​ ​ ​ ​ ​

SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS


Section 1

GRANT OF RIGHTS


1.1. Grant. Subject to the terms and conditions of this Agreement, including but not limited to, Company’s payment of the Service Fees pursuant to Section 7, during the Term of this Agreement, Company shall have the nonexclusive, non-assignable, royalty free, worldwide limited right for authorized and registered Company employees, agents, representatives, contractors to use the Services (defined below) solely for its internal business purposes. 


1.2. Limitations and Reservations.  Company shall not use the Services or any Application (defined below) component in excess of the scope and/or duration of this Agreement. Company acknowledges and agrees that the Application is and shall remain the sole and exclusive property of Attenteo and nothing contained in this Agreement is to be construed as a grant of or as an intention or commitment to grant to Company any right, title or interest of any nature whatsoever, in or to the Services or any software, except for the rights expressly granted hereby. All rights not expressly granted herein are reserved by Attenteo.


1.3. Restrictions on Use. Company agrees that it will not use or permit the Services to be used in any manner other than in the configuration and format made available by Attenteo or for any purpose other than in direct furtherance of Company’s business.  Company may not electronically transfer the Services or any component of the Application, offer the Services in a time-sharing or service bureau operation or provide or allow to be provided any user names, account information or other access to the Services to any person or entity not authorized and registered by Attenteo. Company may not, under any circumstances, translate, transfer, modify, adapt, disassemble, decompile or reverse engineer the any part of the Application or create derivative works based on the Application or any part thereof.


1.4. Third Party Software.  Company agrees and acknowledges that use of the Services requires the use of certain software developed and marketed by third parties (the “Third Party Software”), including, without limitation, computer and mobile device operating systems and web browsers, which the Company must separately license at its own expense from the licensor thereof. For purposes of this Agreement, the term “Application” does not include any Third Party Software.  Company shall be responsible for obtaining and installing on Company’s computers and mobile devices standard, recent versions of all Third Party Software required for the successful utilization of the Services.


Section 2

SERVICES


2.1.  SaaS. The software as a service provided under this Agreement consists of system administration and  system management that Attenteo performs in relation to the Application components and includes the right to use the Application, support services for the Application, as well as any other services and documentation provided by Attenteo related to the Application (collectively, the “Services”) and as otherwise may be provided by Attenteo as set forth on the Order Form.


2.2. Access. Authorized Company personnel (“Authorized Users”) shall create a user account for their sole and exclusive use by providing Attenteo with the information reasonably required to establish such user accounts.   The company will then provide each Authorized User with access to the Services.  Company shall promptly remove an individual’s access to Attenteo anytime such personnel ceases to be an Authorized User or leaves the Company and Attenteo shall terminate such formerly-authorized user’s access to the Services promptly upon notification by the Company.


2.3 Resources and Remote Services. Attenteo shall not be responsible for any travel or on-site services, computer equipment, telecommunications or other expenses required for Company or users to use or access Application. Attenteo will provide Email support if authorized by Company, pursuant to the terms hereof.  Maintenance services, updates and New Releases may be implemented and automatically delivered via the hosted Application.



Section 3

TERM AND TERMINATION


3.1. Term. This Agreement shall remain in force for an initial term commencing as of the Effective Date and

continuing through (the “Initial

Term”) and shall thereafter automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either party notifies the other party of its intent not to enter into a Renewal Term no less than sixty (60) days prior to the commencement of such Renewal Term or unless sooner terminated as set forth in Section 3.2.


3.2. Termination for Cause. Either party may terminate this Agreement for cause at any time after providing advance written notice of its intent to terminate, including the details of any alleged breach and actions necessary to cure, as follows:


​3.2.1. In the event that the other party fails to discharge any material obligation or to remedy any default​under this Agreement for a period continuing more than thirty (30) days after the aggrieved party shall have given said other party written notice specifying such failure or default and such failure or default continues to exist as of the date upon which the aggrieved party gives such notice so terminating this

​Agreement;

​

​3.2.2. In the event that the other party makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium, or otherwise ceases operations which assignment, permission, appointment or proceeding continues, or is not dismissed, withdrawn or revoked for a period of sixty (60) days after the aggrieved party shall have given said other party written notice identifying such condition.


3.3. Termination of Services. Upon the expiration or termination of this Agreement for any reason, all rights granted hereunder shall terminate and upon such expiration or termination, and Attenteo shall cease provision of, and Company shall promptly cease use of, the Services, the Application and all other documentation, property, materials and other items of Attenteo. 


Section 4

ADDITIONAL OBLIGATIONS AND RIGHTS OF THE PARTIES


4.1 Consulting Services.  Upon the request of Company, Attenteo may provide consulting services, system conversions, data conversions, special studies, systems analysis and design, custom work and the like to Company with respect to the Licensed Application, the terms of which shall be made the subject of a separate services agreement, signed by the parties, specifying the work to be undertaken and the fees to be charged by Attenteo.


4.2. Company Data.


4.2.1. Retention.  All records and data entered into the Application by Authorized Users as well as any reports and other output generated through the Services derived therefrom (the “Company Data”), are and shall remain the property of Company or other third party owner, as the case may be.  Attenteo shall give thirty (30) days written notice to Company prior to any permanent and irrevocable destruction of Company Data.  Company acknowledges that it is solely responsible for downloading and creating archival records of all Company Data prior to the expiration of the this agreement.  Upon written request by the Company within ten (10) days following the expiration or termination of the Agreement and payment of all undisputed amounts, Attenteo shall promptly download (service charge may apply) all Company and User Data within the Application to a secure ftp site or Company hosted ftp site or in such other medium and/or format as the parties may mutually agree. In addition, Attenteo shall, at its then current rates, provide additional cooperation and assistance to Company or any third party selected by Company. Company shall indemnify and hold Attenteo harmless for and against any claim, cause of action, damages or any liability whatsoever arising out of or relating to the loss of Company Data after the Data Return Period .


4.2.2. License.  Company hereby grants Attenteo a non-exclusive, royalty free, perpetual limited license to use, reproduce, create derivative works of the Company Data provided that Attenteo treats such Company Data as Confidential Information in accordance with the confidentiality provisions of Section 7.2, below, and further provided however, that Company may use, reproduce, create derivative works of, display and publish any aggregated and de-identified data derived from Company Data, which aggregated and de-identified data shall not be in any way confidential information.


Section 5

COMPANY FEE AND PAYMENTS TO ATTENTEO


5.1. Service Fee. In consideration of the Services provided by Attenteo under this Agreement, Company shall pay Attenteo the Fees in the amounts and at the times set forth in the Order Form, attached hereto and made part hereof.  All other fees and charges to be paid pursuant to this Agreement are due and payable thirty (30) days from Company’s receipt of Attenteo’s invoice.


5.2. Taxes. Company shall be responsible for paying all local, state and federal sales, use, excise, personal property or other similar taxes, assessments, charges or duties, however designated, and any other such taxes, which may now or hereafter be imposed upon this Agreement, excluding taxes measured on any of Attenteo’s income or property (collectively, the “Taxes”). 


5.3. Out-of-Pocket Expenses. Attenteo shall bear and be responsible for all out-of-pocket expenses incurred by Attenteo in performing its obligations under this Agreement except as otherwise set forth herein or as may otherwise be agreed to.


5.4 Late Payments. Should the Company fail to make payment as required herein, the Company agrees to pay late payment charges of 5% per month or part thereof (or, if less, the maximum interest charge allowed by law) on the unpaid balance from the original due date as well as any reasonable costs of collection (including attorneys fees); provided this charge shall not apply to fees disputed in good faith as long as the undisputed portion of any fees on such invoice has been timely paid.


Section 6

LIMITED WARRANTY; LIMITATIONS OF LIABILITY; REMEDIES


6.1. Limited Warranty.

6.1.1   Company. Company represents and warrants that it is the sole and exclusive owner of and/or has the right to share, provide access to, and permit use of Company and User Data by Attenteo, its Users, and Attenteo’s agents who access the Subscription or Data in accordance with the then current Data Security & Privacy Policy.


6.1.2  Attenteo

During the Subscription Period, Attenteo represents and warrants to company that: unless expressly set forth in this agreement, attenteo makes no warranty, express or implied, with respect to any matter, including without limitation the services, the attenteo platform, or the api, and expressly disclaims the implied warranties or conditions of noninfringement, merchantability and fitness for any particular purpose. Attenteo does not warrant the results of use of the service, and account holder assumes all risk and responsibility with respect thereto. Account holder should note that in using the service, sensitive information will travel through third party infrastructures which are not under attenteo’s control (such as a third party servers). attenteo makes no warranty with respect to the security of such third party infrastructures..


6.2. Disclaimer of Warranty. Except for the express warranties and undertakings set forth in this agreement, the services are provided “as is”, with any and all faults, and attenteo disclaims all warranties respecting the system and all services provided under this agreement, including all implied warranties of merchantability and fitness for a particular purpose. Company acknowledges that the servicees may not satisfy all its requirements, operate uninterrupted or error free or be free from defects.  In no event shall attenteo’s liability pursuant to any claim, demand or cause of action arising under or related in any ay to this agreement, whether in tort, contract, infringement or other theory, exceed the sum of the license fees paid by company over the six (6) months prior to any such demand, claim or cause of action being made.


6.3 The company acknowledges that the subscription is delivered as software as a service with multiple releases per year. Accordingly, the subscription may be updated from time‐ to‐time by attenteo, and as a result of such updates specific features, functions or other components of the subscription may be added, enhanced, modified, improved, substituted, discontinued or otherwise changed as further set forth in the release notes of any given version of thesubscription.


6.4  Except as otherwise expressly stated in article 9 (limited warranties), Attenteo and its licensors disclaim all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or in any way related to:


(a) Any errors in or omissions of the subscription, including bugs, technical inaccuracies, typographical errors;


(b) Any third party services, web sites or data directly or indirectly accessed through the subscription, including any errors in or omissions therefrom;


(c) The unavailability of the subscription or any portion thereof;


(d) Company’s use of the subscription, accessible therefrom or any decision made using the subscription;


(e) Unauthorized access to the subscription, data, or any other information provided therein; or


(f) Company’s use of any equipment or software in connection with the subscription, or the information accessible therefrom.


6.5. Special Damages.  In no event shall Attenteo or Company be liable for any indirect, exemplary, incidental, or consequential damages arising out of or otherwise relating to the use or performance of the Services however caused, even if Attenteo or Company has been advised of the possibility or likelihood of such damages.


6.6. Exclusive Remedy. Company acknowledges that the Services are of such complexity that they may have inherent defects. Therefore, Company agrees that in the event the Services fail to perform as warranted, as Company’s sole and exclusive remedy, Attenteo will provide during the Term the Software Support Services necessary to correct errors promptly reported to Attenteo in writing by Company and which Attenteo is able to reproduce.


6.7 Compliance with Laws and Regulations.  Company hereby represents, warrants and agrees it shall comply with any and all regulatory, environmental, customs and border protection, and similar laws, rules and regulations.  Company shall indemnify and hold harmless Attenteo and its successors and assigns, from any claim, action, liability, loss, damage, or suit, arising out of or related to any federal or civil violation of any regulatory, environmental, customs and border protection, or similar laws, rules and regulations by Company.  Attenteo hereby represents, warrants and agrees it shall comply with any and all regulatory, environmental, customs and border protection, and similar laws, rules and regulations.  Attenteo shall indemnify and hold harmless Company and its successors and assigns, from any claim, action, liability, loss, damage, or suit, arising out of or related to any federal or civil violation of any regulatory, environmental, customs and border protection, or similar laws, rules and regulations by Attenteo.


Section 7

PROTECTION OF TRADE SECRETS AND PROPRIETARY RIGHTS


7.1. Acknowledgment of Proprietary Materials; Limitations on Use.  Attenteo represents, and Company acknowledges, agrees and waives any right to dispute, that the Services, and all associated intellectual property rights are the property of Attenteo and that Company holds no rights or interests therein, except as specifically provided in this Agreement.  Company shall treat the Application and associated support materials as unpublished works.  Company shall shall not use, copy, disclose, nor permit any of Company personnel to use, copy, or disclose Confidential Information for any purpose that is not specifically authorized under this Agreement.


7.2. Trade Secret and Confidential Information. Company expressly acknowledges that the Application has been developed through the expenditure of substantial time, effort and money, and as such constitutes proprietary information of Attenteo. Company agrees that it shall not, except with the prior written consent of Attenteo, directly or indirectly, divulge, report, publish, reveal, transfer or disclose any of Attenteo’s Confidential Information (as such term is defined below) or Trade Secrets (as such term is defined below) to any other person or non-affiliate entity and that Company will use all commercially reasonable efforts to safeguard the Confidential Information and Trade Secrets from unauthorized disclosure and use. Company further agrees that it shall not, directly or indirectly, use, utilize, copy, reproduce or exploit in any manner all or any part of Attenteo’s Confidential Information or Trade Secrets except as specifically and expressly authorized in this Agreement. Company further covenants and agrees that it will not, under any circumstances translate, modify, adopt, dissemble, reverse engineer or decompile the Application or create derivative works based on the Application or documentation related thereto. The covenants of confidentiality contained herein shall apply (a) with respect to the Confidential Information, during the term of this Agreement and for a period of two (2) years after termination of such Agreement and (b) with respect to the Trade Secrets, for as long as such material remains Trade Secret. For purposes of this Agreement, the term “Confidential Information” shall mean any and all verbal or written technologies programs or systems, trade secrets, inventions, processes, designs, methods, documentation, concepts, techniques, “know-how,” manuals, specifications or other confidential information relating to the Services and/or implementation of the Application (a) of which Company has become aware during the establishment of, and as a direct result, of the business relationship established by this Agreement and the use of the Services; (b) which has value to Attenteo and is not generally known to its competitors; and (c) which is treated by Attenteo as confidential. Additionally, for purposes of this Agreement, “Trade Secrets” shall mean any scientific or technical information, design, process, procedure, formula, or improvement that is commercially valuable, kept secret and affords Attenteo a competitive advantage over its competitors.  Company shall be responsible for, and shall indemnify Attenteo and hold it harmless from any loss, liability, cost, deficiency, damage or expense (including, without limitation, attorneys’ fees) resulting from, relating to or arising in connection with any use, release, disclosure or other communication to any non-Affiliate third party by Company, or by any Affiliate, agent, employee or independent contractor of the Company, of any Confidential Information, any Trade Secret or any part of the Application, except as specifically and expressly authorized in this Agreement. The foregoing indemnity obligation shall survive the expiration or termination of the Term for a period of two (2) years, regardless of the reason for, manner or method of same.


7.3. Proprietary Legends. Company shall not remove any copyright notice or other proprietary or restrictive notice or legend contained or included in any material provided by Attenteo, and Company shall reproduce and copy all such information on all copies made hereunder, including such copies as may be necessary for archival or backup purposes, in the same manner as provided on the materials received from Attenteo.


7.4. Rights to Injunctive Relief. Recognizing and acknowledging that any use or disclosure of Confidential Information by Company or Company Personnel in a manner inconsistent with the provisions of this Agreement may cause Attenteo irreparable damage for which other remedies may be inadequate, Company agrees that Attenteo shall have the right to petition for injunctive or other equitable relief from a court of competent jurisdiction as may be necessary and appropriate to prevent any unauthorized use or disclosure by Company or Company Personnel of any such information and that, in connection therewith, Company shall not oppose such injunction on the grounds that an adequate remedy is available at law.


7.5.  Exclusions from Confidential Information and Trade Secrets.  The term “Confidential Information” and “Trade Secrets” as used in this Agreement shall exclude information that:

​(a)    At the time of disclosure by Attenteo to Company is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by the Company or its Representatives;

(b)    At the time of disclosure is, or thereafter becomes, available to the Company 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 or Trade Secrets to the Company by a legal, fiduciary or contractual obligation to the Attenteo;

(c)    Was known by or in the possession of the Company or its Representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the Company pursuant to this Agreement or other previous agreement between Attenteo and Company or any predecessor in interest to Company; or

(d)    Was or is independently developed by the Company, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Attenteo’s Confidential Information or Trade Secret.



Section 8

ACCEPTABLE USE POLICY


8.1 Acceptable Use Policy. Company agrees to the terms of the Acceptable Use Policy incorporated herein. Attenteo will provide Company with commercially reasonable prior notice in the Attenteo documentation prior to amending the Acceptable Use Policy, or any new practices or limits pursuant to the terms thereof and if within fifteen (15) days of Company’s receipt thereof, Company provides Attenteo with written notice of any objection to any such change, practice or limit, such change, practice or limit shall not be effective until Company and Attenteo have reached an agreement with respect to suchchange, practice or limit. In the event an agreement cannot be reached within sixty (60) days from Company’s objection to such notice regarding the new change, practice or limit, such new change, practice or limit shall not be effective as to Company and Attenteo may terminate this Agreement for convenience upon thirty (30) days written notice to Company.


You may not use the Products or Subscription Services to:

  • Interfere with a third party’s use of the Products or Subscription Services;
  • Violate, or encourage the violation of, the legal rights of others, including, but not limited to, infringing or misappropriating any intellectual property or proprietary right of another;
  • Engage in, promote or encourage illegal activity or use the Products or Subscription Services for an unlawful, defamatory, abusive, harassing, obscene, violent, deceptive or fraudulent purpose;
  • Use, store, share, host, copy, distribute, display, publish, transmit or send content that is or may be deemed offensive, inflammatory, hateful, defamatory, discriminatory, obscene, abusive, invasive of privacy, harmful to others, or otherwise objectionable;
  • Impersonate any person or entity without consent, including sending altered, deceptive or false source-identifying information (spoofing, phishing);
  • Collect or use information without the consent of the owner of the information, if prohibited by applicable law;
  • Generate, distribute, publish or facilitate unsolicited mass email or other messages, promotions, advertisements or solicitations (spam);
  • Attack, abuse, interfere with, surreptitiously intercept, or disrupt any users, systems, networks, Products or Subscription Services, including but not limited to Denial of Service (DoS) attacks, unauthorized monitoring or crawling, deliberate attempts to overload, distribution of malware (including but not limited to viruses, Trojan horses, worms, time bombs, spyware, adware, or cancelbots), war dialing, flood pings, packet spoofing, forged telephone information;
  • Disable, interfere with or circumvent any aspect of the Product or Subscription Services, including any storage, access, usage or user limits;
  • Probe, scan, or test the vulnerability of any system or network;
  • Disable, interfere with, abuse, disrupt, intercept, circumvent or otherwise violate any security or authentication measures;


You agree:

  • To use the Products and Subscription Services in accordance with applicable laws and government regulations;
  • To only use Products and Subscription Services in a manner consistent with the Purpose of intent of the Products and Subscription Services;
  • that you are solely responsible for the content of any material posted, hosted, downloaded, uploaded, created, accessed or transmitted using a Subscription Service and that Attenteo has no responsibility for any material created on or made accessible by your use of the Subscription Service;
  •  Attenteo may quarantine or delete any data stored on a shared system if Attenteo reasonably believes that the data is infected with a virus or is otherwise corrupted and has the potential to infect or corrupt the system or other customers’ data stored on the same system;
  • to comply with all Product and Subscription Service notices and end of life policies, including the transfer and migration to, or utilization of, new versions of software.



Section 9

FORCE MAJEURE AND EXCUSABLE DELAYS


9.1. Event of Force Majeure. Neither party shall be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause or event not within the reasonable control of such party and without its fault or negligence, such causes or events sometimes being hereinafter referred to as “Events of Force Majeure.”


9.2. Notice Requirement. Each party shall give the other party prompt notice of the occurrence of any Event of Force Majeure that may cause delay hereunder, and the date of performance by any party that gives such notice shall be extended for a period not exceeding the period of delay caused by the Event of Force Majeure so identified.


9.3. Exculpation. Neither party shall be liable for any delay or failure in the performance of its obligations under this Agreement that directly results from any failure of the other party to perform its obligations as set forth in this Agreement.


Section 10

INDEMNIFICATION


10.1 Company. Company agrees to defend, indemnify and hold harmless Attenteo, its affiliates, and their respective Licensors, directors, officers, employees, agents, successors, and assignees from and against any and all claims, demands, causes of action, costs, losses, damages, expenses (including reasonable attorneys’ fees) or liabilities (collectively “Damages”) incurred or asserted by any third party arising out of (i) the gross negligence or intentional misconduct of Company or its Users; (ii) use of the Subscription by Company or Users not in accordance with this Agreement (including violation of the Acceptable Use Policy); and/or (iii) the Company Data infringing a third party’s U.S. Intellectual Property Rights.


10.2  Exclusions. Attenteo’s indemnity obligation shall not extend to any claims (i) arising out of or related to a combination of the Subscription with hardware or software not provided by Attenteo, or (ii) if Company refuses to use the most‐current version of the Subscription. Each party’s indemnity obligation shall not extend to any claims (a) if the indemnified party fails to notify the indemnifying party of the claim, (b) if the indemnified party fails to promptly give the indemnifying party sole control over the defense and settlement of the claim, and/or (c) if the indemnified party fails to promptly provide the indemnifying party reasonable cooperation in such defense or settlement.


Section 11

MISCELLANEOUS


11.1. Assignment Rights. This Agreement shall be binding upon and shall inure to the benefit of Attenteo and its successors and assigns, including any corporate Affiliate or successor of Attenteo.  Company may not assign, sublicense, pledge, lease, rent, share or otherwise transfer its rights under this Agreement or the license granted hereunder to any other entity or person without Attenteo’s prior written consent. Any purported assignment in violation of this paragraph shall be void and shall constitute a material breach of this agreement.


11.2. Notice. Any notice to be given to a party in connection with this Agreement shall be in writing addressed to such party at the address set forth below (the “Notice Address”), which Notice Address may be changed from time to time by such addressee by notice thereof to each of the other addressed as herein provided. Any such notice shall be deemed effectively given to a party upon the first to occur of (a) the third (3rd) business day following the date on which it is mailed to such party by first class certified United States mail, postage prepaid, addressed to such party at such party’s Notice Address, or (b) the date on which it is actually delivered to such party’s Notice Address properly addressed to such party (whether delivered by mail, courier, facsimile transmission or otherwise) if such date is a business day and such delivery is made prior to 5:30 p.m., local time at such address, on such business day, or if the date of such delivery is not a business day or such delivery is made after 5:30 p.m., on the next business day following the date of delivery. Transmission by facsimile shall be confirmed by telephone to the addressee at the time of transmission.


​ ​11.2.1. Notice Address.

​ ​ ​ ​If to Attenteo:

​ ​ ​ ​ 196 Stone Cliff Rd Princeton, NJ 08540 

​ ​

11.3. Entire Agreement. This Agreement constitutes the entire agreement between Attenteo and Company with respect to Attenteo’s providing and maintaining the Licensed Application and Company’s use thereof and supercedes all prior oral or written agreements, negotiations and representations concerning the subject matter hereof or the transactions contemplated herein. No amendment, change or modification hereof or supplement hereto shall be valid or binding unless same is in writing and signed by Attenteo and Company. No waiver of any provision of this Agreement shall be valid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced.


11.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to principles of conflicts of law.


11.5. Consent to Jurisdiction. Each of the parties hereto (a) irrevocably submits to the jurisdiction of the state or federal courts with jurisdiction located in the State of New Jersey for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement or the subject matter hereof, brought by any party pursuant to the terms and conditions of this Agreement, (b) hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or other proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that the suit, action or other proceeding is brought in an inconvenient forum, that the venue of the suit, action or other proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court, (c) hereby waives and agrees not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such new jersey state or federal court.


11.6. Jury Waiver. The parties hereby unconditionally waive their right to a jury trial of any and all claims or causes of action arising from or relating to this agreement. The parties acknowledge that they have had an opportunity to consult with independent counsel, and that this jury waiver has been entered into knowingly and voluntarily by all parties to this agreement. In the event of litigation, this agreement may be filed as a written consent to a trial by the court. 


11.7. Independent Contractors. Attenteo’s relationship with Company shall, during the Term hereof, be solely that of independent contractor. Nothing contained in this Agreement shall be construed as constituting Company as a partner, employee or agent of Attenteo, nor shall Company have authority to bind Attenteo in any manner, it being the intent of the parties that each shall remain an independent contractor and responsible for its own actions. This Agreement is not intended to create, nor shall it be construed as creating a partnership, agency or joint venture between Attenteo and Company.


11.8. Authority to Contract. Each party represents that it has the full power and authority to execute, deliver and perform this Agreement and to convey the rights herein conveyed. Each party further represents that this Agreement does not conflict with or violate any agreement, covenant or restriction by or to which such party or its assets is bound. Each party further represents that it has not entered, nor will it enter, into any agreements that would conflict with its obligations hereunder or would render it incapable of satisfactorily performing hereunder.


11.9. Non-Waiver. Neither party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any breach by the other party of any terms or provisions of this Agreement. The waiver by either party of any such breach shall not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.


11.10. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be one and the same instrument.


11.11. Captions. The captions appearing in this Agreement are inserted only as a matter of convenience and for reference only and in no way define, limit or describe the scope and intent of this Agreement or any provision thereof.