Disclaimer

The accompanying terms and conditions described below codifies the relationship between Mayor Technologies, Inc., an Arizona corporation (“MTI”), and the customer.

GENERAL TERMS AND CONDITIONS
MAYOR TECHNOLOGIES, INC.

By engaging Mayor Technologies, Inc. (“MTI”), Customer consents to the following general terms and conditions regarding MTI’s services:
1. Spyware/Viruses. Spyware is a computer program that attaches itself to an operating system and is downloaded to a computer because of something the user has done, such as clicking a button on a pop-up window. Once a computer has been infected with spyware, it is likely that that computer can and will be re-infected again. In many cases, spyware can go dormant and trick the user into believing it is gone only to resurface a few minutes, hours or days later even if a spyware scans does not detect it. A virus is a small piece of software that piggybacks on legitimate programs. Each time that program is run; the virus also runs, causing harm to a user’s computer and files.

MTI DOES NOT WARRANT THAT CUSTOMER’S COMPUTERS OR SYSTEMS WILL BE SPYWARE OR VIRUS FREE, OR EVEN AFTER ENGAGING MTI TO PERFORM SERVICES RELATED TO THE REMOVAL OF SPYWARE AND/OR VIRUS REMOVAL THAT CUSTOMER’S COMPUTERS OR SYSTEMS WILL BE SPYWARE, VIRUS OR ERROR FREE.

2. Hardware Issues. Hardware issues can be the result of a variety of items, including, but not limited to: faulty parts, power surges, physical damage (dust, water or impact). Hardware issues can often be difficult to diagnose and require a number of tests for proper diagnostics. Initial diagnosis and repair can reveal issues with other components. Often a “simple fix” may appear to have resolved the issue; however it is most likely that the issue will reappear unless further diagnostics steps are taken to remedy the issue. Work done on your system can affect other areas of your system that initially appear to be functional. There is a great chance that other areas of your technology will be affected by the changes made and will require additional attention that is not yet known at the time of the service. The exact problem that was resolved can also reoccur and appear as though the problem was not resolved in the first place.

3. Backup. Without doing the full process (setup, verify, test restore and check on a daily basis) backups are no good and backups can fail due to hardware issues, corrupt data and other issues. These matters are out of MTI’s control and a proper backup solution will have failures on a regular basis as part of the process

4. Diagnosis Process. Regardless of where MTI’s begins the diagnosis process, the actual fix is normally the last thing MTI attempts (MTI may start with hardware and the issue is actually software, next may start with the software to finally determine it is hardware). It is possible that MTI may contact third party support specialists to research problems. This entire process is billable. Nonetheless, the entire time spent by MTI in the diagnosis phase is billable.

5. Repair Versus New Purchase. It is certainly possible that by the end of the diagnosis phase, the billable time spent is almost as much or more than a comparable replacement product or solution.

6. Programming/Specialized Training/Cabling/Wiring. These services are billed differently – some as projects, some hourly, but all have a different rate.

7. Failure to Make Payment. MTI may suspend any or all Services on written notice to Customer at any time any payment for any Service is overdue. Customer shall pay MTI’s then current reinstatement fee following a suspension of Service for non-payment. MTI may charge interest on amounts that are overdue at a rate of 1.5% per month. Customer shall pay MTI’s reasonable costs of collection of overdue amounts, including collection agency fees, attorneys’ fees and court costs. In addition, a late fee of $75.00, plus the hourly rate of the individuals pursuing any collection efforts, shall be charged for any late payments as reasonable reimbursement for MTI’s costs of late payment.

8. Pricing. As a wholesaler of certain goods, it may be possible for Customer to achieve lower discounted pricing on certain goods. While MTI strives for the lowest and best pricing, it cannot be guaranteed. Any time spent researching pricing at Customer’s request shall be billable. Moreover, MTI is not responsible for any ordering issues or issues with third party manufacturers or providers. MTI will, when possible, pass along any third party warranties to Customer, but MTI does not support vendor warranties – MTI may assist with such warranties, but any MTI time is billable.

9. Remote Work. MTI does certain work remotely and bills for such services. If Customer calls a technician, supervisor or other employee of MTI for services, such time is all billable.

10. Content. To the extent that MTI’s discovers inappropriate material on systems, MTI will report to Customer the presence of such items and shall report any illegal item to appropriate governmental authorities, as required by applicable law. MTI will not install pirated software or violate licensing agreements.

DEFINITIONS

1.1 “Statement of Work” or “SOW” means a document signed by both Parties that: (a) details the scope of any Services to be performed by MTI in addition to the Services described in Article II of this Agreement; (b) identifies the locations where the Services shall be performed; and (c) specifies the applicable payment terms, including the hourly rate or fixed price for performing the Services.

1.2 “System Software” shall mean the object code version of all of the software owned or licensed by MTI and utilized by MTI to provide the Services described in the Agreement and any SOW. MTI may from time to time and at MTI’s sole discretion, provide or install updates, patches or releases to the System Software. MTI shall determine, in its discretion, when such updates, patches or releases shall be made available.

SERVICES

1.3 Services. Contingent upon Customer’s satisfaction of MTI’s requirements and on MTI’s verification of the information provided by Customer, MTI shall provide services agreed to by the Parties pursuant to an SOW (collectively, the “Services”).

1.4 Statements of Work. Parties may enter into Statements of Work for additional Services to be provided by MTI. The provisions of this disclaimer shall control over any conflicting provisions in a SOW or any MTI Service & Product Delivery Authorization, except to the extent that a provision within a SOW specifically states that the SOW shall prevail. Purchase orders or similar documents issued by Customer relating to this Agreement or a SOW are for Customer’s internal use only and shall not affect this Agreement.

ADDITIONAL RIGHTS AND OBLIGATIONS OF PROVIDER

1.5 Subcontractors and Assignment. MTI may engage any person or entity as a subcontractor to perform all or any part of the Services. MTI shall ensure that any approved subcontractor will comply with the terms and conditions of this Agreement and any applicable SOW to the extent applicable to the Services performed by such subcontractor.

1.6 Account Manager. MTI will designate one individual as primary contact for Customer regarding all matters relating to the Services provided pursuant to this Agreement.

ADDITIONAL RIGHTS AND OBLIGATIONS OF CUSTOMER

1.7 Customer Content. All data, customer lists, email addresses, other personal information, graphics, logos, and pictorial, editorial, textual and other content and/or materials provided to MTI by Customer or on behalf of Customer by third parties in connection with the Services provided hereunder are and shall remain the exclusive property of Customer (“Customer Content”). Customer shall procure, at its own expense, all necessary rights, licenses, permissions, waivers, releases and all other agreements and documentation necessary to permit use of Customer Content by MTI as required for incorporation or use in connection with the Services. Customer Content will not be utilized by MTI for any purpose other than the performance of Services under this Agreement. MTI will establish and maintain safeguards against the destruction, loss or alteration of Customer Content that are no less rigorous than those maintained by MTI for its own data of a similar nature. MTI will institute security measures to guard against the unauthorized access, alteration or destruction of Customer Content that are no less rigorous than those maintained by MTI for its own content of a similar nature. Such measures may include the installation of software that: (A) requires all users to enter a user identification number and password before gaining access to the information systems; (B) controls and tracks the addition and deletion of users; and (C) controls user access to areas and features of the systems.

1.8 Customer’s Review. Customer is responsible for the review of all editorial, textual, materials, including scripts, printed material and web content that are provided to Customer by MTI, to ensure the accuracy and completeness of all information contained therein prior to the use, publication or distribution of such content by MTI in connection with the performance of Services.

1.9 Security Precautions. Customer shall use reasonable security precautions in connection with its use of the Services (including any sensitive information transmitted to or from, or stored by Customer on, the servers or storage devices used by Customer).

PAYMENT

1.10 Payment. Customer will pay the fees for the Services and pursuant to any SOW. MTI will submit an invoice to Customer and Customer shall pay MTI within twenty-eight (28) days of receipt of MTI’s invoices, unless otherwise required by MTI. For example, invoices for certain equipment may be due and payable on delivery. Customer will not withhold from any fees paid hereunder any amount for taxes, social security, or other payroll deductions. Prices for hourly or other rates charged by MTI may be increased by MTI at any time, except in the event of pre-purchased block time. Notwithstanding the foregoing, in MTI’s sole discretion, payment terms may be altered at any time if: (a) Customer’s account is delinquent, (b) in event of Customer’s financial insolvency, or (c) at any other time as determined by MTI.

1.11 Collections. MTI may suspend any or all Services on written notice to Customer at any time any payment for any Service is overdue. Customer shall pay MTI’s then current reinstatement fee following a suspension of Service for non-payment. MTI may charge interest on amounts that are overdue at a rate of 1.5% per month. Customer shall pay MTI’s reasonable costs of collection of overdue amounts, including collection agency fees, attorneys’ fees and court costs. In addition, a late fee of $75.00, plus the hourly rate of the individuals pursuing any collection efforts, shall be charged for any late payments as reasonable reimbursement for MTI’s costs of late payment. Unpaid invoices past 60 days will be turned over to collections.

1.12 Taxes. Customer shall be responsible for all sales, use, value added, excise and similar taxes imposed by any government or governmental agency with respect to the fees provided for in this Agreement or any SOW with respect to Customer’s use of the Services or otherwise relating to this Agreement, except for any taxes based upon the income of MTI.

INTELLECTUAL PROPERTY OWNERSHIP AND LICENSE

1.13 License to System Software. MTI will grant to Customer a limited, non-exclusive, worldwide right and license to access the System Software, as determined by MTI, and any other software to be provided by MTI to Customer as set forth in this Agreement or an SOW, for use in connection with the Services for so long as determined by MTI.

1.14 Ownership of Intellectual Property. Each Party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights and other intellectual property, and that MTI shall exclusively own any intellectual property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess MTI’s servers or other hardware, and has no right of physical access to the hardware. Upon termination of the Agreement, Customer shall promptly release any Internet protocol numbers, addresses or address blocks assigned to Customer in connection with the Service (but not any URL or top level domain or domain name) and agrees that MTI may take steps to change or remove any such IP addresses.

TERM AND TERMINATION

1.15 Term and Termination. Customer may terminate an Agreement or any SOW (subject to any additional terms or different termination requirements set forth in the SOW) for convenience upon not less than ninety (90) days prior written notice to MTI, without further obligation or liability, provided that Customer shall pay MTI: (a) any fees due for Services performed up to the date of termination, including unpaid invoices and disbursements incurred by MTI for Services rendered to or authorized by Customer and any termination fees that may be specified in an SOW; (b) any Customer-authorized out-of-pocket expenses incurred by MTI up to and including the effective date of termination; and (c) any amounts due or to become due under any non-cancelable contract or commitment made pursuant to an SOW or with Customer’s written authorization and still existing at the expiration or termination of this Agreement or any SOW. MTI also reserves the right to cancel or suspend this Agreement or any SOWs at any time if MTI deems the Customer is not demonstrating fair, ethical and appropriate business behavior.

1.16 Termination for Breach. Either Party may terminate this Agreement or any SOW if: (a) the other Party commits a material breach of the Agreement and said breach has not been cured to the reasonable satisfaction of the non-breaching Party within thirty (30) days of receipt of written notice from the non-breaching Party setting forth the nature of the breach; or (b) in the case of dissolution, termination of existence or insolvency of a Party, appointment of a receiver, or any other proceedings under bankruptcy or insolvency laws.

1.17 Termination of SOW. The term of each SOW shall be set forth in such SOW. Termination or cancellation of a SOW shall not terminate this Agreement or any other SOW, and the Parties shall remain free to enter into future SOW(s) pursuant to this Agreement and during the term of this Agreement. In addition, termination, cancellation or completion of an SOW shall not relieve either Party of any previously accrued obligations or of any obligations that, by their nature, are intended to survive termination, cancellation or completion. This Agreement will not terminate prior to the completion of each outstanding SOW.

1.18 Effect of Termination. Upon termination of an Agreement, Customer’s license to any software licensed by MTI shall terminate; Customer shall immediately cease any use of such software and related documentation; and Customer shall destroy, erase, delete, or otherwise render unusable all tapes, diskettes, cartridges and any other storage medium containing such software. Upon MTI’s request, Customer shall certify in writing to MTI when the foregoing acts have been accomplished. On termination of this Agreement, MTI shall promptly deliver all work to Customer and return to Customer all Customer Content and any other data, information or materials owned by Customer (including, without limitation, all Confidential Information) in a form reasonably acceptable to Customer, unless Customer requests the data be destroyed. Upon request, MTI will provide the methods and/or evidence of destruction of data. All time incurred transferring or destroying data is billable to Customer at MTI’s standard hourly rate.

1.19 Survival. The following provisions shall survive expiration of termination of this Agreement for any reason: Sections 2.5,1, 5.1, 5.2, 5.3, 6.2 and 7.4 and Articles 8, 9, 10, and 11.

ARTICLE II. CONFIDENTIAL INFORMATION

2.1 Confidentiality of Information. Each party may have access to information that is confidential to the other Party. “Confidential Information” is information that, by its nature, ought to be treated as confidential or that a reasonable person ought to conclude is confidential, which is related to this Agreement or the Parties’ relationship, or a Party’s business, technical, systems and/or engineering information, financial data, forecasts, marketing and sales information, customer and employee information, pricing and cost data, marketing strategies, and general non-public business information, third-party confidential information that the supplying Party has a duty to maintain as confidential and has so informed the receiving Party of that duty, and other valuable information designated by the supplying Party as confidential information expressly or by the circumstances in which it is provided, which is in tangible form or, if orally disclosed is identified as confidential at the time of disclosure. Confidential Information of a Party shall not include any information that: (a) is or becomes part of the public domain or which is publicly available through no act or omission of the receiving Party and through no breach of this Agreement; (b) that the receiving Party can demonstrate was known to the receiving Party at the time of disclosure; (c) becomes rightfully known to the receiving Party from another source without restriction on disclosure or use; or (d) the receiving Party can demonstrate was independently developed by the receiving Party without the use of or any reference to Confidential Information of the other Party. At the completion of the term of this Agreement, any SOW or upon request, the receiving Party shall return or destroy, at the disclosing Party’s election, any and all Confidential Information.

2.2 Non-Disclosure. Each of the Parties agrees, unless required by law or with the written consent of the other, not to disclose or make each other’s Confidential Information available in any form to any third party for any purpose, except to its own employees, Suppliers, legal and financial advisors, accountants and other agents having a “need to know” and who have acknowledged in writing their agreement to be bound by confidentiality obligations at least as restrictive as those set forth herein. Each Party agrees to take all reasonable steps required to ensure that Confidential Information is secure and is not disclosed or distributed by its directors, officers, employees, agents, or subcontractors in violation of the terms of this Agreement. If disclosure of Confidential Information is required by any applicable federal, state, or provincial law, rule, regulation, or judicial order, the Party receiving such legal process shall, prior to making such disclosure, give prompt notice to the other Party and shall assist the other Party in its efforts to obtain a protective order at the sole expense of the other Party.

2.3 Customer Data Security Obligation. For purposes of this Agreement, Sensitive Personal Information (“SPI Data”) shall mean personal information (such as name, date of birth or address) in combination with at least one of the following items: health data, social security number, credit or debit card number, personal financial account numbers, or a driver’s license (or state identification card number). Customer and MTI shall each transmit, transfer, and deliver all SPI Data in an encrypted format to be mutually agreed upon by the Parties. Each of the Parties shall ensure that its systems are able to receive SPI Data from the other Party in the mutually agreed encrypted format. Neither Party shall transmit any SPI Data that is not required for the performance of the Services. If either Party is provided access to the other Party’s systems, the accessing Party will secure access to any passwords provided by the other Party to ensure that only authorized users have access to the other Party’s systems. Each Party will follow the other’s policies and rules with regard to its electronic systems. Each Party shall promptly notify the other of any changes in the status of its authorized users (e.g. termination of employment or change of access level). All authorized users must be named users (e.g. no generic passwords or shared accounts). Each Party will ensure that only those of its personnel who are authorized to access the database and applications on the other Party’s systems will do so and only in a manner that is consistent with the permitted use of such systems. Each Party will notify the other promptly upon becoming aware of any unauthorized access, disclosure or use of such passwords. The Parties shall work together in order to mitigate, to the extent practicable, any harmful effect resulting from unauthorized access, disclosure or use of such passwords.

2.4 Injunctive Relief. In the event of a breach or threatened breach of any of the provisions of this Section 8, the non-breaching Party will be entitled to an injunction restraining such breach or threatened breach without having to prove actual damages or threatened irreparable harm. Such injunctive relief as the non-breaching Party may obtain will be in addition to any other rights and remedies available at law, in equity or under this Agreement.

ARTICLE III. WARRANTIES AND REPRESENTATIONS

3.1 Services Warranty. MTI represents and warrants that: (a) it has or will obtain all applicable licenses, permits (including governmental work permits, visas, and/or other consents/documents authorizing MTI to work in the United States), rights, and/or certifications necessary for the performance of Services; (b) it shall perform the Services in a professional and workmanlike manner in accordance with the requirements of this Agreement; (c) the Services, all materials and information related thereto and the Work, and any of them, shall not infringe upon any United States patent or copyright; and (d) it will use its best efforts to prevent viruses or worms from being coded or introduced by MTI or its subcontractors into the systems used to provide the Services. Notwithstanding any other provisions hereof, any claim of a deviation of the warranties set forth in this Section must be brought to MTI’s attention through written notice no later than ninety (90) days following the delivery of such Services. Customer’s sole remedies for a breach of these warranties shall be, at MTI’s option, re-performance of the Services or repair of any items effected by the alleged non-compliant Services.

3.2 General Representations and Warranties. Each Party represents and warrants to the other that: (a) it has the right to enter into this Agreement, to grant the rights set forth in this Agreement, and to perform fully all of its obligations under this Agreement; (b) the person entering into this Agreement is authorized to sign this Agreement on behalf of the Party; (c) this Agreement has been validly executed and delivered constituting a legal, valid, and binding obligation enforceable against the Party in accordance with its terms; (e) it is not subject to any agreement with any party that will or may be violated by performance hereunder and that it will not, during the term of this Agreement, improperly use or disclose any Confidential Information or trade secrets of any third party; (f) it is in compliance with all applicable laws and it will cooperate with any governmental agency in any inquiry or investigation related to the Agreement or third party litigation related to the Agreement; and (g) all information and representations made to the other Party shall be true, accurate, and complete, and in the event such information or representations made herein become inaccurate or incomplete, it will promptly notify the other Party in writing of such. The foregoing warranties shall survive delivery, inspection, acceptance, and payment.

3.3 Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, MAYOR TECHNOLOGIES DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY.
3.4 No Backup. MTI WILL NOT BACK UP CUSTOMER DATA STORED ON ANY DEVICE, UNLESS BACK UP SERVICES ARE PURCHASED FROM MTI.

3.5 Limitation on Liability/Waiver of Consequential Damages. THE LIABILITY OF MTI ARISING OUT OF THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT OR ANY SOW SHALL NOT EXCEED THE FEES PAYABLE FOR THE PARTICULAR SERVICE OUT OF WHICH A CLAIM FOR LIABILITY ARISES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATING TO THE SERVICES EVEN IF A PARTY HAS BEEN OR IS THEREAFTER ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

ARTICLE IV. INDEMNIFICATION

4.1 Indemnification/Liability. Each Party (“Indemnitor”) shall defend, indemnify, and hold harmless the other Party and its officers, directors, employees and agents (“Indemnitee”) for, from, and against any and all threatened or actual third party claims for: losses, liabilities, penalties, fines, taxes, interest, citations, expenses, forfeitures, liens, cost or expenses (including settlements, defense costs, judgments, court costs, expert fees, and attorneys’ fees) (“Claim”), arising out of, related to or based on the Indemnitor’s: (a) negligent acts or omissions, including those negligent acts or omissions resulting in environmental contamination, bodily injury, including death, or damage to property; (b) violation of applicable law; (c) any claim or threatened claim of infringement arising from a breach of the representations and warranties hereunder; and/or (d) the filing of an employment and/or workers’ compensation claim by employees, subcontractors, or agents.

4.2 Limitations. The Indemnitor will have no obligation with respect to any claim under Section 10.1 unless: (a) the Indemnitor is promptly notified of the Claim (except that this limitation shall not apply if the delay did not have prejudice the defense or settlement of such Claim); (b) the Indemnitee allows the Indemnitor sole control of the defense and settlement of such Claim (provided, however, that the Indemnitor will not compromise or settle a Claim in a manner which imposes any performance or financial obligation or otherwise impairs the legal rights of the Indemnitee without its prior written consent (which consent shall not be unreasonably withheld or delayed); and (c) the Indemnitee provides the Indemnitor with reasonable assistance, at the Indemnitor’s expense, in connection with the Indemnitor’s defense and settlement of such Claim.

ARTICLE V. MISCELLANEOUS

5.1 Suspension of Service. MTI may suspend Services to Customer without liability if: (i) MTI reasonably believes that the Services are being used in violation of the Agreement or applicable law; (ii) there is a denial of service attack on Customer’s servers or other event for which MTI reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or (iii) requested by law enforcement or government agency of competent jurisdiction. Information on MTI’s servers will be unavailable during a suspension of Services. MTI shall give Customer written notice of a suspension under this Section, which notice shall be at least twenty four (24) hours in advance of the suspension unless a law enforcement or government agency directs otherwise or suspension on shorter or contemporaneous notice is necessary to protect MTI or MTI’s other customers from an imminent and significant risk.

5.2 Testing. Customer or its third party contractor may conduct non-intrusive vulnerability testing on the Customer’s configuration on seven days advance written notice to MTI at jasonm@mtitechsolutions.com, provided that Customer may scan only those IP numbers assigned to its account, must conclude its testing within a defined window of no more than five (5) days, may not place MTI’s infrastructure of the Customer’s solution at risk, and must otherwise comply with MTI’s reasonable requirements. The notice must list the IP numbers to be tested and otherwise provide a reasonable description of the testing. Customer acknowledges and agrees that MTI shall not be responsible for any failure to provide the Services that results from the testing.

5.3 Remedies. The exercise of any right or remedy provided for in this Agreement will be without prejudice to any other right or remedy provided in this Agreement, at law or in equity.

5.4 Severability. If any portion or portions of this Agreement shall be deemed invalid or unenforceable for any reason, the remaining portions shall be valid and enforceable and carried into effect, unless to do so would clearly violate the present legal and valid intention of the Parties hereto.

5.5 Non-Exclusivity. The Agreement is non-exclusive. MTI may provide service to any person, including a competitor of Customer.

5.6 Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original. Facsimile signatures or signatures on an electronic image, such as .pdf or .jpg format, shall be deemed to be original signature.

5.7 Non-Solicitation. For the duration of this Agreement and for a period of twelve (12) months following the Services were last performed hereunder, the Parties shall not hire or solicit any of the other Party’s employees for employment, without the other Party’s prior written consent. However, this restriction does not apply in the event that a Party’s employee responds to, and is hired through, a general job posting or public advertisement made in the ordinary course of the other Party’s business.

5.8 Independent Contractor. Provider is an independent contractor and nothing in this Agreement shall be construed as creating an employment relationship, agency, partnership, or joint venture between the Parties. Each Party shall control and direct the methods by which it performs its responsibilities hereunder. Except as provided herein, neither Party is authorized to act on behalf of the other in any matter whatsoever. Provider hereby acknowledges its responsibility for full payment of applicable wages or other compensation of all employees, subcontractors, and agents engaged by it for the performance of Services, and shall pay all applicable taxes imposed by any federal, state, or local taxing authority on all payrolls and compensation of its employees, and other taxes, fees, and/or charges levied against Provider on account of this Agreement under authorization of any laws, regulations, or ordinances.

5.9 No Third-Party Beneficiary. Except as expressly provided herein, neither Party intends to, nor shall this Agreement create, in any manner whatsoever, an interest or benefit in a third party.

5.10 Notices. Any notice required will be in writing and delivered to address as either Party specifies in writing. Notices will be deemed effectively given: (a) three (3) days after being sent by certified or registered mail, postage prepaid, return receipt requested; (b) upon the next business day after being sent overnight by a major U.S. overnight document courier; or (c) upon receipt of confirmation following transmission via the internet, by electronic mail, or by a facsimile machine if received on a business day during business hours (otherwise, deemed received the next business day) if followed by a hard copy sent by mail using one of the delivery methods in (a) or (b) above.

5.11 Legal Fees. In the event either Party brings any action of any nature, arising under or out of this Agreement or performance hereunder, the prevailing Party shall be entitled to receive from the other Party its attorneys’, experts’, investigation, and other related fees, costs, and expenses.

5.12 Assignment. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party will assign or sublicense, in whole or in part, any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that MTI may assign, transfer or convey this Agreement to a third party that acquires all or substantially all of the assets of MTI, an acquirer of all of the capital stock of MTI, or the successor in a merger with MTI. Any attempted assignment in contravention hereof shall be null and void.

5.13 Jurisdiction and Governing Law. The Parties specifically agree to the venue and jurisdiction being exclusively in the federal and state courts situated in the State of Arizona, United States. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona in the United States without regard to conflict of law provisions or international treaties or conventions.

5.14 Waiver. Except as otherwise provided herein, failure of either Party to insist upon strict performance of this Agreement, or to exercise any option herein, shall not be construed as a modification or waiver of any provision, right, or obligation under this Agreement.

5.15 Entire Agreement/Amendments. The terms and conditions of the Engagement Letter, General Terms of Service, the Master Services Agreement Terms and Conditions (including any Exhibits), any MTI Service & Product Delivery Authorizations, and the Statements of Work constitute the complete and final written agreement between Customer and MTI and supersede all other agreements and understandings between the Parties regarding its subject matter. The order of precedence and any conflict among any of the documents that constitute the agreement among the parties shall be as listed in this Section. Any waiver, modification, or Amendment of the terms of this Agreement is binding only if done in writing and signed by the authorized representatives of both Parties.

5.16 Headings; Construction. Headings and/or fonts used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or intent of this Agreement. This Agreement will not be construed for or against either Party on the basis of which Party drafted this Agreement, and each Party has had the opportunity to review this Agreement with its legal counsel.

5.17 Force Majeure. Neither Party shall be liable for its failure or delay in the performance of its obligations under this Agreement due to strikes, wars, revolution, fire, flood, explosion, earthquakes, government regulations or other causes beyond its reasonable control (except for causes where it is commercially reasonable for Provider to have a back-up source); and a reasonable extension of the time to perform shall be extended in such circumstances, so long as the Party whose performance is delayed immediately recommences performance upon cessation of the event causing the delay; and provided, further, that the delay does not exceed thirty (30) days.