THIS DOCUMENT STATES THE TERMS UPON WHICH THE XTRAC SUBSCRIPTION & SERVICES AGREEMENT (“AGREEMENT”) WAS ESTABLISHED BETWEEN XTRAC, LLC, (“XTRAC” AND “XTRAC SOLUTIONS”) AND THE SUBSCRIBING CUSTOMER (“CUSTOMER”) AS EXECUTED BY THE PARTIES ON THE DATE INCLUDE IN THE AGREEMENT (“EFFECTIVE DATE”).
XTRAC offers this proprietary business process management solution on a hosted web services basis, and Customer agrees to license access to such solution (a “Subscription”), all under the terms and conditions of the Agreement.
1.1 “Applicable Laws” means all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws, etc., are in effect as of the Effective Date or later come into effect during the term of this Agreement.
1.2 “Authorized User” means each employee or agent of Customer (i) authorized by Customer to access and/or use the XTRAC Platform for Customer’s business purposes in accordance with this Agreement; and (ii) to whom a password-protected account for use of the XTRAC Platform has been created by Customer.
1.3 “Data” means all information and data input by Authorized Users into the XTRAC Platform, and all derivatives and transformations thereof.
1.4 “Documentation” means the user guide applicable to the XTRAC Platform as provided by XTRAC to Customer and as may be modified or updated by XTRAC from time to time.
1.5 “Fees” means the Subscription Fees and any other fees and expenses payable by Customer as set forth in this Agreement.
1.6 “Subscription Fees” means the monthly fees payable by Customer in consideration for its right to use and access the XTRAC Platform in accordance with this Agreement and as set forth on XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B.
1.7 “Subscription Period” means the term of Customer’s subscription to the XTRAC Platform as identified in XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B.
1.8 “Term” means a thirty-six (36) month period beginning on the date which the Customer is provided access to the XTRAC Platform, subject to the termination provisions of Section 4. Upon expiration of the initial and any subsequent renewal term, the Agreement shall automatically renew for an additional twelve (12) month period unless either party notifies the other party in writing at least ninety (90) days prior to the next-scheduled renewal date of its intention not to renew.
1.9 “XTRAC Platform” means XTRAC’s business process management application (including all related software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) and the content therein (other than Data) as described in XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B and as made available to Customer under this Agreement and as may be updated by XTRAC from time to time, which may include third-party components, and the Documentation.
2.1 XTRAC Platform. Subject to Customer’s compliance with the terms of this Agreement, XTRAC hereby grants to Customer a nonexclusive, limited, nontransferable right to access and use the XTRAC Platform in object code only via XTRAC’s internet hosted web site solely (i) for Customer’s own internal business purposes, (ii) for use by Authorized Users and no other users in support of Customer’s internal business purposes, (iii) for the term of the Subscription Period; (iv) in strict accordance with this Agreement; and (v) subject to any additional restrictions as set forth in XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B. XTRAC hereby grants to Customer a nonexclusive, limited, nontransferable right to use and copy the Documentation in support of the foregoing license.
2.2 Support. XTRAC shall provide Customer with technical support for the XTRAC Platform in accordance with XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT C.
2.3 Professional Services. From time to time, additional consulting or professional services may be requested by Customer in support of Customer’s use of the XTRAC Platform (“Professional Services”). In such instance a separate Statement of Work (“SOW”), signed by both parties detailing the fees and payment for Professional Services will be completed and attached in a form similar to the example included as XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT D.
2.4 Restrictions. Customer shall not use, or allow others to use, the XTRAC Platform in any manner other than as expressly allowed in this Agreement. Customer may not: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the XTRAC Platform or its structural framework; (ii) modify or create derivative works of the XTRAC Platform; (iii) attempt to gain unauthorized access to the XTRAC Platform or its related systems or networks; or (iv) use the XTRAC Platform in whole or in part for any purpose except as expressly provided under this Agreement (including without limitation allowing any distribution or sublicense of the XTRAC Platform or other access to the XTRAC Platform by any person or entity that is not an Authorized User or processing Data through the XTRAC platform on behalf of third parties or any affiliated entities. Customer shall (a) take all reasonable precautions to prevent unauthorized or improper use of the XTRAC Platform, (b) not interfere with or disrupt the integrity or performance of XTRAC Platform, (c) not attempt to gain unauthorized access to XTRAC Platform or its related systems or networks, and (d) not create Internet “links” to the XTRAC Platform or “frame” or “mirror” any content therein.
2.5 Security. Customer shall ensure the security of its account ID, password, and connectivity with the XTRAC Platform. If any administrative account ID or password is stolen or otherwise compromised, Customer shall immediately change the password and inform XTRAC of the compromise. Customer acknowledges that responsibility for all Data, text, information, messages and other material submitted by its users to the XTRAC Platform lies solely with Customer. Customer is solely responsible for the integrity and quality of Data, and for maintaining an appropriate backup thereof. XTRAC may change the authorization method for access to the XTRAC Platform if it determines in its sole discretion that there are circumstances justifying such changes. XTRAC shall use commercially reasonable efforts to protect against the loss, misuse and alteration of Data under XTRAC’s control, including using XTRAC’s standard security protocols. Customer is solely responsible for the integrity of data in storage or transmission and ensures proper storage or transmission of data by its users of the XTRAC Platform. XTRAC will adhere to industry standard security process and will promptly respond to remedy any security breaches of the XTRAC System of which it becomes aware.
Customer shall pay XTRAC the Fees as set forth in XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B. Except as may be otherwise specified on XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B, XTRAC will invoice the Subscription Fees monthly in arrears. Payment terms for fees for Professional Services shall be set forth on the applicable Statement Of Work. All invoiced amounts will be due and payable without set-off upon Customer’s receipt of the invoice. Amounts outstanding beyond thirty (30) days from the invoice date will be subject to a late payment charge at the lesser of one and one half percent (1.5%) per month or the highest rate permissible under Applicable Law for the actual number of days elapsed. All billing and payment will be in United States dollars only. All fees and payments hereunder are nonrefundable and exclusive of all taxes, including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (except taxes on the income of XTRAC), and Customer agrees to pay such taxes, whether federal, state or local, or municipal. If Customer fails to make payments when due, XTRAC may, upon notice to Customer, suspend Customer’s access and use of the XTRAC Platform until such payments are made. Customer will continue to be charged Subscription Fees during any period of suspension. XTRAC may impose a reconnection fee if Customer is suspended pursuant to this Section and thereafter requests access to the XTRAC Platform.
4.1 Term. The term of this Agreement will commence on the Effective Date and continue unless and until terminated in accordance with this Section 4.
4.2 Termination for Cause. If either party materially breaches any term or condition of this Agreement, and if such breach has not been cured by the breaching party within thirty (30) days after its receipt of notice of such breach, the non-breaching party may immediately terminate this Agreement. Each party may terminate this Agreement immediately upon notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; or if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of filing.
4.3 Termination for Convenience. Either party may terminate this Agreement for convenience by providing a ninety (90) day written notice to the other party.
4.4 Effect of Termination. Upon termination of this Agreement, Customer’s right to access or use Data and the XTRAC Platform shall immediately cease and, and except as otherwise provided herein, XTRAC will have no obligation to maintain or forward any Data. If the Agreement is terminated under this Section 4, upon payment of any balance due to XTRAC pursuant to Section 3 within sixty (60) days of termination and at Customer’s request and expense, including Data transfer fees, XTRAC will make available to Customer, an electronic file of the Data to be available up to thirty (30) days after payment in full of all obligations. Notwithstanding any other provision of this Section 4.2, after ninety (90) days from termination, XTRAC shall have no obligation to maintain or forward any data to customer and will purge or otherwise destroy all customer data. Customer’s payment obligations, and Sections 4.4, 5, 7, 8, 9, 10 and 11 will survive expiration or termination of this Agreement. Upon any termination of this Agreement, Customer shall pay any balance due to XTRAC pursuant to Section 3. Expiration or termination of this Agreement shall immediately terminate all licenses and access rights granted to Customer herein.
5.1 Reservation of Rights. All rights not expressly granted to Customer herein are expressly reserved by XTRAC. As between the parties, the XTRAC Platform is and will remain exclusive property of XTRAC, and XTRAC will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in the XTRAC Platform and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, and all derivative works thereof, and Customer will have no right, title, or interest in or to the same except as expressly granted in Section 2.1. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of XTRAC’s or its licensors’ existing or future rights in or to the XTRAC Platform except as expressly granted in Section 2.1. XTRAC trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by XTRAC and shall inure solely to the benefit of XTRAC. Products acquired for use within or for any United States federal agency are provided with “Limited Rights” and “Restricted Rights” as defined in DFARS 252.227-7013 and FAR 52.227-19.
5.2 Violations of Law. XTRAC may immediately suspend provision of the XTRAC Platform at any time, without notice to Customer and without liability, if XTRAC suspects or receives notice that the XTRAC Platform or the use thereof actually or allegedly infringes or violates a third party rights or violates any Applicable Laws. XTRAC may suspend Customer’s and its users’ access to and use of the XTRAC Platform in order to comply with Applicable Laws, or upon having reason to believe that any improper activity or potential damage to XTRAC products or services or other customers is associated with Customer’s or its users’ use of or access to the XTRAC Technology.
5.3 Customer Data. As between the parties, Customer has and shall retain sole and exclusive title and ownership of all Data. Customer grants to XTRAC a limited and nonexclusive license to use, copy, modify, distribute and display Data solely for purposes of providing the XTRAC Platform to Customer in accordance with this Agreement and as otherwise expressly authorized by this Agreement. Customer Data is subject to maximum storage amounts as set forth in XTRAC SOLUTIONS SUBSCRIPTION & SERVICES AGREEMENT - EXHIBIT B.
6.1 Platform Requirements. As between the parties, Customer is responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the XTRAC Platform, and for paying all associated third-party access charges.
6.2 Use of Data. XTRAC may monitor any and all use of the XTRAC Platform by Customer and its users. XTRAC may gather Customer system data for the purpose of optimizing the XTRAC Platform. This information includes, but is not limited to, data regarding memory usage, connection speed and efficiency. XTRAC may use Data and Customer’s Confidential Information for limited internal business purposes, including, but not limited to, the identification of trends and the formulation of statistics, and may disclose such data and information as reasonably necessary, provided that in connection with such use or disclosure, (i) such data and information are aggregated and do not identify individuals or Customer, and (ii) such data and information shall not be identifiable as originating from Customer.
6.3 Disaster Recovery. XTRAC maintains a disaster recovery and business continuity plan for the XTRAC Platform which it periodically updates and tests. In the event of a disaster, as defined under the disaster recovery plan, XTRAC shall perform the responsibilities and procedures set forth in such plan in order to restore operations as quickly as possible.
6.4 Changes to the XTRAC Platform. XTRAC may make upgrades and improvements to the XTRAC Platform available to Customer from time to time. XTRAC may modify or delete any features of the XTRAC Platform. XTRAC may, at any time, modify the XTRAC Platform, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or demands or requirements of third party service providers.
7.1 Confidential Information. Each party acknowledges and understands that, except as set forth in Section 7.2, any and all technical, trade secret, or business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, and the XTRAC Platform, which is disclosed to the other or is otherwise obtained by the other, its affiliates, employees, representatives or other agents during the term of this Agreement (the "Confidential Information") is confidential and proprietary, constitutes trade secrets of the owner, and is of great value and importance to the success of the owner's business.
7.2 Exceptions. The parties shall have no obligation hereunder with respect to any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information. A disclosure of Confidential Information shall not be a violation of this provision if it is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the disclosing party provides prompt notice of any such subpoena, order, etc. to the other party so that such party will have the opportunity to obtain a protective order.
7.3 Obligations. Both parties shall maintain as confidential and shall not disclose (except for those employees, attorneys, accountants and other advisors, agents or authorized users of the recipient and its affiliates on a need-to-know basis and who have in turn been advised of the confidentiality obligation hereunder), copy, or use for purposes other than in connection with use of the XTRAC Platform as authorized hereunder, the other party’s Confidential Information. Each party agrees to protect the other party’s Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Each party shall be liable under this Agreement to the other for any use or disclosure in violation of this Agreement by its employees, attorneys, accountants, or other advisors, agents or authorized users. Each party agrees to comply with its obligations under the terms of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 et seq.) and other privacy laws, to the extent applicable, and to cooperate with the other party at such party’s request in the fulfillment of any such obligations.
8.1 Mutual Warranties. Each party warrants to the other party that (i) such party has the right to enter into this Agreement and perform its obligations hereunder in the manner contemplated by this Agreement; and (ii) this Agreement does not conflict with any other agreement entered into by such party.
8.2 Customer Warranties. Customer represents, warrants and covenants that (i) Customer will comply with all Applicable Laws with respect to its and its users’ access and use of the XTRAC Platform; and (ii) Customer has received all third party consents and certifications necessary for the transmission of Data to the XTRAC Platform. XTRAC is not responsible for ensuring that the XTRAC Platform, or any portion thereof, is in compliance with Customer’s criteria for legal compliance.
8.3 Product and Service Warranties. XTRAC warrants to Customer that all Data stored in XTRAC’s electronic document storage vault(s) shall be safeguarded against loss in accordance with XTRAC’s disaster recovery obligation under Section 6.3. XTRAC warrants to Customer that, when used in accordance with all user Documentation, the XTRAC Platform will comply in all material respects with such Documentation during the Subscription Term (“Product Warranty”). XTRAC’s sole obligation under the Product Warranty, and Customer’s sole and exclusive remedy for any breach of the Product Warranty, shall be for XTRAC to perform its technical support obligations as set forth in Section 2.2. XTRAC warrants to Customer that XTRAC will perform Professional Services by qualified personnel and in a manner consistent with industry standards (“Services Warranty”). XTRAC’s sole obligation under the Services Warranty for Professional Services, and Customer’s sole and exclusive remedy for any breach of the Services Warranty, shall be for Customer to provide XTRAC with a detailed written description of such breach within thirty (30) days from the date of performance of the nonconforming Professional Services (or portion thereof, if applicable), in which case XTRAC shall at its expense re-perform such Professional Services (or portion thereof); if no written rejection is received by XTRAC within such thirty (30) days, such Professional Services shall be deemed accepted. Any request for remedial work after such thirty (30) day period shall require the payment of additional Professional Services fees as set forth in the SOW.
8.4 Disclaimers. Except for the product warranty and the services warranty provided in section 8.3, XTRAC expressly disclaims all other warranties, whether express, implied, or statutory, regarding the XTRAC platform and any information, materials and services provided hereunder, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. XTRAC does not represent or warrant that the XTRAC platform or any associated services will be available, error-free, completely secure, virus-free, or without interruption, or that their functions will meet any particular requirements, or that program defects or errors are capable of correction or improvement. The XTRAC platform may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications and XTRAC is not responsible for any delays, delivery failures, or other damage resulting from such problems. Customer acknowledges that it is solely responsible for the integrity of data and information, including without limitation, Data, including completeness, accuracy, validity, authorization for use and integrity over time, and XTRAC shall not be responsible for any loss, damage or liability arising out of the Data, including any mistakes contained in the Data or the use or transmission of the Data.
8.5 Third Party Data. The XTRAC Platform may allow access to data, information, or services disseminated by outside data sources and Customer acknowledges that XTRAC and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of such third party data information, or services and make no warranty concerning such information. Customer uses such third party data, information, or services at its own risk.
9.1 By XTRAC. XTRAC, at its own expense, shall: (i) defend, or at its option settle, any claim, suit or proceeding brought by a third party against the Customer and its Affiliates and its and their licensors, suppliers, officers directors, employees and agents alleging that the XTRAC Platform (other than Data) infringes an existing United States copyright or trademark; and (ii) pay any final and non-appealable judgment entered or settlement against Customer thereon; provided, however, that XTRAC shall not be responsible for any compromise or settlement made without its prior consent. If the XTRAC Platform is or may become the subject of such a claim, XTRAC may, at its option: (1) modify or replace the affected parts so the XTRAC Platform become non-infringing or (2) if the foregoing cannot reasonably be accomplished, terminate this Agreement and refund Customer for any prepaid fees. XTRAC shall have no obligation with respect to any infringement claim based upon Customer’s or its users’ combination, operation or use of the XTRAC Platform with non-XTRAC information or services if the infringement claim would have been avoided had such combination, operation or use not occurred. Where infringement claims arise with respect to third party products, XTRAC’s sole obligation is to pass through to Customer any indemnity that may be available to Customer under the terms and conditions of the agreement between XTRAC and such third party vendor. This section states the entire liability of XTRAC for any infringement involving the XTRAC platform.
9.2 By Customer. Customer will, if instructed by XTRAC, defend, and in any event indemnify, and hold harmless XTRAC and its Affiliates and its and their licensors, suppliers, officers directors, employees and agents, from and against any and all third party claims arising out of or incurred as a result of: (i) any breach of this Agreement by Customer and/or its users; (ii) Customer’s and its users’ use of the XTRAC Platform or any component thereof; and/or (iii) Data; provided, however, that Customer shall not be obligated to indemnify the XTRAC entities to the extent the claim is caused by XTRAC’s gross negligence, misconduct, and/or breach of this Agreement. If XTRAC instructs Customer to defend such claim, Customer shall pay any judgment entered or settlement against XTRAC thereon.
9.3 Process. Each party’s indemnification obligation under this Section 9 is conditional upon: (a) the indemnified party giving the indemnifying party prompt notice upon becoming aware the claim; (b) the indemnified party giving the indemnifying party the right to solely control and direct the investigation, preparation, defense and settlement of the claim; and (c) the indemnified party fully cooperates with the indemnifying party, at the indemnifying party’s expense, in such defense and settlement. The indemnified party shall have the right, at its cost, to employ counsel of its choice to participate in the defense of such claim.
10. Limitations of Liability. To the maximum extent permitted by applicable law, XTRAC will not be liable to customer or any third party for any consequential, incidental, indirect, special, or exemplary damages of any kind, including without limitation any loss of use, loss of data, loss of business, cost of procurement of substitute products or loss of profit or revenue, arising out of or in connection with this agreement, the XTRAC platform, the XTRAC platform and any services rendered hereunder (however arising, including negligence, even if XTRAC is or should have been aware of the possibility of such damages. XTRAC’s total cumulative liability to customer in connection with this agreement, whether in contract or tort or otherwise, will not exceed amount actually paid by customer to XTRAC during the six (6) month period immediately preceding any such liability.
11.1 Assignment. The Agreement and all rights and obligations hereunder are not assignable or transferable by Customer without the prior written consent of XTRAC, and any attempt to do so shall be void; provided, however, that Customer may, upon XTRAC’s prior written consent, which shall not be unreasonably withheld, assign this Agreement in its entirety to a Customer Affiliate or to a successor entity in the event of a merger, acquisition of assets or shares, or other change in control.
11.2 Force Majeure. Except with respect to the obligation of payment, neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.
11.3 Limitation of Actions. No action, regardless of form, arising out of this Agreement may be brought by Customer more than one year after the cause of action has been or reasonably should have been discovered.
11.4 Governing Law. This Agreement is deemed to be made under and shall be interpreted in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of laws provisions. The parties hereby submit to the jurisdiction and venue of the state and federal courts of the Commonwealth of Massachusetts for purposes of all legal proceedings arising out of or relating to this Agreement. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The parties hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement. In the event of a material dispute between the parties, both parties first shall make reasonable best efforts to remedy the dispute without outside intervention. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement or the transactions contemplated hereby.
11.5 Independent Contractors. Customer and XTRAC are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
11.6 Notices. All notices and consents required or permitted under this Agreement must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid), by overnight courier, or by facsimile (receipt confirmed), in each case to the addressed listed on the first page of the Agreement and will be effective upon receipt. Notices to XTRAC should be sent to the attention of its Chief Financial Officer. Email notices shall not suffice under this Section. Each party may change its address for receipt of notices by giving notice of the new address to the other party.
11.7 Publicity. Customer hereby grants to XTRAC the right to use Customer’s name and logo on the XTRAC web site and in XTRAC’s collateral marketing materials relating to the Services, provided that Customer has approved in writing in advance the form of any such use, such approval not to be unreasonably withheld. Upon such approval, Customer agrees to allow XTRAC to use Customer’ name and logo (in such form as provided by Customer to XTRAC for such purpose) solely as a reference, current customer or user of the XTRAC Platform in XTRAC marketing materials. The Parties shall, promptly after execution of this Agreement, prepare specific guidelines for XTRAC’s use of Customer’ name and logo that once agreed upon and approved will satisfy the Customer review process and will not require further written approval from Customer for uses of the Customer name and logo by XTRAC in accordance with such guidelines.
11.8 Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible.
11.9 Waivers. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement.
11.10 Limited remedies. Without limiting anything in this agreement, it is understood and agreed by the parties that each and every provision of this agreement which provides limitation of liability, disclaimer or warranties or exclusion of damages (a) are a fundamental part of the basis of XTRAC’s bargain hereunder, and XTRAC would not enter into this agreement absent such limitations, disclaimers and exclusions, and (b) are intended by the parties to be enforceable to the maximum allowed by applicable law, severable and independent of any other such provision and to be enforced as such. It is expressly understood and agreed that in the event any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein shall remain in effect to the maximum allowed by applicable law.
11.11 Equitable Remedies. Each party acknowledges that a breach of its obligations under this Agreement could cause irreparable harm to the other party and that monetary damages may be difficult to ascertain. Therefore, without prejudice to the rights and remedies otherwise available to it, each party shall be entitled to receive relief by way of injunction or specific performance in any court of competent jurisdiction without the need of posting a bond or other security.
11.12 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
11.13 Remedies Cumulative. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege.
11.14 Entire Agreement. This Agreement supersedes all prior discussions, understandings and agreements with respect to its subject matter. Any terms on a purchase order, payment document, or other document submitted by Customer shall be void and have no force or effect.