Syteca End User License Agreement

This Syteca End User License Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement“), is a binding agreement between Syteca Inc. with principal offices at 60 Kendrick St. Suite 201, Needham, MA 02494, USA (the “Licensor“) and the legal entity accepting this Agreement as the licensee of the Software (the “Licensee“).

THE LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT THE LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “I AGREE” OR “ACCEPT” BUTTON AND/OR EXECUTING THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT THE LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT THE LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, AND YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LICENSEE AND BIND THE LICENSEE TO ITS TERMS. IF THE LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO THE LICENSEE AND YOU MUST NOT DOWNLOAD AND/OR INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR THE LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT THE LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE LICENSOR’S SOFTWARE.

1. Definitions

For the purposes of this Agreement, the following terms have the following meanings:

“Authorized Users” means solely those individuals authorized to use the Software pursuant to the licenses granted under this Agreement by the Licensor.

“Documentation” means the Licensor’s user manuals, handbooks, and installation guides relating to the Software made available by the Licensor to the Licensee electronically.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Fees” means the fees, including all taxes thereon, paid or required to be paid by the Licensee for the license granted under this Agreement.

“Order Form” means the ordering document executed between the Licensee and the Licensor (or the Licensor’s distributor), for the Licensee’s purchase of the license for the Software.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Software” means the Syteca software product in object code format, including any Updates provided to the Licensee pursuant to this Agreement.

“Third Party” means any Person other than the Licensee or the Licensor.

“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that the Licensor generally makes available to licensees of the Software.

2. License Grant and Scope

Subject to, and conditioned upon, the Licensee’s payment of the Fees and the Licensee’s compliance with all the terms and conditions set forth in this Agreement, the Licensor hereby grants the Licensee a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16 (e)), license, during the Term and solely by and through its Authorized Users, to:

a. Download, copy, and install in accordance with the Documentation one (1) copy of the Software on each of the licensed number of computers owned or leased, and controlled by, the Licensee. In addition to the foregoing, the Licensee has the right to make a reasonable number of copies of the Software solely for backup purposes, provided that the Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that the Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Licensee:

1. will be the exclusive property of the Licensor;
2. will be subject to the terms and conditions of this Agreement; and
3. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

b. Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for the Licensee’s internal business purposes.

c. Download and use the Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by the Licensee:

1. will be the exclusive property of the Licensor;
2. will be subject to the terms and conditions of this Agreement; and
3. must include all Intellectual Property Rights notices contained in the original.

d. Transfer any copy of the Software from one computer to another, provided that:

1. the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2 (a).

3. Third-Party Materials

The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than the Licensor and that are provided to the Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses“). In such cases, the applicable Third-Party Licenses are provided with the Software. The Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by the Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

4. Use Restrictions

The Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

a. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

b. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of the Licensee, with access to or use of the Software or Documentation unless authorized by the Licensor in writing;

c. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

d. except as may be specifically provided for in the Documentation, combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

e. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

f. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

g. except as expressly set forth in Section 2 (a) and Section 2 (c), copy the Software or Documentation, in whole or in part;

h. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

i. use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:

1. will be the exclusive property of the Lipower generation systems;
2. aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
3. safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
4. military or aerospace applications, weapons systems, or environments;

j. use the Software or Documentation in violation of any law, regulation, or rule; or

k. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.

5. Responsibility for Use of the Software

The Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by the Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, the Licensee is responsible and liable for all actions and failures to take the required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom the Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement. The Licensee undertakes full responsibility for notifying its employees, subcontractors, and other parties, who may be affected by the Licensee’s usage of the Software, about these restrictions on usage and possible consequences.

The Licensee shall defend the Licensor and its affiliates, and each of its and their respective officers, directors, employees, successors, and assignees (each, an “Indemnitee”) against and indemnify and hold harmless each Indemnitee against any damages, liabilities, assessments, losses, costs, and other expenses (including reasonable attorneys’ fees and legal expenses) incurred by that Indemnite as a result of any allegation, suit or claim that directly or indirectly arises out of or relates to any of the following (individually, a “Claim”, and collectively, “Claims”):

a. all uses of the Software and Documentation through access thereto provided by the Licensee, directly or indirectly;

b. all actions and failures to take the required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom the Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement;

c. compliance with applicable laws when using the Software and Documentation.

The Licensor shall give the Licensee reasonable notice of each Claim for which it seeks indemnity, except that failure to provide such notice will not release the Licensee from any obligations hereunder except to the extent that the Licensee is materially prejudiced by such failure. The Licensor will also provide the Licensee with reasonable cooperation in the defense of each Claim, at the Licensee’s expense. The Licensee may not use any counsel that would have a conflict of interest in representing the Licensor’s interests to defend any Claim. An Indemnitee may participate in the defense of a Claim at its own expense. The Licensee will not settle any Claim without the relevant Indemnitees’ prior written consent, which may not be unreasonably withheld. You shall ensure that any settlement the Licensee makes of any Claim is made confidential, except where not permitted by applicable law. The Licensee’s duty to defend is independent of the Licensee’s duty to indemnify.

6. Compliance Measures and Evaluation Versions

a. Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. The Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.

b. Evaluation Versions. If the Licensor grants the Licensee a license for the Software on a trial, evaluation, beta, pre-release, pre-commercial, not-for-resale or other free-of-charge basis (an “Evaluation Version”), the Licensee may only use the Evaluation Version for demonstration, verification, testing and similar purposes and only for a limited period as further defined in a Software protection key or otherwise specified by the Licensor in writing. The Licensor, in its discretion, may stop providing the Evaluation Version at any time, at which point the Licensee must immediately cease using the Software. The Licensee shall not put the Evaluation Version into production use. The Licensor provides the Evaluation Version “AS IS” without support and/or any express or implied warranty or indemnity for any problems or issues, and the Licensor shall not have any liability related to the Licensee’s use of the Evaluation Version.

7. Maintenance and Support

a. Subject to Section 7 (c), the license granted hereunder may entitle the Licensee to the software maintenance and support services described from time to time on the Licensor’s website located at https://syteca.com/.

b. Maintenance and support services will include provision of Updates. The Licensor may develop and provide Updates in its sole discretion, and the Licensee agrees that the Licensor has no obligation to develop any Updates at all or for particular issues. The Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all the terms and conditions of this Agreement. The Licensee acknowledges that the Licensor may provide some or all Updates via download from a website designated by the Licensor and that the Licensee’s receipt thereof will require an internet connection, where the connection is the Licensee’s sole responsibility. The Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any separate or new product, and the Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

c. The Licensor has no obligation to provide maintenance and support services, including Updates:

1. for any but the most current version or release of the Software;
2. for any copy of the Software for which all previously issued Updates have not been installed;

3. if the Licensee is in breach under this Agreement; or

4. for any Software that has been modified other than by or with the written authorization of the Licensor, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by the Licensor in writing.

8. Collection and Use of Information

a. The Licensee acknowledges that the Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:

1. the provision of maintenance and support services.

b. The Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by the Licensee or on the Licensee’s equipment, including but not limited to:

1. improving the performance of the Software or developing Updates; and
2. verifying the Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

9. Intellectual Property Rights

The Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to the Licensee. The Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. The Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. The Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. The Licensee shall promptly notify the Licensor if the Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with the Licensor in any legal action taken by the Licensor to enforce its Intellectual Property Rights.

10. Payment

All Fees are payable in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth therein.

11. Term and Termination

All Fees are payable in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth therein.

a. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term“).

b. The Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.

c. The Licensor may terminate this Agreement, effective upon written notice to the Licensee, if the Licensee breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fourteen (14) days after the Licensor provides written notice thereof.

d. The Licensor may terminate this Agreement, effective immediately, if the Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

e. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and the Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect the Licensee’s obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination, or entitle the Licensee to any refund, in each case except as set forth in Section 12.1 (c) (ii).

12. Warranty Disclaimer

All Fees are payable in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth therein.

a. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO THE LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

13. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

a. IN NO EVENT WILL THE LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

b. IN NO EVENT WILL THE LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR (i) THE SOFTWARE OR (ii) UP TO TWELVE (12) MONTHS OF THE SUPPORT AND MAINTENANCE SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM.

c. THE LIMITATIONS SET FORTH IN SECTION 13 (a) AND SECTION 13 (b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

14. Export Regulation

The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

15. US Government Rights

Each of the Documentation and the Software is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if the Licensee is an agency of the US Government or any contractor therefor, the Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.

16. Miscellaneous

Each of the Documentation and the Software is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software”

a. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. The place of arbitration shall be New York, NY, US. The language to be used in the arbitral proceedings shall be English. No award or procedural order made in the arbitration shall be published. The foregoing shall be without prejudice to the right of the Licensor to seek injunctive relief or other non-monetary relief before any court in any place where any unauthorised use of its intellectual property rights, confidential information or trade secrets occurs or threatens to occur.

b. In no event shall the Licensor be liable to the Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond the Licensor’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.

c. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses last notified in writing.

d. This Agreement, together with all documents that are incorporated by reference herein, constitutes the sole and entire agreement between the Licensee and the Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

e. The Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the Licensor’s prior written consent, which consent the Licensor may give or withhold in its sole discretion. For the purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving the Licensee (regardless of whether the Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which the Licensor’s prior written consent is required. No delegation or other transfer will relieve the Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16 (e) is void. The Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without the Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

f. 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 on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

g. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

h. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

i. For the purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

j. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.