Timing Product Trial Period Terms

LAST REVISED: November 10, 2016

These Timing Product Trial Period Terms and Conditions, together with the applicable Schedule, form the agreement for the Timing Product Trial Period (the “Agreement”) and are entered into by and between Active Network, LLC (“Active”) and Client (in his/her individual capacity and on behalf of Client’s business entity, collectively, “Client”) as identified on the applicable schedule incorporated into this Agreement (the “Schedule”). Any capitalized terms defined herein have the meaning ascribed to them in either this Agreement or the Schedule. Active and Client are hereinafter collectively referred to as “Parties,” or individually as a “Party.” In order to use the Timing Products, Client must first agree to this Agreement. Client represents and warrants that Client has the necessary and full right, power, authority, and capability to accept this Agreement, to bind Client’s organization, and to perform Client’s obligations hereunder. Client can accept this Agreement by: (a) clicking to accept or agree to this Agreement, where this option is made available to Client by Active in the user interface for any Timing Product; (b) where a link to this Agreement appears in an order form or other document provided to Client by Active; (c) by signing this Agreement if there is a designated area to sign; or (d) by actually using the Timing Product. In the case of (d), Client understands and agrees that Active will treat Client’s use of the Timing Product as acceptance of this Agreement from that point onwards. Client may not use the Timing Product and may not accept this Agreement if (i) Client is not of legal age to form a binding contract with Active, or (ii) Client is barred from receiving the Timing Product under the laws of the United States or other countries including the country in which Client resides or from which Client uses the Timing Product. Client may not use the Timing Product if Client does not accept this Agreement. “Effective Date” means the date that Client accepts this Agreement. By accepting this Agreement, Client agrees as follows:

1. Timing Products. Active shall make available to Client, on a trial basis, certain timing products as follows:

a. Timing Products Defined. Timing products, including the type, quantity, and other characteristics, are identified in the applicable Schedule (the “Timing Products”), as executed by the Parties. Certain of the Timing Products operate with software, computer instructions, operating information, programs, and related data (the “Timing Software”) and Client’s use of such Timing Software is subject to a limited license to use the Timing Software solely for the purpose of recording and relaying timing results and strictly subject to and in accordance with the terms and conditions herein and any additional terms for the specific Timing Software. The right to use the Timing Products and the limited license to the Timing Software shall extend for the duration of the Trial Period only, as defined in the Schedule (“Trial Period”).‍

b. Delivery and Risk of Loss. Unless physically picked up by Client at the location designated by Active, Timing Products will be shipped to the shipping address on approximately the “Estimated Ship Date,” as such address and date are indicated on the Schedule. The risk of loss, injury, or destruction of any Timing Product, from any cause whatsoever shall pass to Client upon the following, as applicable (i) if picked up by Client, upon Client taking possession of the Timing Products, or (ii) if shipped to Client, upon Active placing the Timing Products into transit for delivery to Client.

2. License and Ownership. The following terms and conditions apply to Client’s use of the Timing Software and the Timing Products:

a. Active retains all right, title, and interest in and to its Timing Products, including but not limited to any and all hardware, software, and services subject to the limited license in this Agreement. Active hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license during this Agreement to use the Timing Products for the purposes of providing timing services. All rights not expressly granted herein are reserved.

b. Client may suggest new features or functionality or provide data, information, or other materials to Active regarding the Timing Products or the Timing Software (together, “User Disclosures”). By providing such User Disclosures to Active, Client hereby acknowledges that the User Disclosures shall be and are the sole and exclusive property of Active, and Client hereby waives and releases Active from all liability, claims, and obligations that may arise from the receipt, review, use, or disclosure of any portion of any User Disclosures. Client shall assign and hereby does assign any such User Disclosures to Active free of moral rights, intellectual property rights, and/or other proprietary rights. Client agrees that the User Disclosures will be non-confidential. Active will be free to use and disclose any User Disclosures on an unrestricted basis without notifying or compensating Client, including but not limited to adopting part or all of the User Disclosures as part of its products or services or utilizing the User Disclosures to promote Active’s services to others during and after the term of this Agreement including use in any or all marketing material as Active deems appropriate. Without limiting the foregoing, to the extent that Client is unable to completely assign all intellectual property rights in any User Disclosures to Active, Client hereby grants Active a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, database, and any other intellectual property rights Client may have in the User Disclosures, in any media known now or in the future. In relation thereto, Active may display and distribute the User Disclosures in its marketing and case study materials and samples of any promotional materials generated in Active’s course of business. Such right shall, without limitation, include the right to display and distribute such material and information on Active’s internet sites or in any other marketing material. Client grants Active the right, to be exercised in Active’s sole discretion, to use the facts, contents, and outcome of the User Disclosures in Active’s promotions, press releases, public relations, advertisements, and other sales and marketing activities. Such right shall be unlimited in duration, and no compensation shall be required for Active’s exercise of such right.

c. Client shall not: (i) reverse engineer, alter, modify, rework, repair, disassemble, incorporate into or with other software, hardware, product, or material or decompile any Timing Products or Timing Software or prepare derivative works or modifications thereof; (ii) copy, modify, transfer, display, or use any portion of the Timing Products, the Timing Software or related services except as expressly authorized in this Agreement; or (iii) contest or do or aid others in contesting or doing anything which impairs the validity of any proprietary or intellectual property rights, title, or interest of Active in and to any Timing Products, Timing Software or related services.

d. Client shall not use the Timing Products or Timing Software to transmit, publish, or distribute any material or information: (i) for which Client has not been authorized by Active; (ii) that contains a computer virus or other code, files, or programs designed to disrupt or interfere with the functioning of the Timing Products, the Timing Software or any software; or (iii) that is inaccurate or misleading.

e. Client shall not: (i) attempt to gain access to any systems or networks that connect thereto except for the express purpose of using the Timing Products and Timing Software for their intended use pursuant to this Agreement; (ii) rent, lease, sublicense, resell, or provide access to the Timing Products or the Timing Software on a time-share or service bureau basis; (iii) engage in any activity that interferes with or disrupts the Timing Products, the Timing Software or related services; (iv) obliterate, alter, or remove any proprietary or intellectual property notices from the Timing Products, the Timing Software or related services; or (v) take any steps to avoid or defeat the purpose of security measures associated with the Timing Products and the Timing Software, such as sharing of login and password information, or attempt to circumvent any use restrictions.

f. Client shall use the Timing Products, the Timing Software and related services, and perform its own obligations exclusively for authorized and legal purposes, consistent with all applicable laws, rules, regulations, and the rights of others.

3. Term and Termination.

a. Term. This Agreement shall commence on the Effective Date and remain in full force and effect during the Trial Period until the Timing Products are returned to Active. Client shall return the Timing Products no later than the “Return By” date set forth on the Schedule, unless terminated earlier consistent with the terms herein.

b. Termination. Active shall be entitled to terminate, without notice, this Agreement and the duties and obligations hereunder in the event that: (i) Client becomes insolvent or seeks protection, voluntarily or involuntarily, under applicable bankruptcy laws; (ii) a receivership is appointed on behalf of Client; or (iii) Client materially breaches any of the terms and conditions of this Agreement.

4. Payment. Client shall pay the fee as indicated in the Schedule, plus any and all applicable taxes and shipping costs.

5. Use of Timing Products and Recall. Client will use the Timing Products to perform timing services (timing and scoring of participants in sporting, fitness, racing, cycling or other community events (each, an “Event”) on behalf of the coordinator of the Event) for at least the minimum number of Events as set forth on the attached Schedule, if applicable. Client’s use, maintenance, and storage of the Timing Products will comply with all applicable laws, regulations, rules, and ordinances. Client will not permit the Timing Products to be used by any person who is not authorized to use the Timing Products. Active may recall any of the Timing Products upon ten (10) days’ prior written notice to Client, and the date for return indicated by Active on such notice will be the new Return By date (as discussed in Section 6).

6. Return of the Timing Products. Client will return all of the Timing Products, including any shipping containers used by Active to deliver the Timing Products, no later than the “Return By” date set forth on the Schedule in good working condition that is at least as good as the condition at the time of receipt from Active, subject to reasonable wear and tear, as determined in Active’s sole discretion. Client shall be responsible for all shipping costs incurred in returning Timing Products to Active. Client will not modify, alter, adjust, disassemble, repair, or in any way rework the Timing Products, absent Active’s express prior consent. Client must reimburse Active for any loss or damage to Timing Products and/or shipping containers which amounts will be determined by Active in its sole, reasonable discretion. If Client fails to return the Timing Products (including any shipping containers) within five (5) days after the “Return By” date, or damages them in a manner such that repairing the damage is not commercially reasonable, Client will pay to Active one thousand U.S. dollars ($1,000 U.S. dollars) for each shipping container and the retail value of the other Timing Products as set forth on the attached Schedule that are so damaged or not returned by the “Return By” date. Payments are due and payable to Active within ten (10) days’ of Client’s receipt of an invoice related thereto, or Active, in its sole discretion, can charge such amount to Client’s debit card or credit card on file with Active.

7. Condition of the Timing Products. Client acknowledges and agrees that Client will inspect the Timing Products upon delivery and report any damage within twenty four (24) hours of delivery or they will be assumed to be in good working order. Client will use its best efforts to care for the Timing Products and to protect the Timing Products and shipping containers from damage, exposure, theft, sudden impact, and other undue harm or loss of value. Client will report any damage that occurs during the Trial Period.

8. Encumbrances and Liens.

a. Client will keep the Timing Products free of any and all liens or other encumbrances and will not permit any act where Active’s title, claim, or rights may be negatively affected.

b. Client will not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, any of Active’s protected materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Timing Materials in whole or in part, for competitive purposes or otherwise; (iii) use the Timing Products for any commercial use, whatsoever, including, without limitation to provide services to third parties; (iv) disclose or publish, without Active’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Timing Products; (v) remove from any Timing Products identification, patent, copyright, trademark or other notices or circumvent or disable any security devices functionality or features; (vi) contest or do or aid others in contesting or doing anything which impairs the validity of any proprietary or intellectual property rights, title, or interest of Active in and to any Timing Products; (vii) use the Timing Products for other than authorized and legal purposes, consistent with all applicable laws, regulations, and the rights of others; and/or (viii) take any steps to avoid or defeat the purpose of security measures associated with the Timing Products.

9. Disclaimer of Warranties. THE TIMING PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. THE WARRANTIES, IF ANY, SET FORTH HEREIN ARE IN LIEU OF, AND ACTIVE, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY (a) WARRANTY THAT THE TIMING PRODUCTS ARE ERROR-FREE, ACCURATE, SECURE OR RELIABLE; (b) WARRANTY THAT THE TIMING PRODUCTS WILL OPERATE WITHOUT INTERRUPTION; (c) WARRANTY THAT ALL ERRORS WILL BE CORRECTED OR WILL COMPLY WITH ANY LAW, RULE OR REGULATION; (d) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; (e) IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (f) WARRANTY THAT THE TIMING PRODUCTS WILL MEET CLIENT’S REQUIREMENTS.

10. Indemnification and Liability. CLIENT AGREES TO RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS ACTIVE, ITS SUBSIDIARIES, AFFILIATES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, ASSIGNEES, AND REPRESENTATIVES FROM AND AGAINST, AND TO REIMBURSE ACTIVE WITH RESPECT TO, ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, DAMAGES, COSTS, AND EXPENSES (INCLUDING ATTORNEY’S FEES AND EXPENSES), OF EVERY KIND AND CHARACTER, WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, RELATING TO, RESULTING FROM, OR ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, THE TIMING PRODUCTS, AND/OR USE OF THE TIMING PRODUCTS. CLIENT ASSUMES ALL LIABILITY RELATED TO THE USE OF THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE AND ACTIVE SHALL NOT BE LIABLE FOR USE OF THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE BY CLIENT OR ANY THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ACTIVE’S TOTAL AGGREGATE LIABILITY TO CLIENT FOR ALL CLAIMS RELATED THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE REGARDLESS OF THE FORM OF ACTION SHALL IN NO EVENT EXCEED $100. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ACTIVE SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, ECONOMIC, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE, THE RESULTS GENERATED FROM THE USE OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, THE QUALITY OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, ANY DEFECT IN THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, FAILURE OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE TO PERFORM AS EXPECTED, THE SERVICES RELATED TO THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, THE USE OR INABILITY TO USE RESULTS OF THE TIMING PRODUCT AND ANY TIMING PRODUCTS SOFTWARE, ANY TRANSACTIONS RESULTING FROM THIS AGREEMENT, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED, LOSS OF USE OR FOR THE DAMAGE, INJURY, OR LOSS OF LIFE OR PROPERTY, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND/OR FROM ANY OTHER CAUSE WHATSOEVER, EVEN IF RESULTING FROM THE USE OF TIMING PRODUCTS OR ANY TIMING PRODUCTS SOFTWARE OR DEFECTS IN, OR INEFFICIENCY OF, THE TIMING PRODUCTS AND ANY TIMING PRODUCTS SOFTWARE. THE PARTIES FURTHER AGREE THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS EXPRESSLY INTENDED TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION SINCE THOSE PROVISIONS REPRESENT SEPARATE ELEMENTS OF RISK ALLOCATION BETWEEN THE PARTIES AND SHALL BE SEPARATELY ENFORCED.

11. Confidentiality. Active and Client acknowledge and agree that Client shall have access to and receive Proprietary Information, as defined below, as a result of this Agreement. Client shall, and shall cause its agents, employees, parents, subsidiaries, officers, directors, or contractor, if any, and all other persons acting, directly or indirectly, on or for the behalf of Client to: (a) keep all Proprietary Information confidential and not to disclose such, either directly or indirectly, to any third party, and (b) not to use any such Proprietary Information for any purpose other than performance hereunder or as otherwise authorized without a prior written consent, duly executed by Active. The obligations in this Section shall not apply to any information that Client (i) knows about prior to the execution of this Agreement except any information which is the subject of unexpired confidentiality obligations; (ii) information that is publicly known, or becomes publicly known, through no breach by Client; and (iii) information that is rightfully obtained by Client from any third party who has no duty of confidentiality under this Agreement or any other confidentiality obligations. Proprietary Information that is required to be released by operation of a legal proceeding, pursuant to a binding court order or government regulation, shall not be subject to the obligations of this Section provided that the Client promptly deliver a copy of such order or action to the Active and reasonably cooperates with Active if it elects to contest such disclosure or seek an appropriate remedy, such as, without limitation, a protective order. Client agrees to take all reasonably necessary steps, and to prepare and execute all necessary documents, to protect and prohibit the disclosure of Active Information under this Section using a commercially reasonable efforts standard of care at least equal to the care used by Client to protect its own confidential or proprietary information.  Client shall immediately notify Active of any information that comes to its attention which might indicate that there has been an actual or potential loss or disclosure of confidentiality with respect to Active Information. In the event of a breach or threatened breach of the confidentiality obligations in this Section, Client acknowledges and agrees that it would be difficult to measure the damage to Active from such breach, that injury to Active from such breach would be impossible to calculate, and that monetary damages would not suffice as an adequate remedy for such breach.  Accordingly, Active, in addition to any and all other rights (at law or in equity) which may be available, shall have the right of injunctive relief and other appropriate equitable remedies to restrain any such breach or threatened breach without the necessity of posting a bond.

“Proprietary Information” shall mean all information, intellectual property, and proprietary rights of Active or of any subsidiary or affiliate of Active, embodied in or related to the Timing Products and any Timing Products Software, including, without limitation: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents and patent applications claiming such inventions; (b) all trademarks, service marks, trade dress, logos, trade names, fictitious names, brand names, brand marks, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith; (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith; (d) all mask works and all applications, registrations, and renewals in connection therewith; (e) all trade secrets (including, without limitation, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, methodologies, technical data, designs, drawings, and specifications); (f) all computer software, including, without limitation, data, source, and object codes, and related documentation; (g) all copies and tangible embodiments of proprietary rights of Active (regardless of the form or medium on which stored or located), or similar intangible personal property which have been or are developed or created in whole or in part by Active; (h) Active manufactured goods, parts, embodiments, modules, designs, samples, or other subparts of the Timing Products and any Timing Products Software and related documentation (regardless of the form or medium on which stored or located); (i) business practices, arrangements, research, studies, procedures, and sales, cost, and pricing information; (j) financial data and information; (k) production, distribution, and sales methods; (l) marketing data, methods, plans, and efforts; (m) the identities of actual and prospective customers, contractors, distributors, and suppliers; (n) the terms of contracts, agreements, and arrangements with customers, contractors, distributors, and suppliers; (o) the needs and requirements of, and Active’s course of dealing with, actual or prospective customers, contractors, distributors, and suppliers; (p) customer, contractor, distributor, and supplier information; and (q) purchasing history and requirements. Failure by Active to mark any of the Proprietary Information proprietary shall not affect its status as Proprietary Information under the terms of this Agreement.

12. Ownership and Restrictions. The ownership rights, title, and interest of Active with respect to Proprietary Information and any modifications, alterations, changes, derivatives, enhancements, improvements and derivative works thereof are and shall remain the sole and exclusive property of Active. Client agrees to irrevocably assign and transfer, and hereby does irrevocable assign and transfer, to Active all of its intellectual property rights, title, and interest therein, without the necessity of further consideration; or if such assignment is not allowed, Client hereby grants to Active and its subsidiaries and affiliates a worldwide, exclusive, irrevocable, perpetual royalty-free, fully-paid license with right to sublicense, to modify, or to use the any of the foregoing for any and all purposes, without the necessity of further consideration. Client will not (directly or indirectly), nor permit, assist, facilitate, procure, or enable any third party to, do any of the following: (a) decompile, disassemble, reverse engineer, duplicate, or otherwise replicate the Timing Products, any Timing Products Software or any other Proprietary Information; (b) copy or otherwise reproduce the Proprietary Information without the prior written approval of Active; (c) design around or create derivative works or any other modifications of Timing Products, any Timing Products Software or any other Proprietary Information; or (d) transfer, disclose, or provide access to Proprietary Information to third parties who are not bound by the terms of this Agreement unless authorized to do so in writing by Active. Nothing in this Agreement shall constitute or be deemed to constitute a transfer or assignment of any intellectual property rights owned by Active. Under no circumstances shall Client have any rights, title, or claim over any intellectual property owned by Active. Client may use the Timing Products only if paid for in full and for the purpose for which they were intended and supplied.

13. Information Collected; Participant Information. In order to use the Timing Products, Client may be given access to, or asked to collect, certain information about Event participants, which may (as applicable) include, without limitation, names, addresses, email addresses, phone numbers, dates of birth, time intervals, distances, speeds, and scores (collectively, “Participant Information”). As between Client and Active, Client acknowledges and agrees that any and all Participant Information shall be the sole and exclusive property of Active. If Client logs in to the Timing Software to upload and store applicable Participant Information, Client is responsible for the security of its login information and for the use or misuse of such information. Client shall immediately notify Active if it becomes aware of any unauthorized, improper or other access to any Timing Software that is not in strict adherence to the terms and conditions of this Agreement. Client agrees to (a) keep Participant Information strictly confidential Information under the Agreement and not disclose or otherwise use such information for any other purpose than expressly permitted by Active; (b) not disclose any Participant Information to any person or entity unless Active has given its prior written consent to such disclosure; and (c) promptly notify Active, but in no event more than twenty-four (24) hours, if Client becomes aware of any accidental or unauthorized disclosure, access or use of any Participant Information, and reasonably cooperate with Active in the event of any accidental or unauthorized disclosure, use, loss, damage or destruction of Participant Information. Client shall remain responsible and liable for any unauthorized disclosure of Participant Information by Client or its subsidiaries, affiliates, employees, and agents. Client will be liable for costs associated with a data breach caused by (directly or indirectly) Client, including the actual costs incurred with notification and mitigation as required by applicable law. In no event shall Client retain any Participant Information other than to the extent necessary to comply with applicable law.

14. Attorney’s Fees. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing Party shall be entitled to recover its costs, including reasonable attorneys’ fees, reimbursement of fees attributable to staff corporate counsel, and court costs.

15. Waiver. No failure of Active to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches, and the waiver of any breach shall not act as a waiver of subsequent breaches.

16. Injunctive Relief. Client acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies Active may have, Active will be entitled to seek the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach by Client of any of the provisions of this Agreement.

17. Severability and Reformation. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) will not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable provision will be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and the Agreement will be deemed amended accordingly.

18. Survival. The obligations of Client under Section 2 (“License and Ownership”), Section 6 (“Return of Timing Products”), Section 8 (“Encumbrances and Liens”), Section 9 (“Disclaimer of Warranties”), Section 10 (“Indemnification and Liability”), Section 11 (“Confidentiality”), Section 12 (“Ownership and Restrictions”), Section 13 (“Information Collected; Participant Information”), Section 14 (“Attorney’s Fees”), Section 16 (“Injunctive Relief”), Section 17 (“Severability and Reformation”), Section 18 (“Survival”), Section 19 (“Entire Agreement”), Section 22 (“Governing Law; Exclusive Venue”), and such other section(s) that should reasonably survive the termination, expiration, or cancellation of this Agreement shall survive the termination, expiration, or cancellation of this Agreement.

19. Entire Agreement. This Agreement represents the entire understanding relating to the subject matter hereof and prevails over any prior or contemporaneous, conflicting, or additional communications. Each Party respectively acknowledges and agrees that no statements, representations, or warranties exist other than as set forth in this Agreement and that no other representation exists that has induced the Party to enter into this Agreement. Trade language, custom, and/or other usage are superseded by this Agreement and will not be applicable herein. This Agreement can only be modified by a written amendment signed by the Party against whom enforcement of such modification is sought.

20. Assignment. Client may not, without the prior written consent of Active, transfer or assign this Agreement or any part thereof. Any attempt to do so shall be a material default of this Agreement and shall be void.

21. Force Majeure. If Active is prevented from, fails to, or delayed in performance hereunder due to acts or failures of Client, fire, flood, earthquake, water, wind, lightning, or other acts of God, war (declared or undeclared), interruption of transportation or infrastructure (tangible and intangible), embargo, accident, explosion, strike, lockout, inability to obtain materials or utilities, civil disturbance, governmental order, regulations, or restrictions, or any other cause beyond Active’s reasonable control, Active will be excused from performance hereunder to the extent and for the duration, and a commercially reasonable time thereafter, of such prevention.

22. Governing Law; Exclusive Venue. This Agreement, and the validity, construction, and enforcement hereof, shall be governed by and construed in accordance with the laws of the State of Texas (without regard to any conflicts of law rules that would result in the application of the law of any other jurisdiction). Client and Active agree that venue for any litigation between the Parties shall be exclusively in the state district court of Dallas County, Texas, or the United States District Court for the Northern District of Texas, Dallas Division (provided the amount in controversy exceeds the minimum jurisdictional limit required to file in federal court), and Client and Active agree to submit to personal jurisdiction therein; provided, however, that the foregoing shall not be construed to limit the rights of Client or Active to enforce a judgment or order from either of these courts in another jurisdiction. THE PARTIES HERETO IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

23. Notice. Any notice required pursuant to this Agreement will be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service, to Client as indicated on the Agreement and to Active at 3400 N. Central Expressway, Suite 300, Richardson, TX 75080. Either Party may change such addresses from time to time by providing notice as set forth herein.

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