Master Services Agreement

1. Key Definitions

“Company” means SNF Metrics, LLC. “Content” means materials provided or posted by Company in connection with the Subscription Services, including data, text, images, graphics, reports, analytics and visualizations and modifications, enhancements, or new versions thereof. “Customer” means the business entity set forth on the Purchase Schedule receiving the Subscription Services. “Data Connection” means an electronic address designated by Company used primarily by other software to receive Content. “Professional Services” means consulting, implementation, training, engineering, coding, or other professional services to be performed by the Company described in the attached Implementation Level document, or in one or more additional Purchase Schedules mutually agreed to by the parties in writing. “Purchase Schedule” means the document(s), regardless of actual name, executed by the parties from time to time, which incorporates by reference the terms of this Agreement and describes order-specific information such as description of Subscription Services and/or Professional Services ordered, Subscription Methods, fees, and other business terms. “Software” means Company’s proprietary business intelligence system and other software access provided in connection with Subscription Services, including the Documentation, modifications, enhancements, and new versions thereof. “Subscription Services” means collectively the Software and any Content accessed through the Site or Data Connection. “Site” means the web interface at a URL designated by Company. “Users” means those persons who (a) have been authorized by Customer to access and use the Subscription Services; (b) have complied with any registration requirements reasonably required by Company and have been issued a personal and unique User ID and Password to access and use the Subscription Services. Only current employees and independent contractors of Customer are eligible to be “Users”.

2. Use Rights

2.1 Grant of Use

Subject to the terms of the Agreement, Company grants to Customer the right to access and use the Software and, if purchased, all Content described in the Purchase Schedule, solely for its internal business purposes. Each User shall use Content for company business purposes only.

2.2 Authorized Users

Customer shall provide Company with the names of the authorized users who may access the Subscription Services and the Company and/or the Customer shall create an account for each user in accordance with the Company’s policies and only such users may access the Subscription Services.

2.3 Acceptable Use

Customer and all Users shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees and shall ensure that Users agree not to interfere or disrupt networks connected to the Subscription Services, not to interfere with another entity’s use of similar services and to comply with all regulations, policies and procedures of networks connected to the Subscription Services. Company may suspend or terminate any User’s access to the Subscription Services in the event that Company reasonably determines that such User has violated the terms and conditions of this Agreement.

2.4 Restrictions

Customer shall not itself, or through any affiliate, employee, contractor, agent or other third party (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Subscription Services, the Site, Data Connection or access thereto; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Software, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Site, Data Connection or the Content to any User other than those who have authorization to access; (iv) write or develop any derivative works based upon the Software; or modify, adapt, translate or otherwise make any changes to the Software or any part thereof; (vi) use the Subscription Services to provide processing services to third parties, or otherwise use the same on a “service bureau” basis; or (vii) disclose or publish, without Company’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Subscription Services.

3. Subscription Services

3.1 Environment

The Subscription Services will be hosted on a server that is maintained by Company or its designated third party. User access to the Subscription Services is provided through the Site or Data Connection. Customer is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access the Site or Data Connection, including but not limited to Internet access and telecommunications infrastructure network with adequate bandwidth.

3.2 Availability

Company shall use commercially reasonable efforts to make the Subscription Services available 24×7, except for scheduled downtime events, emergency downtime events, or Internet service provider failures or delays. Company will use commercially reasonable efforts to provide prior notice for scheduled downtime events and to perform scheduled downtime events outside of normal business hours. Customer acknowledges that the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications and Company is not responsible for any delays, delivery failures, or other damage resulting from such problems. Although Company will make a commercially reasonable effort to maintain access to the Subscription Services in accordance with this Paragraph, Customer acknowledges that Company does not guaranty such maintenance and Customer accepts the risk that the Subscription Services may not be available at all times.

3.3 Content

Content purchased, if any, shall be provided by Company in the Software. Customer is responsible for selecting which Content will be available to authorized Users. Company continuously reviews and updates Content based on an ongoing needs analysis. Company reserves the right to add, revise, or withdraw from its Content any item or part of an item in its sole discretion.

3.4 Administrator

Customer shall designate a primary contact or contacts who shall function as the liaison to Company and who shall be trained by Company so that the administrator shall be able to train and support Users on the use of the Subscription Services (“Administrator”). The Administrator shall be the primary interface with Company on all issues related to the Subscription Services.

3.5 Passwords

Customer is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized User. Customer is entirely responsible for any and all activities that occur under its account. Customer shall immediately notify Company of any unauthorized use or any other breach of security known to Customer. Company shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.

3.6 Customer Data

Customer shall be solely responsible for the accuracy, quality, integrity and legality of data uploaded in or entered into the Software by Customer. Customer authorizes Company and the data center to serve as the host and repository for the data Customer enters into the Software. All data provided by the Customer to the Company shall belong to the Company and Company may make any use of such data for any reason provided that Company may only disclose to third parties general statistical information regarding facilities generally on a cumulative basis but not any information about any specific facility or resident.

3.7 Changes

Company reserves the right to add and/or substitute functionally equivalent products in the event of product unavailability, end-of-life, or changes to software requirements. Company regularly updates the Subscription Services, meaning that such Subscription Services are continually evolving. Some of these changes will occur automatically, while others may require Customer to schedule and implement the changes. Customer agrees to install any application or program required by the Company for continued use of the Subscription Services.

4. Professional Services

4.1 Statements of Work; Change Orders

Company will perform Professional Services according to the Purchase Schedule as the parties may agree to in writing from time to time. Either party may propose a change order to add to, reduce, or change the Professional Services ordered. Each change order shall specify the change(s) to the Professional Services, the time to perform the Professional Services, and the fees owed to Company, due to the change. Once executed by both parties, a change order shall become a part of the Purchase Schedules.

4.2 Cooperation

Customer shall provide Company with good-faith cooperation and access to such information, facilities, personnel and equipment as Company may reasonably require in order to provide the Professional Services. Customer acknowledges that Company’s performance is dependent upon the timely and effective completion of Customer’s responsibilities hereunder and Customer’s timely decisions and approvals in connection with the Professional Services. Company shall be entitled to rely on all such decisions and approvals.

5. Financial Terms

5.1 Fees and Payment Terms; Taxes

Fees and payment terms are specified in the applicable Purchase Schedule. All payments made hereunder shall be in US Dollars. Company may, after the first twelve (12) months of the initial term, and not more than once in a twelve (12) month period, modify the fees for Subscription Services upon sixty (60) days written notice. Unless otherwise specified in the Purchase Schedule, payment of all fees is due thirty (30) days after the invoice date. Interest accrues on past due balances at the rate specified in the applicable Purchase Schedule, or if no rate is specified, the highest rate allowed by law. Failure to make timely payments shall be a material breach of the Agreement and Company will be entitled to suspend any or all services hereunder upon 10 days written notice to Customer and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Company. Unless expressly provided otherwise, prices do not include taxes. Customer agrees to pay any federal, state or local sales, use, personal property, excise taxes or other taxes arising out of this Agreement.

5.2 Subscription Methods

Customer understands and agrees that (i) all fees are based on the Subscription Services purchased and set forth in the Purchase Schedule and that (ii) unless expressly stated otherwise in the Purchase Schedule, the quantity(ies) of Subscription Services provided in the initial Purchase Schedule represent minimum amounts that Customer has committed to for the Subscription Service Term (as defined in Section 10.2). Any additional Subscription Services requested by the Customer, if any, shall be prorated for the remainder of the then-current Subscription Services Term of the applicable Purchase Schedule. There shall be no fee adjustments or refunds for any decreases in usage during Subscription Services Term, provided, that Customer may terminate the Purchase Schedule related to any specific facility upon thirty (30) days written notice, in the event that the Customer sells the Facility to an unrelated third party in a bona fide sale.

5.3 Professional Services

Additional Professional Services may be provided on a time and materials (“T&M”) basis at the Company T&M rates in effect at the time the Professional Services are performed or on a fixed fee basis, as indicated in a duly executed Purchase Schedule. On a T&M engagement, if an estimated total amount is stated in the Purchase Schedule, that amount is solely a good-faith estimate for Customer’s budgeting and Company’s resource scheduling purposes and not a guarantee that the work will be completed for that amount. On a fixed fee engagement, Professional Services purchased must be used within, and prices quoted are valid for, the time period specified in the Purchase Schedule. Hours that are not used or have expired are non-refundable.

5.4 No Contingencies

Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Company regarding future functionality or features.

6. Confidentiality

6.1 Confidential Information

Each party hereby agrees that it will not use or disclose any Confidential Information received from the other party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the other party. “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary” or which should be reasonably understood by each party to be confidential or proprietary, including, but not limited to, the terms and conditions (but not the existence) of this Agreement, all trade secrets, Intellectual Property as well as results of testing and benchmarking of the Subscription Services. Each party will protect the other party’s Confidential Information from unauthorized dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Company may use, for purposes outside of this Agreement, anonymous, de-identified data; however, Company agrees not to use or disclose this information to the extent prohibited by applicable law. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was lawfully in the receiving party’s possession before receipt from the disclosing party without a duty of confidentiality; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one party without reference to any Confidential Information of the other. Confidential Information shall also include the terms and conditions of this Agreement including but not limited to any pricing, discounts or modified terms of this Agreement and which may not be shared or disclosed to any other party absent the written consent of the Company.

6.2 Compelled Disclosure

The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.

6.3 Intellectual Property

For purposes of this Agreement, “Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patent rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, User interfaces and screen designs, general purpose consulting and software tools, utilities and routines, logic, coherence and methods of operation of systems, training methodology and materials, which Company has created, acquired or otherwise has rights in, and may, in connection with the performance of Subscription Services or Professional Services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.

7. Ownership

7.1

All rights not expressly granted in this Agreement are reserved by Company and its licensors.

7.2 Subscription Services

Company and its licensors shall retain sole and exclusive ownership of, and all rights, title, and interest in, Subscription Services and the Site and Data Connection, including without limitation (a) Intellectual Property embodied or associated therein, and (b) all derivative works and copies thereof.

7.3 Professional Services

Company shall retain all rights, title and interest in and to any and all Intellectual Property used or in any manner employed by Company in the provision of Professional Services.

7.4 Enforcement

Customer shall (i) ensure that all Users of Subscription Services comply with the terms and conditions of this Agreement, (ii) promptly notify Company of any actual or suspected violation thereof and (iii) cooperate with Company with respect to investigation and enforcement of the Agreement. Customer shall be solely responsible for all acts and omissions of its Users in connection with their access and use of the Subscription Services.

8. Warranties, Disclaimers and Limitation of Liability

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

8.1 Software

Company warrants that the Software will operate in all material respects in conformity with the functional specifications described in the Documentation subject to the provisions of Section 3.2. “Documentation” means the Software User instructions, release notes and on-line help files in the form generally made available by Company to its customers, as updated from time to time by Company. If the Software does not perform as warranted and there is a material failure of the Software to conform to its functional specifications described in the Documentation that is reported by the Customer to, and replicable by, Company and Company does not comply with its obligations set forth in Section 3.2 (“Errors”), Company shall use commercially reasonable efforts to correct Errors as set forth in Section 3.2. As Customer’s exclusive remedy for any claim under this warranty, Customer shall promptly notify Company in writing of its claim. Provided that such claim is determined by Company to be Company’s responsibility and Company does not comply with its obligations and representations set forth in Section 3.2, Company shall, within thirty (30) days of its receipt of Customer’s written notice, (i) correct such Error; (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Company, then Company or Customer may terminate the affected Subscription Services, and Customer will be entitled to a refund of the pre-paid portion of the fees paid for the affected Subscription Services. The preceding warranty cure shall constitute Company’s entire liability and Customer’s exclusive remedy for cure of the warranty set forth herein subject to Section 3.2. If Customer elects not to terminate the Subscription Services within thirty (30) days of Company’s failure to comply with its obligations and warranties set forth in these Terms and Conditions, Customer waives all rights for the applicable warranty cure set forth herein. Company is not responsible for any claimed breach of any warranty set forth in this section caused by: (i) modifications made to the Software by anyone other than Company; (ii) Company’s adherence to Customer’s specifications or instructions; (iii) Errors caused by or related to Internet connections; (iv) Customer deviating from the Software operating procedures described in the Documentation; (v) discrepancies that do not significantly impair or affect the operation of the Subscription Service; or (vi) any systems or programs not supplied by Company.

8.2 Professional Services

Company warrants that the Professional Services will be performed in a workmanlike manner. As Customer’s exclusive remedy for any claim under this warranty, Customer shall notify Company in writing of its claim within thirty (30) days of Company’s completion of the applicable services and, provided that such claim is determined by Company to be Company’s responsibility, Company shall re-perform the applicable service. Company’s entire liability and Customer’s exclusive remedy for any breach of the warranty set forth in this section shall be the re-performance of the applicable service. If Customer fails to raise any issue with the Professional Services provided within thirty (30) days of delivery, Customer shall be deemed to have accepted the Professional Services and acknowledges that the Professional Services were adequately performed by the Company.

8.3 Disclaimers

Except as expressly stated in this Section 8, all Subscription Services and Professional Services are provided on an “as is, as available” basis. Company, its licensors, data center and suppliers expressly disclaim to the maximum extent permitted by law, all warranties, expressed or implied, oral or written, including, without limitation, (i) any warranty that any software, database, content, deliverables or Professional Services are error-free, accurate or reliable or will operate without interruption or that all errors will be corrected or will comply with any law, rule or regulation, (ii) any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement and (iii) any and all implied warranties arising from statute, course of dealing, course of performance or usage of trade. No advice, statement or information given by Company, its affiliates, contractors or employees shall create or change any warranty provided herein. Customer expressly acknowledges and agrees that the Content is not designed or intended to meet any or all of its operational functions that is required to operate a nursing home or other business or that is required under applicable laws. Customer assumes all responsibility for the selection of the services provided hereunder to achieve its intended results. Customer shall be solely responsible for ensuring the accuracy of all modified Content and proprietary Content and shall be solely liable for all use of modified Content and proprietary Content by its Users.

8.4 Customer Acknowledges

That use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent security precautions and illegally gain access to the Services and its data. Accordingly, Company cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet. Customer hereby waives any claim against Company for any breach of the privacy, security or authenticity of any information provided to the Company or any loss of any data.

8.5 Limitation of Liability

Customer assumes sole responsibility and liability for any Users’ compliance with the terms and conditions of this Agreement. Customer further assumes sole responsibility and liability for results obtained from the use of the Subscription Services, Professional Services, and for conclusions drawn from such use. Customer acknowledges and agrees that the Subscription Services are not intended to provide medical advice, opinions, diagnosis, or a suggested course of treatment. Customer further agrees that the sole and exclusive responsibility for any medical decisions or actions with respect to a patient’s medical care and for determining the accuracy, completeness or appropriateness of any diagnostic, clinical or medical information resides solely with the healthcare provider. Customer accepts all liability for such diagnosis or treatment. Company shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any of Users’ use of the Subscription Services, Professional Services, Software or web sites that are accessed via links from within the Subscription Services.

To the fullest extent permitted by law, Company’s total liability (including attorneys’ fees awarded under this Agreement) to Customer and Users for any claim by Customer or any third parties under this Agreement, will be limited to the fees paid for such items that are the subject matter of the claim for the prior six (6) months. In no event will Company, its licensors and suppliers be liable to Customer or Users or other third parties for any indirect, special, incidental, exemplary, punitive, treble or consequential damages (including, without limitation, loss of business, revenue, profits, staff time, goodwill, use, data, or other economic advantage), whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, whether or not previously advised of the possibility of such damages. No claim arising out of the Agreement, regardless of form, may be brought more than the shorter of one year or the period allowed by law after the cause of action has occurred.

8.6

This Section 8 shall survive failure of any exclusive remedy.

9. Indemnification

9.1

Customer shall indemnify and hold Company, its affiliates, suppliers, data center, employees and officers (an “Indemnified Party”) harmless from and against all liability, claims, damages, fines, losses, expenses (including reasonable attorney’s fees and court costs, and the cost of enforcing this indemnity) suffered or incurred by Company or any Indemnified Party arising out of, or in connection with (a) any Subscription Services User or other third party claim, (b) any material breach by Customer or any User of any of the terms of this Agreement; or (c) any use or reliance by Customer or any User of any Content, including all third-party claims, causes of action, suits, and legal proceedings asserted against Company or an Indemnified Party arising out of, or relating to, the use of or reliance by Customer or any User on any Content.

9.2

Company shall indemnify and hold the Customer, its affiliates, employees, and officers (a “Customer Indemnified Party”) harmless from and against all liability, claims, damages, fines, losses, expenses (including reasonable attorney’s fees and court costs, and the cost of enforcing this indemnity) suffered or incurred by the other party or any Customer Indemnified Party arising out of, or in connection with (a) any Subscription Services User or other third party claim, (b) any material breach by the other party or any User of any of the terms of this Agreement; or (c) any use or reliance by the other party or any User of any Content, including all third-party claims, causes of action, suits, and legal proceedings asserted against each other or a Customer Indemnified Party arising out of, or relating to, the use of or reliance by Customer or any User on any Content.

10. Term and Termination

10.1 Agreement Term

The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Purchase Schedules and attachments, unless otherwise terminated earlier as provided hereunder.

10.2 Subscription Services Term

The initial term of Subscription Services commences on the Agreement Date and continues for the Contract Term, each as set forth in the applicable Purchase Schedule. Following the end of the initial term, Subscription Services shall automatically renew for the Renewal Term set forth in the applicable Purchase Schedule, unless either party gives written notice no more than one hundred twenty (120) days and not less than the number of days specified in the applicable Purchase Schedule as the Renewal Notice Days, prior to the end of the initial term, or any renewal term, of its intention to terminate any of the Subscription Services. The pricing for the first twelve (12) months of any renewal term shall be provided by Company in writing no less than sixty (60) days prior to the end of the initial term or any renewal term. The initial term and renewal term(s) are collectively referred to as the “Subscription Services Term”.

10.3 Termination

Either party may terminate the Agreement including all Purchase Schedules executed thereunder immediately upon written notice (i) in the event that the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach, except for breach of Section 5.1 which shall have no cure period; or (ii) in the event of institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against the other party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by either party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of either party not involving the United States Bankruptcy Code.

10.4 Partial Termination; Effect of Termination; Survival

Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Purchase Schedules. Purchase Schedules that are not terminated shall continue in full force and effect under the terms of this Agreement. Company has no obligation to retain Customer data after three months of the expiration or termination of Subscription Services but shall have no obligation to destroy Customer’s data. Termination for any reason shall not excuse Customer’s obligation to pay in full any and all amounts due, including for any Professional Services, nor shall termination result in a refund of fees paid, except as expressly provided otherwise in this Agreement. Except as may be expressly set forth in the applicable Purchase Schedules, Customer shall pay Company’s fees for services performed to the date of termination on a T&M basis together with any expenses reasonably incurred in connection therewith. The following provisions will survive any termination or expiration of the Agreement or Purchase Schedules: Sections 1, 5, 6, 8, 9, 10 and 11.

11. General Provisions

11.1 Suspension

Company will be entitled to suspend any or all Subscription Services and Professional Services upon ten (10) days written notice to Customer in the event Customer is in breach of this Agreement. Company may impose an additional charge to reinstate service following such suspension.

11.2 Force Majeure

Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this subsection, such as without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

11.3 Subcontractors

Company may subcontract or delegate Subscription and/or Professional Services to any third party without Customer’s prior written consent.

11.4 Assignment

Company may assign this Agreement and any or all of its rights and obligations herein without Customer’s approval. Customer may not assign or transfer this Agreement without Company’s prior written consent.

11.5 Non-solicitation

During the term of this Agreement and for a period of two (2) years following its termination, Customer will not solicit for employment nor hire, directly or through other parties or for any affiliate, without the Company’s written permission, any individual employed by the Company regardless of whether or not such employee was solicited by the Customer.

11.6 Compliance

Company reserves the right to utilize data stored by Customer in the Software to verify compliance with the terms of this Agreement. Company may monitor the usage, performance and operation of the Subscription Services using electronic, remote and other means and without notice to Customer.

11.7 Notices

Any notice required or permitted to be sent under this Agreement (except for invoices and notices related to payment of fees and price increases) shall be delivered by email, by overnight, or by registered mail, return receipt requested, to the address of the parties first set forth in the Agreement Signature Page or to such other address of the parties designated in writing in accordance with this subsection.

11.8 Relationship

This Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

11.9 Invalidity

If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Furthermore, in the event that any Court finds any provision herein to be invalid, such Court shall have the right to modify such provision to best implement the intention of such provision.

11.10 No Waiver

No waiver or failure by either party to exercise any option, right or privilege under the terms of this Agreement on any occasion or occasions will be construed to be a waiver of the same on any other occasion or of any other option, right or privilege. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such party’s right to take subsequent action.

11.11 Entire Agreement

This Agreement, including Purchase Schedules and other attachments incorporated by reference, constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, proposals, conditions, representations, warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each party. All pre-printed or standard terms of any of Customer’s purchase order or other business processing document shall have no effect.

11.12 No Third Party Beneficiaries

This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party.

11.13 Governing Law and Venue

The Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to its principles of conflict of laws. Any dispute arising from or relating to the Agreement shall be litigated in the state or federal courts located in Ocean County, New Jersey, to whose exclusive jurisdiction the parties hereby consent.

11.14 Headings and Drafting

The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a party based on the author of the document.

11.15 Counterparts

The Agreement may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Agreement, and the parties agree that facsimile and/or pdf scanned copies of signatures shall be as effective and binding as original signatures.

11.16 Notice of U.S. Government Restricted Rights

If the Customer hereunder is the U.S. Government, or if the Software is acquired hereunder on behalf of the U.S. Government with U.S. Government federal funding, notice is hereby given that the Software is commercial computer software and documentation developed exclusively at private expense and are furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS. Software delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software by or on behalf of the U.S. Government shall be subject to this Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software – Restricted Rights (June 1987).”

11.17 Entire Understanding; Additional Facilities

This Agreement, together with any associated Exhibits that specifically reference this Agreement, constitutes the complete agreement between the parties hereto and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. The parties agree and acknowledge that additional facilities may be added to this Agreement by way of updating the Exhibit with the name and address of such facility, and the Agreement shall be extended for a term of 12 months from the date the newest facility is added, whereupon the termination date of the Agreement with respect to all facilities shall be co-terminus.