REMARKABLE ASSESSMENT PLATFORM

SUBSCRIPTION TERMS 

These Subscription Term (“Terms”), together with any executed purchase order (which may be electronic) for the Hosted Solution (each, an “Order”; together with the Terms, collectively, the “Agreement”), contain the service terms that apply to the hosted employee hiring and engagement assessment software and ancillary services provided by ENTHUSIASM, INC., a Georgia corporation d/b/a Remarkable! (“Provider”)  to the client identified in such Order (“Client”).  

1.              Definitions. As used herein, the following capitalized terms have the following meanings:

a.              “Authorized Users” means those prospective and actual employees of Client at the physical locations owned by or under control of Client with respect to which Client has purchased the Hosted Solution (each, an “Authorized Location”), as set forth on the applicable Order or subsequently authorized by Client in writing (which may be via email). 

b.              “Client Data” means (i) information or data created or otherwise owned by Client or any Authorized User or licensed by Client from third parties used in conjunction with the Hosted Solution; or (ii) information or data output generated by the Hosted Solution that is based on information or data supplied by the Client or its Authorized Users and is specific to Client.

c.              “Hosted Solution” means the specific hosted Software solution described on the Order.

d.              “Provider Technology” means (i) the Software; (ii) any comments, suggestions, feedback, ideas or know-how in any form, provided by Client or its users with respect to the Hosted Solution (collectively, “Feedback”); or (iii) other Provider information, materials, technology, specifications, or trademarks, whether electronic or “hard copy” or  in any form or media whatsoever,  including but not limited to any proprietary and confidential business information or trade secrets of Provider and any of its affiliates or licensors (including modifications, changes and derivatives thereto), provided to Client by Provider in connection with the Hosted Solution or any other services provided by Provider hereunder that are provided to customers of Provider in the regular course of Provider’s business (or are otherwise of a similar nature and purpose) and are not generated from, derived from or developed using any Client Confidential Information.

e.              “Reports” means the reports generated by the Software and included in the Hosted Solution based on the Client Data; and non-standard or customized Reports will be described on the applicable Order.

f.               Software” means any and all software (in source and object forms) and related documentation owned or licensed by Provider and provided to or used by Client under this Agreement as a component of the Hosted Solution.

2.              Hosted Solution; License.

a.                Subject to the terms and conditions of this Agreement, Provider (i) agrees to provide Client the Hosted Solution, together with training and support with respect to the Hosted Solution as set forth the applicable Order; (ii) grants to Client, during the term of this Agreement, a limited, nontransferable, nonexclusive license (x) for the Authorized Users to access over the Internet and use the Hosted Solution, including the Software incorporated into the Hosted Solution; and (y) to use the Reports (which will be transmitted by Provider to Client’s designated contacts via the method(s) and on the frequency set forth in the applicable Order, in each case, solely to support Client's normal course of business.  

b.              Except as expressly permitted herein, neither Client nor the Authorized Users will, directly or indirectly, (i) license, sell, redistribute, lease or otherwise transfer or assign the Hosted Solution or Software (or any part thereof); (ii) alter or permit a third party to alter the Hosted Solution or Software (or any part thereof); (iii) use the Hosted Solution or Software for the benefit of any third party or to operate a service bureau; (iv) permit any third party, other than an Authorized User with appropriate access authority, to access or use the Hosted Solution or Software; (v) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Software;  or (vi) use the Hosted Solution or Software for any unlawful purpose.  Client will be liable for any breach of this Agreement, including, without limitation, the terms of Sections 2(b), if applicable, by an Authorized User.  Authorized Users may be required to accept and agree to end user terms in order to access and use the Hosted Solution or Software.

c.              Provider reserves the right to modify the configuration of the Hosted Solution.  Nothing in this Agreement will create or vest in Client any right, title or interest in the Hosted Solution, its configuration or functionalities.  Provider may, at its sole discretion and without liability, change or modify the features and functionalities of the Hosted Solution or modify or replace any hardware, software or equipment used to deliver the Hosted Solution, provided such modification does not have a material adverse effect on the Hosted Solution.  Provider and its licensors make no guarantee or warranty as to the quality of transmission of data over telephone, digital subscriber lines or any other method of Internet delivery; including server downtimes or other network related problems. 

d.             Client acknowledges that Provider may collect user information on an aggregate or anonymous basis, which shall not personally identify any user (collectively, “Metric Data”), and use such Metric Data internally to diagnose technical problems, administer the Hosted Solution, and improve Provider’s offerings and marketing.  Notwithstanding any term to the contrary set forth herein, Client agrees and consents to Provider’s collection and use of the Metric Data as set forth herein, and Client further agree that the Metric Data is Provider’s sole and exclusive property. 

3.              Ancillary Professional Services. 

a.              During the term of this Agreement, Client may request, and Provider may agree, to provide certain professional services ancillary to the Hosted Solution, which may include: (i) consulting, implementation and integration related to customizations of the Hosted Solution, including, but not limited to, the configuration of Hosted Solution Reports; (ii) project management; (iii) development of integrations of the Hosted Solution with other applications using any Hosted Solution application programming interface (API); and (iv) employee placement validation and related analysis services, but will not include any software-as-a-service or other hosted or support  services provided in connection with or as part of the Hosted Solution (as set forth in the applicable Order). All such ancillary services will be determined by the mutual written agreement of the parties (which may be via email, with such written agreement, regardless of form, incorporated herein and referred to as a “SOW”) and are referred to in this Agreement as “Professional Services”.  

b.              Within fifteen (15) days after Provider's delivery of any Professional Services hereunder, Client will provide written notice to Provider either of its acceptance of such Professional Services or of any substantial non-compliance with the written specifications applicable to such Professional Services (if any), which non-compliance must be described in reasonable detail; Client's acceptance of such Professional Services will not be unreasonably withheld.  Client will be deemed to have accepted such Professional Services if Client fails to provide written notice of substantial noncompliance within such time period, with the date of such acceptance the "Acceptance Date".  Provider will have thirty (30) days after receipt of any notice of non-compliance is reported by Client to re-perform the affected Professional Services so that they substantially comply with the specifications applicable thereto.   In the event that Provider fails to deliver substantially compliant Professional Services within such period, Client may terminate the provision of such Professional Services under this Agreement immediately upon written notice to Provider, in which case Client will have no obligation to pay any fees attributable to the noncompliant Professional Services.  THE REMEDIES OF TERMINATION AND RELIEF FROM PAYMENT OF FUTURE FEES DUE TO PROVIDER AS SET FORTH IN THIS SECTION 2(b) WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDIES AND PROVIDER'S ENTIRE LIABILITY FOR PROVIDER'S FAILURE TO DELIVER SUBSTANTIALLY COMPLIANT PROFESSIONAL SERVICES HEREUNDER.

4.              Client Responsibilities.

a.              Client will designate a representative (the “Client Manager”) who will have overall responsibility for managing and coordinating Client’s obligations hereunder and who has the authority to act for Client in connection with the Hosted Solution. The Client Manager will serve as Provider’s initial point of contact for the resolution of issues in connection herewith, must be available to Provider during the term of this Agreement and have authority to schedule performance of the Hosted Solution and address any issues that may arise. 

b.              Client will provide Provider, in a timely manner, with all data and information reasonably necessary for Provider to perform the Hosted Solution and any applicable Professional Services, including, without limitation, provision of access to personnel of Client who are knowledgeable regarding the implementation of the Hosted Solution desired by Client.  Client hereby grants Provider the right to use, copy, modify, manipulate and create derivative works of the Client Data as necessary in order to provide the Hosted Solution.

c.              Client will provide and coordinate, in a timely manner, Provider’s onsite access to any Client facilities or Client network or system (the “Client System”) as necessary.  Client will inform Provider in writing and in advance of any security and access standards or requirements with respect thereto.

d.              Client acknowledges that if it fails to provide assistance and perform or fulfill its obligations in accordance with this Section 4, Provider’s ability to provide the Hosted Solution, any Professional Services and meet any schedule of performance agreed to by the parties (if any) may be adversely affected. If any delays occur as a result of any incorrect information, incorrect assumption or failure of Client to perform or fulfill its obligations in connection with this Agreement, the performance schedule for the applicable project may be extended.  Provider will have no liability or responsibility for any costs or expenses resulting from such delays.  

e.              Client is responsible for all use of its account and for ensuring any and all use of the Hosted Solution by its Authorized Users complies in all respects with the training provided by Provider and the specifications with respect thereto.  Client is further responsible for maintaining the confidentiality of all usernames, passwords and related information (collectively, “Access Credentials”) assigned to or connected with its subscription and will not permit the sharing of such Access Credentials among or by Authorized Users.  

5.              Term.  The initial term of this Agreement will begin upon execution of an Order for the Hosted Solution by both Client and Provider and will continue in full force and effect for the period set forth in in the Order.  Thereafter, the term of this Agreement will be automatically renewed for successive periods set forth in the Order unless either party notifies the other party in writing of its election not to renew this Agreement at least thirty (30) days prior to the scheduled renewal date.  If no period is specified in the Order, the initial term and each renewal term will be a period of one (1) year.  The parties may (but are not required to) execute and deliver a separate Order for each renewal term of this Agreement.

6.              Fees and Payment Terms.

a.              Client will pay to Provider all fees due for the Hosted Solution according to the prices and terms listed in the Order Except as otherwise set forth in the Order, the prices listed in the Order will remain in effect during the initial term of this Agreement. Provider reserves the right to change, upon sixty (60) days’ prior written notice to Client, any fees it charges Client for the Hosted Solution during any renewal term or based on a change in law, rule or regulation, or similar circumstances that materially increases the costs or other terms of delivery of the Hosted Solution, and, in each case Client’s continued use of the Hosted Solution as of the first day of the renewal term or following the notice period, as applicable, will constitute its acceptance of the changed fee.  Alternatively, Client may terminate this Agreement by providing written notice to Provider within sixty (60) days of receiving notice of the changed fee.  Provider will invoice Client all subscription fees for the initial term upon execution of this Agreement.  Thereafter, Client will be invoiced separately for any fees incurred to Client as a result of (i) any additional or incremental service or usage charges as set forth in this Agreement; or (ii) renewals of this Agreement in accordance with Section 4.  Provider reserves the right to invoice on a pro rata basis for any part of one calendar month to allow for subsequent invoices to be calculated and paid on a calendar monthly basis.  

b.              Client will pay to Provider all fees due for the Professional Services (if any) according to the prices described in the SOW. If any Professional Services under a SOW are to be performed on a fixed-fee basis, Provider will invoice Client for such Professional Services as follows: (i) 50% upon initiation of the Professional Services; and (ii) the remaining 50% upon substantial completion of such Professional Services. If the Professional Services under a SOW are to be performed on a time-and-materials basis, Provider will invoice Client monthly, in arrears, and Provider will provide reasonable documentation for the invoiced amount upon Client's request therefor. Client acknowledges that any estimates of fees or hours to complete the Professional Services set forth in a SOW are provided for convenience only and are approximations of the anticipated amount of fees and time needed to complete such Professional Services.  The actual number of hours may vary and does not necessarily reflect the number of hours that will be required to perform such Professional Services. 

c.               In addition to the fees payable to Provider under any SOW, Client will reimburse Provider for all reasonable and documented out-of-pocket expenses incurred in rendering the Professional Services and approved in writing by Client, including, without limitation travel expenses (including transportation, lodging and meal expenses) for travel outside of the metropolitan Atlanta, Georgia area and any tangible material acquired by Provider for Client's benefit that is delivered to Client.  Provider will invoice Client for all such expenses on a monthly basis.   

d.              All fees and charges are due within thirty (30) days after Client’s receipt of invoice therefor.  Any invoiced charges not received when due will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing and without prejudice to Provider’s other rights and remedies under this Agreement, at law or equity, if Client is delinquent in its payments and fails to cure such delinquency within ten (10) days after written notice thereof, Provider may, at Provider’s sole discretion do any one or more of the following: (i) terminate this Agreement pursuant to its terms; (ii) in whole or in part suspend providing Hosted Solution to Client until payment in full has been made to Provider; or (iii) require other assurances to secure Client's payment obligations hereunder.

e.              All fees charged by Provider with respect to the Hosted Solution are exclusive of taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction, all of which the Client will be responsible for, except for taxes based on Provider’s net income

7.              Warranties.

a.              Each party warrants and represents that: (i) it has the legal right to enter into this Agreement and perform its obligations hereunder; and (ii) the performance of its obligations hereunder will not violate any applicable U.S. laws or regulations or cause a breach of any agreements with any third parties.  In addition, Client represents and warrants that the performance of its obligations and use of the Hosted Solution (including, without limitation, the Reports) by Client or its Authorized Users will not violate any applicable laws.  

b.              EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, THE HOSTED SOLUTION, SOFTWARE, REPORTS AND ASSOCIATED SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND PROVIDER AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.  PROVIDER DOES NOT WARRANT THAT THE HOSTED SOLUTION OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.  PROVIDER DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM CUSTOMER’S USE OF THE HOSTED SOLUTION OR SOFTWARE.  AS BETWEEN THE PARTIES, CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CUSTOMER DATA PROVIDED BY CUSTOMER IN CONNECTION WITH THE HOSTED SOLUTION.

8.              Termination.

a.              Either party may terminate the Order, any SOW or this Agreement immediately upon written notice to the other party (or Provider may, in its sole discretion, suspend the provision of Hosted Solution and Software or Professional Services hereunder) if:  (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of the same (other than Client’s failure to pay any amounts when due, which must be cured within ten (10) days after written notice of the same); (ii) the other party becomes the subject of any involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) commits a material breach of this Agreement that is incapable of remedy, including, without limitation Client’s breach of Section 7(a).  

b.              Provider’s ability to provide the Hosted Solution and Software may be subject to various licenses or other agreements (each a "Service Agreement") between Provider and its third party suppliers.  In the event of the expiration or termination of any applicable Service Agreement, Provider will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the Hosted Solution.  If Provider is unable, for any reason, to obtain such an alternative or replacement Service Agreement, or if Provider reasonably determines that the provision of the Hosted Solution would be a violation of any applicable law or regulation or any Provider license in any jurisdiction or is no longer permitted under any of the same, Provider may terminate this Agreement upon written notice to Client without any liability to Client.  Provider will give Client at least sixty (60) days prior written notice to Client (or, if it is not possible to give 60 days notice, as much notice as possible under the circumstances) of the termination or expiration of a Service Agreement governing Provider’s ability to deliver the Services, or any other condition arising under such Service Agreement that is likely to adversely affect Client’s use of the Services or Provider’s ability to provide the Services. If Provider terminates this Agreement pursuant to this Section 8(b), and Client has prepaid any subscription fees hereunder, then Provider will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Client within forty-five (45) days after the date of termination.

c.              Upon the effective date of termination of a SOW: (i) Provider will immediately cease providing the Professional Services under such SOW; and (ii) any and all payment obligations of Client under such SOW through the date of termination will be due within thirty (30) days of the effective date of termination.  Except as set forth in a notice of termination, termination of a SOW will not terminate this Agreement.  Termination of this Agreement will terminate all SOWs hereunder.  Upon the effective date of termination of this Agreement: (i) Provider will immediately cease providing the Hosted Solution, and Client will immediately cease using the Hosted Solution; (ii) all licenses granted hereunder will immediately terminate; and (iii) any and all payment obligations of Client hereunder through the date of termination will be due within thirty (30) days of the effective date of termination.  If Client fails to pay such amounts on the date due, then Provider may impose the late fees set forth in Section 6(d).  In addition to the foregoing, within thirty (30) days of termination of this Agreement as a whole, each party will return or certify the destruction of all Confidential Information (defined hereafter) of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required (an only to the extent necessary) to comply with any applicable legal, archival or accounting recordkeeping requirement; provided, however, that all such retained data will remain subject to the confidentiality provisions of Section 9. The definitions herein and the respective rights and obligations of the parties under Sections 6(b)-(c), 7(e), 8(c) and 9-15 will survive any termination or expiration of this Agreement. 

9.              Confidential Information; Intellectual Property Rights.  

a.              Each party acknowledges that it will have access to certain non-public and confidential information (collectively, “Confidential Information”). Confidential Information expressly includes, but not be limited to, Provider Technology (with respect to Provider) and Client Data (with respect to Client).  Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s service providers, employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party.  Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. 

b.              The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.

c.              With respect to any personal data disclosed by Client  or any Authorized User to Provider (“Personal Data”), Client agrees (i) that Provider or its affiliate(s) may process such Personal Data consistent with applicable law and regulation, only for the purpose of the provision of Hosted Solution by Provider to Client and as otherwise described in this Agreement; (ii) that such processing may include the transfer of such Personal Data to Provider’s suppliers or its storage in a United States database; and (iii) that Client will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned.

d.              Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, provided that Provider may list Client as a customer.

e.              Provider and its licensors will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the Provider Technology and all legally protectable elements or derivative works thereof, including, without limitation, the Hosted Solution and the Software.  Client obtains no right, title or interest in the Provider Technology, except for the limited license to use the Hosted Solution and the Software as set forth in Section 2(a).

f.               Nothing contained in this Agreement will be construed as restricting the employees of either party that have participated in the performance of this Agreement or creation of materials under or in connection with this Agreement from later using information retained in their unaided memories as part of their general skill, knowledge, talent, and expertise. 

g.              In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of Section 9(a), the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to seek affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.

10.           Limitation of Liability; Force Majeure.

a.              TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA OR PROPERTY ARISING FROM ANY CLAIMS WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE HOSTED SOLUTION, SOFTWARE, TRAINING OR SUPPORT PROVIDED WITH RESPECT THERETO OR THIS AGREEMENT, EVEN IF THE OTHER PARTY, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.

b.              EXCEPT WITH RESPECT TO LIABILITY FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR BREACH OF SECTION 8 HEREOF, OR CLIENT’S LIABILITY UNDER SECTION 10, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY USERS UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL SUBSCRIPTION FEES DUE TO PROVIDER UNDER THIS AGREEMENT DURING THE TWENTY-FOUR (24) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

c.              THE PARTIES ACKNOWLEDGE THAT PROVIDER HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.  THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

d.              Neither party will be liable for and will not be responsible to the other for any delay or failure to perform under this Agreement if such delay or failure results from any act or cause beyond the reasonable control of the affected party.  If either party is unable to perform under this Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, then the other party may terminate this Agreement immediately upon written notice to the other party.

11.           Indemnification.  Client will indemnify, defend and hold Provider, its licensors and their respective directors, officers, employees, agents, successors and assigns harmless from and against any and all claim, suit, action, proceeding, costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising out of Client’s material breach of this Agreement or use of the Hosted Solution or Reports hereunder.  

12.           Assignments.  Neither this Agreement, nor a party’s obligations or rights hereunder, may be transferred or assigned by either party without the other party’s prior written consent; provided, however, that either party may assign this Agreement in whole, but not in part, without the other party’s consent to (a) any entity controlled by, under common control with, or controlling such party; (b) the successor-in-interest in any merger, share exchange or other reorganization; or (c) the purchaser of all or substantially all of such party’s assets.  Any attempted assignment, transfer or other disposition by a party in violation of this provision will be null, void and of no force and effect.  This Agreement will inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. 

13.           Non-Solicitation of Employees.  During the term of this Agreement, and for a period of one (1) year thereafter, Provider and Client hereby covenant and agree not to actively solicit, divert or attempt to hire, any employee of the other party with whom the soliciting party had direct and substantial contacts during the term of this Agreement. However, “actively solicit, divert, or attempt to hire” does not include general recruitment advertisements or postings addressed to the general public.

14.           Governing Law; Venue.  This Agreement and all obligations of the parties hereunder will be interpreted, construed, and enforced in accordance with the laws of the State of Georgia, without regard to any conflict of laws rules or analyses.  Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction in Gwinnett County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

15.  General.  This Agreement (including, without limitation, all Orders and SOW entered into hereunder, all of which are incorporated herein) constitutes the exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.  In the event of any conflict between the terms of this Agreement and the terms of an exhibit hereto, the terms of this Agreement will apply, except to the extent such exhibit expressly indicates that such terms will control.  The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation.  The parties and their respective personnel are and will be independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.  This Agreement may only be amended in writing by the mutual consent of the parties.  No waiver of any provision hereof or of any right or remedy hereunder will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.  No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder will constitute a waiver of any other right or remedy, or future exercise thereof.  If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement will remain enforceable.  Other than the specific indemnified parties described in Section 11, there will be no third party beneficiaries to this Agreement.  All notices will be in writing and will be deemed to be delivered when received by overnight mail, certified mail (postage prepaid, return receipt requested); or when sent by confirmed e-mail (with a copy promptly sent via another method described in this sentence). Client's addresses for communication and notice purposes relating to this Agreement are set forth in the Order (or such replacement addresses as Client may designate in accordance with this section from time to time).  Client agrees to accept emails from Provider at the e-mail address specified under this Section. Provider may provide any and all notices, statements and other communications to Client through e-mail, U.S. first class mail or express delivery service, and all notices directed to Client as described in this section will be deemed upon transmission or within one (1) business day after deposit with the U.S. Postal Service or express delivery service, as applicable.  General information regarding the Hosted Solution (such as scheduled maintenance information) may also be provided by posting on the Hosted Solution only.  Client may rely and act on all information, authorizations and instructions provided to Provider from the above-specified e mail address and Client administrators. Any notices to Provider must be in writing and addressed to Provider at 9455 Riverclub Parkway, Johns Creek, GA, 30097, Attn: President (or such replacement address as Provider may designate in accordance with this section from time to time). Time is of the essence hereof.  Any Order or SOW may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.  The parties may sign any Order or SOW and deliver the signature pages via facsimile or electronic transmission or otherwise in accordance with this Section 15 of this Agreement.