AquaSynapseTerms and Conditions

II. Access and Services

Grant of Access Right to Subscriber - Subject to the Subscriber complying with the terms of this Agreement, The Provider grants to the Subscriber during the Term a non-exclusive, non-transferable right (except as set forth in Section 2D) for Authorized Users of the Subscriber to access and use the following Services in connection with the sites:

• The hosting, management and operation of the Software as described in the Description for remote electronic access and use via the Platform by the Subscriber and its Authorized Users.
• The Support Services.
• Such other services as may be specified in this Agreement.

Access to Service and Platform - The Provider shall use commercially reasonable efforts to provide continuous access to the Service in accordance with the Support Policy. The Provider does not guarantee that the Service will be accessible at all times. The Service may be unavailable during scheduled maintenance periods or during an emergency. The Provider shall use reasonable efforts to notify the Subscriber in the event that the Service will be unavailable for scheduled maintenance. In addition to the scheduled maintenance, there may be events that will make the Service inaccessible for a limited amount of time due to unforeseen circumstances, such as, but not limited to, software, hardware, network, power and/or Internet problems or outages.

Support Services - Provider shall provide the following support services (collectively, “Support Services”) as part of the Services:

• Maintain the Software and Platform;
• Issue User Administrator credentials in the form of username and password;
• Revoke credentials of a User Administrator within 7 days of Subscriber providing Provider with a written request to revoke;
• Use commercially reasonable efforts to make the Software and Platform available 24 hours a day, seven days a week, except for planned maintenance, unscheduled maintenance, and emergencies (as described in the Support Policy;
• Provide the Subscriber with standard customer support services (from 8am to 5pm central standard time) according to the Support Policy in effect at the time that the Services are provided. All other standard customer support services outside of the given time will be charged at rate under the Extended Support Fee as mentioned in section 3C.

Use by Authorized Users - The Subscriber shall be responsible for all use of the Services under the access and use rights granted hereunder, including without limitation any breach by Authorized Users of the terms and conditions of this Agreement. Without limitation of the foregoing, all Authorized Users must be under confidentiality obligations to the Subscriber commensurate with those in Section 10 below, protecting Proprietary Information provided to the Subscriber by parties such as the Provider. Upon initial login using the Login Credentials each new Authorized User may be required to accept the terms of the Provider`'`s terms of use as it is provided. The Subscriber shall use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access of use, promptly notify the Provider.

Restrictions on Use - The Subscriber itself shall not and shall not permit its Authorized Users, employees or contractors to: (1) de-compile, reverse engineer, disassemble, rent, lease, loan, sublicense or create derivative works of the Software. (2) resell or transfer the Software or use of or access to the access of the Software; (3) copy, modify, reproduce, republish, distribute, transmit or user for commercial or public purposes the Software, except as otherwise provided in this Agreement; (4) download or save a copy of any of the screens appearing on any website related to the Software, except otherwise provided in this Agreement; or (5) use or otherwise export or re-export the Software in violation of the export control laws and regulations of the United States of America. These restrictions are not intended to prohibit or limit the Subscriber’s access or ability to reproduce Subscriber Data.

No license to the Software is granted to the Subscriber other than as specifically provided herein. All rights not specifically granted in this Agreement are reserved by the Provider.

III. Fees and Payment

Implementation Fee - If applicable, an initial implementation fee (“Implementation Fee”) for the initial setup of the Service for Subscriber is set forth in the Proposal and is included in the final approved Services Agreement and is be due within thirty (30) calendar days of the Effective Date. If no Implementation Fee appears in the proposal, there is no Implementation Fee.

Subscription Fee - During the Term the Subscriber agrees to pay to the Provider the “Subscription Fee” as set forth in the Initial Statement of Work included in the final Services Agreement. The Subscription fee is a recurring fee and is based on a flat agreed upon Maintenance Fee, and the amount of currently active Authorized Users at the end of the calendar accrual month or year as specified in the Proposal. The Provider may adjust the Subscription Fee rates (excluding the flat Maintenance Fee) by up to but not exceeding 5% each year.

Extended Support Fee - During the Term if the Subscriber seeks support outside of the designated time as provided in Section 2C, the Subscriber agrees to pay an hourly rate (in addition to the Subscription Fee) as set forth in the Initial Statement of Work included in the final Services Agreement.

Payment Terms - Payment of the Subscription Fee is due either monthly or annually within thirty (30) days after the end of the calendar accrual month or year as specified in the Proposal. If Subscriber fails to pay the Subscription Fees when due, the Provider has the right to terminate this Agreement and terminate or suspend access to the Service without further notice. All payments shall be made in U.S. dollars. All amounts due hereunder are net amounts, and the Subscriber agrees that it will be responsible for the collection and payment of all sales, use or services taxes of any kind, with the exception of taxes due on the Provider’s income.

Late Payment - Payments which are not received when due will be considered overdue and the Subscriber agrees to pay the Provider interest on any overdue balance at the lesser of one and half percent (1 ½%) per month or the maximum amount allowed by applicable law.

IV. Login Credentials

User Administrator - At all times during the Term, the Subscriber shall designate one or more employees to serve as User Administrator(s) for the Subscriber. Subject to the terms of this Agreement, the Provider grants the User Administrator(s) the non-transferable right to assign and administrate Login Credentials to Authorized Users, to administer security profiles of Authorized Users, and to input data regarding the Authorized Users and to deauthorize Authorized Users. To prevent billing errors, the Subscriber agrees that each Authorized User will be assigned unique Login Credentials, and that no Login Credentials will be shared or otherwise utilized by two or more individuals at any time.

Login Credentials Protection - The Subscriber shall be solely responsible for the security of Login Credentials issued to each Authorized User. The Subscriber agrees to comply with the procedures that may be specified by the Provider from time to time regarding obtaining and updating passwords for the Services.

V. Intellectual Property Rights and Ownership

You acknowledge that the Software contains proprietary information of Provider and protected by copyright, trademark, patent, trade secret and/or other intellectual property rights; and that all such intellectual property rights are and shall be the sole property of the Provider. Subscriber also agrees that, except as expressly provided in this Agreement, nothing in this Agreement or the conduct of the parties shall be construed as conferring on the Subscriber any license or right, by implication, estoppel, or otherwise, under copyright or other intellectual property rights. Subscriber also agrees to abide by this Agreement regardless of whether any portion of the Software is deemed not copyrightable. All of Subscriber’s obligations and acknowledgements under this Agreement, including without limitation those regarding limitations on use and the intellectual property rights of Provider, shall survive any termination or expiration of this Agreement.

All Ownership rights in and to the Service and the Software applications and systems use to provide the Service and any related documentation (including any corrections, Updates, authorized copies thereof, or any adaptations, customizations, modifications, derivative works, or other enhancements thereto (whether created by Provider, Subscriber or jointly, all of the foregoings in this list referred to collectively as “Modifications”)) made during this Agreement, but excluding any Subscriber Data and Subscriber’s brands, shall remain exclusively with the Provider and its licensors, as applicable. Subscriber agrees to and hereby assign, transfer and convey to the Provider all of Subscriber’s right, title, and interest in and to all Modifications. This assignment obligation shall survive any termination or expiration of this Agreement. Subscriber agrees not to challenge any intellectual property right of the Provider in the Software or the Service during this Agreement or at any time after any termination or expiration thereof.

VI. Use of Data

Subscriber Data - As between the Subscriber and the Provider, the Subscriber owns the Subscriber Data provided by the Subscriber and its Authorized Users through use of the Service. Subscriber Data uploaded by the Subscriber to or stored by the Software will be maintained by the Provider. The Subscriber will have on-line access to Subscriber Data as set forth in this Agreement.

Use of Subscriber Data - The Subscriber agrees to and does hereby grant to the Provider a perpetual, irrevocable, worldwide, royalty free, transferable, sublicensable right to use, analyze, mine, combine, share, transmit, sell, market, exploit and transfer the Subscriber Data in any way it chooses, provided however, that all Subscriber Data, prior to transmission to any third party, shall be anonymized such that Personal Information has been deidentified and so that anonymized information cannot be linked back to an identifiable individual or entity.

Provider Data - The Provider may also collect data and information in connection with the Service that the Provider provides generally (but not including Subscriber Data) though its online Service (“Provider Data”). All such Provider Data is and shall remain the sole property of the Provider. The Provider shall also have the right to combine Subscriber Data and Provider Data and use such data as set forth in Section 6B.

Personal Information - The Provider shall use commercially reasonable efforts to maintain the confidentiality of all Personal Information; however, the Provider shall not be liable for the confidentiality of any Personal Information in the event of unauthorized access, theft or use of such Personal Information, either by the Subscriber’s Users, or third parties. The Subscriber agrees to pay for all costs (including, but not limited to, reasonable attorneys and consultants’ fees) for all remedial actions which are required by law or reasonably necessary to protect the privacy and security of the owners of such Personal information in the event of unauthorized access of the Personal Information which occurred through no fault of the Provider. If the Subscriber transmits, uploads, downloads, stores or manages Personal Information, the Subscriber shall at all times comply with the standards as required by law applicable at the time. Other than a breach of security caused by the Provider or Provider’s agents and contractors, the Subscriber shall indemnify, defend and hold the Provider harmless from any damages (including, but not limited to, attorney’s fees, costs, time lost, cost of notification, remediation, fines and penalties) the Provider incurs as a result of any claim or action related to security breach of data the Subscriber has transmitted, uploaded, stored, managed, or in any other way accessed, used or involved the Provider’s (or its agents and contractors) Services, Software or equipment.

Provider shall follow its archiving procedures for Subscriber Data as set out in its Back-Up Policy available at www.aquasnyapse.com/backup-policy or such other website address as may be notified to the Subscriber from time to time (the “Backup Policy”), as such document may be amended by the Provider in its sole discretion from time to time. In the event of any loss or damage to Subscriber Data, the Subscriber’s sole and exclusive remedy shall be for the Provider to use reasonable commercial endeavors to restore the lost or damaged Subscriber Data from the latest backup of such Subscriber Data maintained by Subscriber in accordance with the archiving procedure described in the Backup Policy. The Provider shall not be responsible for any loss, destruction, alteration or disclosure of the Subscriber Data caused by any third party (except those third parties subcontracted by the Provider to perform services related to Subscriber Data maintenance and backup).

VII. Warranty and Warranty Disclaimers

The Provider warrants to the Subscriber that all Professional Services shall be performed or provided in a professional manner.

DISCLAIMER - OTHER THAN AS EXPRESSED IN THIS SECTION 7, THE SOFTWARE, THE SERVICE, THE PROFESSIONAL SERVICES, AND ANY OTHER SERVICES RENDERED BY THE PROVIDER ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE MADE WITH RESPECT TO ANY OF THE SERVICES OR SOFTWARE PROVIDED IN CONNECTION WITH THIS AGREEMENT, AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND UNINTERRUPTED, ERROR-FREE USE ARE EXPRESSLY DISCLAIMED.

The Subscriber represents and warrants to the Provider that any and all Subscriber Data will not: (1) violate any foreign, federal, state, local or provincial law or regulation; (2) infringe on any copyright, trademark or other proprietary right of any third party; or (3) in any way violate or infringe upon any party’s privacy right, right of publicity or any other right of any person or entity.

VIII. Limitations of Liability

THE PROVIDER’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THE SOFTWARE, ALL SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM, ACTION OR PROCEEDING, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY SHALL NOT EXCEED THE AGGREGATE SUBSCRIPTION OR OTHER FEES PAID BY THE SUBSCRIBER TO THE PROVIDER FOR THE SERVICE DURING THE THREE (3) MONTHS PRIOR TO PROVIDER RECEIVING NOTICE OF THE CLAIM. IN NO EVENT SHALL THE PROVIDER, ITS LICENSORS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOST PROFITS, LOST OPPORTUNITY COSTS, LOSS OF DATA, BREACH OF DATA SECURITY, ETC., EVEN IF THE PARTY HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. THE ALLOCATIONS OF LIABILITY REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND THE PROVIDER’S COMPENSATION FOR THE SERVICES REFLECTS SUCH ALLOCATIONS.

The Subscriber acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Provider makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Subscriber, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Subscriber and the relevant third party, and not the Provider. The Provider recommends that the Subscriber refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Provider does not endorse or approve any third-party website nor the content of any of the third-party websites made available via the Services.

IX. Indemnification

Indemnification by the Provider -

• The Provider agrees to indemnify and hold harmless the Subscriber and its successors, assigns, parents and subsidiaries and the officers, directors and employees of each of them, from and against any and all claims, losses, actions, damages, expenses and all other liabilities, including, but not limited to, costs and reasonable outside attorneys’ fees (collectively, “Claim(s)”) arising out of (a) the breach of any representation, warranty, covenant or other terms or conditions of this Agreement by the Provider, and (b) the negligent acts or omissions of the Provider in connection with its obligations set forth in this Agreement.
• The Provider shall pay any final judgments awarded or settlements entered into, provided that the Subscriber gives prompt written notice to the Provider of any such Claim and gives the Provider the authority to proceed as contemplated herein and timely cooperates with the Provider. The Provider will have the exclusive right to defend any such Claim, and make settlements thereof at its own discretion, and the Subscriber may not settle or compromise such Claim, except with prior written consent of the Provider. At the Provider’s cost, the Subscriber shall promptly give such assistance and information as the Provider may reasonably require to settle or oppose such Claims.
• The Provider shall, at its expense, defend or settle any claim, action or allegation (collectively “Claim”) brought against the Subscriber, its authorized agents, representatives and contractors, and their respective officers, directors, employees, agents, representatives and contractors that the Software (other than any customization or modification of the Software specifically requested by the Subscriber) or Service infringes any patent or copyright in the United States.
• In the event that the use of the Service is or may be enjoined, the Provider will use commercially reasonable efforts to: (1) replace the infringing Service with a non-infringing version of the Service; provided, however, if a non-infringing version is not reasonably available to the Provider, then the Provider will, in its sole discretion, either: (2) obtain a license permitting the Subscriber’s continued use of the allegedly infringing Service, or (3) terminate the Agreement with respect to the infringing part of the Service and provide for a corresponding reduction of fees as determined by the Provider payable by the Subscriber. Provided the Subscriber is current with all fees due and payable to the Provider, the Subscriber may, in its sole discretion, elect to terminate this Agreement effective thirty (30) days following written notice to the Provider in the event the infringing portion of Service is of material functionality thereby materially reducing the Subscriber’s use of Service. Such written termination must be delivered to the Provider within thirty (30) days following the Provider’s written notice to the Subscriber of the reduction of fees attributable to the infringement. The Provider will then be released from any further obligation whatsoever to the Subscriber in connection with the infringing part of the Service. The foregoing obligations shall not apply to the extent the infringement arises as a result of modifications or customizations to the Service based on specifications or requirements provided by the Subscriber or the use of the Service together with the Subscriber Data. This Section 9A states the entire liability of the Provider with respect to infringement of any patent, copyright, trade secret or other proprietary right. The Provider shall be entitled to collect and retain any damage awards (including, but not limited to, attorneys’ fees and costs) related to such Claim.

Indemnification by the Subscriber - Except for Claims subject to Section 9A, the Subscriber shall defend or settle any Claim brought against the Provider, its parent, divisions, subsidiaries, and affiliates and their respective officers, directors, employees, agents, licensors, representatives and contractors, at the Subscriber’s expense, resulting from, arising out of, or related to the Subscriber’s and its Authorized Users’ breach of the warranties and representations of Section 7, or use of the Service or the Subscriber Data, including without limitation any claim for personal injury, death or damage to property, breach or loss of data and shall pay any final judgments awarded or settlements entered into. The Provider will provide the Subscriber with prompt notice of such claims, and provide the Subscriber the sole right to defend or settle any such claim. The Provider may not settle or compromise any such claim, except with prior written consent of the Subscriber. At the Subscriber’s cost, the Provider shall provide such reasonable assistance and information as the Subscriber may reasonably require with such Claims.

X. Confidentiality

“Confidential Information” - means all confidential and proprietary financial data, marketing data, product markets, market projections, contacts, customers or customer lists, training materials and techniques, product plans, products, prototypes or models, software, source code, object code, system architecture, documentation, hardware, designs, drawings, research, engineering know-how and negative know-how, services, methods of manufacture or production, techniques for improved production, inventions, copyrightable and uncopyrightable works, which are not otherwise included within the definition of Trade Secrets and that is the subject of its owner’s reasonable efforts to maintain confidentiality thereof. “Trade Secrets” means confidential and proprietary information disclosed by one Party to the other relating to the whole or any portion or phase of any scientific, technical or nontechnical data, design, pattern, process, formula, device, method, technique, compilation, program, drawing, financial data, financial plans, product plans or list of actual or potential customers or suppliers, which (1) derives economic value, actual or potential, from not being generally known to, and not readily ascertainable by proper means by, other persons and (2) is the subject of efforts by the Party claiming trade secret status that are reasonable under the circumstances to maintain its secrecy. Without limitation of the foregoing, the Provider’s Trade Secrets include the applications and systems associated with providing the Services. “Proprietary Information” means, collectively, Confidential Information and Trade Secrets.

Each Party shall protect the Proprietary Information of the other Party with the same standard of protection and care that it uses for its own Proprietary Information, but in no event less than reasonable care and diligence. Neither Party shall disclose, publish, transmit or make available all or any part of such Proprietary Information except in confidence or a need-to-know basis to its own employees and third-party contractors who have undertaken a written obligation of protection and confidentiality and its legal and professional advisors under similar confidentiality obligations, and shall not duplicate, transform or reproduce such Proprietary Information except as expressly permitted hereunder.

Any information will not be considered Proprietary Information to the extent, but only to the extent, that such information: (a) is already known to the receiving Party free of any confidentiality obligation at the time it is obtained; (b) is or becomes publicly known through no wrongful act of the receiving Party; (c) is rightfully received from a third party without restriction and without breach of this Agreement; or (d) is required to be disclosed by law or court order. In the event that either Party is required by law or court order or regulatory authority to disclose any Proprietary Information, except AquaSynapse 28894 San Bernard River Loop Spring, TX 77386 832-381-4906 [email protected] www.aquasynapse.com such disclosure may be made only after the other Party has been notified and has had a reasonable opportunity to seek a court order or appropriate agreement protecting disclosure of such Proprietary Information.

With regard to Trade Secrets, the obligations in this Section 10 shall continue for so long as such information continues to be maintained as a Trade Secret and trade secret status has not been lost based on the holder’s actions or inactions or as determined by a final adjudication. With regard to Confidential Information, the obligations in this Section 10 shall continue for the term of this Agreement and for three (3) years after termination or expiration, but without restriction as to duration with respect to any Personal Information.

The Provider may disclose that the Subscriber is a customer of the Provider and may use the Subscriber’s name (and use related logos) in promotional and marketing material.

XI. Term and Termination

Term- This Agreement shall commence on the Effective Date and continue for the term specified in the proposal (the “Initial Term”). At the end of the Initial Term this Agreement shall automatically renew for successive periods (each period being a “Renewal Term”). Together, the Initial Term and any Renewal Terms are referred to as the “Term”.

Termination - Either Party may terminate this Agreement for cause if the other Party commits a material breach of this Agreement (other than a failure of the Subscriber to timely pay any fees owed) that remains uncured ten (10) days after written notice of such breach is delivered to the other Party. Notwithstanding anything to the contrary in this Agreement, any willful unauthorized access, use, copying, disclosure, distribution, or sub licensing of intellectual property or any related methods, algorithms, techniques, or processes of the Provider by the Subscriber or any Authorized User will be deemed a material breach of this Agreement that cannot be cured and will entitle the Provider to immediately terminate this Agreement. The Subscriber may terminate this Agreement without cause by providing ten (10) days prior written notice to the Provider.

Obligations of the Parties Upon Expiration or Termination - Obligations of Data Delivery. Upon the expiration or termination of the Agreement, the Subscriber will return to the Provider any the Provider Proprietary Information; and the Subscriber and each Authorized User will no longer be provided access to the Service; and the Subscriber will cease any attempt to access the Service.

Transition Services - Upon the effective termination of this Agreement for reasons other than the Subscriber’s breach of its payment obligations or its confidentiality obligations hereunder, and upon prepayment of three (3) months of the Provider’s Subscription Fee then in effect the Provider shall cooperate with the Subscriber in allowing the Subscriber to transition to another service provider and shall promptly provide the Subscriber with a data file of the Subscriber’s Data so that the Subscriber may transition to another service provider, subject to the confidentiality provisions of Section 10. In the event the transition is accomplished in less than three (3) months’ time, the Provider will refund a pro rata amount of such prepaid amount within thirty (30) days of the transition being completed.

Non Solicitation - The Subscriber agrees that during the Term of this Agreement and for a period of two (2) years following the termination or expiration of this Agreement for any or no reason whatever, subject to the terms of any escrow agreement in place between the parties, if applicable, the Subscriber will not, on its own behalf or in the service or on behalf of others, solicit, recruit or hire, or attempt to recruit or hire, directly or by assisting others, any employee of the Provider. The obligations of this Section 11E shall survive any expiration or termination of this Agreement.

Suspension or Termination Based on Threat of Infringement - In the event that either the Provider or the Subscriber is threatened in writing or is sued for infringement or violation of any third-party intellectual property right relating to the performance of the Services, then the Party receiving the threat or lawsuit shall notify the other Party within five (5) days of receipt. In such an event the Provider may, at its option and by providing written notice to the Subscriber, either (a) suspend performance of the Services until the threat is removed to the reasonable satisfaction of the Provider or the lawsuit dismissed or, (b) if the threat is not resolved or the lawsuit dismissed within three (3) months of the Provider receiving notice thereof, the Provider may terminate this Agreement by providing notice in writing to the Subscriber. In such an event, the Provider shall be paid for all completed Services and for all in process Services provided up to the date of termination on a pro rata basis. Further, in such an event the Subscriber shall immediately discontinue use of any Service of Software that is the subject of the threat or lawsuit until such threat is removed or the lawsuit is dismissed. If the Subscriber does not immediately discontinue such use or commercialization, the Provider shall have no obligation to indemnify, defend or hold the Subscriber harmless for such continued use or commercialization, and further, the Subscriber shall indemnify, defend and hold the Provider pursuant to the Subscriber’s obligations.

XII. Competition

During this Agreement and for a period of twenty four (24) months after any termination or expiration of this Agreement, the Subscriber shall not develop, or cause to be developed (directly or indirectly) any software that would compete with the Software.

XIII. General Provisions

Governing Law - This Agreement is governed by Texas law, excluding its conflicts of law rules. Each Party irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Montgomery County, Texas, for any dispute arising out of this Agreement, and waives all objections to jurisdiction and venue of such courts.

Dispute Resolution - The Provider and the Subscriber will attempt in good faith to resolve any dispute. Each Party will designate an officer or senior level management executive with decision making authority (collectively, an “Executive”) with the responsibility and the authority to resolve the dispute. These Executives will meet or hold a telephone conference call within thirty (30) days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These Executives will then gather relevant information regarding the dispute and will meet or hold a telephone conference call promptly to discuss the issues and to negotiate in good faith to resolve that issue. In the event the parties are unable to resolve the dispute within sixty (60) days after the specific meeting of the designated Executives as specified above (or such longer time as the parties agree), then the dispute shall be resolved by mandatory arbitration, which may be submitted by either Party. Such arbitration will be conducted in or near Houston, Texas, in accordance with the commercial rules (“Rules”) then in effect by the American Arbitration Association by one (1) arbitrator appointed in accordance with such rules. The award rendered by the arbitrator will be final and binding, and judgment may be entered upon it in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator. In the event the arbitrator determines that either Party fails to resolve any dispute in good faith, the arbitrator may award (in any amount deemed appropriate by the arbitrator) the prevailing Party its costs and expenses of arbitration, including filing fees and attorneys, accountants, and experts fees. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a Party shall give written notice to the other Party and afford such Party a reasonable opportunity to protect its interests. Each Party shall bear its own costs in the arbitration; however, the Parties shall share the fees and expenses of the arbitrator equally.

Publicity - Either Party may disclose that the Subscriber is a customer of the Provider, so long as the Provider does not disclose any Subscriber Confidential Information and the Provider may list the Subscriber (and use the Subscriber’s name and logos) to indicate the Subscriber as being a customer and describe the non confidential nature of the relationship in the Provider’s press releases, marketing and promotional material. The parties agree to keep the financial and other terms of this Agreement confidential (subject to any disclosures required by law under Section 10). This Section 13C shall survive any termination or expiration of this Agreement.

Waiver - No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of the Party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.

Severability - If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect.

Assignment - This Agreement shall not be assigned, conveyed or transferred, whether by contract or operation of law (collectively referred to in this Section 13F as “assign” or “assignment”) by the Subscriber without the prior written consent of the Provider. The Provider may assign this Agreement in whole or in part, including the right to receive payments, upon written notice to the Subscriber, provided that assignee of the Provider’s rights agrees to be bound by AquaSynapse 28894 San Bernard River Loop Spring, TX 77386 832-381-4906 [email protected] www.aquasynapse.com the terms and conditions of the Agreement and any agreements entered into between the parties which form a part of this Agreement. Any assignment in violation of this Section 13F shall be of no force or effect.

Compliance with Laws - Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including but not limited to any export laws and regulations of the United States.

Force Majeure - With the exception of the payment of amounts owed, if by reason of labor disputes, strikes, lockouts, riots, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, governmental restrictions, appropriation, telecommunications failures or cable line cuts or other causes beyond the control of a Party hereto (any of the foregoing is referred to as a “Force Majeure Event”), either Party is unable to perform in whole or in part its obligations as set forth in this Agreement, then such Party shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make such Party liable to the other Party. A Party shall promptly notify the other Party in the event of a Force Majeure Event impacting the Party’s ability to perform. Neither Party shall be liable for any loss, injury, delays or damages suffered or incurred by the other Party due to the above causes. In the event a Force Majeure Event occurs whereby either Party is unable to perform in whole or in part its obligations as set forth in this Agreement for a period of thirty (30) consecutive days, the other Party shall have the right to terminate this Agreement without termination liability.

Notices - All notices required to be given pursuant to this Agreement shall be given in writing and delivered by fax, hand, certified first class mail, email or overnight courier, addressed to the receiving Party at the address identified in the most recent Services Agreement. Each Party will provide written notice to the other Party in the event of a change in the contact information identified in the most recent Services Agreement. Notice shall be deemed given when (1) delivered by hand to the address specified below, (2) three days after mailing by certified first class mail, (3) one day after delivering to a recognized overnight delivery carrier, or (4) on the date sent by electronic mail, provided that confirmation is sent by one of the other foregoing methods.

Entire Agreement - This Agreement and the final approved Services Agreement sets forth the entire understanding and agreement between the Subscriber and the Provider regarding the subject matter of this Agreement and supersedes all prior or contemporaneous proposals or communications, oral or written, between the parties relating to the subject matter of this Agreement. No modification of this Agreement shall be binding unless it is in writing and is signed by authorized representatives of both parties. The terms of this Agreement shall govern and prevail in the event of a conflict with any purchase orders or order forms of the Subscriber.

Construction - Each Party has had an opportunity for their respective legal counsel to review this Agreement. Accordingly, no rule of construction against the drafter shall be applied.

Duplicate Counterparts - This Agreement may be executed in separate counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. The signature page of any Party to any counterpart, and photocopies and facsimiles thereof, may be appended to any other counterpart and when so appended, shall constitute an original.