MSP Master Agreement

Date: 8-21-2020

This MSP Master Agreement (“Agreement”), effective as of the Effective Date, is entered into and between Birch Grove Software, Inc. dba ActivTrak, a Delaware corporation, with its principal place of business at 1301 South Mopac Expressway, Suite LL25, Austin, Texas 78746 (“ActivTrak”) and the customer identified on the Order Form and its Affiliates (“Customer”), with its address as provided on the Order Form, and is subject to the terms and conditions thereof.  In the event of conflict between the terms a Order Form and the terms of this Agreement, the terms of the Order Form shall control.

1.         DEFINITIONS

“Affiliate” means with respect to any party to this Agreement, any entity that is controlling, controlled by, or under the common control with such party.  As used in this definition, the term “control” means the possession, directly or indirectly or the power to direct, or cause the direction of the management and policy of the controlled entity.

Application Services” means the services purchased by Customer and provided by ActivTrak, as specified on an Order Form. “Application Services” excludes Non-ActivTrak Applications.

Derivative Works” means a revision, enhancement, translation, abridgment, condensation, or expansion of Application Services or any other form in which such Application Services may be recast, transferred, or adapted, which, if used without the consent of ActivTrak, would constitute a copyright infringement.

Documentation” means ActivTrak’s user guides and other end user documentation for the Service available on the online help feature of the Application Services, as may be updated by ActivTrak from time to time, including without limitation the materials available at www.ActivTrak.com.

“Non-ActivTrak Application” means a web-based, offline, mobile, or other software application functionality that is provided by Customer or a third party and interoperates with the Application Services.

“Users” means the Users that Customer sells services to utilizing the Application Services.

User Subscription” means a License to use the applicable Application Services granted to a User pursuant to this Agreement.

Effective Date” shall mean the effective date set forth in the Order Form or, if no effective date is specified, the date of Customer signature on the Order Form.

Fees” means the fees payable by Customer to ActivTrak as set forth in the Order Form.

“License” means a license granted by ActivTrak to Customer or User, as the case may be, that allows Customer to use the Application Services in strict accordance with this Agreement and the Documentation.

Services” means Application Services and Support Services.

Order Form” shall mean the authorized ActivTrak Order Form ordering document for purchases of Services hereunder, which incorporates the terms of this MSP Master Agreement.

Subscription Term” for each User Subscription means the period that Customer has the right to use such User Subscription and associated Documentation as set forth in the applicable Order Form.

“Support Services” means the support services provided by ActivTrak in accordance with ActivTrak’s support practices made generally available to Users and as identified in the Order Form. 

“MSP Usage License Model” means licensing that is charged by ActivTrak to MSP based on the usage of licenses for a defined period given period. 

2.         INTELLECTUAL PROPERTY RIGHTS

A.        Ownership.  Title to the Application, Documentation, Updates, and all patents, copyrights, trade secrets, and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of ActivTrak and its licensors.  Customer may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Application Services or Documentation and will not acquire any rights in the Application Services or Documentation, except the limited license specified in this Agreement.  ActivTrak and its licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Application, including any improvement or development thereof.  ActivTrak retains all rights not expressly granted to Customer in this Agreement.  Customer shall promptly notify ActivTrak in writing upon discovery of any unauthorized use of the Application Services or Documentation or infringement of ActivTrak’s proprietary rights in the Application Services or Documentation. 

3.         LICENSE GRANT

A.        Application Services License.  Subject to the terms of this Agreement, Customer is granted a limited, non-exclusive, non-transferable, non-assignable license to: (a) incorporate, but not modify, the Application Services into its own services offering used for monitoring services. (“Customer Offering”), (b) market the Application Services only as integrated into and combined with the Customer Offering; (c) allow Users to access and use the Application Services, solely as part of the Customer Offering; and (d) include Documentation with the Application Services.

B.         License Restrictions.  No distribution or license of the Application Services by Customer shall be made except pursuant to a valid written agreement that governs the Users right to use the Application Services (“User Agreement”).  Such User Agreement shall include (at a minimum) substantially the same restrictions as are contained in ActivTrak’s then current standard Master Subscription Agreement located at (a) Master Services Agreement currently located at https://activtrak.com/msa-agreement/.  Customer is responsible for ensuring (i) that each User enters into the User Agreement, and (ii) the User Agreement is legally binding upon the User. Customer may also appoint Authorized Partners to license, sublicense, and distribute the Customer Offering incorporating the Application Services in the same manner as Customer is permitted to do so, as specifically set forth above.

The License granted herein is subject to the following limitations: (a)Customer shall provide the Application Services to User only in combination with Customer Offering and not on a stand-alone or re-sale basis; and (b) Customer may not allow access and use of the Application Services by any User which ActivTrak reasonably considers to be a competitor.

C.         Restrictions on Use.  Customer shall not and will not permit or authorize third parties to (i) allow third parties or develop methods for third parties to use the Application Services; (ii) except as provided by applicable law, decompile, disassemble, or reverse engineer the Application Services, in whole or in part, and Customer shall not attempt to obtain in any other manner any Application Services source code, and shall not carry out any action to the detriment of ActivTrak’s intellectual property rights or those of its suppliers; (iii) make copies, execute, publish, or reproduce Application Services or Documentation, unless expressly authorized in this Agreement (and all copies must maintain ActivTrak’s copyright notices); (iv) develop any Derivative Works or any type of software program based on Application, the Documentation, or any other Confidential Information (as defined in Section 8(a)) of ActivTrak; (v) make available, reveal, disclose, offer, or allow the use of Application Services by third parties except as authorized herein, without the prior written consent of ActivTrak; (vi) alter or modify the Application Services without the prior written consent of ActivTrak; (vii) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Application, including without limitation any mechanism used to restrict or control Application Services functions; (viii) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by ActivTrak for downloading Application Services; (ix) disclose to any third party any benchmarking or comparative study involving the Application Services or Documentation; or (x) use the Application Services or Documentation in any manner not authorized by ActivTrak.

4.         FEES AND PAYMENT.

A.         MSP Program Participation Fee.  Customer shall pay ActivTrak the MSP Program Participation Fee as set forth in the Order Form (“MSP Program Participation Fee”) for the Initial Term (as defined in Section 10).  These fees shall be non-cancellable and non-refundable. Such MSP Program Participation Fee shall include the right to use any products or services identified within the line item description of the MSP Program Participation product code, including without limitation maintenance and support (“MSP Program Participation”) on the Order Form. The MSP Program Participation is for the exclusive use of Customer and cannot be transferred, assigned, sold, or otherwise made deployable, in whole or in part, to any third party, including any User. For the avoidance of doubt, commencing upon Effective Date, Customer is obligated to pay the MSP Program Participation Fee even if the Customer has not submitted Order Forms for User Subscriptions.

Failure to pay the MSP Program Participation Fee or User Subscription Fee (as defined in Section 4(B)) pursuant to the payment terms set forth on the Order Form shall constitute a breach of this Agreement. 

B.         User Subscription Fee.  Customer must purchase a separate User Subscription for each User upon initial deployment of the Customer Offering.  Customer shall pay ActivTrak the subscription fee for each User Subscription (“User Subscription Fee”) based on the Seed, Premier and Elite pricing program, as set forth in the Order Form.  All User Subscriptions require Customer to maintain an active MSP Program Participation subscription.

Unless expressly set forth in the Order Form, ActivTrak shall invoice Customer for each User Subscription Fee upon shipping or providing the keys to the Application. Thereafter, ActivTrak will invoice Customer for the User Subscription Fee on a monthly basis unless otherwise expressly set forth in the Order Form. 

C.         Services Pricing.  Pricing for Services shall be ActivTrak’s then current pricing for the Services as provided by ActivTrak. ActivTrak reserves the right to modify Services pricing; provided, however, ActivTrak shall provide Customer with written notice.

5.         SUPPORT SERVICES, INFORMATION, REPORTING AND AUDITS

A.         Support Services.  Subject to Customer paying any required Fees for Support Services as set forth in the Order Form, ActivTrak will provide Support Services in accordance with (a) ActivTrak’s standard terms and conditions located at https://activtrak.com/terms-of-service/.  ActivTrak may amend terms and conditions for Support Services by posting notices on ActivTrak’s web site or, for material changes, by emailing Customers of such changes.  MSP is solely responsible for: (a) accessing and using the Offerings, and ensuring Beneficiaries access and use the Offerings, in accordance with the Documentation; (b) determining the suitability of the Offerings for MSP’s and Beneficiaries’ use; (c) configuring the Offerings appropriately; (d) complying with any regulations and laws (including, without limitation, export, data protection, and privacy laws) applicable to MSP Content and MSP’s and Beneficiaries’ use of the Offerings; (e) MSP’s access and use of the Offerings; (f) all activity occurring under MSP’s Offering and support accounts; (g) providing all reasonable information and assistance required for ActivTrak to deliver the Offerings or enable MSP’s or Beneficiaries’ access and use of the Offerings; (h) using reasonable means to protect the account information and Credentials (including passwords and devices or information used for multi-factor authentication purposes) used by MSP and Beneficiaries to access the Offerings; and (i) promptly notifying ActivTrak of any unauthorized account use or other suspected security breach, or unauthorized use, copying, or distribution of the Offerings, ActivTrak Materials, or MSP Content.  MSP Content. MSP is solely responsible for all MSP Content, including but not limited to its accuracy, quality, and legality. MSP represents and warrants that it: (a) has the legal rights to provide MSP Content to ActivTrak; (b) has provided any required notices and has obtained any consents and/or authorizations (including any required from Beneficiaries and Users) related to its access and use of the Offering and the processing of and access to MSP Content by ActivTrak; and (c) will comply with all applicable laws and regulations for collecting and processing MSP Content, and transferring MSP Content to ActivTrak. MSP is responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of MSP Content, including but not limited to: (i) controlling access that MSP provides to Beneficiaries and Users; and (ii) backing up MSP Content.

B.         Information.  Customer will keep and maintain commercially reasonable written records and accounts regarding Customer’s use of Application Services for at least two (2) years after expiration of the applicable Application Services license term. Upon the request of ActivTrak, Customer shall provide a written report to ActivTrak indicating the number of copies of the Customer Offering Services incorporating the Application Services distributed during such term. Customer shall not (and shall not permit third parties to) sell more subscriptions of the Customer Offering Services incorporating the Application Services than the quantity for which Fees have been paid to ActivTrak.

C.         Audits.  ActivTrak, or a certified public accountant designated by ActivTrak, shall have the right, upon ten (10) days written notice to Customer, to conduct an inspection and audit of all relevant facilities and records of Customer relating to this Agreement including but not limited to the usage of the Application, the accounting of devices, and current User assigned to each specific User Subscription.  Such audit shall be conducted during regular business hours at Customer’s offices and data centers and in such manner so as not to unreasonably interfere with Customer’s normal business activities.  In no event shall audits be conducted more frequently than once every six (6) months.  The audit shall be conducted at ActivTrak’s expense; provided, however, that if the audit reveals that Customer has failed to comply with any material term of this Agreement, Customer shall pay all reasonable costs and expenses incurred by ActivTrak in conducting the audit, and any applicable unpaid fees.

6.         WARRANTY AND WARRANTY DISCLAIMERS

A.        Warranties.  ActivTrak warrants that during the Term: (i) the Application Services shall perform materially in accordance with the applicable Documentation, (ii)  ActivTrak will employ industry-standard measures to test the Service to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Application Services, and (iv) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Application Services granted herein. As Customer’s exclusive remedy and ActivTrak’s entire liability for a breach of the warranties set forth in this Section 6A, ActivTrak shall use commercially reasonable efforts to correct the non-conforming Application Services at no additional charge to Customer. The remedies set forth in this subsection shall be Customer’s sole remedy and ActivTrak’s sole liability for breach of these warranties. The warranties set forth in this Section shall apply only if the applicable Application Service has been utilized in accordance with the Documentation, this Agreement and applicable law.

Customer represents that it shall be exclusively responsible for any User data maintained or stored by Customer on behalf of a User, including ensuring the security and confidentiality of all such data, or for any loss of data that occurs due to use of the Application Services.

The Application agent is not designed, manufactured, or intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other Application Services in which the failure of the Application agent could lead directly to death, personal injury, or severe physical or property or environmental damage (collectively, “High Risk Activities”).  ActivTrak and its suppliers expressly disclaim any express or implied warranty with respect to any High Risk Activities.

B.         Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.  ACTIVTRAK DOES NOT WARRANT THAT THE APPLICATION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTIVTRAK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7.         LIMITATION OF LIABILITY

IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ACTIVTRAK OR ITS LICENSORS, AUTHORIZED PARTNERS, OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, DAMAGE TO NETWORKS, EQUIPMENT, OR HARDWARE, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO ACTIVTRAK DURING THE TWELVE (12) MONTH PERIOD PROCEEDING ANY SUCH CLAIM(S). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND DO NOT APPLY TO BODILY INJURY TO A PERSON.

8.         CONFIDENTIALITY, CUSTOMER INFORMATION, AND COMMUNICATIONS

A.        Confidentiality.  Customer acknowledges and agrees that the Application Services and Documentation incorporates confidential and proprietary information developed or acquired by ActivTrak including, but not limited to, technical and non-technical data, formulas, patterns, compilations, devices, methods, techniques, drawings and processes related to the Application, which constitutes the valuable intellectual property of ActivTrak and its suppliers (collectively, “Confidential Information”).

The parties may use Confidential Information solely in accordance with this Agreement and will take all reasonable precautions necessary to safeguard the confidentiality of such information.  The parties will hold in confidence and not disclose, reproduce, distribute, or transmit the Confidential Information, directly or indirectly, in any form, by any means, or for any purpose, except to those of its employees, agents, consultants, or subcontractors who require access for Customer’s authorized use of the Application Services in accordance with the terms of this Agreement.  Customer will implement reasonable security measures to protect such Confidential Information at a level no less restrictive than used to protect its own confidential information.

The parties shall not be restricted under this Section 8 with respect to Confidential Information that the receiving party affirmatively establishes that (i) has or becomes generally available to the public other than as a result of an act or omission of the receiving party or any of its employees, agents, subcontractors or consultants; (ii) was in the possession of the receiving party before receiving the information; (iii) is independently developed by the receiving party without use of the confidential information; or (iv) is required to be disclosed by law, court order or other legal process, provided that the receiving party shall first provide the disclosing party with prompt written notice thereof.

Customer acknowledges that (i) any use or threatened use of the Application Services in a manner inconsistent with this Agreement, or (ii) any other misuse of the Confidential Information of ActivTrak will cause immediate irreparable harm to ActivTrak for which there may be no adequate remedy at law.  Accordingly, Customer agrees that ActivTrak shall be entitled to seek injunctive relief in the event of any such breach or threatened breach by Customer.  Nothing contained herein shall limit ActivTrak’s right to any remedies at law.

B.         Customer Information.  ActivTrak may use any technical information Customer provides to ActivTrak for any of ActivTrak’s reasonable business purposes, including product support and development.  Customer acknowledges that the Application Services may include a monitoring capability that sends anonymous statistics about performance, device utilization and network size remotely to ActivTrak. ActivTrak will not use technical information in a form that personally identifies the Customer. 

C.         Notices.  ActivTrak may send Customer required legal notices and other communications about the Application, including special offers and pricing or other similar information, customer surveys or other requests for feedback (“Communications”).  ActivTrak will send Communications via in-product notices or email to registered email addresses of Customer (as provided in the Order Form) named contacts, or will post Communications on its Website.  Customer may notify ActivTrak of its desire not to receive any such Communications (which may have a technical impact on Customer’s use of the Application Services and the provision of any Support Services) by writing to legal@ActivTrak.com

9.         TERM AND TERMINATION

A.         Initial Term.  The term of this Agreement shall commence upon the Effective Date and remain in effect for the period of any MSP Program Participation commitment specified in the Order Form (“Initial Term”), unless earlier terminated as set forth herein.  If no MSP Program Participation commitment is specified in the Order Form, the Initial Term shall be for a period of one (1) year.

B.         Extension Period.  Notwithstanding the foregoing, if the Subscription Term of a User Subscription extends beyond the Initial Term of this Agreement (“Extension Period”), this Agreement shall automatically be extended to be coterminous with such Subscription Term.  

C.         The term of this Agreement shall automatically renew for the period of any MSP Program Participation commitment specified in an applicable Order Form executed during the Initial Term or Extension Period, or if none is in place at the time of renewal, then this Agreement shall continue until the Subscription Term of all User Subscriptions under the Order Form have expired. 

D.         Either party may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement to the other party and failure to cure within thirty (30) days following written notice specifying such breach.  For avoidance of doubt, Customer’s failure to pay any fee under this Agreement shall constitute a breach of this Agreement.

Upon expiration or termination of this Agreement, Customer will cease all use of the Application Services and return to ActivTrak and/or destroy each copy of the Application Services and all Documentation and related materials as well as ActivTrak’s Confidential Information in Customer’s possession or control, and so certify in writing to ActivTrak.  Except as expressly provided herein, Sections 1, 2, 4, 5B, 6, 7, 8, 9D, 10, 11, and 13 of this Agreement shall survive termination. 

10.        INDEMNIFICATION

ActivTrak shall indemnify and hold harmless Customer and its officers, employees, agents, and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the Application Services infringes or violates any United States patents, copyrights, trade secrets, or other proprietary rights of a third-party.  Customer may, at its own expense, assist in such defense if it so chooses, provided that ActivTrak shall control such defense and all negotiations relating to the settlement of any such claim.  Customer shall promptly provide ActivTrak with written notice of any claim which Customer believes falls within the scope of this Section 10.  In the event that the Application Services or any portion thereof is held to constitute an infringement and its use is enjoined, ActivTrak may, at its sole option and expense, (i) modify the infringing Application Services so that it is non-infringing; (ii) procure for Customer the right to continue to use the infringing Application Services; or (iii) replace said Application Services with suit­able, non-infringing services.  Notwithstanding the foregoing, ActivTrak will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Application Services made by or for Customer or any other party that were not provided by ActivTrak or authorized by ActivTrak in writing; (ii) use of the Application Services in combination with any other services, software, hardware or products not supplied by ActivTrak. 

Customer shall indemnify and hold ActivTrak harmless from and against all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) of any kind and nature that may be asserted, granted or imposed against Licensor, arising from or in connection with: (a) any claims that any Hardware, service, Application Services or other software supplied by Customer (other than Application Services provided by Licensor) infringe any third party intellectual property rights; (b) any misrepresentation made by Customer regarding ActivTrak or the Application Services; (c) any breach by Customer of this Agreement, including any breach of warranty provided by Customer herein; or (d) any warranty, representation or guarantee made by Customer with respect to the Application Services in addition to the limited warranty provided by ActivTrak in Section 6 of this Agreement. 

11.        PAYMENT TERMS; TAXES AND SHIPPING

A.       Payment Terms.  Fees must be paid in United States Dollars, or as otherwise stated in the Order Form, and are exclusive of out-of-pocket expenses. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Customer will make payment within thirty (30) days of the date of the invoice. Late payments will incur monthly interest charges of 1.5% per month after forty-five (45) days, or the maximum interest rate permitted by law, whichever is less, together with any collection costs (including reasonable attorneys’ fees). Payment options may be credit card, wire/electronic transfer, company check or other pre-arranged payment method. ActivTrak may invoice parts of an order separately. ActivTrak is not responsible for pricing, typographical, or other errors, in any quotation or offer and reserves the right to cancel any orders resulting from such errors.

B.       Taxes and Shipping.  All payments under this Agreement shall be made free and clear and without deduction for any and all present and future Taxes.  Payments due to ActivTrak under this Agreement shall be increased so that amounts received by ActivTrak, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement if no Taxes were due on such payments. For purposes of this Agreement, the term “Taxes” means all income withholding taxes, levies, imposts, duties, fines or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party’s net income or property. The Customer shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority by delivering to ActivTrak receipts or notarized copies thereof within 30 days after the due date for such tax payments.  Without prejudice to the survival of any other Agreement of Customer hereunder, the obligations of Customer contained in this section shall survive the payment in full of all payments hereunder.

Unless ActivTrak is provided with a valid and correct reseller permit or tax exemption certificate applicable to the purchase of Services, Customer shall be responsible for sales and other taxes associated with the order. Shipping dates are estimates only. All terms are FOB Point of Shipment.

12.        TRADEMARKS.  

Subject to the provisions of this Section 13, during the term of this Agreement, Customer will have the right to advertise the Services with ActivTrak’s trademarks, trade names, service marks, and logos of ActivTrak (“ActivTrak Trademarks”), solely in connection with the solicitation of orders for licenses, subject to ActivTrak’s prior inspection and written approval. All representations of ActivTrak Trademarks that Customer intends to use will first be submitted to ActivTrak for approval (which will not be unreasonably withheld) of design, color, and other details, or will be exact copies of those used by ActivTrak. Customer will fully comply with all guidelines, if any, communicated by ActivTrak concerning the use
of ActivTrak Trademarks. Except as set forth in this Section 12, nothing contained in this Agreement will grant or will be deemed to grant to Customer any right, title, or interest in or to ActivTrak Trademarks.

13.        GENERAL

A.        Assignment.  Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent, provided that ActivTrak may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets.  This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.

B.         Foreign Corrupt Practices Act and Anticorruption Laws.  Each party agrees in connection with this Agreement to comply with the U. S. Foreign Corrupt Practices Act (the “FCPA”), and all other applicable anticorruption laws (i.e., U.K. Bribery Act of 2010 and local anticorruption laws).  Each party further agrees that it, and its employees, officers, directors, principals, agents, brokers and affiliates shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment or an offer to pay, or offer a gift, promise to give, or authorize the giving of a bribe or, anything of value for the  purpose of influencing an act or decision of any government official or other person (including a decision not to act) or inducing an official or other person to improperly use his/her influence to affect any such governmental act or business decision in order to assist in obtaining, retaining or directing any business, or securing any improper advantage.  Each party shall have the right to audit the other party’s compliance with this provision during normal business hours no more than once per annum and upon at least fourteen (14) business days’ prior written notice.  Each may be required to annually certify compliance with this provision upon written request by the other party.  Failure to comply with this provision shall be considered a material breach of the Agreement.

C.         Notices.  All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile; (ii) on the date it was delivered by courier; or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.

D.        Force Majeure.  ActivTrak will not be held responsible for any failure, delay or interruption caused by circumstances outside of its control, such as network failure, network connection failure, earthquake, flooding, strikes, embargos or acts of government.  If such event giving rise to force majeure lasts for more than 30 days, then either party may terminate this Agreement without such termination giving rise to any liability or right to any refund. 

E.         Amendments.  Except as expressly stated herein, the terms of this Agreement may not be modified except by a written agreement signed by both parties.

F.         Severability.  If any provision of this Agreement is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed severed from the remaining provisions of this Agreement and shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.   

G.        Waiver.  No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.

H.        Jurisdiction.  The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of Texas without giving effect to the conflicts of law provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Customer hereby irrevocably consents to jurisdiction of both the state and federal courts located in Travis County, Texas.

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