Terms and Conditions for Services 

KLEEN-TECH SERVICES, LLC

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These Terms and Conditions (the “T&Cs”) will govern the provision of certain Services (defined below) provided by Kleen-Tech Services, LLC, a Delaware limited liability company, and/or one or more of its Affiliates (collectively, “Vendor”), to the customer (“Customer”) identified in any Quote for Services, Services Proposal, Invoice or any other document incorporating by reference these T&Cs and accepted or approved by the Customer (the “Proposal”).  These T&Cs govern the relationship between Vendor and Customer with respect to the provision of Services, effective as of the date which is the earlier of:  (a) the date when Customer accepts or approves a Proposal in writing, including an email exchange between authorized representatives, or (b) the date when Customer first receives Services or otherwise indicates its acceptance of Services and assent to these T&Cs by, among other things, paying for such Services (the “Effective Date”).  Vendor and Customer sometimes may be referred to herein as a “Party” and collectively as the “Parties.”

PLEASE REVIEW THESE T&CS CAREFULLY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE T&CS, INCLUDING ANY UPDATES OR REVISIONS POSTED WITHIN VENDOR’S WEBSITE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THESE T&CS, YOU MAY NOT USE THE SERVICES.

1. Scope & Binding Effect.  These T&Cs shall be incorporated into and shall form an integral part of any Proposal. To the extent there is any conflict or inconsistency between these T&Cs and the terms of any Proposal, the Proposal will control solely for the specific subject matter it expressly states will control; otherwise, these T&Cs shall prevail. The Proposal and these T&Cs (collectively, this “Agreement”) comprise the entire agreement between the Parties regarding the Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These T&Cs prevail over any of Customer’s general terms and conditions, regardless of whether or when Customer requested a Proposal. Providing Services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these T&Cs.  For the avoidance of doubt, these T&Cs shall not apply to any Vendor Services Agreement or other agreement between Vendor and a Customer, which by its express terms, indicates that it constitutes the entire agreement between the Parties with respect to the subject matter thereof.

2. Services. As used in this Agreement, the term “Services” means the entirety of the services that Vendor provides to Customer, as more particularly described in the Proposal. In providing the Services to Customer, Vendor will:  (a) perform the Services in accordance with the terms and subject to the conditions set forth in this Agreement; (b) perform the Services in accordance with generally recognized industry standards for similar services; (c) comply with all applicable statutes, ordinances, rules and regulations of the federal, state and local jurisdictions where Vendor performs the Services; (d) comply with the Foreign Corrupt Practices Act, as such act may be amended from time to time; and (e) will obtain and maintain the insurance required to be obtained and maintained by Vendor as set forth in this Agreement and, upon Customer’s request, will provide to Customer current certificates of insurance (using Form ACORD 25 or such other mutually acceptable form) evidencing compliance with all applicable insurance requirements.

3. Performance Dates. Vendor shall use commercially reasonable efforts to meet any performance dates specified in the Proposal, subject to delays caused by strikes, lockouts, acts of God, inability to obtain labor or materials, governmental restrictions, enemy action, civil commotion, fire, unavoidable casualties or similar causes beyond Vendor’s control, unless such delay results from the negligent or willful acts or omissions of Vendor (a “Force Majeure Delay”).

4. Changes to Services.  From time to time, the Parties may desire to add additional Services, delete specific Services or establish and modify guidelines and standards applicable to the Services, which in each case must be documented by an additional Proposal signed by the Parties and, when executed by the Parties, such additional Proposal shall be incorporated into this Agreement.  Upon Customer’s request, Vendor will provide Customer with an estimate of the cost and time to perform any additional Services and Vendor and Customer shall negotiate in good faith as expeditiously as possible applicable pricing and schedule term; provided, however, that Vendor shall not proceed to provide additional Services until Vendor and Customer each sign a Proposal setting forth the additional Services to be provided, the schedule for performing such additional Services and the cost of such additional Services. Vendor shall not be responsible for adverse impacts or consequences caused by Customer not authorizing the additional Services.  Vendor shall not be obligated to add or delete Services unless such additions and/or deletions are set forth in a Proposal signed by Vendor.

5. Staffing.  Vendor shall provide sufficient and proper staffing to carry out the Services.  Vendor has the right to subcontract the performance of all or any part of the Services to be performed by Vendor under this Agreement; provided, such subcontracting shall not relieve Vendor of its obligations hereunder.

6. Customer’s Obligations. Throughout the term of this Agreement, Customer shall:  (a) cooperate with Vendor in all matters relating to the Services; (b) provide Vendor with such authorizations and access to Customer’s premises and facilities, as may reasonably be requested by Vendor for the purposes of performing the Services; (c) respond promptly to any Vendor request to provide direction, information, approvals, authorizations, or decisions, as are reasonably necessary for Vendor to perform the Services in accordance with the requirements of this Agreement; (d) provide such Customer materials or information, as Vendor may reasonably request to carry out the Services in a timely manner and ensure that the Services can be performed as required by this Agreement; (e) appoint a Customer representative to serve as Customer’s primary contact with respect to this Agreement who shall have authority to act on behalf of Customer with respect to matters pertaining to the Services and this Agreement; (f) obtain and maintain the insurance coverage required to be maintained by Customer under this Agreement; and (g) perform and observe all other covenants and conditions to be observed or performed by Customer under this Agreement. 

7. Customer’s Acts or Omissions. If Vendor’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Vendor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay. Customer’s designated representative shall review all documents and information presented by Vendor and render decisions in a timely manner to avoid unreasonable delay in the performance of the Services.  Customer acknowledges that Customer-caused delays may trigger equitable schedule extensions, price adjustments for increased costs, and demobilization/remobilization charges and Customer shall pay and reimburse Vendor for such increased costs and charges. 

8. Fees.  In consideration of the Services provided by Vendor and the rights granted to Customer under this Agreement, Customer shall pay the fees and other amounts set forth in the Proposal (collectively, the “Fees”).  In the event that the Parties add additional Services or otherwise amend a Proposal, the Fees owing from Customer shall be adjusted in accordance with the provisions of Section 4 above.  Vendor will invoice Customer monthly for Fees incurred in connection with Vendor’s performance of the Services.  Payment of Fees must be made within thirty (30) days following Customer’s receipt of Vendor’s invoice.  Customer must dispute invoices in good faith within ten (10) days with reasonable detail or such invoices will be unconditionally deemed accepted. Vendor may suspend Services, require payment in advance, and withhold deliverables until full payment of undisputed amounts.

9. Late Payments & Collection Costs.  Any Fees not paid within ten (10) days after the date due shall bear interest from the date due until paid at the lesser of eighteen percent (18%) per annum, or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Customer also shall reimburse Vendor for all reasonable costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees.  Invoices not disputed in good faith with specificity within 10 days are deemed accepted. In addition to all other remedies available under this Agreement or at law (which remedies Vendor does not waive by the exercise of any rights hereunder), Vendor shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed Fee when due hereunder and such failure continues for ten (10) days following written notice thereof.  

10. Sales Taxes.  Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Vendor’s income, revenues, gross receipts, personnel, or real or personal property or other assets.  Such taxes are not included in the Fees, unless the applicable Proposal specifically states otherwise.  If Vendor is required to pay any such taxes, Customer must reimburse Vendor upon demand.  Customer will provide valid sales tax exemption or direct-pay certificates before invoicing by Vendor; all Fees are payable net of withholding, with gross-up if law requires withholding.

11. Reimbursable Expenses.  Unless the Proposal expressly provides otherwise, the Fees do not include the costs of materials and supplies necessary or incidental to Vendor’s performance of the Services (collectively, “Reimbursable Expenses”).  Reimbursable Expenses are in addition to Fees for Services. All Reimbursable Expenses shall be billed to Customer based on the actual cost to Vendor, together with a 10% administrative handling fee.

12. Vendor’s Insurance.  Throughout the Term, Vendor, at its sole cost and expense, shall obtain and maintain the following types of insurance:  (a) worker's compensation insurance in accordance with applicable state statutory requirements; (b) employers liability insurance with limits of not less than $1,000,000 per accident and in the aggregate; (c) comprehensive general liability insurance covering liability to the public incident to Vendor’s performance of the Services with limits of $1,000,000 combined single limit per occurrence, $2,000,000 general aggregate; (d) commercial automobile liability covering all owned, leased, and non-owned vehicles used by Vendor in connection with the performance of the Services with $1,000,000 combined single limit; and (e) excess umbrella coverage with limits of at least $1,000,000 - each occurrence and aggregate limit.

13. Customer’s Insurance.  Throughout the Term, Customer, at its sole cost and expense, shall obtain and maintain a policy of comprehensive general liability insurance covering liability to the public incident to the use or resulting from any accident occurring in or about customer’s premises and facilities where the Services are being performed in amounts and with coverages as customarily obtained by owners or occupants of similar premises or facilities in the location where Customer’s premises and facilities are located; provided, however, that Customer’s insurance shall not have any contractual liability exclusions.  Customer will name Vendor as an additional insured on a primary and noncontributory basis for liability arising with respect to the use of Customer’s premises and other facilities.

14. Form of Policies; Certificates of Insurance.  All liability policies must be written on an occurrence basis.  All policies are to be written through companies duly entered and authorized to transact that class of insurance in the state in which the Services are to be performed having an A.M. Best rating of A-, VIII or better in the most recent Best's Key Rating Guide.  Upon a Party’s request, the other Party shall furnish a certificate of insurance showing that the insurance required to be obtained and maintained by such Party is in place and fully paid.  The amounts and types of insurance required by this Agreement are the minimums required by the Parties and shall not be substituted for an independent determination by each Party of the amounts and types of insurance which such Party deems to be reasonably necessary to protect itself. By requiring the insurance set forth in this Agreement, neither Party represents to the other that the insurance coverages and limits will be adequate to protect the other Party, and such coverages and limits shall not be deemed as a limitation on a Party’s liability under any provision of the Agreement.

15. Waiver of Subrogation.  Vendor and Customer each hereby waive any and all claims, losses, damages, demands, actions, expenses (including reasonable attorneys’ fees and reasonable expenses actually incurred, whether or not litigation is instituted), obligations and liabilities of any kind whatsoever (collectively, a “Claim”), which such Party has, or may claim to have, against the other Party, to the extent that the nature of such Claim is covered by any valid and collectible policy of casualty insurance in force and effect at the time when any loss or damage occurs to such Party’s property and assets.  All casualty insurance policies carried by the Parties shall have a waiver of subrogation endorsement attached thereto. 

16. Indemnification by Vendor.  Except as directly or indirectly caused by any act(s) or omission(s) of Customer and/or its parents, affiliates, and subsidiaries and/or their respective shareholders, members, directors, managers, officers, employees, agents and subcontractors (collectively, the “Customer Parties”), to the fullest extent permitted by applicable law, Vendor shall indemnify, defend, and hold harmless the Customer Parties from and against any and all claims, actions, costs, penalties, liabilities, losses, damages, and expenses, including reasonable attorneys’ fees (collectively, “Indemnified Losses”) arising out of, in connection with, resulting from, or incidental to, in whole or in part, any: (a) intentional misconduct or negligent acts of Vendor and/or its parents, affiliates, and subsidiaries and/or their respective shareholders, members, directors, managers, officers, employees, agents and subcontractors (collectively, the “Vendor Parties”) in connection with this Agreement or any Services, or (b) any material breach or default under this Agreement by Vendor; provided, however, that the foregoing indemnity obligations shall not apply to (i) Indemnified Losses arising from or relating to the gross negligence or willful misconduct of the Customer Parties, or (ii) claims waived by Customer pursuant to any required waiver of subrogation endorsement, regardless of whether Customer actually obtains such endorsement.  The provisions of this Section shall survive the Term.

17. Indemnification by Customer.  Except as directly or indirectly caused by any act(s) or omission(s) of the Vendor Parties, to the fullest extent permitted by applicable law, Customer shall indemnify, defend, and hold harmless the Vendor Parties from and against any and all Indemnified Losses arising out of, in connection with, resulting from, or incidental to, in whole or in part, any: (a) intentional misconduct or negligent acts of the Customer Parties in connection with this Agreement; (b) any material breach or default under this Agreement by Customer; or (c) the actual existence or discharge of hazardous materials on or about the premises or other facilities where Vendor performs the Services through no fault of Vendor or its employees or subcontractors; provided, however, that the foregoing indemnity obligations shall not apply to (i) Indemnified Losses arising from or relating to the gross negligence or willful misconduct of the Vendor Parties, or (ii) claims waived by Vendor pursuant to any waiver of subrogation endorsement to its insurance policy, regardless of whether Customer actually obtains such endorsement.  The provisions of this Section shall survive the Term.

18. Term.  Unless earlier terminated pursuant to the terms of this Agreement, the term of this Agreement (the “Term”) shall begin on the Effective Date and shall remain in effect for the period expressly set forth in the Proposal; provided, however, that if the Proposal does not set forth a specific term, then the Term of this Agreement shall expire at the end of the twelfth (12th) full calendar month following the Effective Date, and thereafter, will renew automatically for successive one-year terms unless either Party chooses to terminate by delivering written notice of termination to the other Party at least thirty (30) days prior to the expiration of the then existing Term.

19. Earlier Termination.  Notwithstanding anything in Section 18 to the contrary, either Party may terminate this Agreement, by delivering written notice of termination, if any one of the following events and circumstances occurs with respect to the other Party (in which case, such Party shall be the "Defaulting Party"): (a) the Defaulting Party materially breaches this Agreement and, such breach is incapable of cure or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach from the other Party; (b) the Defaulting Party becomes insolvent or admits its inability to pay its debts generally as they become due; (c) the Defaulting Party becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within forty-five (45) days after filing; (d) the Defaulting Party is dissolved or liquidated or takes any corporate or company action for such purpose; (e) the Defaulting Party makes a general assignment for the benefit of creditors; or (f) the Defaulting Party has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary in this Section 19, Vendor may terminate this Agreement for convenience before the expiration date of the Term on written notice to Customer.

20. Confidential Information.  Vendor acknowledges that it (and its employees and subcontractors) may, while providing the Services, have direct or incidental access to or otherwise discern non-public, confidential, sensitive, or proprietary information of Customer, whether disclosed, available, or accessed orally or in visual, written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”).  Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information that Vendor can prove (a) at the time of disclosure was, or thereafter became, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by Vendor; (b) at the time of disclosure was, or thereafter became, available to Vendor on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information to Vendor by a legal, fiduciary, or contractual obligation to Customer; (c) was known by or in the possession of Vendor, as established by documentary evidence, before being disclosed by or on behalf of Customer; or (d) was or is independently developed by Vendor, as established by documentary evidence, without reference to or use of, in whole or in part, any of Customer’s Confidential Information.  Vendor shall not: (i) disclose Customer's Confidential Information to any third party; provided, that Vendor may disclose Confidential Information to its subcontractors and advisors as necessary to perform the Services, subject to such subcontractors and advisors agreeing to the confidentiality provisions set forth in these T&Cs; (ii) reproduce any of Customer's Confidential Information or remove it from Customer's Premises; or (iii) use Customer's Confidential Information for any purpose.  Vendor shall be responsible for any breach of this Section 20 caused by any of its employees and subcontractors.  This Section 20 shall survive the expiration or termination of this Agreement for any reason.’

21. Representations and Warranties.  Customer represents and warrants that:  (a) it has the full power and authority necessary to enter into the Proposal and this Agreement; (b) the Proposal and this Agreement have been duly authorized by all necessary action on the part of Customer and have been duly accepted by Customer executed; and (c) the acceptance by Customer of the Proposal and this Agreement and the performance of Customer’s obligations under this Agreement will not breach or violate any other agreement to which Customer is a party.

22. ‘Independent Contractor Status.  The Parties acknowledge and agree that Vendor is an independent contractor and neither Vendor nor any of the other Vendor Parties shall be deemed an agent, employee, joint employee or servant of Customer or any other Customer Parties.  Neither Customer nor Vendor shall have any right to act on behalf of or bind the other Party for any purpose. Customer shall have no right to control the manner or means by which Vendor performs any Services for Customer. Vendor shall have the sole right, in its sole and absolute discretion, to hire, assign, fire, discipline, evaluate, supervise, manage, train, assign work, define jobs, determine job content, maintain records of hours, perform payroll functions, provide benefits and insurance, including, but not limited to, employee workers' compensation insurance and comprehensive general liability insurance, and determine all other terms and conditions of employment for all of Vendor's employees and the terms pursuant to which Vendor shall engage any subcontractors.  Vendor also shall have the obligation to pay all employment, income and social security taxes arising hereunder with respect to Vendor's employees and to require that all such taxes are paid with respect to the employees of consultants/subcontractors engaged by Vendor to perform any of the Services.

23. Non-Solicitation of Vendor Employees.  During the Term and continuing for a period of twenty-four (24) months after the expiration of the Term, Customer and its representatives will not, directly or indirectly:  (a) approach, solicit or employ any person who represents or is an employee of Vendor without explicit permission from an officer of Vendor; (b) influence any employee of Vendor to terminate his or her employment with Vendor; (c) solicit any person who is or was a client or customer of Vendor at any time during the Term for the sale of services that are similar or competitive to the Services provided by Vendor under this Agreement; or (d) influence any client or customer of Vendor to transfer such customer's patronage to any third party.  Customer acknowledges that Vendor has invested considerable time and expense in hiring and training its employees and developing its customer base and that this covenant is considered a fair and reasonable protection of Vendor.  Customer agrees that the restrictions set forth in this Section 23 are fair and reasonable under the circumstances and are reasonably required for the protection of Vendor’s legitimate business interests.  In the event of a breach or the threatened breach of this Section 23, Vendor shall be entitled to injunctive relief restraining Customer and the other Customer Parties from such breach or threatened breach and to specifically enforce the provisions of this Agreement, all without the necessity of posting bond.  Nothing in the foregoing shall be construed as prohibiting Vendor from pursuing any other remedy on account of such breach or threatened breach.

24. Limited Warranty.  Vendor warrants that it shall perform the Services: (a) using personnel of industry standard skill, experience, and qualifications; and (b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTIES SET FORTH IN THE PRECEDING SENTENCE VENDOR MAKES NO WARRANTIES WHATSOEVER. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED. VENDOR'S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE LIMITED WARRANTY SET OUT IN THIS SECTION 24 SHALL BE REPERFORMANCE OF THE AFFECTED SERVICES. Warranty claims must be made within ten (10) days of Vendor’s performance of the Services.  If Vendor cannot reperform the Services in compliance with the warranty set forth above within thirty (30) days after Customer's written notice of such breach, Customer may, at its option, terminate this Agreement by serving written notice of termination.  Vendor shall, within thirty (30) days after the effective date of such termination, refund to Customer a portion of the Fees paid previously by Customer as of the date of termination proportional to the defective Services, but not to exceed one month's Fees.

25. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 24 ABOVE, VENDOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

26. Limitation of Liability.  IN NO EVENT SHALL VENDOR BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL VENDOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR PAYABLE TO VENDOR PURSUANT TO THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS CAP APPLIES TO ALL THEORIES OF LIABILITY AND REMEDIES.

27. Consequential Damages. Notwithstanding any other provision to the contrary, and to the fullest extent permitted by law, neither Vendor nor Customer shall be liable to the other for any incidental, indirect or consequential damages arising out of or connected in any way to the Services or this Agreement; provided, however, that the foregoing waiver shall not apply (a) to a Party’s obligation to indemnify the other Party from and against any such damages recoverable by a third-party, or (b) to the extent any such damages are covered by business interruption or other insurance carried by the Party suffering such damages. Subject to the foregoing, this mutual waiver of consequential damages shall include, but not be limited to, loss of use, loss of profit, loss of business or income or any other consequential damages that either Party may have incurred from any cause of action whatsoever.

28. Environmental Hazards. Vendor shall have no responsibility for the discovery, presence, handling, removal, disposal or exposure of persons to hazardous materials of any form, including mold, on or about the premises or other facilities where Vendor performs the Servies.  Customer acknowledges that Vendor is not an abatement contractor or indoor air quality professional and that the cleaning process may cause microbial spores or dust particles to aerosolize. Vendor is not obligated to perform any work related to microbial contamination and shall not be liable for Claims of any kind, including injury to persons, resulting from mold, dust or other environmental conditions on or about the premises or other facilities where Vendor performs the Servies.  

29. Waiver. No waiver by Vendor of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Vendor. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

30. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Vendor hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 29, the other Party may thereafter terminate this Agreement upon ten (10) days’ written notice.

31. Assignment. Vendor may freely assign its rights and interests under this Agreement without Customer’s consent or approval.  Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Vendor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

32. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

33. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.  Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Colorado in each case located in the City of Denver, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

34. JURY TRIAL WAIVER.  THE PARTIES TO THE AGREEMENT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANOTHER ON ANY MATTERS WHATSOEVER ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT OR ANY ANCILLARY DOCUMENT OR AMENDMENT AND SHALL TAKE ALL APPROPRIATE STEPS TO IMPLEMENT THAT WAIVER, INCLUDING PROVIDING FURTHER WRITTEN CONSENT IN COURT.

35. Notices. All notices, requests, consents, claims, demands, waivers, and other communications required or otherwise delivered under this Agreement (each, a “Notice”) shall be in writing and addressed to the Parties at their addresses set forth in the Proposal or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email (with confirmation of transmission. e.g., read receipt or system log), or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party or such Party’s failure to accept receipt and delivery of such Notice, and (b) if the Party giving the Notice has complied with the requirements of this Section.

36. Severability. The Parties intend that each covenant, provision, term, and condition of this Agreement be severable and enforceable to the maximum extent permitted by applicable law.  If any reviewing court determines that any covenant, provision, term or condition of this Agreement is unenforceable, invalid or broader in scope than allowable under applicable law, such determination shall not affect the enforceability of any other covenant, provision, term or condition of this Agreement; further, in the event of any such determination, the Parties authorize and instruct such court to (a) reform the unenforceable, invalid or excessive covenant, provision, term or condition so as to make it enforceable under applicable law, and (b) to enforce such covenant, provision, term or condition, as reformed, in accordance with applicable law.

37. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement.

38. Entire Agreement.  This Agreement and all Exhibits referenced herein, all of which Exhibits are incorporated into this Agreement, contain the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede any previous understandings or agreements, whether written or oral, in respect of such subject matter. The language used in this Agreement shall be deemed to express the mutual intent of the Parties

39. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each Party.