STANDARD TERMS AND CONDITIONS

  1. Applicability

These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods (“Goods”) and provision of Services (defined below) by SitePro, Inc. (“Company”) to the customer (“Customer”) named in the attached written work order, statement of work or other documentation which references Company’s quotation or proposal by quotation number, job name, proposal name/date, or other common and reasonable identifier signed by each party’s authorized representative (the “Order”). These Terms together with the accompanying Order constitute the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiation, representations and warranties, and communications, both written and oral. The Order and these Terms are collectively referred to herein as the “Agreement.” In the event of any conflict between these Terms and the Order, these Terms shall govern, except to the extent the Order expressly states that the terms and conditions of the Order shall control. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.

  1. Services

Company shall provide certain services to customer in accordance with the applicable Order and these Terms (the “Services”).  As specified in the applicable Order, the Services may consist of one or more of the following: (a) installation services (“Installation Services”); and/or (b) professional services (“Professional Services”).  In consideration of the Services provided by Company, Customer shall pay the fees for the Services in accordance with the applicable Order and these Terms.  For avoidance of doubt, any labor estimates and performance dates specified in the applicable Order are estimates only and are subject to the actual scope of the Services and Customer shall be billed by the Company on the basis of the actual scope of the Services.  Customer hereby acknowledges and agrees that in the event the Customer desires to have the Company provide other services offered by the Company such as software as a service (“SaaS Services”) or managed services (“Managed Services” and together with SaaS Services, “Technology Services”), such Technology Services will be governed by the order and terms of services applicable thereto (“Technology Services Terms”).

  1. Sales of Goods

(a) As specified in the applicable Order, Customer shall purchase the Goods from Company at the prices (the “Prices”) set forth in the Company’s quotation or proposal referenced in the Order; provided, however, if the Company’s Prices for such Goods should increase before delivery of the Goods to a carrier for shipment to Customer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Customer shall be billed by Company on the basis of such increased prices.

(b) As collateral security for the payment of the purchase price of the Goods and for so long as the payment of such purchase price remains outstanding, Customer hereby grants to Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or here after arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.

(c) Company shall deliver the Goods within the time identified in the Order or in lieu thereof a reasonable time after the receipt of the Order using Company’s standard methods for packaging and shipping such Goods. Delivery shall be made FOB Company’s Lubbock, Texas facility or such other location as may be designated in the Order. Company may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of the Order. Title and risk of loss shall pass to Customer upon delivery of the Goods at the designated delivery point (the “Delivery Point”).  Company shall not be liable for any delays, loss or damage in transit.

(d) Customer shall take delivery of the Goods upon the date of Company’s written notice that the Goods have been delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to Company’s notice that the Goods have been delivered at the Delivery Point, or if Company is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) Company, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

(e) Any liability of Company for non‐delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.  The Company shall not be liable for any non‐delivery of Goods (even if caused by Company’s negligence) unless Customer gives written notice to Company of the non‐delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received. The quantity of any installment of Goods as recorded by Company on dispatch from Company’s designated shipping point is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.

(f) Customer shall inspect the Goods within ten (10) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Company in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Company.  “Nonconforming Goods” means only the following: (i) item shipped is different than identified in Customer’s purchase order; or (ii) item’s label or packaging incorrectly identifies its contents. If Customer timely notifies Company of any Nonconforming Goods, Company shall, in its sole discretion, (x) replace such Nonconforming Goods with conforming Goods, or (y) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Company’s Lubbock, Texas facility unless Company instructs Customer to direct shipment to another location.  If Company exercises its option to replace Nonconforming Goods, Company shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer, at Customer’s expense and risk of loss, the replaced Goods to the Delivery Point. Customer acknowledges and agrees that the remedies set forth in this Section 2(f) are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as set forth in the Order or under this Section 2(f), all sales of Goods to Customer are made on a one‐way basis and Customer has no right to return Goods purchased under this Agreement to Company.

  1. Change Orders 

If either party wishes to change the scope or performance of any Order, it shall submit details of the requested change to the other party in writing. Company shall, within a reasonable time after such request, provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges arising from the change; (iii) the likely effect of the change on the provision of Services; and (iv) any other impact the change might have on the performance of this Agreement.  Company may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order.  Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”).  Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with these Terms.  Notwithstanding the foregoing, Company may, from time to time, make changes to the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services or the performance dates set forth in the Order, or the fees set forth in the Order by more than 5%, and the Customer shall be billed by Company and the Customer agrees to pay such bill on the basis of such changes.

  1. Customer’s Obligations

Customer shall: (i) cooperate with Company in all matters relating to the Goods and Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Company, for the purposes of providing the Goods and Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Company to provide the Goods and Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Company may reasonably request to provide the Goods and Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Goods and Services before the date on which the Goods and Services are to be provided.

  1. Customer’s Acts or Omissions

If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Company 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 Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

  1. Payment Terms

(a) Customer shall pay all invoiced amounts due to Company within thirty (30) days from the date of Company’s invoice. Customer shall make all payments hereunder in US dollars.

(b) Customer shall be responsible for the payment of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer or any Goods or Services provided to Customer hereunder, other than any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets, an any federal income taxes, withholding requirements, self‐employment taxes, social security taxes, sales taxes, use taxes and other taxes on payments made by Company to its employees and contractors.

(c) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Company does not waive by the exercise of any rights hereunder), if Customer fails to pay within 30 days after becoming due any amounts due to Company under this Agreement or any other agreement between Company and Customer, Company shall be entitled to suspend the performance of any Services and the delivery of any Goods until payment has been made in full.

(d) Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Company, whether relating to Company's breach, bankruptcy or otherwise.

  1. Limited Warranty

(a) Company warrants that (i) the Services will be performed in a professional and workmanlike manner in accordance with industry standards and applicable law, and (ii) the Goods (excluding Third Party Products, as defined in Section 8(e) below) will materially conform with the applicable written specifications as set forth in a mutually agreed exhibit to the Order and will be free from material defects in material or workmanship, upon delivery and for the duration of the Warranty Period, under normal operating conditions and within the limits of any specified test provisions.  For purposes of this express limited warranty, the “Warranty Period” means (x) in the case of Goods, the 60‐day period beginning on the date the Goods in question are installed by Company (or the date of delivery if such Goods are not installed by Company) and (y) in the case of Services, the 14‐day period beginning on the date the Services in question are performed by Company.

(b) Subject to the terms and conditions of the express limited warranty provided by this Section 8, Company, at its election and expense, shall repair or replace any such defective or non‐conforming Goods (or part thereof) and shall re‐perform any such defective or non‐conforming Services (or part thereof), as applicable, or at its election, return the stated contract price paid for such defective or non‐conforming portion of the Goods or Services, as applicable. The Company shall not be liable for a breach of the warranty unless: (i) Customer gives written notice to Company during the Warranty Period that reasonably describes the alleged defect or non‐conformity; (ii) Company is given a reasonable opportunity after receiving the notice to investigate such defect or non‐conformity and Customer grants Company access to all relevant facilities and locations at all reasonable times in order to conduct such investigation (or returns the Goods in question to Company’s place of business, if requested to do so by Company, for such investigation to take place there); and (iii) Company reasonably verifies Customer’s claim that the Goods or Services do not comply with the express limited warranty provided by this Section 8.  If an alleged defect or nonconformity is found not to be covered by the express limited warranty provided by this Section 8, Customer shall be charged the Company’s standard rates for service calls and any replacement Goods, repairs or additional work performed by the Company.  Customer shall assume all responsibility and expense for removal, reinstallation and freight in connection with the express limited warranty provided by this Section 8.

(c) The Company shall not be liable for a breach of the express limited warranty provided by this Section 8 in the case of: (i) any further use of such Goods by Customer or its agents or representatives after giving such notice; (ii) the defect or non‐conformity related to acts or omissions on the part of Customer or its agents or representatives, including, but not limited to, errors attributable to inaccurate or incomplete information supplied by Customer or its agents or representatives; (iii) any failure by Customer or its agents or representatives to follow Company’s oral or written specifications, guidelines or instructions as to the storage, installation, commissioning, maintenance, operation or use of the Goods or Services; or (iv) any change, modification, alteration, reconstruction or repair by Customer or its agents or representatives or persons other than Company or Company’s authorized representatives without the prior written consent of Company.

(d) The express limited warranty provided by this Section 8 does not apply in cases of: (i) abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper maintenance, improper handling, overheat, overload, power quality disturbances (sags, surges, harmonics, etc.), abnormal physical stress, and/or abnormal environmental conditions; (ii) storage, operation or use outside of specified temperatures or pressures or other specifications, guidelines or instructions issued by Company; or (iii) use with any third party product or service that has not been previously approved in writing by Company.

(e) Certain goods or services (including, but not limited to, software) provided by one or more third parties (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to, packaged or provided together with, the Goods or Services, including, without limitation, Third Party Products provided by Customer to be tied into the Goods and Services.  Third Party Products are not covered by the express limited warranty provided by this Section 8. The Company shall have no liability or obligation whatsoever with respect to any Third Party Product under the terms of the original manufacturer’s warranty or otherwise; however, the Company may, in its discretion, with respect to Third Party Products provided by the Company facilitate the warranty processing which may occur between Customer and the original manufacturer or other provider of the Third Party Product, in which case any cost will be passed through the Company to Customer.  COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

(f) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(a), COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY GOODS OR SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE AND COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

(g) THE PROVISIONS OF THIS SECTION 8 ARE IN LIEU OF ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(a), ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY COMPANY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8(a), COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY GOODS, SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH GOODS, SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED OR ERROR‐FREE.

(h) THE PROVISIONS OF THIS SECTION 8 CONSTITUTE COMPANY’S SOLE LIABILITY AND OBLIGATION AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY, DEFECT OR NON‐CONFORMITY WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED BY COMPANY OR OTHERWISE, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, STATUTE, INDEMNITY, CONTRIBUTION, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHER THEORIES. THESE LIMITATIONS APPLY EVEN IF ANY OF THE LIMITED REMEDIES PROVIDED BY THIS SECTION FAILS OF ITS ESSENTIAL PURPOSE.  Without limiting the generality of the foregoing, Customer specifically waives any right to seek damages or claims for loss associated with downtime of its operations or remediation or clean‐up costs from an undesirable occurrence arising out of or related to the Services.

  1. Limitation of Liability; Indemnification

(a) IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA, COSTS OF CAPITAL, OR OF SUBSTITUTE USE OR PERFORMANCE, CLEAN‐UP, REMEDIATION, DOWNTIME, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9(c), IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE GOODS AND SERVICES PROVIDED UNDER THE RELATED ORDER REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(c) The limitation of liability set forth in Section 9(b) above shall not apply to liability resulting from Company’s or its employees’, contractors’ or representatives’ (the “Company Group”) gross negligence or willful misconduct.

(d) The Customer hereby further agrees to protect, release, defend, indemnify and hold the Company Group harmless from and against any and all claims, demands, and causes of action of every kind and character (including without limitation, fines, penalties, remedial obligations, court costs and reasonable attorneys’ fees, including attorneys’ fees incurred in the enforcement of this indemnity) (collectively the “Indemnifiable Claims”) arising out of the emission, discharge or release of pollutants or substances prohibited by law, unless such emission, discharge or release arises out of the gross negligence or willful misconduct of a member of the Company Group.

  1. Insurance

During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, casualty insurance adequate to insure against loss or damage from any external cause and commercial general liability (including product liability) with financially sound and reputable insurers and with the Company named as insured or co‐insured. Upon Company’ request, Customer shall provide the Company with a certificate of insurance from the Customer’s insurer evidencing the insurance coverage specified in these Terms. Customer shall provide the Company with ten (10) days’ advance written notice in the event of a cancellation or material change in the Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subjugation against the Company’s insurers and Company.

  1. Compliance with Law

Customer shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale or provision of Goods or Services under this Agreement or any resale by Customer. Customer assumes all responsibility for any government import clearance.  Company may terminate this Agreement if any governmental authority imposes countervailing duties or any other penalties on any Goods or Services.

  1. Termination

In addition to any remedies that may be provided under these Terms, Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has otherwise failed to perform or comply with any of these Terms, in whole or in part, and such failure continues for 30 days after Customer’s receipt of written notice of such failure; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

  1. Waiver

No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  1. Confidential Information

All non‐public, confidential or proprietary information of the Company, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the Company to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Company in writing. Upon the Company’s request, the Customer shall promptly return all documents and other materials received from the Company. The Company shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Customer at the time of disclosure; or (c) rightfully obtained by the Customer on a non‐confidential basis from a third party.

  1. Intellectual Property

All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know‐how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared b or on behalf of the Company in the course of performing the Services, including any items identified as such in the Order (collectively, the “Work Product”) shall be owned by Company.  Company hereby grants Customer a limited, non‐exclusive, non‐transferable, non‐sublicenseable license under any Intellectual Property Rights of Company that are embodied in any Work Product provided by Company to Customer hereunder to the limited extent necessary to enable Customer to make reasonable use of such Work Product for the duration of the applicable Order. For avoidance of doubt, the foregoing license expressly excludes any software or applications in connection with the Technology Services.  Where contemplated by the applicable order for Technology Services, certain software or applications may be made available by Company for use by Customer or its authorized users, as applicable, pursuant to the applicable Technology Services Terms.

  1. Public Announcement.

Customer hereby agrees that the Company may make a public announcement of the transactions contemplated by this Agreement, and may publicize the same in marketing materials, newspapers and other publications, on the Company’s website and otherwise, and in connection therewith may use Customer’s name, tradenames and logos.

  1. Force Majeure

The Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock‐outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

  1. Assignment

Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void.  No assignment or delegation relieves Customer of any of its obligations under this Agreement.

  1. Relationship of the Parties

The relationship between the parties is that of independent contractors.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

  1. No Third‐Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

  1. Governing Law; Jurisdiction

All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict f law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or relating to this Agreement may be instituted in the federal courts of the United States of America or the courts of the State of Texas, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.

  1. Notices

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Order or to such other address that may be designated by the receiving party in writing.  All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre‐paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

  1. Severability

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  1. Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 10 (Insurance), Section 11 (Compliance with Laws), Section 14 (Confidential Information), Section 21 (Governing Law; Jurisdiction) and Section 24 (Survival).

  1. Amendment and Modification

This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.