FIELDEDGE™ MASTER SERVICE AGREEMENT
– PLEASE NOTE THAT THIS MASTER SERVICE AGREEMENT (MSA) IS SUBJECT TO CHANGE WITHOUT NOTICE –
THIS AGREEMENT GOVERNS YOUR ACQUISITION, ACCESS AND USE OF FIELDEDGE WEBSITES, SOFTWARE, AND ASSOCIATED SERVICES, SO PLEASE READ CAREFULLY. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
These terms and conditions govern your access to and use of FieldEdge websites, software, and associated services, so please read carefully. By accessing or using the Sites and/or software you signify that you have read, understood and agree to be bound by these Terms and Conditions.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
“Customer Data” means all electronic and/or non-electronic data or information submitted to the FieldEdge Service by Customer or its Affiliates.
“Documentation” means the information and manuals made available to Customer by distribution to Customer or publishing online.
“Order Form” means a FieldEdge estimate, renewal notification or the Order Form in the name of and executed by Customer or its Affiliate and accepted by FieldEdge which specifies the FieldEdge Service and/or other applications or services to be provided by FieldEdge subject to the terms of this Agreement.
“Intellectual Property Rights” means all rights in. (i) any patents and patent applications associated with the FieldEdge products and services; (ii) any trademark registrations, applications, and common law trademarks associated with the FieldEdge products and services, together with the goodwill connected with the use thereof; (iii) any unregistered copyrights, copyright registrations, and applications associated with the FieldEdge products and services; and (iv) any trade secrets associated with the FieldEdge products and services; any know-how know-how, formulas, programs, tools, codes, algorithms, statements, notations, comments, descriptions, identifiers, instructions, ideas, concepts, flow charts, drawings, designs, patterns, plans, compilations, data, databases, data collections, devices, procedures, methods, techniques, processes and other content and materials associated with the FieldEdge products and services.
“FieldEdge Service” means the field service management service platform provided through a FieldEdge hosted environment as stated on the Order Form. “FieldEdge Service” includes any other product or service provided by FieldEdge, its subcontractors or its strategic partners as stated in the Order Form.
“Open Source Software” means third party open source software provided with the FieldEdge Service. Customer’s rights to such software are provided in separate agreements from the licensors.
“Subscription Fees” means the amount paid during the Subscription Period for the license fee for the FieldEdge Service, and support and maintenance.
“Update” means any bug fix, workaround, modification, patch, patch bundle or hot fix to the FieldEdge Service. Updates shall not include any release, option or product which FieldEdge licenses separately or offers for an additional fee, or any upgrade in features, functionality or performance of the FieldEdge Service which FieldEdge licenses separately or offers for an additional fee.
2. OUR RESPONSIBILITIES
2.1. Provision of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), failure or delay of Internet service provider or Non-FieldEdge Application, or denial of service attack.
2.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification and disclosure of Your Data by third parties lacking a valid username and password and by Our personnel, except for actions by our personnel (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, (c) as provided in Section 7.4, or (d) as You expressly permit in writing.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement.
2.4. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. USE OF SERVICES
3.1. FieldEdge Service License. FieldEdge grants Customer a non-exclusive, non-transferable, non- sublicensable annual (or such term as stated in the Order Form) subscription license to access and use the FieldEdge Service for internal use only during the Subscription Period.
3.2. FieldEdge Service Access and Delivery. The FieldEdge Service will be deemed delivered when access to the FieldEdge Service is provided to Customer electronically. All Updates will be installed and maintained by FieldEdge.
3.3. Limitations. (a) Customer will not (1) copy, modify or create any derivative works of the FieldEdge Service (or any portion thereof); (2) disassemble, reverse assemble, decompile, reverse engineer or otherwise attempt to derive the source code, the underlying ideas, algorithms, structure or organization of the FieldEdge Service; (3) assign, transfer, lease, provide services to third parties using the FieldEdge Service, rent or redistribute the FieldEdge Service; or (4) authorize or permit any other third party to do any of the foregoing. (b)There are no implied licenses. There is no license to source code. All rights not granted to Customer are reserved solely to FieldEdge. (c) Customer will not remove, alter, cover or obfuscate any copyright, trademark or other proprietary rights notices placed or embedded by FieldEdge on or in any FieldEdge Service. (d) Nothing in this Agreement permits Customer to sublicense, distribute, or resell FieldEdge products, or provide any portion of FieldEdge Service to any other third party.
3.4. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data and provide it to Us, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with applicable laws and government regulations, and (e) comply with terms of service of Non-FieldEdge Applications with which You use Services.
3.5. Open Source Software. A portion of the FieldEdge Service may contain or consist of open source software. The open source software is not distributed or conveyed to Customer.
3.6. Ownership. Customer’s rights in the FieldEdge Service and Documentation are solely as set forth in this Section 2 and include no rights of ownership. Customer agrees that, as between Customer and FieldEdge, FieldEdge owns all rights, title and interest (including and without limitation all Intellectual Property Rights) in the FieldEdge Service and Documentation, and all modifications or improvements thereto, whether or not created by FieldEdge. FieldEdge owns all rights to error reports, corrections, and information learned through any testing. FieldEdge makes no claims to ownership of Open Source Software.
3.7. Export Restrictions. Customer will comply with all export and re-export restrictions and regulations of the U.S. Commerce Department and other U.S. agencies and authorities. Customer agrees and expressly warrants it will not directly or indirectly sell, export, re-export download, divert or otherwise dispose of the FieldEdge Service in violation of any export laws of the United States or download or transfer (or authorize anyone to download or transfer) the FieldEdge Service to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
3.8. Customer Infrastructure. Customer is responsible for all telecommunications, network infrastructure, hardware, software and equipment to access the software from the internet as outlined in our “Minimum System Requirements” section on the FieldEdge website. Customer shall backup all data used with the FieldEdge Service and Customer is responsible for restoration of any lost data.
4. ORDERS, FEES, PAYMENTS AND REPORTS
4.1. Fees. Customer shall pay the Subscription Fees for the FieldEdge Services for each Subscription Period as stated in the Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. FieldEdge Service may increase Subscription Fees with notice sent 30 days before the end of each Subscription Period. Payment of Subscription Fees shall be made in monthly installments and the first payment shall be invoiced on the Effective Date of this Agreement.
4.2. Subscriptions. Unless otherwise provided in the applicable Order Form or, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Added subscriptions (i.e. additional office and/or mobile users) are to be ordered via phone or email. The payment information on file will be used to process any added subscriptions.
4.3. Invoices and Payments. Subscription fees for the FieldEdge Services will be invoiced as stated in the Order Form. Customer agrees to maintain a valid method of payment on file to be charged for payment of invoices.
4.4. Payment Terms. Payments are due in advance monthly or annually as detailed in the Order Form. Any amounts not paid when due will accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law.
4.5. Taxes. Customer is solely responsible for the payment of all taxes (other than taxes based on FieldEdge’s income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to FieldEdge under this Agreement for the FieldEdge Service. Customer will make all payments of fees to FieldEdge free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to FieldEdge will be Customer’s sole responsibility, and Customer will provide official receipts issued by the appropriate taxing authority, or such other evidence as FieldEdge may reasonably request, to establish that such taxes have been paid. Customer will indemnify and hold FieldEdge harmless for any liability (including penalties and interest) resulting from Customer’s failure to fulfill its responsibilities under this section.
5. WARRANTIES AND DISCLAIMERS
5.1. Mutual Warranties. Each party represents and warrants it has the full corporate power and authority to enter into this Agreement and that its performance under this Agreement will not conflict with any other agreements to which such party is a party.
5.2. By FieldEdge. FieldEdge warrants that during the Term of the Subscription Period, the FieldEdge Service will perform substantially under the specifications in the Documentation. FieldEdge warrants that the FieldEdge Service will be free of viruses, Trojan horses, worms, spyware, or other malicious code (“Malicious Code”), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer. FieldEdge’s sole liability and Customer’s sole and exclusive remedy for FieldEdge’s breach of this FieldEdge Service warranty shall be that FieldEdge shall be required to use commercially reasonable efforts to modify the FieldEdge Service to achieve in all material respects the functionality described in the Documentation and if FieldEdge is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fee paid under the Agreement for its use of the FieldEdge Service for the terminated portion of the Term. The foregoing remedies are available only if FieldEdge is promptly notified in writing and the defect is specified and FieldEdge’s examination of the FieldEdge Service discloses that such defects exist. The warranties set forth in this Section 5.2 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable FieldEdge Service has been utilized in accordance with the Documentation, this Agreement and applicable law.
5.3. Disclaimer of Warranties. (a) EXCEPT AS SET FORTH ABOVE, NO OTHER WARRANTY IS MADE REGARDING FIELDEDGE SERVICE OR OTHER PRODUCTS OR SERVICES PROVIDED BY FIELDEDGE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE THAT USE OF THE FIELDEDGE SERVICE WILL BE TIMELY, UNINTERRUPTED, OR ERROR FREE, THAT ANY ERRORS WILL BE CORRECTED, THAT DOCUMENTATION WILL BE CORRECTED, OR THAT THE FIELDEDGE SERVICE’S FUNCTIONALITY WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT AS STATED IN SECTION 5.2 ABOVE, THE FIELDEDGE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. (b) NO WARRANTY IS PROVIDED FOR OPEN SOURCE SOFTWARE. THIS OPEN SOURCE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL FIELDEDGE, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6. SUPPORT AND MAINTENANCE
FieldEdge will 1) provide support services and for the FieldEdge Service to Customer and will maintain the FieldEdge Service with Updates during the Subscription Period. Fees for support and maintenance are included in the Subscription Fee.
7. MARKETING AND ADVERTISING
7.1. Equitable Remedy. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages if any unauthorized use occurs or disclosure of its Confidential Information. Besides any other remedies that may be available in law, in equity or otherwise, the disclosing party may seek injunctive relief to prevent such unauthorized use or disclosure.
7.2. Term of Nondisclosure Obligations. The parties’ obligations in this Section 8 will survive termination of this Agreement, and will bind the receiving party’s representatives, successors and permitted assigns, if any.
8. CONFIDENTIAL INFORMATION
8.1. Confidential Information. During this Agreement, each party may disclose to the other certain nonpublic or proprietary information or materials relating to a party’s products, technology, business or marketing, which it wishes the other party to treat as confidential (“Confidential Information”). Confidential Information includes all such information marked as “Confidential” or “Proprietary” at the time of disclosure, or if disclosed orally, its confidential nature is confirmed in writing within thirty (30) calendar days of disclosure. Customer agrees that notwithstanding any failure to so specify, FieldEdge Service, Documentation and the terms and conditions (but not the existence) of this Agreement will be deemed Confidential Information of FieldEdge. Notwithstanding the foregoing, Confidential Information does not include, and nothing in this Agreement will prohibit or limit either party’s use of, information (including but not limited to ideas, concepts, know-how, techniques, and methodologies) that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to disclosure, as evidenced by contemporaneous written records; or (c) was acquired from a third party with no breach of any obligation of confidentiality. Notwithstanding the foregoing, the receiving party shall not violate this Agreement regarding a disclosure in response to a valid order by a court or other governmental body or subpoena or required by applicable law or governmental regulations, provided that the receiving party provides to the disclosing party prior written notice of such disclosure.
8.2. Protection of Confidential Information. Except as provided, the receiving party will not use or disclose any Confidential Information without the disclosing party’s prior written consent, except to the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information at least as restrictive as the receiving party’s obligations under this Section 8. Besides the foregoing nondisclosure obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own confidential and proprietary information and trade secrets, and in no event less than reasonable care. The receiving party will return all Confidential Information promptly upon the request of the disclosing party or upon termination of this Agreement.
8.3. Equitable Remedy. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages if any unauthorized use occurs or disclosure of its Confidential Information. Besides any other remedies that may be available in law, in equity or otherwise, the disclosing party may seek injunctive relief to prevent such unauthorized use or disclosure.
8.4. Term of Nondisclosure Obligations. The parties’ obligations in this Section 8 will survive termination of this Agreement, and will bind the receiving party’s representatives, successors and permitted assigns, if any.
9.1. Provision. Customer, at its own expense, will indemnify, defend and hold harmless FieldEdge, and its officers, directors, employees, representatives and agents, against any action brought against such person (a) arising out of any use of FieldEdge Service; (b) for personal injury or death arising out of Customer’s gross negligence or willful misconduct; or (c) arising out of any alleged breach of any representation or warranty by Customer in Section 5.1; and Customer will pay all settlements entered into and damages awarded against such person (including reasonable attorneys’ fees) to the extent based on such action.
9.2. Procedure. All indemnification obligations under this Section 9 will be subject to the following requirements (provided that failing to follow such requirements will deprive the indemnified party of its right to indemnification only if such failure materially prejudices the indemnifying party): (a) the indemnified party will provide the indemnifying party with prompt written notice of any claim; (b) the indemnified party will permit the indemnifying party to assume and control the defense of any action; and (c) the indemnified party will not enter into any settlement or compromise of any claim without the indemnifying party’s prior written consent. In addition, the indemnified party may, at its own expense, participate in its defense of any claim.
10. LIMITATION OF LIABILITY
FieldEdge and its licensors will not be liable for the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort, strict liability or otherwise, even if FieldEdge has been advised of the possibility of such damages. FieldEdge’s total liability under this Agreement or for breach thereof, will not exceed the total amounts paid to FieldEdge during the twelve (12) months prior to the date such claim arises. The foregoing limitations will apply notwithstanding the failure of essential purpose of any limited remedy, but will not limit liability for death or bodily injury.
11. TERM AND TERMINATION
11.1. Term. This Agreement is effective as of the Effective Date. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per- unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
11.2. Termination. (a) Either party may terminate this Agreement thirty (30) calendar days after written notice to the other party of such party’s breach of any of its other obligations under this Agreement in any material respect, which breach is not remedied within such 30-day period.
(b) FieldEdge may terminate this Agreement immediately upon written notice of (1) Customer’s breach of the license grants and restrictions in Section 2, or (2) Customer’s breach of its confidentiality obligations in Section 8, or (3) Customer being thirty (30) calendar days or more past due on any payments owed to FieldEdge.
11.3. Refund or Payment of Pre-Paid Fees: If this Agreement is terminated by You in accordance with Section 11.2 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.2, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.4. Effect of Termination. Upon any termination of this Agreement for any reason, all licenses granted under this Agreement shall terminate immediately and Customer shall no longer have access to the FieldEdge Service. FieldEdge shall provide Customer with its data in a standard form for 30 days after termination. Thereafter, FieldEdge may delete all Customer data.
11.5. No Liability for Termination. Except for amounts owed to FieldEdge, neither party will incur any liability or compensation obligation for any damage (including and without limitation damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other party arising from or relating to any termination of this Agreement under the terms, whether or not such party knows of any such loss or expenses. Termination is not the sole remedy and except as otherwise provided, all other remedies remain available to each party.
11.6. Surviving Provisions. Sections 1 (Definitions), 2.2 (Limitations), 2.4 (Ownership), 4.4 (Taxes), 5.3 (Disclaimer of Warranties), 8 ((Confidential Information), 9 (Indemnification), 10 (Limitation of Liability), 11.4 (Effect of Termination), 11.5 (No Liability for Termination), 11.6 (Survival), and 12 (General) and any payment obligations, will survive any expiration or termination of this Agreement.
12.1. No Partnership. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between FieldEdge and Customer.
12.2. Entire Agreement. This Agreement represents the entire agreement between FieldEdge and Customer with respect to the subject matter hereof and will supersede all prior agreements and communications of the parties, oral or written.
12.3. Amendment and Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
12.4. Governing Law and Jurisdiction. This Agreement shall be exclusively construed, interpreted, governed and enforced in accordance with the laws of the State of Florida, USA without regard to rules governing conflicts of laws. This Agreement shall be deemed to have been negotiated, entered into, executed and performed for all purposes within the State of Florida. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Any action related to or arising out of this Agreement shall be brought solely in a State or Federal court of competent jurisdiction located in the State of Florida, Lee County, and the parties irrevocably commit to the jurisdiction and venue of said courts and waive any right to object thereto. In the event of a dispute between the parties, executives from each company will meet and negotiate in good faith in an effort to resolve the dispute. If such dispute is not resolved after such meeting then the parties may arbitrate their dispute as provided herein. Except for claims seeking injunctive relief for which court relief may be sought, or claims involving intellectual property rights, the parties shall arbitrate any dispute resulting from or arising as a result of this Agreement.
12.5. Successors and Assigns. This Agreement and the licenses granted may not be assigned by Customer, by operation of law or otherwise, without the prior written consent of FieldEdge. This Agreement will bind upon, and inure to the benefit of, the permitted successors and assigns of each party. Any purported assignment in violation of this Section 12.5 will be null and void.
12.6. Notices. All notices, requests, consents and other communications required or permitted will be in writing, and will be delivered by registered U.S. mail, postage prepaid (effective three (3) business days after mailing) or sent by facsimile or electronic mail, with a confirmation copy simultaneously sent by U.S. mail, postage prepaid (effective upon transmission), at the addresses set forth on the signature page. Notice of change of address will be given as other communications.
12.7. Severability. If any provision is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will affect no other provisions of this Agreement, and such provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed.
12.8. Headings. The section headings in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement.
12.9. Counterparts. This Agreement may be executed in two counterparts, both of which taken together will constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission.
12.10. Force Majeure. Neither party will be responsible for any delay or nonperformance of its obligations under this Agreement (except for payment obligations) to the extent caused by fire, war, riots, strikes, power surges or failure, labor disputes, acts of God, failure of subcontractors or their services or other causes beyond the reasonable control of the nonperforming party. If such an event prevents or delays one party from performing any of its obligations under this Agreement, it shall notify the other party as soon as reasonably practical, and shall take reasonable measures to recover from such position promptly.
12.11. Basis of Bargain. Each party agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, bargained for provisions of this Agreement and that fees and consideration payable reflects these disclaimers and limitations.