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under this Agreement non-infringing,or,if alternatives(i)-(iii)are mailing by first class certified mail, postage prepaid, to the
<br /> not practicable, to refund a prorated portion of the fees paid by following address:
<br /> Customer under this Agreement and terminate this Agreement
<br /> upon written notice to Customer. The remedy set forth in this To MobileGuard:
<br /> Section 10(c)shall be the sole remedy for Customer in the event
<br /> of a claim,lawsuit or related action covered by this Section 10(c). MobileGuard Inc.
<br /> 20 Nassau St.
<br /> (d) Indemnity Process. The rights of indemnity Princeton,NJ 08542
<br /> under this Section 10 are conditioned upon the indemnified party's Attn: [ 1
<br /> provision to the indemnifying party of(i)prompt written notice of
<br /> the applicable claim, (ii) any information in the possession of To Customer:
<br /> indemnified party related to such claim,(iii)reasonable assistance
<br /> by the indemnified party at the indemnified party's cost, and(iv) To the Customer's contact address set forth on the Order
<br /> sole authority to settle or defend such claim, provided any such Form.
<br /> settlement does not admit fault on the part of the indemnified party.
<br /> (g) Integration.This Agreement(consisting of the
<br /> 11. Other Provisions. Order Form and these Terms and Conditions)constitutes the entire
<br /> agreement between the parties with respect to the subject matter
<br /> (a) No Assignment. Customer shall not assign, hereof and supersedes all prior proposals, negotiations,
<br /> delegate,or otherwise transfer in any way either this Agreement or conversations, discussions and agreements between the parties
<br /> any of Customer's rights,duties or obligations hereunder without concerning the subject matter hereof.
<br /> the prior written consent of MobileGuard. MobileGuard may
<br /> assign this Agreement in connection with the sale of any portion (h) Amendments. No amendment or modification
<br /> of its business related to the subject matter of this Agreement. This of any provision of this Agreement shall be effective unless in
<br /> Agreement will be binding upon, and inure to the benefit of,the writing and signed by both parties.
<br /> permitted assignees, transferee and successors of each of the
<br /> parties. (i) Applicable Law. This Agreement will be
<br /> interpreted, construed and enforced in all respects in accordance
<br /> (b) Force Majeure. MobileGuard shall not be with the laws of the State of North Carolina without reference to
<br /> liable for any delay or failure of performance of any portion of this its choice of law principles. Each party hereby consents to the
<br /> Agreement arising out of or resulting from any cause beyond its exclusive jurisdiction and venue of the state and federal courts
<br /> control, including, without limitation, acts of God, acts or located in Wake County,North Carolina, with regard to any suit
<br /> omissions or civil or military authorities;government regulations, or claim arising under or by reason of this Agreement. Customer
<br /> embargoes,epidemics, war, terrorist acts, riots, civil commotion will not commence or prosecute any suit or claim to enforce this
<br /> or uprising, nuclear accidents or power outages (each, a"Force Agreement, or otherwise arising under or by reason of this
<br /> Majeure Condition"). If such Force Majeure Condition results in Agreement,other than in such courts.
<br /> a delay or failure to perform that continues for more than thirty
<br /> (30)consecutive days,Customer may,without penalty,elect to(i) (j) Dispute Resolution. The parties agree to
<br /> terminate this Agreement; or(ii) suspend such affected Services engage in good faith negotiations in the event of any dispute,
<br /> until the Force Majeure Condition is resolved. controversy or claim between the parties relating to this
<br /> Agreement(a"Dispute"). If a Dispute cannot be settled through
<br /> (c) Independent Parties. Nothing contained in good faith negotiations after a reasonable amount of time, the
<br /> this Agreement shall be construed as creating a joint venture, parties agree to submit the Dispute to mediation, which
<br /> partnership, agency or employment relationship between requirement may be waived upon mutual written agreement. If the
<br /> MobileGuard and Customer. Dispute is not otherwise resolved by negotiation or mediation
<br /> within seventy-five(75)days of first written notice of the Dispute
<br /> (d) Waiver. The waiver or failure of either party provided by one party to the other,the parties may then resort to
<br /> to exercise in any respect any rights provided for in this Agreement binding arbitration with the American Arbitration Association(the
<br /> shall not be deemed a waiver of any further right under this "AAA") in accordance with the AAA's Commercial Arbitration
<br /> Agreement. Rules then in effect. If a party submits a demand for arbitration,
<br /> the parties agree that arbitration will be the exclusive forum for
<br /> (e) Severability. If any term or provision of this adjudication of the Dispute,provided such demand precedes the
<br /> Agreement should be declared invalid by a court of competent filing of a complaint in any court of competent jurisdiction. The
<br /> jurisdiction or by operation of law, the remaining terms and cost of arbitration (including the fees and expenses of the
<br /> provisions of this Agreement shall be unimpaired,and the invalid arbitrator(s)) will be shared equally by the parties; provided,
<br /> term or provisions shall be replaced by such valid term or however, that each party will pay its own attorney's fees. The
<br /> provisions as comes closest to the intention underlying the invalid arbitrator(s)will have the authority to apportion liability between
<br /> term or provision. the parties,but will not have the authority to award any damages
<br /> or remedies not available under,or in excess of,the express terms
<br /> (f) Notice. Any notice or other communications of this Agreement. The award may be confirmed and enforced in
<br /> required or permitted in this Agreement shall be in writing and any court of competent jurisdiction. With regard to any action for
<br /> shall be deemed to have been duly given three (3) days after breach of confidentiality or intellectual property obligations,
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