|
10.3 Notices. All notices and requests in connection with this
<br />Agreement will be given to the respective parties in writing
<br />and will be deemed given as of the first business day of the
<br />notified party following the day the notice is faxed or sent via
<br />overnight courier, providing a hard copy acknowledgment of
<br />such successful faxed notice transmission or evidence of such
<br />couriering, as applicable, is retained. Notice may also be
<br />deposited in the mails, postage pre -paid, certified or
<br />registered, return receipt requested, and addressed to the
<br />parties as indicated on the face of this Agreement or such
<br />other address of which the party gives notice in accordance
<br />herewith, and receipt of any such notice will be deemed to be
<br />effective as of the third business day following such deposit.
<br />10.4 Governing Law. This Agreement shall be governed by
<br />the laws of the State of California, without giving effect to the
<br />conflict of laws provisions thereof. Neither the United Nations
<br />Convention of Contracts for the International Sale of Goods
<br />nor the Uniform Computer Information Transactions Act shall
<br />apply to this Agreement. Any legal action or proceeding
<br />relating to this Agreement shall be instituted only in any state
<br />or federal court in San Diego County, California.
<br />10.5 Attorney Fees. In any action or suit to enforce any right
<br />or remedy under this Agreement or to interpret any provision
<br />of this Agreement, the prevailing party shall be entitled to
<br />recover its costs, including reasonable attorneys' fees.
<br />10.6 Affiliates. During the term of this Agreement, Client or
<br />Client's Affiliates may order additional Products and /or
<br />Services from Active or one of Active's Affiliates by entering
<br />into a Schedule. In the event that Client or Client's Affiliate
<br />enters into a Schedule with Active or an Affiliate of Active,
<br />reference in this Agreement to "Client" and "Active" shall
<br />mean the respective entity that executed the applicable
<br />Schedule. A breach of this Agreement by Active's Affiliate or
<br />Client's Affiliate shall not affect the rights, privileges, or
<br />obligations of Active or Client, as applicable, or any other
<br />Affiliate not in breach of this Agreement.
<br />10.7 Non - Assignability. Neither party may assign its rights or
<br />obligations arising out of this Agreement without the other
<br />party's prior written consent, except that (i) Active may assign
<br />this Agreement to one of its affiliates or in connection with
<br />any sale or security interest involving all or substantially all of
<br />its assets or any other transaction in which more than fifty
<br />percent of its voting securities are transferred; and (ii) Client
<br />automatically assigns this Agreement to the purchaser of all or
<br />substantially all of Client's assets or equity securities or to any
<br />successor by way of any merger, consolidation or other
<br />corporate reorganization of Client. In the event that any such
<br />assignment is made by Client pursuant to (ii), Client must
<br />provide Active with written notice of such event within thirty
<br />(30) days of such assignment. Active shall have thirty (30)
<br />days from its receipt of such notice to terminate this
<br />Agreement without further liability or obligation to Client.
<br />10.8 Term and Survival. The term of this Agreement shall
<br />commence on the Effective Date set out on the cover page
<br />hereof and shall continue as set forth in Sections 16 or 23.1, as
<br />Last revised October 4, 2013
<br />applicable, or until terminated in accordance with Section 6.
<br />Sections 1.1, 4, 5.4, 6.3, 8.2, 9, 10, 27.1, and 27.2 of this
<br />Agreement, along with all unpaid payment obligations, will
<br />survive termination and expiration of this Agreement.
<br />10.9 No Authority to Bind. Neither party shall incur any
<br />obligations for or in the name of the other party, or have the
<br />authority to bind or obligate the other party. Neither party
<br />shall make, issue or authorize any statements (whether oral or
<br />written) in contravention of the foregoing.
<br />10.10 Counterparts. This Agreement may be executed in
<br />separate counterparts and delivered by facsimile or such other
<br />electronic means as are available to the Parties. Such
<br />counterparts taken together shall constitute one and the same
<br />original document.
<br />10.11 Severability. If any provision of this Agreement is
<br />held by a court of competent jurisdiction to be invalid,
<br />unenforceable, or void, the remainder of this Agreement and
<br />such provisions shall remain in full force and effect.
<br />10.12 Cooperative Procurement. Upon consent by
<br />Active, this Agreement may be used for permitted cooperative
<br />procurement by any public or municipal body, entity, agency
<br />or institution. If so authorized, and in order to forego a related
<br />entity RFP or similar competitive bidding process, this
<br />Agreement may be extended to such other entities indicated
<br />above for the procurement of similar products and /or services
<br />provided to Client herein and at fees in accordance with this
<br />Agreement unless separately negotiated between such other
<br />entities and Active. Further related entities participating in a
<br />cooperative procurement process shall place their own orders
<br />directly with Active and will fully and independently
<br />administer their use of this Agreement to include such
<br />contractual obligations as those entities and Active deem
<br />appropriate without direct administration from the original
<br />Client.
<br />10.13 Insurance. Active shall maintain for the duration of
<br />this Agreement commercial general liability, business auto,
<br />workers' compensation, and professional errors and omissions
<br />insurance with limits acceptable to Client. Such insurance
<br />shall (a) include Client, its officers, employees, agents,
<br />volunteers, and representatives as additional insured; (b) be
<br />primary and non - contributory with respect to insurance and
<br />self - insurance programs maintained by Client; and (c) contain
<br />standard separation of insureds provisions.
<br />APPENDIX 1: TERMS APPLICABLE ONLY TO
<br />HOSTED SOFTWARE
<br />11. HOSTED SOFTWARE
<br />11.1 Active will provide Client with access to hosted versions
<br />of the Products identified in the applicable Schedule and
<br />associated Online Services, and Active hereby grants to Client
<br />a limited, non - exclusive, non - transferable license to use the
<br />Hosted Software in accordance with the applicable
<br />documentation.
<br />
|