Anexinet

Anexinet Master Service Agreement

Anexinet Master Service Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”) is incorporated by reference and forms a material part of the Statement of Work (the “SOW”), by and between Anexinet Corp. (“Anexinet”), a Pennsylvania corporation, having its principal offices at 4 Sentry Parkway East, Suite 300, Blue Bell, PA 19422, and the party named in the applicable SOW (the “Client”) (each a “Party” and collectively “Parties”).

 

In consideration of the mutual promises, undertakings and covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. SERVICES AND DELIVERABLES

 1.1. Performance

Subject to all terms and conditions of this Agreement and in any relevant Statement of Work (each an “SOW”), Anexinet agrees to provide and Client agrees to pay for all the fees described therein or elsewhere in this Agreement (“Fees”), (i) the services expressly set forth from time to time in a SOW and such other services as Anexinet may agree to provide form time to time (individually and collectively “Service(s)”), and (ii) the tangible deliverables expressly identified as deliverables from time to time in an SOW (individually and collectively “Deliverable(s)”). Each SOW shall become effective and incorporated into this Agreement by reference when executed by both parties, will constitute a separate contract under this Agreement, and shall be governed by the terms of this Agreement.  In the event of a conflict or inconsistency between the provisions of this Agreement and any SOW, the terms of the SOW shall take precedence for the purposes of that SOW only.

 1.2. Change Orders

Except as otherwise provided in this Agreement, no additions, deletions, or modifications to the Parties’ obligations as set forth in an SOW will be binding upon either Party unless set forth in a writing signed by both Parties (a “Change Order”).  In the event that Client requests any such additions, deletions, or modifications, Client must do so in writing, and Anexinet will review and analyze such request and inform Client in writing if such a change is accepted and if so, if it would result in an extension of the schedule for Services or additional cost to Client, giving details thereof.   A Change Order will become part of the corresponding SOW, and in the event of any conflict between an SOW and any Change Order thereto, or in the event of conflict between Change Orders to a given SOW, the later Change Order will control.

 1.3. Subcontractors

The Parties acknowledge that Anexinet may delegate performance of some or all of its obligations under this Agreement to subcontractors; provided, however, that Anexinet will remain fully responsible for the performance of such obligations. 

2. ACCEPTANCE

Client will have five (5) business days from the date of delivery of Services or Deliverables (as the case may be) to test and evaluate the Services or Deliverables for conformity with the requirements therefor set forth in the applicable SOW (such requirements are the “specifications”.) Client will accept each Service or Deliverable (as the case may be) if it materially conforms to the specifications. If the Services or Deliverables (as the case may be) do not materially conform to the specifications, then Client will provide a written statement of nonconformity to Anexinet, identifying in detail the basis for the nonconformity, within such five (5) business day period.  Anexinet will use reasonable commercial efforts to correct the identified nonconformity and re-deliver such Services or Deliverables (as the case may be) within a period of fifteen (15) business days (or such other period of time as mutually agreed upon in writing) under the same acceptance testing procedure, whereupon the testing and notice of acceptance or rejection procedure described in this section will be repeated up to three (3) times as necessary, using the same timeframes as described above, measured from the most recent delivery or re-delivery of Services or Deliverables. 

 

Client will be deemed to have accepted the Services and Deliverables (i) if Client gives written notice of acceptance of the Services and Deliverables, (ii) if Client fails to provide a written statement of nonconformity to Anexinet within five (5) business days after the most recent delivery or re-delivery of Services or Deliverables (as the case may be), or (iii) if Client utilizes the Services or Deliverables in a live commercial or production environment or makes any use thereof other than as strictly necessary for testing under this Section. 

 

Anexinet will not be deemed to be in breach of this agreement with respect to given services or deliverables (as the case may be) which fail to conform to the specifications unless and until Anexinet fails to deliver such Services or Deliverables (as the case may be) which materially conform to the specifications after three (3) attempts to correct the same nonconformity.  In the event Anexinet fails to deliver Services or Deliverables (as the case may be) which materially conform to the specifications after three (3)  attempts to correct the same nonconformity, Client’s sole and exclusive remedy with respect to the nonconforming Services or Deliverables (as the case may be) will be to terminate the applicable SOW and receive a refund of fees directly attributable to the nonconforming Services or Deliverables.

3. PRODUCTS

 3.1. Products

Product(s)” means, individually and collectively, hardware or services, or licenses in software, marketed, distributed, provided, sold or licensed by third parties that Anexinet agrees to procure for or resell to Client under this Agreement.  From time to time, Anexinet may agree to procure for or sell to Client Products  to the extent set forth in a SOW or in an order form or other written document (”Order Form”) agreed to by the Parties. Each Order Form will become part of this Agreement and, in the event of a conflict between such Order Form and the rest of this Agreement, the Agreement will control unless the Order Form specifically states that it is intended to prevail over the terms of this Agreement.

 3.2. Risk of Loss

Title to and ownership of each hardware Product sold by Anexinet (but not Services or Products licensed) passes to Client from Anexinet or the third party manufacturer, vendor or proprietor thereof (“Third Party Vendor”) (as applicable) upon delivery to Client. Risk of loss to the Products passes to Client upon delivery to the Client.  Client will insure the Products for their full replacement value until the applicable Fees are paid in full. Delivery may be made in lots. Client grants Anexinet a security interest in and to the Products sold hereunder as security for performance of Client’s payment obligations. Client will execute a UCC financing statement at Anexinet’s request, along with any other documents deemed necessary by Anexinet to perfect such security interest, and Anexinet may file the Agreement (together with any attachments thereto and any other documents) to perfect such interest. Upon any default or breach by Client of its payment obligations, Anexinet will have the right to repossess the Products as well as all rights and remedies of a secured party under the Uniform Commercial Code.

 3.3. Licenses in Products “Billed” Products

To the extent that the Products consist of subject matter that is licensed to Client (including software or firmware embodied in Products) or Anexinet is merely billing and collecting for (or performing similar intermediary functions with respect to) Products to be provided directly by a Third Party Vendor, Client agrees that, notwithstanding Section 3.2 all licenses and rights of Client with respect to such Products, and any warranties, support and indemnifications with respect thereto, if any, will be governed by the terms and conditions of the separate license or other terms for such Products between Client and the Third Party Vendor. Such terms will exist solely and directly between Client and the Third Party Vendor, and Client will be solely responsible for compliance with and maintenance of, all applicable licenses and other rights, obligations, terms and conditions with respect thereto.  In the event that any of the Products purchased or licensed by Client are subject to shrink-wrap, on screen or similar license or other terms that must be accepted during any installation or configuration Service performed for Client by Anexinet, Client authorizes Anexinet to accept the terms of such agreements on its behalf. Anexinet will not be deemed a party to, or have any liability with respect to, such terms, and such terms are not part of this Agreement.

 3.4. Returns

To the extent Anexinet elects to accept any return of Products, Anexinet may charge, and Client shall pay, a restocking fee in the amount of twenty percent (20%) of the total Fees for the returned Product.  Title to any returned Products shall pass to Anexinet, free and clear of all security interests, liens and encumbrances, upon return thereof to Anexinet.  All returns are subject to compliance Anexinet’s then-current standard RMA procedures and policies, and Client shall remain liable for one hundred percent (100%) of the total Fees for any returned Products that are not received by Anexinet in the same condition as delivered to Client.

4. FEES, EXPENSES, PAYMENT, AND TAXES.

 4.1. Payment

Client will pay Anexinet all Fees for the Services or Products as specified in the applicable SOW. Anexinet will invoice Client for the Services or Products monthly or as otherwise provided under the relevant SOW and for expenses as allowed under Section 4.2 of the Agreement on an invoice following Anexinet incurring the expense. Client will pay all such invoices within thirty (30) days of the invoice date. Prices do not include and Client will promptly pay all applicable taxes, except for taxes levied on Anexinet’s net income.  Except as otherwise provided in Section 9.2 and 9.3, all payments become non-refundable upon receipt by Anexinet.

 4.2. Expenses

Client will reimburse Anexinet for reasonable expenses incurred by Anexinet in connection with the Services, including travel expenses (i.e., transportation, lodging and meals) if included in an SOW or otherwise pre-authorized by Client’s Designated Representative (as defined in Section 6.1).

 4.3. Payment, Default

Client’s failure to make any payment for Services or Products when due will constitute a material breach of this Agreement. If any payment becomes thirty (30) days past due, upon written notice to Client, Anexinet may stop work or cease providing any Services or Products under the defaulted SOW or any other SOW between the Parties. Nothing in this provision shall be read to limit Anexinet from pursuing all other available remedies. In the event that Client pays any amounts due more than forty-five (45) days after the invoice date, Client shall be responsible for Anexinet’s reasonable costs of collection (including reasonable attorney’s fees and costs) and will also be responsible for interest on such amounts from the invoice date until paid at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, if lower.

4.4. No Withholding or Setoff

Other than as relates to a good faith dispute under Section 4.6, Client may not withhold or setoff any amounts due under this Agreement or any SOW.

 4.5. Fee Increases

Anexinet will honor all Fees agreed to on any individual SOW for the agreed term of such SOW except that, for any SOW that renews automatically on a periodic basis, Anexinet may adjust Fees upon written notice to Client of not less than sixty (60) days prior to the effective date of the next automatic renewal. Such Fee adjustments will come into effect on the effective date of the next automatic renewal.

 4.6. Disputed Amounts

Client may, in good faith, dispute any invoices received by Client within thirty (30) days of the invoice date. Any invoices not disputed by Client in good faith within such thirty (30) day period shall be deemed agreed to and accepted by Client in all respects.

5. TERM.

 5.1. Term

Unless otherwise terminated in accordance with Sections 5.2 or 5.3, this Agreement will be effective for a period of five (5) years (the “Term”). Unless either Party gives written notice of termination sixty (60) days prior to the end of the Term, this Agreement shall renew for successive terms of one (1) year.

 5.2. Termination

Either Party may terminate this Agreement (a) if the other Party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of notice of such breach, to either correct the breach or commence corrective action that is reasonably acceptable to the aggrieved Party, (b) if the Parties cannot agree on the terms of a Change Order requested by Anexinet pursuant to Section 2 within thirty (30) days of Anexinet’s good faith request of such Change Order, or (c) at any time and for any reason upon sixty (60) days prior written notice to the other Party; provided, no termination under subparagraph (c) shall be effective until each Party has fulfilled its obligations under any active SOW.

 5.3. Bankruptcy

Either Party may terminate this Agreement and/or any or one or more SOWs immediately, if the other Party: (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) makes a general assignment for benefit of its creditors generally; (c) becomes (or its properties become), voluntarily or involuntarily, the subject of any insolvency, bankruptcy or similar proceeding which is not fully stayed within thirty (30) business days or is not dismissed or vacated within sixty (60) days after filing; (d) goes into liquidation; (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (f) otherwise ceases to function as a going concern.

 5.4. Effect of Termination

Within five (5) business days after the effective date of termination or expiration of this Agreement for any reason whatsoever, Client shall pay Anexinet all Fees and Expenses earned or incurred by Anexinet under any SOW or Order Form through the date of termination (to the extent not previously paid by Client), specifically including any early termination fees charged to Anexinet or delineated in any SOW or Order Form and any amounts for work in progress at the time of termination or expiration, calculated at Anexinet’s then-current time and materials rates (except where other rates have been agreed to by Client and Anexinet), together Client paying any unpaid Fees covering the remainder of the applicable term set forth in each such applicable SOW to the extent permitted by applicable law. Unless the Parties agree otherwise in writing, termination or expiration of this Agreement for any reason whatsoever will also serve to terminate all SOWs and Order Forms. Additionally, all rights and licenses granted by Anexinet hereunder (unless such licenses have been stated in this Agreement to be perpetual) will immediately cease and be terminated and all property (including Confidential Information) of each Party that is in the possession of the other Party will be returned to its owner.  Notwithstanding the foregoing, in the event of termination of this Agreement or any portion thereof (including any license granted hereunder) by Anexinet due to breaches of obligations of confidentiality or of a license granted hereunder or failure to pay applicable Fees and Expenses, all rights and licenses granted by Anexinet hereunder will immediately cease and be terminated, even if such licenses have been stated in this Agreement to be perpetual. Termination of this Agreement will not relieve Client of its obligation to pay all Fees and Expenses that are owed by Client under this Agreement as of the termination.

6. CLIENT OBLIGATIONS.

 6.1. Cooperation Information

Client shall: (a) cooperate with Anexinet in all matters related to the Services and appoint a Client employee (the “Designated Representative”) to serve as the primary contact with respect to this Agreement or any SOW and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement; (b) provide such access to Client’s premises and such office accommodation and other facilities as may reasonably be requested by Anexinet, for the purposes of performing the Services; (c) respond promptly to any Anexinet request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Anexinet to perform Services in accordance with the requirements of this Agreement; (d) provide such Client-Supplied Materials (as defined herein) and information as Anexinet may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material aspects; and (e) ensure that all Client-Supplied Materials are in good working order and suitable for the purposes for which it is used and conforms to all relevant legal or industry standards or requirements. If Anexinet’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, or its agents, subcontractors, consultants, or employees, Anexinet shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

 6.2. Client-Supplied Materials

Client expressly agrees and acknowledges that i) in the course of performance, Anexinet may access, utilize and, upon Client request, copy, adapt, modify and prepare derivative works of, the Client-Supplied Materials and ii) the Deliverables may consist, in whole or in part, of derivative works of Client-Supplied Materials, and Client hereby grants to Anexinet and its agents and subcontractors an irrevocable license, for the term of this Agreement, to do any and all of the foregoing.  Client hereby represents, warrants and covenants to Anexinet that (a) Client has secured or will secure from all owners or proprietors of any and all Client-Supplied Materials, prior to delivering or making available such Client-Supplied Materials to Anexinet, all rights in, and consents of third parties with respect to, such Client-Supplied Materials reasonably necessary for Anexinet and its agents, and subcontractors to lawfully perform the Services and create the Deliverables and to do all acts related thereto described in this Agreement or in any SOW (including exercising any licenses granted hereunder); and (b) Client will maintain all rights and consents set forth at subsection (a) throughout the term of this Agreement. For purposes of this Agreement, “Client-Supplied Materials” means any materials, data or information which Client, from time to time during the term of this Agreement, delivers or makes available to Anexinet and that are utilized in connection with, or incorporated into, the Services and/or Deliverables, including without limitation, confidential information, trade secrets, copyrights, trademarks, patentable subject matter or intellectual property of Client or of third parties. Client will defend, indemnify and hold harmless Anexinet and its successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) suffered by any of them arising from or in connection with a claim by any third party that the Client-Supplied Materials or the use thereof in accordance with this Agreement infringes any right of such third party.

7. WARRANTIES.

 7.1. Services

Anexinet warrants that the Services and Deliverables will be provided in a workmanlike and professional manner in material conformity with applicable specifications.  EXCEPT FOR THE FOREGOING AND AS EXPRESSLY SET FORTH IN AN SOW, THE SERVICES AND DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ANY WORK PRODUCT OR LICENSED INTELLECTUAL PROPERTY, IF APPLICABLE,  ARE PROVIDED AS-IS, WHERE-IS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE). NEITHER ANEXINET NOR ANYONE ASSOCIATED WITH ANEXINET REPRESENTS OR WARRANTS THAT THE SERVICES AND DELIVERABLES WILL BE RELIABLE, ERROR-FREE, INTRUSION PROOF OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL OTHERWISE MEET THE NEEDS OR EXPECTATIONS OF CLIENT OR ANY OF ITS CUSTOMERS.    UPON BREACH OF THE WARRANTY CONTAINED IN THIS SECTION, (I) CLIENT’S SOLE AND EXCLUSIVE REMEDY WILL BE TO REQUIRE ANEXINET TO EXERCISE ITS BEST EFFORTS TO REPAIR OR REPLACE THE NONCONFORMING PORTION OF THE SERVICES OR DELIVERABLES, AND (II) ANEXINET’S OBLIGATION WILL BE LIMITED TO EXERCISING ITS BEST EFFORTS TO REPAIR OR REPLACE THE NONCONFORMING PORTION OF THE SERVICES AND/OR DELIVERABLES.  THIS WARRANTY WILL NOT APPLY WITH RESPECT TO ANY ALLEGED FAILURE OR DEFECT IN THE SERVICES OR DELIVERABLES THAT IS NOT REPORTED TO ANEXINET IN WRITING WITHIN THIRTY (30) DAYS AFTER THE PERFORMANCE OF THE APPLICABLE SERVICES OR DELIVERY OF THE APPLICABLE DELIVERABLE (AS THE CASE MAY BE).  ANYTHING IN THIS AGREEMENT, ANY ORDER FORM OR ANY SOW TO THE CONTRARY NOTWITHSTANDING, ANEXINET WILL NOT BE DEEMED IN BREACH OF ANY REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT WHERE THE ALLEGED BREACH ARISES FROM OR IN CONNECTION WITH (A) CLIENT-SUPPLIED MATERIALS, (B) CLIENT’S BREACH OF THIS AGREEMENT, (C) ANY USE BY CLIENT OF ANY SERVICES OR DELIVERABLES OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT, THE SPECIFICATIONS AND ALL APPLICABLE LAWS, RULES AND REGULATIONS, (D) ANY USE BY CLIENT OF ANY SERVICES OR DELIVERABLES IN COMBINATION WITH ANY OTHER PRODUCT OR SERVICE NOT SUPPLIED OR PROVIDED BY ANEXINET, OR (E) ANY CHANGES OR MODIFICATIONS TO ANY SERVICES OR DELIVERABLES BY ANY PERSON OR ENTITY OTHER THAN BY ANEXINET.  THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES BY ANEXINET, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, SUCH AS ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, OR TITLE INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, WITH RESPECT TO THE SERVICES OR ANY DELIVERABLE OR PRODUCT, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.

 7.2. Products

To the extent the Product(s) come subject to one or more valid warranties provided by the Third Party Vendor that run to the benefit of the end purchaser or user, Anexinet will provide all such warranties with such Products. If such warranties run to the benefit of Anexinet, Anexinet will assign, and does assign such warranties, to Client, to the extent permitted by such Third Party Vendor or by applicable law. Anexinet will have no liability to Client with respect to or under such warranties or for any support or indemnification obligations with respect to Products. As between Anexinet and Client, all Products are deemed accepted upon delivery thereof, and Client waives the right to revoke acceptance, but this does not waive any rights Client may have with respect to the Third Party Vendor.  THE PRODUCTS ARE NOT DESIGNED OR MANUFACTURED BY ANEXINET AND ANEXINET ITSELF MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS.

 7.3. Personnel

Anexinet shall provide personnel in sufficient number and with appropriate levels of skill, experience, and training to perform the Services in accordance with Section 1. To the extent Client has provided Anexinet a written copy of its workplace rules, Anexinet will conduct any services provided at Client’s facilities in accordance with such workplace rules, to the extent they do not conflict with applicable laws and regulations.

8. INTELLECTUAL PROPERTY

 8.1. Anexinet Retained IP License

All rights, title, and interest in the Anexinet Retained IP will be and remain the exclusive property of Anexinet. “Anexinet Retained IP” means, individually and collectively, Anexinet’s software, systems, business methods, notes, reference materials, sketches, drawings, Confidential Information, memoranda, documentation, software and records in any form or media that are owned or developed by Anexinet or its licensors prior to, or separately and apart from, this Agreement, including but not limited to all worldwide copyrights, trade secrets, trademark, confidential, and proprietary rights in, and all copies of, any of the foregoing. Client gains no right, license, title, or permission with respect to the Anexinet Retained IP by virtue of this Agreement except as expressly set forth in this Agreement.  If Anexinet delivers any Anexinet Retained IP to Client in the course of performance under a SOW, then, subject to all terms and conditions of this Agreement (including without limitation the terms of Section 10  and except as provided at Section 3 below), Anexinet hereby will be deemed to grant to Client a non-exclusive, personal, nontransferable, nonassignable, non-sublicensable, license to permit Client to use the Anexinet Retained IP only in connection with the Services and only during the term of such SOW.

 8.2. Ownership of Work

Except as expressly provided otherwise in Section 3 or in an SOW, as between the Parties, exclusive title to and ownership of any Work Product (as used herein, “Work Product” means all materials, ideas or concepts first developed by Anexinet during the course of performance of the Services, including all Deliverables but not including any Licensed Intellectual Property (as used herein, “Licensed Intellectual Property” means all Anexinet Retained IP and any software, cloud services, or other licensable intellectual property licensed to Anexinet and incorporated into the Work Product or Deliverables) contained therein generated, developed or delivered by Anexinet in the course of its performance hereunder) (including without limitation notes, reference materials, sketches, drawings, memoranda, documentation, inventions, know-how and business processes, software and records in any form or media and all copies of any of the foregoing – but excluding any Client Confidential Information) will vest in Anexinet.  To the extent that any right or title to any part of the Work Product does not vest in Anexinet in accordance with the foregoing, Client hereby assigns to Anexinet or its designee, to the fullest extent permitted by law, all title to and ownership of the Work Product (including without limitation ownership of all copyrights in all copyrightable subject matter therein).

 8.3. Ownership of Deliverables; License

Upon Client’s acceptance and payment in full of all Fees and Expenses under the applicable SOW, and subject to all terms and conditions of this Agreement, Client will own the Deliverables provided under such SOW as “works made for hire” under applicable law and, to the extent that any right or title to any part of such Deliverables does not vest in Client in accordance with the foregoing, Anexinet hereby assigns to Client or its designee, to the fullest extent permitted by law, all title to and ownership of such Deliverables (including without limitation ownership of all copyrights in all copyrightable subject matter therein). Notwithstanding the foregoing, nothing in this Section will be deemed to grant Client ownership of any Anexinet Retained IP or other Work Product that is not a Deliverable hereunder, even if and as incorporated into a Deliverable; however, to the extent that the Deliverable incorporates any Anexinet Retained IP or any other Work Product that is not a Deliverable hereunder, then, upon Client acquiring ownership of the applicable Deliverable as provided above, Anexinet hereby will also be deemed to grant to Client a non-exclusive, personal, nontransferable, nonassignable, non-sublicenseable, perpetual, royalty free license  to use the applicable Anexinet Retained IP or Work Product incorporated in such Deliverable, but only as part of, and in conjunction with, the applicable Deliverable for Client’s internal uses only.  All rights not specifically granted to Client hereunder are reserved to Anexinet and Client agrees that it will not make any use of any Anexinet Retained IP or Work Product in any manner or for any purpose whatsoever except as expressly permitted by the terms and conditions of this Agreement. Any license granted to Client under this Agreement or under any SOW is terminable upon Client’s breach of the terms of such license or failure to pay all amounts due hereunder.

9. LIABILITY.

 9.1. LIABILITY.

ANEXINET’S AGGREGATE LIABILITY TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL LIABILITIES ARISING UNDER THIS AGREEMENT, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID TO ANEXINET BY CLIENT PURSUANT TO THE APPLICABLE SOW FOR THE RELEVANT SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OBLIGATION. IN NO EVENT WILL ANEXINET BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANEXINET BE LIABLE FOR THE COST OF COVER IN THE EVENT OF A BREACH OF WARRANTY BY ANEXINET OR OTHER FAILURE OF THE SERVICES. UNDER NO CIRCUMSTANCES SHALL ANEXINET BE LIABLE FOR CLAIMS OR LOSSES ARISING FROM OR RELATING TO CLIENT’S USE OF THIRD-PARTY PRODUCTS OR SERVICES NOT SUPPLIED BY ANEXINET. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 1 WILL REMAIN FULLY OPERATIVE EVEN IF THE LIMITED REMEDIES SET FORTH IN SECTION  FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE.

 9.2. Infringement

If any infringement claim related to the Work Product or Anexinet Retained Intellectual Property (collectively, the “IP”) has occurred or, in Anexinet’s reasonable judgment, is likely to occur, than Anexinet, at Anexinet’s option and expense, will either procure the right for Customer to continue using the IP that is the subject of such claim, or replace or modify such IP so that such IP becomes non‑infringing yet remains functionally equivalent. If Anexinet determines that neither of the foregoing alternatives is feasible, than Anexinet may terminate any rights granted under this Agreement to such IP and return to Client an equitable portion of the fees paid by Client for such IP. This Section 2 states Client’s sole and exclusive remedy arising from copyright, patent and trade secret infringement claims made against Client with respect to the IP, and Anexinet will incur no liability to Client relating to such infringement claims except as provided herein.

 9.3. Limitation of Remedies

The parties acknowledge that the provisions of this Agreement have been negotiated by them and reflect a fair allocation of risk that is reflected in the Fees payable under this Agreement and any SOWs.

  9.4. Time Limit for Claims.

 If Client fails to bring an action within two (2) years from its accrual, then Client will be deemed to have waived whatever rights it may have had in relation to such cause of action.

10. CONFIDENTIAL INFORMATION

  10.1. Generally

The Parties acknowledge and agree that it will be necessary for each of them to disclose or make available to each other Confidential Information (as used herein, “Confidential Information” means any and all confidential and proprietary information that the disclosing party (the “Disclosing Party”) discloses to the receiving party (the “Receiving Party”) in written or electronic form that is clearly marked as confidential or proprietary or is disclosed in writing or orally under circumstances reasonably indicating that it is confidential or proprietary including, without limitation, such information relating to the Disclosing Party’s intellectual Property (as defined herein) and business practices) including such that contains valuable trade secrets relating to their respective businesses and is critical to their competitive positions in the marketplace, whether in writing, electronically or verbally.

  10.2. Restriction on Disclosure or Use of Confidential Information

The Receiving Party shall, using the same degree of care used to protect its own Confidential Information, but not less than a reasonable degree of care, keep confidential and not disclose the Disclosing Party’s Confidential Information, including: (a) restricting access to all Confidential Information received from the Disclosing Party to those employees, agents, advisors and representatives who have a need to know and are bound to confidentiality obligations not less restrictive to those in this provision as well as advising such employees, agents, advisors and representatives of the obligations set forth herein; and (b) not using the Disclosing Party’s Confidential Information for any use outside of this Agreement including but not limited to its own use or in competition with Disclosing Party. Any breach of this Section 10 by the Receiving Party’s employees, agents, advisors and representatives shall be deemed a breach by the Receiving Party.

 10.3. Disclosure Required by Law

Notwithstanding anything herein to the contrary, it shall not be a violation of this Section 10 for the Receiving Party to disclose any Confidential Information if required by law or governmental order; provided, that if the Receiving Party becomes legally required to disclose Confidential Information, or any part thereof, the Receiving Party will, if possible, give the Disclosing Party prompt notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy to enjoin or limit the disclosure of the Confidential Information. If the Disclosing Party waives compliance with any of the terms of this Section 10 or is unable to obtain a protective order or other appropriate remedy with respect to such disclosure of Confidential Information, then the Receiving Party will disclose only that portion of the Confidential Information necessary to ensure compliance with such legal requirement.

  10.4. Exceptions

Confidential Information shall not include any information that (i) was already known to the Receiving Party prior to the time of disclosure by the Disclosing Party, (ii) is available or becomes generally available to the public other than through the Receiving Party’s breach of this Agreement, (iii) is acquired or received rightfully and without confidential limitation by the Receiving Party from a third party, or (iv) is independently developed by the Receiving Party without breach of this Agreement.

 10.5. Ownership of Confidential Information

The Receiving Party agrees that the Disclosing Party’s Confidential Information is and will remain the property of the Disclosing Party. No grant of any rights to the Disclosing Party’s Intellectual Property, including any license implied or otherwise, is given or intended to be given hereby unless otherwise granted under this Agreement.

 10.6. Return or Destruction of Confidential Information

Promptly upon the Disclosing Party’s request, the Receiving Party shall either destroy and certify to such destruction or return to the Disclosing Party all Confidential Information and any materials that contain in any way Confidential Information. Notwithstanding the forgoing, the Receiving Party, may, to the extent required by law, keep an archival copy of any Confidential Information that is returned to the Disclosing Party or destroyed by the Receiving Party; provided, that the Receiving Party shall be restricted from using or disclosing such archived Confidential Information except as required by law or other governmental order.

  10.7. Injunctive Relief

The Parties acknowledge that unauthorized use or disclosure of Confidential Information by the Receiving Party will cause irreparable damage to the Disclosing Party for which monetary damages may not be sufficient compensation. The Parties agree that the Disclosing Party will be entitled to seek an injunction prohibiting any disclosure, attempted disclosure, violation of this Section 10 or threatened violation of this Section 10 without the necessity of proving damages or furnishing a bond or other security.

  10.8. Survival

The provisions of this Section 10 shall continue for a period of three (3) years from expiration or termination of this Agreement except that the confidentiality obligations as to trade secrets shall continue so long as such remain eligible for protection as trade secrets under the law.

11. NON-SOLICITATION

During the term and for a period of one (1) year thereafter, neither Party shall employ, contract with for any service, or solicit for such any employee or independent contractor employed or otherwise engaged by either Party during the Term who has engaged with the other Party in the prior twelve (12) months (each a “Resource”). In the event that either Party breaches this Section, the breaching Party shall pay to the non-breaching Party, as liquidated damages, a one-time payment in the amount of the greater of (i) 125% of the Resource’s base salary for the first six months of employment with the breaching Party, or (ii) 125% of the amount the Resource would have earned in the next six months with the non-breaching Party. The Parties agree that the payments set forth herein are a reasonable approximation of damages to the non-breaching Party and are not a penalty. The foregoing shall not be read in any way to restrict either Party from hiring any Resource that is not subject to a restrictive covenant and who responds to a general, publicly available solicitation but is not directed to such solicitation in any way by the Party seeking to hire the Resource.

12. GENERAL PROVISIONS

12.1. Good Faith Covenant

The Parties agree to act in good faith in the fulfillment of their obligations under this Agreement.

12.2. Non-Exclusive Relationship

Each Party enters into this relationship on a non-exclusive basis. Anexinet may undertake professional services engagements for other customers, including, without limitation, other engagements that are identical or substantially similar to the Services provided to Client hereunder.

12.3. Export

In the event that this Agreement permits the exportation of any of the Services, Deliverables or Products outside the U.S., Client will be solely responsible for compliance with all applicable U.S. export laws, rules, and regulations and all applicable laws, rules, and regulations of any jurisdiction(s) to or through which the Services, Deliverables or Products are transmitted, transported or imported.  Client agrees to keep such books and records and to take other actions as may be required by such applicable laws, rules, and regulations.  Client will defend, indemnify, and hold harmless Anexinet and its successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) arising from or in connection with Client’s failure to comply with any such laws, rules or regulations. All of the foregoing are expressly made third party beneficiaries of this Section.

12.4. Force Majeure

Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other Party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) pandemic or epidemic.

12.5. Jurisdiction, Venue, Jury Trial

Pennsylvania law, without regard to any conflict of law principles, shall govern all matters related to this Agreement including without limitation its validity, interpretation, construction, and performance as well as all claims and causes of action whether arising under contract, tort, or any other legal theory.  The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to this Agreement. Any legal suit, action, or proceeding arising out of or based upon/relating to this Agreement or the transactions contemplated hereby shall be instituted in the United States Eastern District of Pennsylvania federal court or state court located in the County of Montgomery, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

12.6. Waiver Amendment

This Agreement may only be modified by a writing that is executed by authorized representatives of both parties. Any waiver must be express and in writing. No waiver by either party of a breach by the other party will constitute a waiver of any different or succeeding breach. Unless otherwise specified, all remedies are cumulative. Client’s subsequent purchase orders or other standard business forms will not constitute a modification of this Agreement, whether or not received, accepted, approved or signed by Anexinet.

12.7. Entire Agreement

This Agreement includes and incorporates all SOWs and Order Forms entered into hereunder and all referenced or attached exhibits, schedules, attachments or documents, and sets forth the entire agreement and understanding between the Parties pertaining to their subject matter, superseding all prior or contemporaneous discussions, agreements, promises or understandings between the Parties pertaining to their subject matter.  Any additional or varying terms contained in Client’s preprinted forms, correspondence or other documents transmitted to Anexinet will be of no effect, unless otherwise expressly provided in the Agreement.  This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same Agreement.

12.8. Assignment

This Agreement and the rights and obligations hereunder may not be assigned in whole or in part by either Party without the prior written consent of the other, except that this Agreement may be assigned by a Party to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such Party provided written notice of such assignment is provided to the other Party promptly thereafter. Any purported assignment in violation of the foregoing will be null and void.  This Agreement will be binding upon, and inure to the benefit of, the Parties, their legal representatives, successors, and permitted assigns as permitted by this Agreement. Nothing in this Agreement will be construed to create any rights enforceable by any person or entity who is not a named Party.

12.9. Electronic Signatures

This Agreement may be (a) executed in several counterparts, all of which taken together will constitute the same instrument, and (b) delivered by ‘pdf’ or other electronic means, and upon such delivery, the ‘pdf’ or other electronic signature will be deemed to have the same effect as if the original signature had been delivered.

12.10. Notices

Any notices required by this Agreement shall be made in writing and shall be delivered in person, sent by overnight courier, or by certified mail, return-receipt-requested, to the other Party’s address as it appears in this Agreement or the applicable SIOW or to any other address specified by the receiving Party in writing. All such notices will be deemed received by the other Party upon delivery, as specified by the nationally recognized delivery service hired to make such delivery.

12.11. Severability

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect. Such invalid or unenforceable provision will be automatically revised to be a valid or enforceable provision that comes as close as permitted by law to the Parties’ original intent.

12.12. Independent Contractor

Anexinet shall be considered an independent contractor. Accordingly, Anexinet will, at all times and in its sole discretion, determine the manner and means by which Services will be performed, subject to the terms of this Agreement and the applicable SOW. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties. At no time will either Party make commitments or incur any charges or expenses for or on behalf of the other Party without prior written consent. Neither Party will be liable for any tax, withholding or other statutory obligation (including without limitation, workers’ compensation insurance) relating to the other Party, any sub-contractor or the personnel of the other.

12.13. Headings

The headings of the sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

12.14. Binding Effect

This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legatees, personal representatives and other legal representatives, successors and permitted assigns.

12.15. Trademarks

During the Term and for the sole purpose of identifying Client as an Anexinet customer, Client hereby grants Anexinet a worldwide, revocable, non-transferrable, royalty free, and non-sublicensable license to display Client’s name and logo (the “Marks”) on Anexinet’s websites and in marketing and promotional materials. Anexinet will only use Marks as described herein and in accordance with any written guidelines provided by Client. Anexinet expressly agrees and understands: (i) all ownership, rights, and other interests in the Marks belong to Client and nothing in this Agreement shall be read to transfer any rights to Anexinet beyond the limited license provided herein, (ii) all goodwill accrued through Anexinet’s use of the Marks will solely inure to Client’s benefit, (iii) and Anexinet will not incorporate the Marks into any Anexinet trademarks, logos, service marks, internet addresses, domain names, or similar designations.

12.16. Survival

The terms of Sections 1, 4, 6.2, 7.1, 7.2, 8, 9.3, 10, 11 and 12.16 as well as any Sections that survive pursuant to the language therein will survive the termination of this Agreement.