This
ONLINE SUBSCRIber TERMS AND
CONDITIONS AND LICENSE AGREEMENT (the “Agreement”), is made and entered into
as of the __ day of _______ 20__ (the “Effective Date”), by and between
CenterLynx Corporation, a North Carolina corporation with offices located
at 118 Rocklyn Lane, Apex, North Carolina 27502-4126 (“CLC”)
and the subscriber set forth on the signature page hereto ("Subscriber").
ARTICLE I: LICENSE; SCOPE
Section 1.01 – License:
In consideration for payment of the fees set forth herein, CLC
hereby grants to Subscriber and Subscriber hereby accepts from CLC, a personal, non-transferable, non-exclusive license during the
term of this Agreement to access and use via the Internet, the Software,
solely for Subscriber's internal business purposes, on the terms and subject
to the conditions as set forth herein.
Section 1.02 – Access and Password:
Subscriber, at its own expense, shall be responsible for procuring all
hardware and connectivity necessary to access and use the Software and
Services, including, without limitation, (i) computer hardware and
equipment, (ii) third party software such as web browsers, (iii) Internet
access services, and (iv) telecommunications services. Subscriber shall
access the Software and Services only using the Password. Subscriber hereby
accepts responsibility for, and shall be liable for, all access to the
Software and Services in connection with the Password. Subscriber shall be
solely responsible for the confidentiality and maintenance of the Password.
Subscriber shall not assign the Password and all assignments of the Password
by Subscriber shall be void.
Section 1.03 – Authorized Use:
Subscriber shall take all necessary actions to prevent (i) Unauthorized
Users from accessing the Software and Services and from using the Password
and (ii) Unauthorized Access to the Software, Services and Password.
Section 1.04 – User Limit:
Subscriber shall prevent concurrent access to the Software and Services
using the Password by more Users than the User Limit.
Section 1.05 – Subscriber Data:
Subscriber hereby grants CLC a worldwide and non-exclusive
license to use, reproduce, and modify the Subscriber Data, in whole or part,
for the purpose of maintaining the Software or performing the Services
hereunder. CLC shall not have the obligation to access,
review, store or maintain the Subscriber Data. Subscriber shall be solely
responsible for uploading, converting, storing and maintaining the
Subscriber Data.
Section 1.06 – Proper Use:
Subscriber shall be responsible for its use of the Software and Services in
accordance with the applicable Documentation. Such Documentation may be
amended from time to time by CLC or its licensors, in their
sole discretion. Subscriber shall not use the Software or Services in
conjunction with any data, information or other materials that (i) violate
any applicable laws, rules or regulations and (ii) infringe upon or
misappropriate any intellectual property or proprietary right of others.
Section 1.07 – General Practices:
Subscriber acknowledges that CLC may establish general
practices and limits concerning use of the Software and Services from time
to time. Subscriber acknowledges that CLC reserves the right
to restrict Subscriber’s use of the Software and Services, which exceeds
limits set by CLC. In lieu of such restriction Subscriber may
elect to terminate this Agreement, in which case CLC will
refund the pro rata portion of any fees that may have been paid by
Subscriber for use of the Software and Services, which has not been provided
as of the date of such termination.
ARTICLE II: SERVICES
Section 2.01 – Online or Telephone Support:
During the hours of 9:00 a.m. through 5:00 p.m. Eastern Standard Time,
Monday through Friday (excluding CLC holidays), CLC will provide, free of charge, a reasonable number of hours of
electronic mail, chat or other online support or telephone support in the
form of consultations, assistance and advice concerning use of the Software
or, with regard to Default Resolution Service, correction of a Default
("Online or Telephone Support"). If Subscriber requires an excessive amount
of Online or Telephone Support, as reasonably determined by CLC, Subscriber shall, at Subscriber’s sole expense and at
CLC's then current rates, complete additional training on the use of
the Software and Services. If Subscriber fails to complete such training,
then CLC shall have the right to limit, in CLC's
sole discretion, the number of hours of Online or Telephone Support provided
to Subscriber or eliminate such services altogether.
Section 2.02 – Initial Training:
During the hours of 9:00 a.m. through 5:00 p.m. Eastern Standard Time,
Monday through Friday (excluding CLC holidays), CLC will, free of charge, train Subscriber and its Users to use the
Software and Services via up to ___ hours of remote access consultation by a
toll free telephone number and up to two (2) hours of remote computer
desktop access. Such training shall include reasonable instruction and
training of Users concerning using and accessing the Software and Services
and instructions and guidelines on performing functions and processes within
the Software and Services. Such training shall only be available for a
period of thirty (30) days following the Effective Date and any of such
training services not used by such date shall be forfeited.
Section 2.03 – Defect Resolution:
CLC shall use commercially reasonable efforts to correct
Defects ("Defect Resolution Service") in the Software and Services within a
reasonable time after such Defect is reported by Subscriber to CLC as follows:
(a)
Problem Reporting: Upon discovering a Defect, Subscriber
shall report the Defect to CLC ("Service Request").
(b)
Online or Telephone Support: Within eight (8) hours after
receiving a Service Request, CLC shall provide Online or
Telephone Support concerning correction of the Defect.
(c) Off-Site Support: If a Defect is not corrected through
Online or Telephone Support within a reasonable time after receiving a
Service Request, CLC shall conduct tests and analyses at
CLC's facilities designed to reproduce, isolate and correct
the Defect using data and information provided to CLC by
Subscriber (“Off-Site Support”).
(d) Additional Support: If a Defect is not corrected
through Off-Site Support within a reasonable time after receiving a Service
Request, CLC shall use commercially reasonable efforts to
implement work around processes designed to minimize the impact of the
Defect.
The
Defect Resolution Service shall be available twenty-four (24) hours a day,
seven (7) days a week (excluding CLC holidays). Subscriber
shall cooperate with CLC as reasonably necessary for CLC to perform such Defect Resolution Services, including, without
limitation, by providing data and information required by CLC
to reproduce, analyze and correct Defects.
Section 2.04 – Representative:
Subscriber shall appoint one User as the primary representative of
Subscriber hereunder (“Subscriber Representative”). The Subscriber
Representative shall be the primary contact with CLC for
purposes of enabling CLC to provide the Services.
Section 2.05 – Additional Services:
Upon request of Subscriber, CLC may provide additional and
separately billable training, support or other professional services which
are beyond the scope of the Services ("Additional Services"), subject to
expertise and availability of CLC personnel and CLC's then current time and materials rates or block time/flat fee
rates. Any Additional Services shall be provided only pursuant to a
separate written agreement between the parties.
ARTICLE III: PAYMENT
Section 3.01 – Start-Up Fee:
On the Effective Date, Subscriber shall pay the Start-Up Fee to CLC in the amount set forth on Exhibit A hereto.
Section 3.02 – Subscription Fee:
On the Effective Date, Subscriber must pay the first periodic Subscription
Fee to CLC. Subscriber shall pay the Subscription Fee to
CLC in the amount and as set forth on Exhibit A
hereto. Subscriber shall pay the Subscription Fee in advance on a monthly
or annual basis, as set forth on Exhibit A hereto. CLC
shall have the right to increase the Subscription Fee on each anniversary of
the Effective Date by providing Subscriber with thirty (30) days advance
written notice of the then applicable Subscription Fee.
The percentage increase in the
Subscription Fee each year shall not exceed ten percent (10%) of the
preceding Subscription Fee.
Section 3.03 – Taxes:
Subscriber shall pay any and all applicable taxes associated with
Subscriber's use of the Software and/or Services (excluding income taxes
assessed against CLC).
Section 3.04 – Invoicing; Payment Terms:
CLC will invoice Subscriber for all fees hereunder monthly or
annually in advance. All amounts under such invoice shall be due and
payable within five (5) days after the date thereof. Any invoiced amount
(or portion thereof) which is not paid within thirty (30) days after the
date thereof shall thereafter bear interest at the rate of 1.5% per month on
the outstanding unpaid amount, or the maximum amount permitted by applicable
law, whichever is less. If any invoice remains unpaid for more than
forty-five (45) days after the due date thereof, CLC shall
have the right to suspend Subscriber's use of the Software or Service after
delivery of notice thereof not less than five (5) business days in advance
of such intended suspension or denial.
Section 3.05 – Audit and Reporting.
Subscriber shall maintain, during the term of this Agreement and for at
least one (1) year thereafter, all pertinent books and records relating to
reporting and payment under this Agreement. Subscriber shall make such
records available for inspection and copying by CLC or its
representatives, up to two (2) times per contract year, during normal
business hours and upon not less than five (5) business days advance notice,
for the purpose of confirming Subscriber’s compliance with its obligations
under this Agreement. CLC may at its election engage an
independent public accounting firm to conduct an audit of amounts due
CLC under this Agreement. If in the written opinion of such
auditors there has been an under-reporting by Subscriber of more than five
percent (5%) of the total undisputed amounts due during any three month
period hereunder, Subscriber shall pay the costs of such audit in addition
to all unpaid amounts then owing.
Section 3.06 – Credit Cards:
Subscriber must keep a valid credit card on file with CLC at
all times. In the event that Subscriber's use of any Service or access to
the Software exceeds Subscriber's subscription levels, CLC may
(i) suspend all Services and Subscriber's access to the Software or (ii) if
Subscriber has a valid credit card on file with CLC,
automatically charge an amount equal to Subscriber's next Subscription Fee.
Credit card information can be updated via facsimile to CLC
provided that such updates must be to the attention of "CLC
Billing," signed by the Subscriber Representative and include Subscriber's
name and account number.
Section 3.07 – Alternative Payments:
Subscriber may elect to pay the Subscription Fees by PayPal, electronic
funds transfer, check or credit card. Notwithstanding anything else herein
to the contrary, payment of fees by any of the foregoing methods is subject
to CLC's then current payment terms and conditions which terms
and conditions are available at
http://www.ctvo.net/policies/TOS.aspx and
may change from time to time at the sole discretion of CLC.
ARTICLE IV: POLICIES
Section 4.01 – Acceptable Use Policy:
Subscriber acknowledges and agrees that the terms and conditions set forth
in the CLC Acceptable Use Policy ("AUP") located at
http://www.ctvo.net/policies/AUP.aspx are included herein and made a
part hereof, as the same may be, in CLC's sole discretion,
updated and amended from time to time without notice to Subscriber.
Section 4.02 – Website Terms of Use:
Subscriber acknowledges and agrees that the terms and conditions set forth
in the CLC Website Terms of Use ("Website Terms") located at
http://www.ctvo.net/policies/TOU.aspx
are included herein and made a part hereof, as the same may be, in CLC's sole discretion, updated and amended from time to time without
notice to Subscriber.
Section 4.03:
The cost of any AUP violation investigations will be charged to Subscriber
at $99 per hour during CLC's normal business hours and at $198
per hour at all other times. I the case of any conflict between the terms of
this Agreement and the AUP or Website Terms, the terms of this Agreement
shall control.
ARTICLE V: TERMINATION
Section 5.01 – Term:
The initial term of this Agreement shall commence as of the Effective Date
and shall continue for the period set forth on Exhibit A hereto.
Thereafter, this Agreement shall be automatically renewed for additional
successive periods equal to such initial term unless either party provides
the other party with written notice of termination at least thirty (30) days
prior to the end of the then-current term.
Section 5.02 –Termination for Breach:
This Agreement may be terminated by either party upon a breach by the other
party of any material term of the Agreement, which breach is not cured
(unless such breach is incapable of cure, such as breach of the
confidentiality provisions) within ten (10) days notice thereof. In
addition, CLC shall have the right, in its sole discretion, to
suspend, upon notice to Subscriber, Subscriber's access to and use of the
Software and Services hereunder upon such uncured breach until such time as
such Breach is cured.
Section 5.03 – Nonpayment:
Notwithstanding anything else herein to the contrary, CLC may
immediately suspend Services and Subscriber's access to the Software or
immediately terminate this Agreement, all without notice, upon Subscriber's
failure to pay any amount due on or before the forty-fifth (45th)
day after such amount is due.
Section 5.04 – Effects:
Upon the expiration or termination of this Agreement for any reason: (i)
CLC shall cease providing all or any portion of the Services;
(ii) Subscriber shall have no further right or license to use the Software
or Services and shall cease using all or any portion thereof; (iii)
Subscriber shall destroy or return (as requested by CLC) any
Software, Documentation or other CLC property in possession of
Subscriber; (iv) all payments that have accrued prior to the termination or
expiration of this Agreement will be payable in full within ten (10) days
thereof; and (v) Subscriber shall immediately remove, migrate or convert (as
the case may be) the Subscriber Data from the Software (Subscriber shall be
responsible for and shall pay all fees and costs in connection therewith).
Section 5.05 – No Refund:
If the Agreement is terminated or cancelled, except as set forth in Section
1.07, CLC shall retain all amounts paid by Subscriber before
the termination or cancellation date (as the case may be).
Section 5.06 – Survival:
Termination of this Agreement shall not relieve either party of its
respective obligations to the other hereunder that arose prior to the
effective date of termination. In addition, the payment obligations and
provisions contained in Articles V, VI, VII and VIII shall survive the
expiration or termination of this Agreement for any reason.
Section 5.07 – Transition Rights:
Upon any expiration or termination of this Agreement as provided
hereunder, CLC shall use commercially reasonable efforts for a
period of thirty (30) days to assist Subscriber with its transition to a new
service provider.
ARTICLE VI: WARRANTY AND INDEMNIFICATION
Section 6.01 – Services Warranty:
The Services shall be performed in a professional manner and shall conform
to the standards generally observed in the industry for similar services.
Section 6.02 – Software Warranty:
For a period of thirty (30) days commencing on the Effective Date (the
“Warranty Period”), CLC warrants that the Software will
substantially perform in accordance with the Documentation provided with the
Software.
Section 6.03 – Remedies:
CLC's sole liability and obligation and Subscriber's exclusive
remedy for breach of the warranties set forth in (i) Section 6.01 shall be
for CLC to re-perform the applicable Service and (ii) Section
6.02 shall be for CLC to refund to Subscriber the fees paid by
Subscriber hereunder for the particular Software or Service that breaches
such warranty for the period of time that the breach occurred and continued.
Section 6.04 – Disclaimer:
EXCEPT AS EXPRESSLY SET FORTH HEREIN, CLC MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND CLC HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, CLC MAKES NO REPRESENTATION OR WARRANTY THAT THE
SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE.
Section 6.05 – Downtime:
Subscriber hereby acknowledges and agrees that the Software and Services may
be inaccessible for a period of time for purposes of maintenance,
installation, updates, replacements, or backup of the Software or Services.
CLC hereby disclaims and Subscriber hereby waives any and all
CLC responsibility resulting from Subscriber failure to access
the Software or Services during maintenance periods.
Section 6.06 – Subscriber Data Warranty: Subscriber hereby represents and warrants that
Subscriber possesses all necessary rights, title, and interest in the
Subscriber Data free and clear of any encumbrances, third-party interests,
and restrictions for purposes of using the Software and Services.
Section 6.07 – Limitation of Liability: CLC SHALL NOT BE LIABLE FOR ANY
INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
ANY DAMAGES FOR LOST PROFITS OR SUBSCRIBER DATA OR BUSINESS INTERRUPTION),
WHETHER ARISING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES,
ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR
TRANSMISSION, OR FAILURE OF PERFORMANCE, EVEN IF CLC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS PROVIDED FOR UNDER
SECTION 6.03 AND CLAIMS UNDER SECTION 6.08, IN NO EVENT SHALL CLC’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT, WHETHER
ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY) EXCEED AN AMOUNT EQUAL TO THE
FEES PAID BY SUBSCRIBER HEREUNDER IN THE ONE YEAR PRECEDING THE EVENT GIVING
RISE TO THE CLAIM.
Section 6.08 – Indemnification by CLC: CLC shall indemnify,
defend and hold harmless Subscriber against any loss, damage or expense
(including reasonable attorneys’ fees) incurred by Subscriber as a result of
claims, actions, or proceedings arising from infringement by the Services or
Software of copyright, trademark, patent, or other proprietary rights of any
third party. CLC shall have no liability for any infringement
action or claim that is based upon or arising from Subscriber Data. This
Section sets forth the exclusive remedy of Subscriber against CLC with respect to any action or claim described herein.
Section 6.09 – Indemnification by Subscriber: Subscriber shall indemnify, defend
and hold harmless CLC and its licensors against any loss,
damage or expense (including reasonable attorneys’ fees) incurred by
CLC or its licensors as a result of claims, actions, or
proceedings arising from Subscriber 's (i) use of or access of the Services
or Software or (ii) breach of any term of this Agreement, except for claims
for which CLC is liable for under Section 6.07.
Section 6.10 – Conditions of Indemnification: The obligations under the foregoing
indemnities are subject to the condition that the party seeking
indemnification give the other: (i) prompt written notice of any claim or
action for which indemnity is sought; (ii) complete control of the defense
and settlement thereof by the indemnifying party; and (iii) cooperation of
the other party in such defense.
ARTICLE VII:
Intellectual Property AND CONFIDENTIALITY
Section 7.01 – Software and Services:
Subscriber acknowledges and agrees that, as between CLC and
Subscriber, CLC is the sole and exclusive owner of all rights,
title and interest in and to the Software and Services and Subscriber shall
not assert any claims to the contrary. Except as expressly permitted herein,
Subscriber shall have no right or license to, and Subscriber shall not, use,
copy, print, display, publish, transmit, sublicense or otherwise transfer,
distribute or make available to others, edit, modify or create any
derivative works of all or any part of the Software or Services.
Section 7.02 – Trademarks:
All trademarks, service marks, trade names and logos appearing on or within
the Software or Services are the property of CLC and its
licensors and suppliers. All use of such marks shall inure to the benefit of
CLC and its licensors and suppliers, and the use of such marks
in conjunction with any other marks shall not create a unitary or composite
mark.
Section 7.03 – Software Restrictions:
Subscriber agrees not to reproduce, copy, modify, translate, reverse
engineer, disassemble, de-compile or otherwise attempt, or permit others to
attempt, to discover the source code of the Software, in whole or in part,
except to the extent that such prohibition is restricted by applicable law.
Subscriber agrees not to use the Software in any way to design or develop a
competing software product. Subscriber shall not permit any parent,
subsidiaries, affiliated entities or third parties to use the Software and
Documentation without the prior written permission of CLC.
Section 7.04 – Third Party Technology:
Subscriber hereby acknowledges that the Software and Services incorporate or
use Third Party Technology (in whole or in part) for use in connection with
the Software and Services. Subscriber acknowledges that use of the Third
Party Technology when accessing the Software and Services is subject to any
and all terms and conditions for such Third Party Technology as provided by
owner or licensor of the Third Party Technology.
Section 7.05 – Copies:
Subscriber shall not copy the Software, Services, or Documentation and shall
take reasonable measures to prevent the Software, Services, or Documentation
from being copied without the prior written consent of CLC.
Section 7.06 – Confidentiality:
“Confidential Information” means any information received by one party (the
“receiving party”) from the other party (the “disclosing party”) and which
the receiving party has been informed or has a reasonable basis to believe
is confidential to the disclosing party, unless such information: (1) was
known to the receiving party prior to receipt from the disclosing party; (2)
was lawfully available to the public prior to receipt from the disclosing
party; (3) becomes lawfully available to the public after receipt from the
disclosing party, through no act or omission on the part of the receiving
party; (4) corresponds in substance to any information received in good
faith by the receiving party from any third party without restriction as to
confidentiality; or (5) is independently developed by an employee or agent
of the receiving party who has not received or had access to such
information. Notwithstanding the foregoing, (i) all CLC
functional specifications and (ii) the Password shall be considered
Confidential Information under this Agreement.
Each
party agrees to maintain Confidential Information received from the other in
confidence and neither use nor disclose such Confidential Information,
without the prior written approval of the disclosing party, except as
required to perform its obligations hereunder and comply with any order of a
court or any applicable rule, regulation or law of any jurisdiction. In the
event that a receiving party is required by judicial or administrative
process to disclose Confidential Information of the disclosing party, it
shall promptly notify the disclosing party and allow the disclosing party a
reasonable time to oppose such process. Each party shall protect
Confidential Information of the other by using the same degree of care, but
not less than a reasonable degree of care, to prevent unauthorized
disclosure or use as that party uses to protect its own confidential
information of like nature. Subscriber agrees that it shall not disclose to
any third party any information obtained through the use of the Services
(except for the Subscriber Data). The foregoing obligations shall remain in
force for five (5) years following any termination or expiration of this
Agreement.
ARTICLE VIII: DEFINITIONS AND MISCELLANEOUS
Section 8.01 – Definitions:
The following definitions shall apply:
(1)
Authorized Person: The term “Authorized Person” shall
mean (i) employees and legal counsel of Subscriber who agree to maintain the
confidentiality of such Confidential Information in consideration for
receiving such Confidential Information; and (ii) individuals or
organizations who are authorized in writing by CLC to receive
Confidential Information.
(2)
Defect: The term “Defect” shall mean programming or
software design errors that substantially impair the performance, utility,
and functionality of the Software as represented in the Documentation.
(3)
Documentation: The term “Documentation” shall mean
the user’s guide and other information and documentation relating to the
Software and Services in electronic or printed form as made available to
Subscriber by CLC.
(4)
Password: The term “Password” shall mean that certain
password and user name assigned by CLC to Subscriber for
purposes of accessing the Software and Services.
(5)
Services: The term “Services” shall mean any services
provided by CLC to Subscriber pursuant to Article II hereof,
excluding Additional Services.
(6)
Software: The term “Software” shall mean the executable
code for the computer software programs accessible online via the Internet
by Subscriber hereunder, as listed on Exhibit B hereto.
(7)
Subscriber Data: The term “Subscriber Data” shall mean
any information, data, or any other technology uploaded, posted, processed,
transmitted, or submitted by Subscriber to the Software.
(8)
Third Party Technology: The term “Third Party
Technology” shall mean any and all third party technology, including
(without limitation) computers, equipment and software, incorporated in
whole or part in the Software or Services or used in connection with the
Software or Services.
(9)
Unauthorized Access: The term “Unauthorized Access” shall
mean any access to the Software, Services, or Documentation except for (i)
the exclusive purposes of using and accessing the Software and Services
according to the Documentation on the Internet using the Password; (ii)
searching, retrieving, processing, and downloading Subscriber Data; and
(iii) training employees of Subscriber in the use of the Software or
Services.
(10)
Unauthorized User: The term “Unauthorized User” shall
mean any individual who accesses the Software, Services, or Documentation
except for: (1) employees of Subscriber authorized by Subscriber to access
the Software, Services, and Documentation for (i) the exclusive purpose of
using and accessing the Software and Services according to the Documentation
on the Internet using the Password; (ii) searching, retrieving, processing,
and downloading Subscriber Data; and (iii) training employees of Subscriber
in the use of the Software or Services; and (2) Authorized Persons who are
authorized in writing by CLC to access the Software, Services,
and Documentation.
(11)
User Limit: The term “User Limit” shall mean the
maximum number of Users authorized by CLC to concurrently
access the Software and Services, as specified on Exhibit B hereto.
(12)
Users: The term “Users” shall mean employees of
Subscriber who access the Software, Services, or Documentation, subject to
the terms and provisions hereof.
Section 8.02 – Equitable Remedies:
The parties hereby acknowledge that damages at law may be an inadequate
remedy for CLC. Therefore, CLC shall have the
right of specific performance, injunction, or other equitable remedy in the
event of a breach of this Agreement by Subscriber.
Section 8.03 – Assignment:
This Agreement shall bind the parties and their successors and permitted
assigns. Subscriber may not assign this Agreement without the prior written
consent of CLC. The term “assign” or “assignment” shall
include any transfer by merger, acquisition, stock transfer or other
consolidation with another entity or sale of all or substantially all of
Subscriber’s assets. Any assignment attempted by Subscriber without the
written consent of CLC shall be void.
Section 8.04 – Independent Contractor:
The relationship of the parties established by this Agreement is solely that
of independent contractors, and nothing contained in this Agreement shall be
construed to: (i) give any party the power to direct and control the
day-to-day activities of the other; or (ii) constitute such parties as
partners, joint venturers, co-owns or otherwise as participants in a joint
or common undertaking; or (iii) make either party an agent of the other for
any purpose whatsoever. Neither party nor its agents and employees is the
representative of the other for any purpose, and neither has power or
authority to act as agent or employee to represent, act for, bind, or
otherwise create or assume any obligation on behalf of the other.
Section 8.05 – Notices:
Any notice, consent or other communication in connection with the Agreement
shall be in writing and may be delivered in person or by mail. If hand
delivered, the notice shall be effective upon delivery. If served by mail,
the notice shall be effective three (3) business days after being deposited
with the United States Postal Service by certified mail, return receipt
requested, addressed appropriately to the intended recipient, at the address
set forth above (if for CLC) or at the address set forth on
the signature page hereto (if for Subscriber). Each party may change its
address for notification purposes by giving the other party written notice
of the new address and the date upon which it shall become effective.
Section 8.06 – Waiver:
No delay or omission by either party to exercise any right or power it has
under this Agreement shall impair or be construed as a waiver of such right
or power. A waiver by either party of any covenant or breach shall not be
construed to be a waiver of any succeeding breach or of any other covenant.
All waivers must be in writing and signed by the party waiving its rights.
Section 8.07 – Governing Law,
Arbitration:
This Agreement shall be governed by and construed in accordance with the
laws of the State of North Carolina, without reference to the conflict of
law principles therein. Any dispute or claim arising out of, or in
connection with, this Agreement shall be finally settled by binding
arbitration in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. §
1-567.1 et seq. (the “Uniform Arbitration Act”) and the then-current rules
and procedures of the American Arbitration Association by one (1) arbitrator
appointed by the American Arbitration Association. The arbitrator shall
apply the law of the State of North Carolina, without reference to rules of
conflict of law or statutory rules of arbitration, to the merits of any
dispute or claim. Judgment on the award rendered by the arbitrator may be
confirmed, reduced to judgment and entered in any court of competent
jurisdiction. The parties agree that, any provision of applicable law
notwithstanding, they will not request, and the arbitrator shall have no
authority to award, punitive or exemplary damages against any party.
Section 8.08 – Severability:
If any provision of this Agreement is held to be unenforceable, then both
parties shall be relieved of all obligations arising under such provision,
but only to the extent that such provision is unenforceable, and this
Agreement shall be deemed amended by modifying such provision to the extent
necessary to make it enforceable while preserving its intent or, if that is
not possible, by substituting another provision that is enforceable and
achieves the same objective and economic result.
Section 8.09 – Entire Agreement;
Amendments:
This Agreement, including all of its exhibits, each of which is incorporated
into this Agreement, is the entire agreement between the parties with
respect to its subject matter, and supercedes and replaces any prior
agreement between the parties with respect to said subject matter and there
are no other representations, understandings or agreements between the
parties relative to such subject matter. No amendment to, or change, waiver
or discharge of any provision of this Agreement shall be valid unless in
writing and signed by any authorized representative of the party against
which such amendment, change, waiver or discharge is sought to be enforced.
Section 8.10 – Force Majeure:
Neither party shall be liable to the other by reason of any failure of
performance hereunder (except failure to pay) if such failure arises out of
causes beyond such party’s reasonable control, despite the reasonable
efforts and without the fault or negligence of such party. Any party
experiencing such an event shall give as prompt notice as possible under the
circumstances. Without limiting the generality of the foregoing, CLC shall not be liable to Subscriber in any way for any failure or
delay in the performance of its obligations hereunder which failure is
caused, directly or indirectly, by the failure of any matter for which
Subscriber is responsible under this Agreement.