to review the User Guide.

   13. "Your Data" means, subject to (i) Company’s ownership of its Pre-existing Information, (ii) information that is otherwise publicly available, or (iii) information that is otherwise available to Company (including without limitation the provisions of Section 6.3 herein), all electronic data or information submitted by You to the Services.

2. SERVICES

   1. Services. Beginning on the date You submit a complete Order Form, and subject to successfully processing Your payment for the Fees, Company will make the Services and the Installed Software available to You pursuant to the terms and conditions set forth in this Agreement. You agree that Your purchase of subscription accounts is not contingent upon the delivery of any future Services functionality and/or features, nor is it dependent upon any oral or written public comments made by Company with respect to future Services functionality and/or features. Company may modify certain Services functionality and/or features during the Term at its convenience. Should the modified Services functionality and/or features no longer attend to Your needs, You acknowledge and agree that Your only option will be to terminate this Agreement as further detailed in Section 9.1 herein.

   2. Company Responsibilities. Company shall: (i) use commercially reasonable efforts to maintain the security and integrity of the Services; (ii) use commercially reasonable efforts to make the Services generally available 24 hours a day, 7 days a week, except for (a) planned downtime (of which Company shall give at least eight (8) hours notice via the Services, and which Company shall schedule to the extent reasonably practicable from 9:00 p.m. PT Friday to 4:00 a.m. PT), or (b) any unavailability caused by circumstances beyond Company’s reasonable control, events of force majeure as described in Section 10.11 herein, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Company’s possession or reasonable control, and network intrusions or denial of service attacks; and (iii) provide Support per industry standards. Company will also install the software and convert Your data from the service being replaced by the Service.

   3. Your Responsibilities. You will be responsible for purchasing and installing any necessary hardware or equipment and services.

   4. Cooperation. Both Company and You will provide timely and effective cooperation with each other in the performance of their respective obligations under each Order Form including, but not limited to, designating qualified and authorized personnel to act as liaison(s) with each other and responding promptly to any requests made by the other party ("Account Administrators").

   5. Your Data. Your Data shall be considered Confidential Information subject to the terms of this Agreement. You shall be solely responsible for the content and data provided by You including, but not limited to, uploading Your Data to the Application, assuring that all such data is properly formatted and configured, is in all respects "application-ready", and otherwise complies with all other terms of this Agreement, including without limitation Sections 3.2(vi) through (ix). Except for Company’s provision of the Service, Application and the Installed Software, and notwithstanding the provisions of Section 9.2 herein, Company will not have any responsibilities relating to Your Data including, but not limited to, modifying or maintaining any of Your Data. Under no circumstances will Company be liable for any Application failure or impairment caused by or related to Your Data.

3. LICENSE AND RESTRICTIONS

   1. Limited License. Subject to the terms and conditions of this Agreement, Company grants to You during the Term a limited, non-exclusive, non-transferable, non-sublicensable license through a subscription account to access and use, and allow Authorized Users to access and use, the Services via the Company Site (and one (1) copy of the Installed Software on one (1) computer at each of Your licensed Physical Locations covered by an Order) solely for Your own internal business purposes. The extent of Your access to and use of the Services shall vary depending on the subscription You purchase in Order Form(s).

   2. Restrictions. You shall not, and shall not allow Authorized Users or any third-party to: (i) rent, lease, re-license, transfer, assign, distribute, time-share or otherwise commercially exploit or provide access to the Application to any third-party except as explicitly set forth in this Agreement; (ii) alter, modify or create derivative works of the Application; (iii) use any reverse compilation, decompilation or disassembly techniques or similar methods to determine any design structure, concepts and construction method of the Application, or replicate the functionality of the Application for any purpose; (iv) create Internet "links" to or from the Application, or "frame" or "mirror" any content forming part of the Application, other than on Your own intranet or otherwise for Your own internal business purposes; (v) copy the Application or any content, materials, information, software and other data provided by Company on the Company Site or otherwise (collectively, "Company Content") and/or Documentation without Company’s prior written consent; (vi) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third-party privacy rights; (viii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ix) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (x) attempt to gain unauthorized access to the Application or its related systems or networks.

   3. Suggestions. Other than Your data which is covered by the terms of Section 2.5, Company shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or Your Authorized Users relating to the operation of the Application.

   4. Application Hosting. Company and its suppliers shall provide the hardware, software and other equipment required to host the Application ("Company Materials"). You acknowledge and agree that Your Data may be stored on the same hardware as data of Company’s other customers, and that You at all times shall observe all the terms and conditions of this Agreement.

   5. Ownership and Changes. Any expression of Company’s findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, enhancements, software and other technical information (collectively "Work Product") provided to You by Company in the course of performing the Services are the property of Company and are licensed to You, without further license fees, pursuant to the Company software license(s) to which the Services pertain; provided, however, to the extent such Work Product provided to You by Company contains Your Confidential Information, You shall retain title to such Confidential Information.

   6. Compliance Monitoring and Audits. Company may monitor and perform on-site and remote audits of Your use of the Application and Company Site, and Your Data, for the purpose of verifying that You and Authorized Users are using the Application in compliance with the terms of this Agreement, and to determine if Your use of the Application and Company Site can be improved.

   7. Reservation of Rights. You acknowledge that in providing the Services, You utilize (i) the Company’s name, OpenSpend logos and domain names, the product and service names associated with the Services, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Company Technology"), and that the Company Technology is covered by intellectual property rights owned or licensed by Company (collectively, "Company IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Company Technology or Company IP Rights are granted to You, and all such licenses and rights are hereby expressly reserved by Company.

4. ACCESS TO THE APPLICATION

   1. Connection to the Application. Company shall be responsible for connecting the Application to the Internet, and You shall be responsible for connecting to the Internet to gain access to the Application.

   2. Your Responsibilities / Security of Passwords. You are responsible for all activities that occur under Your Authorized User passwords. You acknowledge and agree that You shall be solely responsible for (i) selecting Authorized Users, (ii) ensuring that only Authorized Users have access to the correct passwords, (iii) implementing a system to control, track and account for all Authorized User passwords, (iv) strictly maintaining the confidentiality and integrity of the passwords, (v) ensuring that Authorized Users shall at all times comply with the terms and conditions of this Agreement, (vi) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data, and (vii) compliance with all applicable local, state, federal, and foreign laws in using the Services and, if using the Services outside of the United States, not use the Services in a manner that would violate any federal or state laws of the United States if conducted therein. You further agree that You shall notify Company immediately in writing if the security or integrity of any password has been compromised.

   3. Privacy Statement. Company’s privacy statement is set forth at www.salonultimate.com/privacy-policy.

   4. Suspension of Access. If You fail to make any required payment to Company or are otherwise in breach of this Agreement, then, in addition to any other rights and remedies hereunder or at law, Company may at its option suspend Your access to the Application and/or any or all of the Services without liability until You pay such amounts in full or otherwise cure such breach, as applicable.

5. FEES, EXPENSES AND PAYMENT TERMS

   1. Fees. In consideration of the license granted by Company and the Services performed, You shall pay the Fees specified in the applicable Order Form. All Fees are quoted in United States dollars. Fees are based on the Physical Locations, Installation Fees, Phone Line Fees, SMS Fees and any other fees stated in the relevant Order Form ("Fees"). Fees may be increased anytime at Company’s sole discretion. Fees are non-refundable and the number of Physical Locations cannot be decreased during the relevant subscription account Term stated on the Order Form. Fees for subscription accounts purchased in the middle of a monthly period will be pro-rated for that initial monthly period and then charged in full going forward based on the number of monthly periods remaining in the subscription account Term.

   2. Invoices and Payment. Other than: (a) SMS Fees which will be invoiced one month in arrears; (b) Installation Fees which must be paid on or before the date that an installation is scheduled to occur; and (c) as otherwise provided in an Order Form, Fees will be invoiced and will be due in advance of the subscription Term. If a purchase order contains terms which are additional to or inconsistent with the terms of this Agreement, such terms shall be disregarded and the terms of this Agreement shall prevail.

   3. Overdue Payments. Late payments will result in late charges that accrue at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date it is fully paid.

   4. Suspension of Services. If Your account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Company reserves the right to suspend the Services provided to You, without liability to You, until such amounts are paid in full.

   5. Exceeding Scope. If You exceed Your entitlement to the Services in addition to any of its other rights or remedies, Company reserves the right to suspend the Services provided to You, without liability to You, until such amounts are paid in full, at full undiscounted list price plus any accrued interest.

   6. Taxes. Unless otherwise stated, Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). You are responsible for paying and reporting all Taxes including sales and use taxes, excluding only taxes based on Company’s income.

   7. Billing and Contact Information. You shall maintain complete and accurate billing and contact information on the Services at all times, including without limitation a valid credit card number to the extent required.

6. CONFIDENTIALITY

   1. Confidential Information. "Confidential Information" means any non-public data, information, or other materials provided by one party to the other party where such information is marked or otherwise communicated as being "proprietary" or "confidential" or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, the Services shall be considered the Confidential Information of Company or its licensors.

   2. Disclosure and Use. Each party shall use the Confidential Information of the other party only in performing its obligations under this Agreement and shall retain the Confidential Information in confidence and not disclose to any third-party (except as necessary to provide the Services) without the disclosing party’s prior written consent. The receiving party shall disclose the disclosing party’s Confidential Information only to those employees and contractors of the receiving party who have a need to know such information for the purposes of this Agreement (including without limitation the Authorized Users), and such employees and contractors must be bound by this Agreement or have entered into agreements with the receiving party containing confidentiality provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein. All Confidential Information shall remain the sole property of the disclosing party or its licensors. Each party shall hold the Confidential Information of the other in confidence during the Term of this Agreement and for a period of five (5) years thereafter.

   3. Exceptions. Notwithstanding the foregoing, each party’s confidentiality obligations hereunder shall not apply to information which: (i) is already known to the receiving party prior to disclosure by the disclosing party; (ii) becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third-party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; or (iv) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party, as evidenced by contemporaneous written record. This Agreement does not prevent the receiving party from using Residual Knowledge subject to any valid patents and copyrights of the disclosing party. "Residual Knowledge" means ideas, concepts, know-how or techniques related to the disclosing party's technology that are retained in the unaided memories of the receiving party's employees who have had access to Confidential Information. An employee's memory will be considered to be unaided if the employee has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.

   4. Authorized Disclosure. In addition, each party shall be entitled to disclose the other party’s Confidential Information to the extent such disclosure is requested by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the party required to make the disclosure shall give prompt, advance notice thereof to enable the other party to seek a protective order or otherwise prevent such disclosure. Notwithstanding the provisions of this Agreement, each party may disclose the terms of this Agreement: (i) in connection with the requirements of an initial public offering or securities filing, or as otherwise required to comply with disclosure requirements for publicly traded companies; (ii) in confidence, to accountants, banks, and financing sources and their advisors; and (iii) in confidence, in connection with the enforcement of this Agreement or rights hereunder.

   5. Injunctive Relief. The parties agree that any breach by the receiving party or any of its officers, directors, employees, subcontractors or Authorized Users of any provision of this Section 6 may cause immediate and irreparable injury to the disclosing party and that, in the event of such breach, the receiving party will be entitled to immediate injunctive and other equitable relief, without the placement of a bond and without the necessity of showing actual monetary damages. Nothing in this Section 6 will be construed as prohibiting either party from pursuing any other remedies available to it for such breach or threatened breach.

7. WARRANTIES; DISCLAIMERS

   1. Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement. Company represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof.

   2. No Other Warranties. THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY COMPANY AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, COMPANY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NON-INFRINGEMENT.

8. INDEMNIFICATION; LIMITATION OF LIABILITY

   1. Company Indemnity. Subject to this Agreement, Company shall defend, indemnify and hold You harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against You by a third-party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of such party; provided, however, that You: (i) promptly give written notice of the Claim to Company; (ii) give Company sole control of the defense and settlement of the Claim; and (iii) provide to Company, at Your own cost, all reasonable assistance in defending against the Claim.

   2. Right to Substitute. Without limiting Section 8.1 above, if a final injunction is, or Company believes in its sole discretion is likely to be, entered prohibiting the use of the Services by You as contemplated herein, Company will, at its sole option and expense, either: (i) procure for You the right to continue using the Services as provided herein, (ii) replace the infringing property with non-infringing, functionally, equivalent products, (iii) suitably modify the infringing property so that it is not infringing, or if (i), (ii) or (iii) above is not obtainable on commercially reasonable terms, refund the Fees for the unused portion of the current Term. Except as specified above, Company will not be liable for any costs or expenses incurred without its prior written authorization.

   3. Indemnity. Subject to this Agreement, You shall defend, indemnify and hold Company harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Company by a third-party alleging that Your Data or Your use of the Services (as opposed to the Services itself) infringes the intellectual property rights of, or has otherwise harmed, a third-party.

   4. Limitation of Liability. IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS TO COMPANY FOR THE SERVICES.

   5. Disclaimer. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY FOR ANY LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR COVER DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9. LICENSE TERM AND TERMINATION

   Term. The term of this Agreement begins on the date You submit a complete Order Form and authorize payment for the Fees, and continues for the initial subscription account period selected in the relevant Order Form ("Term").

   1. Termination for Cause. This Agreement may be terminated by either party for material breach as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted under the terms and conditions of this Agreement, or (iii) effective immediately and without notice if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other and continues for ninety (90) days undismissed, unbonded and undischarged. Company may temporarily cease performance of its obligations to You under this Agreement during any cure period by You.

   2. Effect of Termination. Expiration or termination by You of this Agreement, or by Company for cause, shall have the following effects: (i) Company shall provide You with limited access to Your Data for retrieval and download, in the current format in which it was last stored in the Application, for a period of sixty (60) days thereafter, (ii) all licenses granted under this Agreement shall terminate immediately, (iii) all rights to use the Application shall cease immediately, and (iv) there shall be no refund to You of any amounts previously paid by You to Company, including any portion of the Fees, and You shall pay Company all remaining Fees due. After the period referenced in Section 9.2(i), Company shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, use commercially reasonable efforts to delete all of Your Data in its systems or otherwise in its possession or under its control. In the event of termination for convenience by Company, Company shall refund You any prepaid fees covering the remainder of the Term of your subscription account after the effective date of termination.

   3. Survival. Except to the extent expressly provided to the contrary herein, any right of action for breach of this Agreement prior to termination, and those provisions which should by their nature survive, shall survive the termination of this Agreement.

10. GENERAL

    1. Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers, or agents.

    2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

    3. Third-Party Licensors. You acknowledge and agree that Company’s third-party licensors disclaim all (i) liability under this Agreement, whether direct or indirect, incidental or consequential, and (ii) warranties of any kind, express or implied, with respect to such third-party’s software that may be part of the Services. As such, You agree that You will not pursue any claim or seek any remedy against such third-party licensors.

    4. Export Control Laws. The Services, Support and any Documentation delivered under this Agreement are subject to U.S. export laws and applicable laws of other countries. You shall strictly comply with all such laws and assume responsibility to obtain licenses to export, re-export, or import as may be required. You agree not to export or re-export to entities on the most current U.S. export exclusion lists or to any country subject to U.S. embargo or terrorist controls as specified in the U.S. export laws. You represent and warrant that You are not identified on any U.S. Government export exclusions list, including without limitation the Denied Persons List of the U.S. Department of Commerce.

    5. Government Restrictions. The Services, Support and related Documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Use of the Software, Support services and related Documentation by the U.S. Government is further restricted according to the terms of this Agreement and any amendment hereto. The manufacturer is OpenSpend, Inc., 1300 Soldiers Field Road, Suite 2, Boston, MA 02135.

    6. Entire Understanding. This Agreement (including the Order Forms submitted hereunder) states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter hereof.

    7. Modification and Waiver. No modification or amendment of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and acknowledged also in writing by the party against whom the modification, amendment or waiver is to be asserted. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement. In the event of any conflict between the provisions in this Agreement and any Order Form hereto, the terms of such Order Form shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby specifically rejected and shall be considered null and void.

    8. Severability. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement.

    9. Headings. Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.

    10. Choice of Law; Arbitration. This Agreement, and any dispute arising out of or in connection with this Agreement or the Services ("Dispute"), will be governed by Massachusetts law. The Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply. If You are based in the United States, You submit to the personal jurisdiction of the courts in Suffolk County, Massachusetts, USA, and all Disputes shall be exclusively subject to the jurisdiction of such courts. Otherwise, all Disputes shall be resolved by final and binding arbitration before three (3) arbitrators pursuant to the rules and under the auspices of the International Chamber of Commerce, Paris. The arbitrators shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not award punitive or exemplary damages. At either party's request, the arbitrators shall issue a written decision explaining the facts and legal reasoning on which their decision is based. The arbitration proceedings shall be conducted in the English language. The prevailing party shall be entitled to attorneys’ fees and costs, in addition to any other relief to which that party may be entitled, under either a legal action or arbitration proceeding.

    11. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by confirmed facsimile. Notices to Company shall be addressed to the attention of its SVP Operations and CFO, with a copy to its General Counsel.

    12. Force Majeure. Neither party shall be liable or deemed in default for any delay or failure in performance of an order or any part of this Agreement, other than a failure to pay, to the extent that such delay or failure is caused by the following, but not limited to: accident, fire, industry-wide strike, embargo, act of the government, war, terrorism or national emergency requirement, act of God, act of the public enemy or any other cause beyond the reasonable control of You or Company. If any of the foregoing condition occurs, the party delayed or unable to perform shall use commercially reasonable efforts to give notice to the other party and continue performing this Agreement to the fullest extent possible. Notwithstanding the foregoing, should the event of force majeure continue for longer than thirty (30) consecutive days, the party not claiming the force majeure may immediately terminate this Agreement upon written notice to the other party.

    13. Publicity and Advertising. Notwithstanding anything contained herein or in any other agreement to the contrary, Company shall have the right to reference You and the nature of the Services provided hereunder in Company’s business development and marketing efforts, including without limitation adding Your company logo to the Company Site. Company shall further have the right to create case studies, presentations, articles and similar materials using non-Confidential Information, statistics and materials developed and learned by Company during its performance hereunder (the "Case Materials") and, upon Your review and approval of such Case Materials, which approval shall not be unreasonably withheld or delayed, to utilize Case Materials in award programs, public speaking engagements, publications and similar uses.

    14. Mutual Non-Exclusivity. Company may work with other entities that may be in competition with You. You may work with other entities that may be in competition with Company. This is a non-exclusive arrangement.

    15. No Assignment. You cannot assign this Agreement or any rights or obligation hereunder. Any purported assignment by You, whether by operation of law, change in control, or otherwise, shall be null and void. Company can assign or delegate performance under this Agreement: (i) to an affiliated company, or (ii) in the event of a merger, acquisition, or sale of all or substantially all of the assets of Company or a Company business unit. Anything in this Agreement or any written understanding related to this Agreement (a "Related Agreement") to the contrary notwithstanding, Company shall have the right, without Your prior written consent, at any time and in its sole discretion, to assign for security interest purposes any or all of its rights under this Agreement and any Related Agreement to any lender providing financing to Company and any of such lender's permitted assigns, and, upon the occurrence and during the continuance of any event of default under the financing agreements between any such lender (or its permitted assigns) and Company, such lender (or its permitted assigns) may exercise any or all of the rights, interests, and remedies of Company under this Agreement or any Related Agreement.