ACCEPTANCE OF TERMS
SECTION 1. GENERAL DESCRIPTION OF SERVICES; NO LICENSE
1.1 Moblico Solutions, LLC’s Services. Moblico Solutions, LLC has developed the In-Touch Connect system (“ITC System”), a communication, content distribution and loyalty solution that provides simple, easy to use marketing tools, API’s for developers and end-user mobile applications and web sites. Client desires to engage Moblico Solutions, LLC to provide certain services to Client using the ITC System, which services are designed to facilitate communication between Client and Client’s customers, employees and others. Client acknowledges that Moblico Solutions, LLC is not licensing the ITC System to Client, but rather Moblico Solutions, LLC uses the ITC System to provide the Services to Client and others. If set forth in an agreed upon Work Request as described in Section 2, the Services may include providing Client with on-line access and use of the ITC System and other Moblico Solutions, LLC applications under the terms and conditions set forth in this Agreement and any applicable Work Request.
SECTION 2. SERVICES
2.1 Engagement. Pursuant to the terms of this Agreement, Client engages Moblico Solutions, LLC to perform the services as set forth in the attached Work Request and on additional Work Requests executed from time to time by Moblico Solutions, LLC and Client (the "Services"). The standard form of Work Request is attached hereto as Exhibit A. In the event of a conflict between a Work Request and this Agreement, the Work Request shall control.
2.2 Method of Performing Services. Moblico Solutions, LLC is an independent contractor and nothing in this Agreement shall operate to create any employment or other relationship between Moblico Solutions, LLC and Client. As an independent contractor, Moblico Solutions, LLC shall have the right to determine the method, details and means of performing the Services. Client shall, however, be entitled to exercise general powers of supervision and control over the results of work performed by Moblico Solutions, LLC, including the right to inspect, the right to make suggestions or recommendations as to the details of the Services and the right to propose modifications to the Services. Notwithstanding the foregoing, it is expressly agreed and understood between the parties that Moblico Solutions, LLC shall maintain exclusive creative and technical control and production authority for any Work Product provided as part of the Services, but that Client shall maintain exclusive editorial authority for the content in any such Work Product.
2.3 Place of Performing Services. Moblico Solutions, LLC shall perform the Services in the location specified by the applicable Work Request, and if not so specified Moblico Solutions, LLC may perform the Services for Client at: (i) Moblico Solutions, LLC’s premises, (ii) Client’s premises or (iii) any other location as mutually agreed by the parties.
2.4 Scope of Work Changes. Client may from time to time
request changes to the scope of the Services being performed under a Work Request. Such changes or variations to the Services or to the related specifications or delivery dates may result in additional fees or costs to Client under a Work Request. Such changes or variations must be set forth in an amendment to the applicable Work Request executed by both parties in order to be effective; provided that, Moblico Solutions, LLC, at its sole discretion, may accept the verbal instruction of Client or its representatives to make such variations.
2.5 Delivery and Acceptance. Moblico Solutions, LLC will use commercially reasonable efforts to perform the Services and/or deliver the related Work Product and any other agreed upon deliverables by the dates set forth in the applicable Work Request. Client’s delay or failure to timely perform any of its obligations under this Agreement or an applicable Work Request shall automatically result in an extension of such dates to the extent caused by or related to such failure or delay by Client. Unless otherwise provided in a Work Request, Client shall accept or reject Work Product within twenty-four (24) hours after delivery to Client or notification is provided to Client that the Work Product is available for viewing, as applicable. Additionally, Client shall be deemed to have accepted the Work Product immediately upon Client’s use of the same in its operations.
SECTION 3. CLIENT OBLIGATIONS
3.1 Technology Environment. Client shall be solely responsible for providing, maintaining and ensuring the existence, functionality and compatibility of any hardware, software, electrical or other physical requirements necessary for Client, its customers or any third parties to obtain and utilize the Services or any Work Product, including, without limitation, any computer hardware, software, telecommunications equipment, Internet access or other equipment, programs or services necessary to access and use the Services or any Work Product. Client shall be responsible for determining the suitability of any Work Product for its operations and whether any Work Product will achieve the results Client desires. Client shall be responsible for selecting and training adequate personnel with the requisite experience necessary to operate Client’s systems, and Client shall limit use and access to any Work Product solely to those of its employees whose duties require such use and access and shall undertake best efforts to ensure that Moblico Solutions, LLC’s
Confidential Information and the Moblico Solutions, LLC Intellectual Property are kept secure.
3.2 Client Information. Unless otherwise provided in a Work Request, Client shall provide Moblico Solutions, LLC with any requested Client information as soon as practicable and in any event within seven (7) days of request by Moblico Solutions, LLC or as otherwise reasonably necessary for Moblico Solutions, LLC to comply with any deadline.
3.3 Access Provided by Client. Client shall provide Moblico Solutions, LLC access to and permission to use all information, materials, internal resources, facilities and personnel as necessary to complete any and all Services.
3.4 Consents and Approvals. Client shall obtain the prior written consent of all persons or parties to whom text messages or other communications or content will be sent as part of the Services provided by Moblico Solutions, LLC hereunder. Client shall retain sole responsibility for obtaining all such consents, any other consents or regulatory approvals and for compliance with all applicable federal, state and local laws and regulations relating to the Services and the Deliverables, including but not limited to consumer protection laws. Client acknowledges that Moblico Solutions, LLC is not obligated or expected to determine whether its Services or Deliverables will comply with such laws.
3.5 Additional Obligations. Client shall be responsible for
the timely performance of such additional obligations, if any, as set forth in this Agreement or in any Work Request (the “Client Obligations”).
SECTION 4. FEES AND PAYMENT
4.1 Fees. Client shall pay Moblico Solutions, LLC fees for the Services and related Work Product in the amount, at the times and in the manner set forth in each applicable Work Request (the “Fees”). Such Fees do not include any applicable taxes or duties, including without limitation, state and local use, sales and property taxes and duties, which shall be the responsibility of Client. Client is responsible for all taxes (excluding taxes on Moblico Solutions, LLC’s income) and duties incurred as a result of any Services. Expenses incurred by Moblico Solutions, LLC for travel, lodging, meals, telephone, shipping, duplicating and other direct out-of-pocket expenses are billed to Client at actual cost.
4.2 Invoices. Unless otherwise noted in an applicable Work Request, Moblico Solutions, LLC shall issue invoices monthly for fees and expenses related to the Services provided to Client or upon completion of Services rendered if completed prior to the end of a month. Additionally, in the event Client fails to meet deadlines for Client Obligations and such failures cause delays in Moblico Solutions, LLC’s provision of the Services, Moblico Solutions, LLC may at its sole discretion vary payment stages specified in a Work Request and issue progressive invoices to Client at the end of each month for work performed and costs and
expenses incurred by Moblico Solutions, LLC. Invoices will list all fees, expenses, charges, costs, Service descriptions and all state, federal, sales or other applicable taxes separately, if any.
4.3 Payments and Late Payment Charge; Termination of Services. All invoices shall
be paid within thirty (30) days of invoice. Client shall pay a late charge of two percent (2%) per month, or the maximum rate permitted by applicable law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that any payments are in arrears beyond 60 days. Moblico Solutions, LLC shall be entitled to any reasonable expenses incurred in collecting any amounts due pursuant to this Agreement or in addressing any violations by Client of the terms and conditions of this Agreement, including, without limitation, reasonable attorneys’ fees. If any amount is in arrears beyond 90 days, Moblico Solutions, LLC reserves the right, at any time any such amount remains unpaid and without notice, to discontinue providing services under this Agreement or any Work Request, including, if applicable, terminating access to the ITC System and other Moblico Solutions, LLC applications by Client and, if applicable, Client’s end users.
SECTION 5. TERM & TERMINATION
5.1 Term. The term of this Agreement is perpetual; provided, however, all Services shall be provided under and pursuant to a Work Request and neither party is obligated to enter into any Work Request.
5.2 Termination With Cause. Either party may terminate a Work Request upon thirty (30) days prior written notice to the other party in the event that the other party: (i) violates any material provision of a Work Request and fails to cure such violation within such 30-day period, or (ii) is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due. A party may terminate a Work Request without terminating any other Work Request or this Agreement.
5.3 Termination by Moblico Solutions, LLC. Notwithstanding Section 5.1 or 5.2, a Work Request and this Agreement may be terminated or canceled, or performance suspended, by Moblico Solutions, LLC at any time upon written notice to Client if Client fails to make any payment when due and such failure continues for ten (10) days after written notice from Moblico Solutions, LLC.
5.4 Consequences Upon Termination. Without limiting a party’s available rights and remedies for the other party’s breach of this Agreement or a Work Request, upon the termination or expiration of a Work Request or this Agreement for any reason, (i) Client shall not thereafter use or display any of the related Work Product provided as part of the related Services or any related Moblico Solutions, LLC Intellectual Property, (ii) Client shall immediately return to Moblico Solutions, LLC all related Moblico Solutions, LLC Intellectual Property and any other property, equipment and materials provided to Client by Moblico Solutions, LLC (whether modified or unmodified), or immediately destroy such property at Moblico Solutions, LLC’s sole option and direction, (iii) each party shall promptly remove from its web site any links or other references to the other party’s site, products or services, (iv) Client shall certify its compliance with this Section to Moblico Solutions, LLC in writing, and (v) Client shall pay and reimburse Moblico Solutions, LLC for any fees and expenses for services performed or products delivered under a Work Request through the date of termination. In the event this Agreement is terminated for any reason other than Moblico Solutions, LLC’s breach of the Agreement, Moblico Solutions, LLC shall be entitled to retain all prepaid amounts and Fees and all remaining amounts due and owing for all uncompleted Services to compensate Moblico Solutions, LLC for lost opportunities, as liquidated damages and not a penalty, in addition to all other rights and remedies available to Moblico Solutions, LLC in law and in equity which may be granted by a court of competent jurisdiction. If Client terminates this Agreement or a Work Request prior to its scheduled expiration or termination date, other than due to a material breach by Moblico Solutions, LLC or pursuant to an express right of Client to do so, without limiting Moblico Solutions, LLC’s other rights or remedies, and in addition to other amounts due hereunder, Client shall pay to or reimburse Moblico Solutions, LLC for all costs reasonably incurred by Moblico Solutions, LLC that are directly attributable to the termination or the discontinuation of Services hereunder or under a Work Request to the extent relating to items or arrangements acquired or entered into by Moblico Solutions, LLC to provide the Services to Client.
SECTION 6. CONFIDENTIALITY & OWNERSHIP
6.1 Confidentiality. Either party (the “Disclosing Party”) may from time to time disclose Confidential Information (as defined below) to the other party (the “Recipient”). As used herein, “Confidential Information” shall mean all information (in whatever form or media) concerning the business, technology, software, systems, processes, operations, products, services and strategies of the Disclosing Party, specifically including the ITC System, intellectual property concepts, methodologies, inventions, developments, procedures, software, processes and services provided by Moblico Solutions, LLC to Client. Recipient shall keep in confidence and trust and will not disclose, disseminate or use, or permit any employee, agent or other person working under Recipient’s direction to disclose, disseminate or use, any Confidential Information to any other person or for any purpose other than those set forth in this Agreement. Excluded from the definition of “Confidential Information” is information which (a) is now, or hereafter becomes, generally known or available to the public through no act or failure to act on the part of Recipient or its employees, representatives, consultants or other agents; (b) is rightfully known on a non-confidential basis by Recipient at the time of receiving such information from Disclosing Party; (c) is hereafter rightfully furnished to Recipient by a third party (unrelated to Moblico Solutions, LLC or Company) which is entitled to disclose it; or (d) is independently developed by Recipient through its agents who have not had access to the Confidential Information. Notwithstanding any other provision of this Agreement, nothing herein contained shall be deemed to prevent the disclosure of any Disclosing Party's Confidential Information if such disclosure is required by court order, or if such disclosure is required by applicable law or the rules and regulations of any administrative or governmental agency (a “Required Disclosure”); provided, however, in the event of any Required Disclosure, the Recipient required to disclose same shall immediately provide written notice to the Disclosing Party for purposes of allowing the Disclosing Party to challenge or dispute such Required Disclosure, all in such other Disclosing Party’s sole and respective discretion and expense. The provisions of this section shall continue in full force and effect for so long as Disclosing Party continues to provide Recipient, or Recipient and its employees, representatives, consultants or other agents continue to possess, any Confidential Information under this Agreement, and for a period of five (5) years thereafter.
6.2 Intellectual Property Rights. Notwithstanding any other provision of this Agreement or of any Work Request, Moblico Solutions, LLC shall have and retain sole ownership of the ITC System and any Work Product (defined below) provided under this Agreement and/or a Work Request, including, without limitation, all modifications or enhancements made thereto (including, without limitation, modifications and enhancements thereto made by Moblico Solutions, LLC to provide any Services hereunder) and all associated Intellectual Property (defined below) (collectively, the “Moblico Solutions, LLC Intellectual Property”) as well as any modifications or enhancements made thereto. For purposes of this Agreement, “Intellectual Property” includes, without limitation, all tangible and intangible legal rights or interests evidenced by or embodied in (i) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (ii) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (iii) any trademark, trade name or service mark; and (iv) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis.
6.3 Ownership of Work Product. Except as otherwise expressly set forth in a Work Request, all Work Product shall be exclusively owned by Moblico Solutions, LLC, and nothing in this Agreement shall operate to transfer ownership to Client. Conditioned upon full payment of all Fees and expenses due hereunder and under each applicable Work Request, Moblico Solutions, LLC grants to Client a non-exclusive, non-transferable, limited right to use the Work Product during the term of the applicable Work Request in accordance with and subject to the limitations set forth in this Agreement and each applicable Work Request. As used herein, the term “Work Product” shall mean all forms, publications, data, documentation, instructions, software, original works of authorship, trade secrets, concepts, ideas, specifications, know-how, methods, methodologies, processes, formulae, and all associated Intellectual Property of any kind or nature delivered by Moblico Solutions, LLC under or pursuant to this Agreement or a Work Request.
6.4 Client Information. Client may provide Moblico Solutions, LLC with certain text, graphics, photos, images, illustrations, designs, trademarks, works of authorship and other information (collectively, “Client Information”) to be included in or associated with the Work Product created by Moblico Solutions, LLC pursuant to this Agreement or dictate to Moblico Solutions, LLC that certain Client Information be so included. Client understands and agrees that it is solely responsible for obtaining the necessary licenses, rights and permissions to use the Client Information in conjunction with the Work Product. Client represents and warrants that it either owns the Client Information or has secured sufficient licenses, rights or permissions from the owners of such Client Information to use the Client Information, including, without limitation, all intellectual property rights, rights of publicity and/or privacy, and any other similar or equivalent rights, and agrees to defend, indemnify and hold harmless Moblico Solutions, LLC against, for and from all claims, demands, liability, costs, damages and losses related to Moblico Solutions, LLC’s use thereof under this Agreement.
6.5 Notification. If (i) a party is advised or notified by a third party that any part of any Work Product or the Services may infringe the intellectual property rights of a third party or (ii) a party becomes aware that any Work Product or Services may infringe the intellectual property rights of a third party, then such party shall promptly provide the other party with written notice thereof, and in such event Client shall immediately cease the use of any such Work Product or Services. Client shall promptly notify Moblico Solutions, LLC of any determination, discovery or notification that any person or entity is or may be misusing or infringing any Moblico Solutions, LLC Intellectual Property. Client shall not take any legal action relating to the protection or defense of any Moblico Solutions, LLC Intellectual Property without the prior written approval of Moblico Solutions, LLC.
6.6 Residual Knowledge. Notwithstanding anything to the contrary in this Agreement, Moblico Solutions, LLC shall be free to use the Residuals from any Services provided and any know-how or techniques derived therefrom for any purpose including use in the development and provision of products and services to others. “Residuals” means information in intangible form (but without content specific to Customer’s business or operations) retained in the unaided memory by employees, consultants or independent contractors of Moblico Solutions, LLC.
SECTION 7. LIMITED WARRANTY, DISCLAIMER &
LIMITATION OF LIABILITY
7.1 Limited Warranty; Disclaimer. Moblico Solutions, LLC represents and warrants that the Services will be performed in a professional and workmanlike manner and otherwise in conformance with this Agreement and the applicable Work Request. CLIENT'S SOLE REMEDY AND Moblico Solutions, LLC'S SOLE OBLIGATION WITH RESPECT TO A BREACH OF THE FOREGOING WARRANTY SHALL BE TO REPERFORM THE APPLICABLE SERVICES AT MOBICO’S TIME AND MATERIALS RATES THEN IN EFFECT.
WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTY, THE ITC SYSTEM, THE SERVICES AND ALL WORK PRODUCT ARE PROVIDED “AS IS” AND Moblico Solutions, LLC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES, ITC SYSTEM OR WORK PRODUCT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, Moblico Solutions, LLC MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR ANY WORK PRODUCT.
Moblico Solutions, LLC is not responsible for any defect caused by or that otherwise results from modifications, misuse or damage to the ITC System or work product made, permitted or otherwise caused by Client in whole or in part. Client shall retain responsibility for obtaining any regulatory approvals and for compliance with all applicable federal, state and local laws and regulations relating to the Services, including but not limited to, securities, antitrust, labor, environmental and consumer protection laws. Client acknowledges that Moblico Solutions, LLC is not obligated or expected to determine whether the Services or Work Product, if implemented, would comply with such laws.
7.2 LIMITATION ON LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, AND NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR NON-CONTRACTUAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND (B) THE TOTAL AGGREGATE LIABILITY OF Moblico Solutions, LLC TO CLIENT OR ANY THIRD PARTY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO ITS PERFORMANCE OF THE SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED Moblico Solutions, LLC’S TOTAL AFTER TAX PROFITS RECEIVED UNDER THE APPLICABLE WORK REQUEST APPLICABLE TO THE SERVICES GIVING RISE TO SUCH CLAIM.
IN NO EVENT SHALL Moblico Solutions, LLC BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF Moblico Solutions, LLC IN THE DELIVERY OF THE SERVICESTO THE EXTENT CAUSED BY ACTS OF GOD, INTERNET OR OTHER COMPUTER SYSTEMS DISRUPTIONS, FIRE, WAR, RIOTS, STRIKES, QUARANTINES, EMBARGOES OR OTHER CAUSES BEYOND THE REASONABLE CONTROL OF Moblico Solutions, LLC.
7.3 Indemnity. Subject to Section 7.2 and the other limitations hereof, (A) Moblico Solutions, LLC agrees to indemnify, defend and hold Client and its directors, officers, employees, members, agents, parents, subsidiaries and affiliated companies harmless from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees) that may at any time be incurred by such parties and that arise out of or relate to any breach by Moblico Solutions, LLC of its representations, warranties, covenants, agreements or obligations under this Agreement, and (B) Client agrees to indemnify, defend and hold Moblico Solutions, LLC and its directors, officers, employees, members, agents, parents, subsidiaries and affiliated companies harmless from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees) that may at any time be incurred by such parties and that arise out of or relate to any breach of Client’s representations, warranties, covenants, agreements or obligations under this Agreement or otherwise relating to the provision of Services by Moblico Solutions, LLC hereunder or the use or modification of the Services or any Work Product by Client, its employees or its agents or others, except to the extent caused by Moblico Solutions, LLC’s breach of its representations, warranties, covenants, agreements or obligations under this Agreement.
SECTION 8. GENERAL PROVISIONS
8.1 Status; Due Authorization; Validity of Agreement; Independent Contractor.
Client hereby represents and warrants to Moblico Solutions, LLC that it (i) is duly organized, validly existing and in good standing under the laws of its state of formation and in each state in which is conducts business; (ii) has the power and authority to execute and perform under this Agreement; and (iii) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms. Neither Moblico Solutions, LLC nor its employees or agents of any of them shall be deemed to be employees or agents of Client, it being understood that Moblico Solutions, LLC is an independent contractor for all purposes and at all times.
8.2 Binding Nature of Agreement; Assignment. Except as
otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that Client may not assign or transfer its rights or obligations under or interest in this Agreement or any Work Request without the prior written consent of Moblico Solutions, LLC. Moblico Solutions, LLC may, in its sole discretion, assign this Agreement or subcontract its obligations, provided that Moblico Solutions, LLC
will be responsible for the completion of any Services.
8.3 Severability. If any term or provision of this
Agreement is found to be invalid under any applicable statute or rule of law, then that provision notwithstanding, the terms and conditions of this Agreement will remain in full force and effect, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of the unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
8.4 No Third-Party Beneficiaries. The terms and provisions
of this Agreement are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person.
8.5 Publicity; Credits. Client grants Moblico Solutions, LLC the right to refer to the name and logo of Client, Client’s products and services and the business in which the products and services are used for marketing purposes in Moblico Solutions, LLC’s client listings, on its web site, in a client profile, or in a press release, without the further consent of Client. The parties agree that Moblico Solutions, LLC shall be entitled to place its name and logo, as well as any production credits, on any and all masters and copies of any Work Product delivered to Client.
8.6 Governing Law; Venue; Attorneys’ Fees. This
Agreement shall be governed by and shall be construed,
interpreted and enforced in accordance with the laws of the State of Delaware, without reference to its internal principles of conflicts of law. The parties agree that the Services will be performed in Missouri (in which Moblico Solutions, LLC’s principal place of business is located), and therefore the sole and exclusive jurisdiction and venue for any disputes arising hereunder shall be in any court located in Jackson County, Missouri. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANYWAY CONNECTED WITH THIS AGREEMENT.
8.7 Remedies. Client agrees that a breach of any provision of Section 6 may cause Moblico Solutions, LLC irreparable injury and damage, and that in such event Moblico Solutions, LLC shall be entitled to injunctive and other equitable relief in addition to any other remedy to which Moblico Solutions, LLC might be entitled. All remedies for such a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy with respect to the subject matter hereof.
8.8 Notices; Counterparts. All notices, demands or other
communications given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, delivered by a nationally recognized overnight courier (e.g., Federal Express), mailed via registered mail (postage prepaid) to the attention of the persons who executed this Agreement or transmitted via facsimile or other electronic means of communication (with satisfactory evidence of transmission). This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. The parties agree that this Agreement may be delivered by facsimile signature.
8.9 Entire Agreement. This Agreement, including any Work Requests executed by the parties, shall be the entire agreement between the parties with respect to the transactions contemplated herein and supersedes all other negotiations, communications, commitments and writings. No alteration, modification or change of this Agreement or any Work Request shall be valid unless made in writing and executed by the parties hereto. In the event any provisions contained in a Work Request expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of the Work Request shall govern.
8.10 No Waiver. No failure or delay by any party hereto in
exercising any right, power, or privilege hereunder (and no course of dealing between or among any of the parties) shall operate as a waiver of any right, power or privilege hereunder. No waiver of any default on any one occasion shall constitute a waiver of any subsequent or other default. No partial exercise of any right, power or privilege shall preclude the further or full exercise thereof. No waiver shall be effective unless made in writing. All remedies for a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy.
8.11 You agree that the ITC System will be used solely to send messages in conjunction with the program and only to participants or attendees of the program who affirmatively agree to receive such messages. You agree that all messages will contain the "opt-out" option provided by the Software. You agree that you will provide to Moblico Solutions, LLC a single point of contact to manage messages delivered by the ITC System.