TENSION (“SELLER”) TERMS AND CONDITIONS OF PURCHASE ORDER

THESE TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE INTO THE PURCHASE ORDER OR STATEMENT OF WORK (“SOW”) REFERRING TO THESE TERMS AND CONDITIONS (COLLECTIVELY, THE “AGREEMENT”). THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “CUSTOMER” (AS DEFINED IN THE APPLICABLE SOW) AND TENSION INTERNATIONAL, INC. (“TENSION”). IF THE SERVICES OR DELIVERABLES ARE ACCESSED, USED OR OTHERWISE BENEFICIALLY ENJOYED BY CUSTOMER, CUSTOMER IS DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS AGREEMENT EFFECTIVE AS OF THE DATE OF SUCH USE OR ENJOYMENT (THE “EFFECTIVE DATE”) AND SHALL BE BOUND BY ITS TERMS. EFFECTIVE AS OF THAT DATE (“EFFECTIVE DATE”). THIS AGREEMENT REPRESENTS THE COMPLETE AGREEMENT BETWEEN CUSTOMER AND TENSION CONCERNING THE SERVICES AND DELIVERABLES AND, UNLESS OTHERWISE AGREED IN WRITING, IT SUPERSEDES ANY PRIOR OR CONCURRENT AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATED CUSTOMER PURCHASE ORDER TERMS AND CONDITIONS UNDER WHICH THE SERVICES OR DELIVERABLES WERE OR ARE OBTAINED. IN THE EVENT OF A CONFLICT BETWEEN OR AMONG (a) THESE TERMS AND CONDITIONS, (b) ANY PURCHASE ORDER OR STATEMENT OF WORK (“SOW”) REFERRING TO THESE TERMS AND CONDITIONS, AND/OR (c) ANY SOW OR OTHER DOCUMENT OR TERMS PROVIDED BY CUSTOMER (WHETHER BEFORE OR AFTER DELIVERY OR PERFORMANCE), THE ORDER OF PREVALENCE SHALL BE FIRST, THESE TERMS NAD CONDITIONS, AND SECOND, ANY SOW SIGNED BY BOTH PARTIES; ANY AGREEMENT OR OTHER DOCUMENT OR TERMS PROVIDED BY CUSTOMER SHALL BE VOID AND OF NO EFFECT UNLESS TENSION HAS AGREED IN WRITING TO SUCH AGREEMENT OR OTHER DOCUMENT OR TERMS IN WRITING.

TENSION AND CUSTOMER MAY BE ALTERNATIVELY REFERRED TO IN THIS AGREEMENT AS PARTY, INDIVIDUALLY, AND PARTIES, COLLECTIVELY.

1.     Term of Agreement.

(a)   Renewal. Unless earlier terminated, the term of this Agreement (the “Term”) shall automatically renew for an additional one-year term(s) unless either Party gives written notice to the other Party, at least ninety (90) days before the end of the then existing Term, of its desire that this Agreement expire and not renew, in which case this Agreement will expire at the end of such then existing Term.

(b)   Termination.

(i)    The expiration or earlier termination of this Agreement or any SOW shall not affect any obligations of either Party accruing thereunder before such termination. For clarity, this Section 1(b) and Sections 2, 3, 4, 6, 7, 8, 9, 11, 12, 14 and 15 shall survive the expiration or earlier termination of this Agreement or any SOW. This Agreement shall survive after its expiration or earlier termination for any SOW then remaining in effect, and will survive after such expiration or earlier termination to the extent otherwise provided in this Agreement.

(ii)   Upon the expiration or earlier termination of this Agreement or any SOW, (A) Tension shall promptly complete any unfinished projects, work, tasks, services, code or products in accordance with the terms of this Agreement and the applicable SOW, and (B) Customer shall reimburse Tension for (i) finished products on hand that have not been shipped (including products in storage); (ii) raw materials purchased by Tension for the purpose of producing products for Customer under this Agreement or any SOW, if Tension is unable to return such raw materials to the supplier thereof without charge or penalty or if Tension is unable to use such raw materials for other customers within 60 days after such termination; and (iii) all work-in-process existing on the date of termination, calculated on a percentage of completion basis. Customer shall (1) pay Tension in accordance with this Agreement and the applicable SOW for Services performed and Deliverables delivered before such termination, and for all such completed work and finished products on hand that are in substantial compliance with the specifications and/or instructions set forth in the applicable SOW based on factory acceptance tests but that have not been shipped (including products in storage); (2) reimburse Tension at cost for raw materials purchased by Tension for the purpose of producing products for Customer under this Agreement or the applicable SOW if Tension is unable to return such raw materials to the supplier thereof without charge or penalty or if Tension is unable to use such raw materials for other customers within 180 days after such termination; and (3) reimburse Tension at cost, calculated on a percentage of completion basis (plus a 35% overhead factor), for all work-in-process existing on the date of termination to the extent (A) such work-in-process is for projects identified in the applicable SOW and consistent with the terms of this Agreement and the applicable SOW and (B) Tension is unable to use such work-in-process for other customers within 180 days after such termination.

(c)   Safety Pause. In connection with the activities contemplated by this Agreement:

(i)   Each Party shall be solely responsible for the safety and supervision of its own employees, associates, representatives, and contractors involved with the Services or any other activities contemplated by this Agreement.

(ii)   Each Party shall, and shall require its representatives, contractors, associates, and employees to, comply with all applicable Federal, state and local health and safety requirements, rules, regulations, laws and ordinances, including without limitation, the safety regulations adopted under the Occupational Safety and Health Act of 1970 (“OSHA”), as amended from time to time. Notwithstanding the foregoing, Customer shall be responsible for the negligent or intentional acts of its personnel, vendors, agents, invitees and third parties on its premises.

(iii)  Either Party shall have the authority to suspend its work or operations in and around Customer’s site, in its sole judgment, if at any time hazardous conditions arise or any unsafe practices are being followed at such property by entities or persons. If such work stoppage occurs, such Party shall notify the other Party promptly of the work stoppage, and the Parties shall promptly meet in good faith to resolve the issue.

2.     Compensation.

(a)   Service Fees; Payment for Deliverables. Unless otherwise agreed upon in the applicable SOW, Tension shall invoice Customer on a monthly basis, in arrears, for services and Deliverables provided in the month then ended, together with all pre-approved reimbursable expenses and applicable taxes, if any, and Customer shall pay all undisputed amounts reflected in each such invoice within thirty (30) days after receiving such invoice (or such different deadline set forth in the applicable SOW). Tension’s invoice shall be accompanied by reasonably descriptive time sheets to the extent the Services are being provided on a time and materials basis.

(b)   Expense Reimbursements. Except as otherwise provided in a SOW for a particular project, Customer shall reimburse Tension for all reasonable out-of-pocket costs and expenses incurred by Tension in the performance of the Services under Agreement or any SOW, but only upon Tension’s submission of receipts, statements or other records.

3.     Independent Contractor Status. The relationship created under this Agreement is one of independent contractors, and that nothing contained in this Agreement is intended to be construed by the Parties or by any third person to create the relationship of partners, principal and agent, employer and employee, or any association other than contracting parties. Without limiting the generality of the foregoing:

(a)   Customer shall not have the right to control Tension as to the specific means or manner in which Tension performs the Services;

(b)   Neither Party shall have the power or authority to bind or obligate the other Party in any manner whatsoever except as expressly authorized by such other Party in writing in the specific case;

(c)   Nothing in this Agreement shall prevent Tension from performing services for any other entity (subject to Sections 6, 7 and 8 below) or engaging in other endeavors;

(d)   Customer will not withhold any portion of Tension’s compensation for federal or state income tax purposes and will not pay any taxes, whether based on the Federal Insurance Contributions Act (FICA) or the Federal Unemployment Tax Act (FUTA) or otherwise, with respect to amounts paid to Tension. Tension understands that Tension shall not receive W-2 forms from Customer, but when required by applicable law Tension will receive IRS Form 1099s reporting Tension’s income from Customer.

4.     Warranty.

(a)   Services. Tension warrants to Customer that, subject to the terms and conditions set forth in this Section 4, Tension’s performance of the Services will be completed in a workmanlike manner (taking into consideration the conditions, limitations and environmental factors set forth in the applicable SOW and the work to be done and materials to be furnished by Customer, any ultimate or intermediate owner of the Work (“Owner”) or other parties that are necessary or prudent for the efficacy of the Services) and when performed, the Services shall conform in all material respects with the Services specifications and service level metrics set forth in the applicable SOW (the “Services Warranty”).

(b)   Deliverables.

(i)   Tension warrants to Customer that, subject to the terms and conditions set forth in this Section 4, the Deliverables as manufactured, delivered and/or installed by Tension

(A) will be free from material defects in material and/or workmanship; and,

(B) when used in accordance with the applicable SOW, and taking into consideration the conditions, limitations and environmental factors set forth in the applicable SOW and the work to be done and materials to be furnished by Customer, Owner or other parties that are necessary or prudent for the efficacy of the Deliverables, will perform in material conformance with the specifications therefor contained in the applicable SOW

(the “Deliverables Warranty” and together with the Services Warranty, the “Warranty”) for a period of one (1) year from the date of acceptance of the Deliverables in accordance with the acceptance criteria in the applicable SOW or, if earlier, the date of Owner’s first beneficial use of such Deliverables (such period being the “Warranty Period”).

(ii)   Third party components that are integrated as part of the Deliverables carry either the foregoing warranty or the manufacturers’ warranty, whichever is shorter. This includes all motors, clutches, cylinders, feeding equipment, printers, labeling equipment as well as any other component not specifically mentioned.

(iii)  Tension shall, at its own expense and option and in in a reasonably prompt manner, either repair or replace any nonconforming or defective non-wear Deliverables provided by Tension under the applicable SOW for which Customer submits a detailed claim in writing to Tension within the Warranty Period.

(iv)  Upon expiration of the Warranty Period, Tension assigns to the Customer all remaining rights and benefits, if any and to the extent assignable, then held by Tension under warranties made or furnished by the manufacturers, suppliers or vendors of items supplied by the Tension for use in the Deliverables.

(c)  Warranty Limitations and Conditions.

(i)   Tension shall have no obligation, and expressly disclaims any responsibility, and the Warranty shall be deemed to have been waived by Customer if:

(A)  any part of the Deliverables is installed by anyone other than Tension or Tension-authorized persons.

(B)  Claim is not (i) submitted in writing within ten (10) days of discovery of defect or nonconformance, or (ii) with respect to the Deliverables Warranty, within the Warranty Period.

(C)  The problem is due to the dispensing of products or materials not identified and tested by Tension.

(D)  Any changes to the Deliverables have not been approved in writing by Tension.

(E)  The Deliverables (or any part thereof) has been subjected to or affected by (1) misuse; (2) damp, flooded or corrosive environments, or excessive temperature or humidity; (3) smoke, fire, or persistent or excessive cold or cold or heat; (4) misapplication; (5) neglect, including but not limited to improper maintenance and storage; (6) accident; (7) modification including but not limited to the use of unauthorized parts or attachments; (8) electrical power failure or fluctuation; (9) vandalism; (10) computer virus; (11) negligence or intentional misconduct of others (including employees of Customer, Owner or any third party); (12) unauthorized repair, adjustment or installation; (13) any physical, environmental, legal, or other condition outside of Tension’s control; or (14) the failure of Customer, Owner or any Third-Party to follow operating procedures specified by Tension as set out in documentation and/or training provided to Customer and/or Owner with the Deliverables.

(F)  The Services have been subjected to or affected by (1) smoke, fire, or persistent or excessive cold or cold or heat; (2) accident; (3) electrical power failure or fluctuation; (4) computer virus; (5) negligence or intentional misconduct of others (including employees of Customer, Owner or any third party); or (6) any physical, environmental, legal, or other condition outside of Tension’s control.

(ii)   The Warranty does not apply to wear parts (the applicable SOW shall list the wear parts excluded from the Warranty).

(iii)  There will be no allowance for labor or parts on any non-workmanship issues or occurrences.

(iv)  The Warranty does not apply to third party components sourced or installed by any party other than Tension or Tension-authorized persons.

(v)  Tension does not guarantee, insure, or warranty against lightning or electrical surges.

(vi)  All quoted times and product speeds are estimates only and not performance commitments and are subject to change as they may be impacted by, without limitation, the production environment, skill level of personnel, maintenance of equipment, workflow, product specifications, product mix and other factors. Third party and wear parts are to be replaced by Tension-authorized Customer personnel.

(vii) Labor for Tension to install wear parts, or replacement parts necessitated by non-workmanship issues or occurrences is available on a time and materials basis per Tension’s then existing documented rate sheet.

(viii) The Warranty is in lieu of all other warranties, whether expressed, implied or statutory, including those of merchantability and fitness of any product for a particular purpose, and any other obligation or liability on Tension’s part of any kind or nature whatsoever, and Tension disclaims all implied warranties of any kind or nature.

(ix)  The Warranty is nontransferable.

(x)  No Tension employee, agent or other representative has any authority to waive, alter, vary, or otherwise amend or expand the Warranty without the prior written approval in writing signed by an officer of Tension.

(xi)  The remedies set forth in Sections 8 and 9 (subject to the limitations set forth in Section 10) are the exclusive remedies for claims based upon any nonconformance, defect in or failure of the Services or the Deliverables, whether such claims are presented in contract or in tort (including negligence) and however and wherever instituted. Upon expiration of the Warranty Period, all liability of Tension under this Agreement with respect to facts and circumstances otherwise covered by the Warranty shall terminate.

5.     Insurance. During the term of this Agreement, Tension shall carry, from an authorized insurance company: (i) Worker’s Compensation insurance as required by the laws of the country and state in which work is being performed; and (ii) comprehensive general liability insurance with limits for bodily injury and property damage of not less than $2,000,000 in the aggregate and $1,000,000 per occurrence.

6.     Confidential Information and Intellectual Property.

(a)   Definitions. The following terms have the following definitions in this Agreement.

(i)    “Confidential Information” means and includes, but is not limited to, each of the following types of written, oral, computer, or graphic information used, owned, developed, made, invented, designed, conceived, conducted, improved, acquired, possessed or purchased by Tension (alone or jointly with others), whether or not such information is marked or designated as confidential or Trade Secret information:

(A)  any financial information of Tension, including, but not limited to, costs, prices, margins, overhead, salaries, bids, proposals, commissions, profits, loans, financial plans, and the methods of determining any of the foregoing;

(B)  any computer programs, software, source code, documentation, object code, protocols, designs, processes, methods, techniques, manuals, and media;

(C)  any market plans; market surveys; strategies, tests; test methods; prototypes, and the results of any focus groups, surveys, and brand studies of Tension;

(D)  any Inventions, Works, Trade Secrets and know-how;

(E)  the identity of, or any lists of, Tension’s existing and prospective suppliers, vendors, customers, vendor or customer contacts, and contracts with customers or vendors;

(F)   any shortcuts, know-how, methods and processes used by Tension in connection with the creation, preparation, planning, design, development, testing, improvement, operation, pricing, costing, recording, tracking, sale or use of any of the matters listed above in this clause (vi); 

(G)  information obtained by Tension from its customers, referral sources, vendors or third parties; and

(H)  any other information of Tension shared with Customer or that Customer knows or should know, by virtue of the circumstances under which Customer learned it, should be kept confidential.

Confidential Information does not include information in the public domain, provided it did not come into the public domain through Customer’s unauthorized acts.

(ii)   “Copyright” means the registrations of claims of copyright and applications therefor, together with any Works with respect to which claims of copyright may be registered under the laws of the United States or any foreign country.

(iii)  “Intellectual Property” means all Patents, Copyright and Trade Secrets, together with all Inventions and Invention disclosures not yet the subject of patent applications and all know-how related to the forgoing.

(iv)  “Invention” means and includes any new and useful process (including, without limitation, code), device, apparatus, method, machine, manufacture, discovery or composition of matter, or any new and useful improvement thereof, whether or not patentable.

(v)   “Trade Secrets” means and includes, without limitation, Confidential Information, know-how, Inventions, Works, technical or nontechnical data, formulas, patterns, mechanical drawings, compilations, programs, code, devices, methods, techniques or processes (however documented and in any form or medium and wherever located, kept or maintained) and all other information that (A) derives independent economic value (actual or potential) from not being generally known to, and not being readily ascertainable by proper means by, a person able to obtain economic value from its use or disclosure; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

(vi)  “Works” means any and all original works of authorship, including, but not limited to, literary works, writings, texts, instructions, descriptions, computer programs, source code, object code, artistic works, graphs, designs, graphic displays or designs, architectural works, drawings, blueprints, recordings, photographs, videos, slides, motion pictures, recordings, pictures, and performances.

(b)   Ownership and Assignment. Customer assigns to Tension all Works, Inventions, Trade Secrets, Copyrights and other Intellectual Property conceived, developed, created, fixed in a tangible medium of expression or reduced to practice by Tension, or by Tension and others (jointly or severally), regardless of when or where such conception, development, creation, fixation or reduction to practice were done, if such Works, Inventions, Trade Secrets, Copyrights and other Intellectual Property are related to or were done in connection with Tension’s Confidential Information or Intellectual Property or relate to Tension’s business or actual or demonstrably anticipated research or development. Customer shall cooperate with Tension in connection with obtaining legal protection or other rights relating to such Works, Inventions, Trade Secrets, Copyright and other Intellectual Property, including the execution of all applications, letters, assignments, transfers, declarations, affidavits, consents, waivers and other instruments reasonably necessary to secure and prosecute such protection or rights on such forms as Tension (at Tension’s expense) from time to time provides to secure such protection or to confirm or secure Tension’s rights therein.

For clarity, Tension shall own, and control the use and disclosure of, all software source code (and related documentation) included in such Works, Inventions, Trade Secrets, Copyright and other Intellectual Property. Customer shall not use, or share with third parties, any of such software (or its documentation) in any form. The Services and Deliverables shall, when performed and delivered by Tension, be accompanied by all related licensed software code, mechanical drawings and documentation, as may be further described in the applicable SOW. Subject to the terms and conditions set forth in this Agreement (including, without limitation, Customer’s timely payment of amounts owed to Tension in accordance with this Agreement and the applicable SOW), to the extent applicable given the nature of the Deliverables, Tension grants to Customer a perpetual, nonexclusive, nontransferable, fully paid right and license to use the software embedded in the Deliverables solely to use such Deliverables.

(c)   Notice. Tension will inform Customer of any Works, Inventions, Trade Secrets, Copyright and other Intellectual Property conceived, developed, created, fixed in a tangible medium of expression or reduced to practice by Tension, or by Tension and others (jointly or severally), to the extent relating to the Services or Deliverables provided by Tension to Customer under a SOW.

(d)   Confidentiality. Customer will (i) keep all Trade Secrets and Confidential Information strictly confidential, (ii) not reveal, disclose, sell, offer to sell, copy, publish, transmit, transfer or distribute Confidential Information or Trade Secrets to any other person or entity, and (iii) not use, reverse engineer, decompile, disassemble Confidential Information or Trade Secrets or other Intellectual Property for any purpose other than as authorized by Tension in writing.

(e)   Court Order/Subpoena. If Customer receives a court order or subpoena requesting or requiring the disclosure or production of information that is (in whole or in part) Confidential Information or a Trade Secret, Customer shall notify Tension immediately in writing of such receipt and provide Tension with a copy of the order or subpoena to enable Tension to seek a protective order with regard to the Confidential Information or Trade Secret. Customer shall cooperate with Tension in such effort.

(f)    Return. Upon the termination of this Agreement, and at any time upon Tension’s request for any reason, Customer promptly shall:

(i)     deliver up and return to Tension or, at Tension’s option, destroy or cause to be destroyed (in each case at Customer’s expense) all copies (which shall include permanently erasing or deleting all electronic copies), memoranda, notes, records, computers, papers, books, disks, tapes, recordings, mechanical drawings, sketches, videos, photographs, sketches, lists, customer or client information, images, and all other media and physical objects and documentation whatsoever in its possession or control (which shall including permanently erasing or deleting all electronic copies), whether made or compiled by Customer alone or with others or made available to Customer, comprising, containing, embodying, referencing, disclosing or used to access Confidential Information or Trade Secrets; and

(ii)   deliver to Tension a certification of an executive officer of Customer certifying in writing that Customer has complied with the foregoing obligations.

Notwithstanding any such return or destruction (as applicable) of the Evaluation Material, Customer shall continue to be bound by its confidentiality and non-disclosure obligations under this Agreement.

(g)   Duration of Confidentiality and Trade Secrets Covenants.

(i)    Trade Secrets. Customer’s obligations under this Agreement with regard to Trade Secrets will remain in effect for as long as that information remains a trade secret under applicable law.

(ii)   Confidential Information. Customer’s obligations under this Agreement with regard to Confidential Information will remain in effect during the Term and for three (3) years thereafter.

(h)   Defend Trade Secrets Act. Notwithstanding any provision of this Section 6 to the contrary, under the Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made: (A) in confidence to a Federal, state or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. 

7.     Nonsolicitation. As a material inducement to Tension to enter into this Agreement, during the Term and for three years thereafter, Customer shall not employ or retain, directly or indirectly, in any capacity any employee of Tension engaged in the provision of Services or Deliverables to Customer under this Agreement, without Tension’s prior written consent.

8.     Noncircumvention. As a material inducement to Tension to enter into this Agreement, without Tension’s prior written consent, during the Term, Customer shall not source consumable products for use with the Deliverables or procure maintenance and support with respect to the Deliverables directly or indirectly from any third Party.

9.     Equitable Relief.

(a)   Customer has carefully read and considered Sections 6, 7 and 8 and, having done so, Customer acknowledges and agrees that:

(i)    the restrictions set forth in Sections 6, 7 and 8 (A) are fair and reasonable in duration, geographic scope and with respect to the activity or subject that is restricted, and (B) are reasonably required to protect (1) Tension’s legitimate business interests and its customer and supplier relationships, goodwill and loyalty; (2) the confidential nature of the Confidential Information and the Trade Secrets and (3) against the misuse or unauthorized disclosure of Tension’s Confidential Information and the Trade Secrets;

(ii)   Sections 6, 7 and 8 will not cause undue hardship to Customer or unreasonably interfere with Customer’s business prospects;

(iii)  Because the Confidential Information and Trade Secrets are unique to the business of Tension, Tension would not reveal them to Customer but for Customer’s agreement to the restrictions set forth in this Agreement;

(iv)  A breach of any of the provisions of Sections 6, 7 and 8 would cause irreparable harm and damage to Tension; and in the event of any such breach, it would be extremely impracticable to measure the resulting damages and the remedies at law for the breach would not adequately compensate Tension and its related and affiliated business entities for the damages;

(v)   Sections 6, 7 and 8 will be construed as agreements independent of any other provision of this Agreement or any other agreement between the Parties, and the existence of any claim or cause of action by Customer against Tension, whether predicated upon this Agreement or any other agreement, will not constitute a defense to enforcement of Sections 6, 7 and 8 by Tension; and

(vi)  If Customer breaches any of the provisions of Sections 6, 7 and 8, then (A) Tension will be entitled to injunctive relief, specific performance or any other equitable remedy that a court of competent jurisdiction may provide (without posting any bond), in addition to any other remedies available at law or in equity, and (B) Customer waives the defense that a remedy in damages will be adequate.

(b)   The Parties intend that nothing contained in this Section 10 shall be construed to limit the right of Tension to any remedies at law or in equity, including Tension’s recovery of damages for Customer’s breach of this Agreement, such rights being cumulative and not alternative.

(c)   Notwithstanding anything contained in this Agreement to the contrary, if a court of competent jurisdiction holds that any one or more of the provisions contained in Sections 6, 7 and 8, for any reason, is excessively broad as to duration, geographical scope, activity or subject, the Parties intend that the provision be construed by limiting and reducing it so that it is enforceable to the extent compatible with the then applicable law in the jurisdiction in question, and Customer agrees that the provision, as so reduced and limited, will be binding upon Customer as if fully set forth in this Agreement.

10.  Representations. Customer represents that with the exception of this Agreement, it is not a party to any agreements with others concerning any Developments or Confidential Information that conflict with this Agreement, nor is it bound by any agreements or obligations that might conflict with this Agreement.

11.  Personnel.

(a)   Customer shall require all of its employees, independent contractors and subcontractors (and their employees) (collectively, “Customer Personnel”) to comply with the restrictive provisions of this Agreement as if they were the Customer (including, without limitation, Sections 6, 7 and 8). Customer shall indemnify, defend, and hold harmless Tension from and against any and all Liability to the extent arising out of or on account of, or resulting from:

(i)    The failure of Customer or any Customer Personnel to fulfill any obligation under this Agreement, including (A) any actual or alleged breach by Customer or any Customer Personnel of any provision of this Agreement; or (B) the employment of one or more of Tension’s employees;

(ii)   the violation of any applicable law, order, or regulation by Customer or any Customer Personnel,

(iii)  Customer’s misrepresentation or breach of warranty under this Agreement; or

(iv)  the fault or negligence of Customer or any Customer Personnel.

12.  Indemnity.

(a)   Customer shall defend, indemnify and hold harmless Tension and its officers, directors, employees and agents  from and against all liabilities, judgments, losses, damages (including lost profits), administrative actions, causes of action, claims, demands, harm, injury, fines, penalties, assessments, costs and expenses (including attorney’s fees, court costs, investigative costs and amounts paid in settlement) of whatsoever kind and nature (together “Liability”), asserted against Tension (or any of the aforementioned persons) based on contract, tort or common law indemnity, or that Tension (or any of the aforementioned persons) otherwise incurs or suffers, that arise out of (i) Customer’s breach of any of its obligations under this Agreement or (ii the unauthorized disclosure or use by Customer or Customer Personnel of Tension’s Confidential Information, Works, Inventions, Trade Secrets, Copyright or Intellectual Property.

(b)   Tension shall indemnify, defend and hold harmless Customer, and its officers, directors, employees and agents from and against all Liability for infringement of any patent, copyright, trade mark, or similar property right (including, but not limited to, misappropriation of trade secrets) based on any intellectual property, HTML code, images, illustrations, graphics, multimedia files, text, user information, hardware, machines, devices, methods and product information that are provided to Customer by Tension for use by Customer, including the Deliverables (“Tension Property”). If such infringement claim or action has occurred or, in Tension’s judgment is likely to occur, Customer shall allow Tension, at Tension’s option and expense, to either:

(i)    procure for Customer the right to continue using such Tension Property;

(ii)   modify such Tension Property to become non-infringing (provided that such modification does not adversely affect the intended use of such Tension Property by Customer as contemplated under this Agreement);

(iii)  replace such Tension Property with an equally suitable, compatible and functionally equivalent non infringing deliverable and/or materials at no additional charge to Customer; or

(iv)  if none of the foregoing alternatives is reasonably available to Tension, then upon Tension’s written request Customer shall return such Tension Property to Tension and thereafter be relieved of its obligations with respect to Deliverables that are dependent on such Tension Property.

(c)   Notwithstanding any provision of this Agreement or any SOW to the contrary, Tension shall not be liable for (and disclaims all responsibility for) any injury, loss, damage or expense, whether indirect, incidental, consequential or punitive, including, without limitation, for down time; loss of use, material, data, revenues or profits; corrupt data; service interruptions; errors in supply or failure of supply; or for costs and expenses incurred in connection with labor, overhead, transportation, installation or removal of equipment, programming, substitute facilities, supply sources, liability to third parties, or any cause, loss, action, claim or damage whatsoever for injury or death to persons or damage to property, arising out of or related in any way to the Deliverables or the Services, regardless of whether Tension has been advised of the possibility of such cause, loss, action, claim, or damage. Tension shall not be liable for any damages caused by delay in delivery, installation or furnishing of Deliverables under this Agreement to the extent not caused by Tension or those under its control.

(d)   If the Deliverables include components of an automated pharmaceutical system, Tension in no way assumes, and disclaims, the professional duties and responsibilities of pharmacy personnel in the operation of the Deliverables. Customer (through its qualified professionals) shall be responsible to inspect prescriptions and to make the decision to use the Deliverables to dispense medications. Customer shall indemnify, defend, and hold harmless Tension and its directors, officers, and employees from any and all damages, judgments, losses, claims, demands, or causes of actions arising from the occurrence or alleged occurrence of dispensing errors in the Customer’s pharmacy.

(e)   Notwithstanding anything in this Agreement to the contrary, the total liability of Tension for all claims, whether in contract, tort (including, but not limited to, negligence and product liability), or otherwise, arising out of, connected with, or resulting from the provision, manufacture, sale, delivery, installation, repair, replacement or use of the Deliverables or the Services, or this Agreement, is limited to the Warranty, subject to the limitations thereof, and shall not exceed the total amounts paid by Customer to Tension for the Deliverables and/or Services that give rise to the claim.

13.  Change Orders. Any change (addition or deviation) that impacts the scope of the Services, including changes in the requirements or changes in the deliverables, shall be documented in accordance with the change request process set forth in the applicable SOW. Such change request process may be initiated by either Party. Tension shall not commence work on any requested change, and neither Party shall have any liability with respect to any such change, until Tension and Customer have approved such request in writing.

14.  Compliance with Law. Each Party shall comply with, and shall ensure that all of its Personnel comply with, all applicable federal, state and local laws and ordinances and all orders, rules and regulations issued thereunder.

15.  Other Provisions.

(a)   Severability. If a court of competent jurisdiction holds that one or more of the provisions contained in this Agreement, or any application thereof, is invalid, illegal or unenforceable in any respect, then the validity, legality and enforceability of the remaining provisions of this Agreement or any other application thereof shall not in any way be affected or impaired thereby.

(b)   Notices. All notices, requests, demands or other communications under this Agreement must be in writing, addressed to the Parties at the addresses set forth in the applicable SOW, or to such other addresses as to which the Parties give notice in accordance with this Section 15(c).

(c)   Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the state of Missouri as they apply to contracts entered into and performed wholly within Missouri, without regard to its rules concerning conflicts of laws. The Parties consent to the exclusive jurisdiction of courts situated in the Circuit Court of Jackson County, Missouri or the United States District Court for the Western District of Missouri if any legal proceedings are instituted relating to this Agreement. Neither the 1980 United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transaction Act (“UCITA”) shall apply to this Agreement or to any sale or other transaction under this Agreement.

Customer acknowledges that certain U.S. and International Internet Laws may apply to the download, access and use of the Services and/or Deliverables, and Customer shall assume full responsibility for compliance with all such applicable laws in connection with access and use by Customer and its employees and end-users of the foregoing. Customer acknowledges that if any personal information is collected by Customer or any of its employees or end-users while accessing and using the Services and/or Deliverables, Customer shall, and shall cause its employees and end-users to, comply with all applicable data privacy laws (e.g., data privacy and security acts and the Computer Fraud and Abuse Act) and take responsibility and liability for all appropriate levels of precaution in the collection of personal information and data online and shall inform any provider of such personal information of Customer’s privacy protection policies.

In connection with a U.S. Government Customer, the Services and/or Deliverables qualify as “commercial items” as that term is defined at Federal Acquisition Regulation (“FAR”) 48 CFR 2.101, consisting of “commercial computer software” “and “commercial computer documentation” as such items are used in FAR 12.212, Consistent with FAR 12.212 and DoD Far Supp. 227.7202-1 through 227.7202-4, and which have been developed at private expense; and notwithstanding any other FAR or other contractual clause to the contrary in  any agreement into which this Agreement may be incorporated. U.S. Government Customer shall acquire the Services and/or Deliverables with only those rights set forth in this Agreement. Further, any U.S. Government download, access and use of the Services and/or Deliverables constitute the U.S. Government’s acknowledgement that the Services and/or Deliverables are “commercial computer software” and “commercial computer software documentation” and developed solely at private expense. As applicable and so marked with respect to the Services and/or Deliverables, the U.S. Government shall acquire the Services and/or Deliverables with at least applicable limited rights and restricted rights as defined under the relevant and applicable FARs and DFARs.

(d)   Binding Effect. This Agreement is binding upon, and inures to the benefit of, the Parties and their respective successors and assigns.

(e)   Dispute Resolution. “Dispute” means a disagreement that the Parties have been unable to resolve by the normal and routine channels ordinarily used for such matters with customer service representatives or other designated personnel of each Party handling inquires and complaints through informal contact. The Parties intend that all Disputes arising under this Agreement be resolved expeditiously, amicably and at the level within each Party’s organization that is most knowledgeable about the disputed issue. Written notice shall be given by the disputing Party to the other Party detailing the Dispute. Both Parties shall use good faith to resolve the matter. If the Dispute remains unresolved at this level within each Party’s organization after a two (2) week period, the Dispute should be elevated within each Party’s organization to a higher level for a mutually satisfactory resolution within thirty (30) days of the written notice of the Dispute or within a mutually agreeable time. Final escalation within both organizations may be done to the level of the chief executive officer. If the Parties are still unable to reconcile the Dispute or if at any time during this process one Party deems to be appropriate, the Dispute may be taken to court by either Party under Section 15(c). Each Party shall bear its own expenses (including legal fees) with respect to any Dispute.