Recitals

WHEREAS, ZehnTek is a provider professional, managed, consulting, procurement and other services related to the procurement and management of information technologies equipment; software; and, services (the “Services”);

WHEREAS, Customer desires to retain ZehnTek from time to time to work on a project or projects as set forth in individual SOW’s (as defined below) to provide the Services; and,

WHEREAS, ZehnTek desires to be retained by Customer to perform such Services.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby covenant and agree as follows:

Agreement

1. Procurement Request; Scheduling.

(a) Procurement Request. To request Services from ZehnTek, the Customer shall deliver to ZehnTek a Request for Proposal (“RFP”) identifying this Agreement and the Services requested. ZehnTek shall prepare a Statement of Work describing the scope of work (each a “SOW”). Each SOW shall specify the Services and may include all required equipment; software; systems; specifications and related documentation; and, time frames. Before ZehnTek undertakes any Services, Customer shall sign and deliver to ZehnTek the mutually agreed SOW authorizing the requested Services. The terms of this Agreement shall control over any inconsistent provisions in the SOW.

(b) Scheduling. Within five (5) business days from receipt of a signed SOW from Customer, ZehnTek will provide Customer a proposed project commencement date to accommodate ZehnTek’s scheduling requirements. Notwithstanding the foregoing, ZehnTek will use reasonable commercial efforts to accommodate dates requested by Customer.

Status Evaluations.

The Parties shall endeavor to complete an evaluation of the Services during the Term. The purpose of such evaluation is to assess and report upon whether the Parties are performing in accordance with the requirements of this Agreement. Evaluations may be performed more frequently at the written request of either ZehnTek or the Customer.

2. Competitive Services.

ZehnTek shall perform the Services for Customer on a non-exclusive basis, and

nothing in this Agreement will limit ZehnTek’s right to contract with third parties, including competitors of the Customer, for the same or similar Services under this Agreement or under any SOW.

1. Changes in Scope.

(a) If Customer wishes to alter, modify, expand or change the scope of a SOW (“Change”), the Parties shall comply with the procedures set forth herein. Any such Change requires a mutually agreed-upon amendment of the applicable SOW. During the Project, Customer may request a Change by submitting to ZehnTek a Change Order (each a “CO”) detailing the Change and any other information to enable the Parties to implement the Change. The form of CO is attached to this Agreement as Exhibit A. No Change shall be considered authorized unless ZehnTek accepts the CO to the applicable SOW. Once accepted, the terms of such CO shall control over any inconsistent provisions in the SOW.

(b) Upon acceptance of Customer’s CO, ZehnTek will notify Customer as to how the Change will impact the SOW, including, but not limited to, adjustments to fees; resources; or, changes in any scheduling. Any amended SOW will reflect the increase, if any, in fees as a result of a CO.

3. Pricing, Invoices, Payment.

(a) Pricing. For the Services rendered by ZehnTek under this Agreement, the Customer shall pay ZehnTek the amount set forth in the invoices submitted by ZehnTek to Customer in connection with the associated project SOW. Each SOW will generally include the following information: (i) project number; (ii) project date; (iii) date(s) that the Services were provided or will be provided; (iv) detailed description of the Service provided; (v) total amount; (vi) amounts charged for expenses, if applicable; (vii) payment terms; and, (viii) reference to this Agreement.

(b) Additional Expenses. In addition to the fees for Services set forth in Section 5(a), Customer shall also pay to ZehnTek reasonable costs and expenses incurred by ZehnTek for providing the Services. ZehnTek shall submit to Customer an invoice(s) in connection with such additional costs and expenses associated with a project SOW.

(c) Payment Terms. Each SOW shall include the relevant payment terms for such SOW. In the event that a SOW is silent as to payment terms, Customer shall pay invoices for Services upon Customer’s receipt of invoice.

(d) Late Charges; Fees. Overdue payments will incur interest at a rate of twelve percent (12%) per annum. Customer shall be responsible to ZehnTek for all costs, fees and expenses. including, without limitation, reasonable attorneys’ fees, incurred by ZehnTek in connection with any activity to collect amounts due from Customer under this Agreement.

4. Term and Termination.

(a) Subject to the termination rights specified below, this Agreement shall become effective as of the Effective Date and shall continue for a period of two (2) years and shall automatically renew for additional twelve (12) month periods unless either Party informs the other Party, in writing, of its intent not to renew at least thirty (30) days prior to the expiration of the then current term. Notwithstanding the foregoing, the term of any SOW will be for the period set forth in the relevant SOW. In the absence of a term in the SOW, the SOW shall be for a period of one (1) year and shall automatically renew for additional twelve (12) month periods unless either Party informs the other Party, in writing, of its intent not to renew at least thirty (30) days prior to the expiration of the then current term.

(b) If Customer fails to make payment of any invoice or other amount due under this Agreement and/or a SOW within the specified time period for payment, ZehnTek may terminate this Agreement or any SOW adversely affected by such payment failure upon ten (10) days written notice to Customer. Termination under this Section 6(c) does not limit ZehnTek from pursuing any other remedies available to it under this Agreement, the relevant SOW, at equity or at law.

(c) If a Party materially breaches any provision of this Agreement and/or a SOW and fails to remedy such breach within thirty (30) days of receipt of written notice from the nonbreaching Party, the nonbreaching Party may terminate any SOW adversely affected by such breach. Termination under this Section 6(c) does not limit either Party from pursuing any other remedies available to such Party, including, but not limited to, injunctive relief.

(d) If a specific SOW provides additional termination rights, either Party may terminate such SOW pursuant to the termination provisions set forth in the SOW.

(e) Upon the effective date of termination pursuant to Sections 6(b)-(d) above, as applicable: (i) ZehnTek shall immediately cease work on the impacted SOW(s); and, (ii) Customer shall pay to ZehnTek all fees and expenses incurred as of the date of such termination.

(f) To the extent allowed by relevant law, either Party may terminate this Agreement upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.

(g) In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.

5. Work Product; Intellectual Property.

(a) Work Product. All Confidential Information (defined below), including, without limitation, work product; designs; trade secrets; know-how; vendor lists; techniques; algorithms; information; ideas; software; object code; source code; computer programs; interfaces; and/or, other copyrightable subject matter (collectively, “Work Product”) used by ZehnTek to perform the Services, either alone or in collaboration with third parties, shall be the exclusive property of ZehnTek.

(b) Intellectual Property. The Parties acknowledge that the disclosure of Work Product and Confidential Information may result in further development of the intellectual property of each Party hereto (the “Intellectual Property”). In order to minimize potential disputes between the Parties concerning the relative rights and contributions of the Parties in and to such Intellectual Property (which term shall include, without limitation, all products, designs, improvements, pricing, processes, customer lists, or other ideas or technical information) conceived, developed, or reduced to practice by any Party, either alone or in concert with the other Party hereto in the course of work related to the disclosure of the Confidential Information, the Disclosing Party (defined below) and the Recipient (defined below) agree that each Party shall retain sole ownership of its Intellectual Property, as such Intellectual Property may be modified as the result of any ideas, suggestions or improvements of the other Party.

(c) Materials. In connection with the Services and any additional service provided by ZehnTek under this Agreement and/or any SOW, ZehnTek may provide Customer with reports, analyses or other such materials (the "Materials"). Customer understands and agrees that any such Materials will be furnished solely for Customer’s internal use and may not be furnished in whole or in part to any other person other than its directors, officers and employees having a need to know without the prior written consent of ZehnTek, which consent shall be in ZehnTek’s sole discretion.

6. Indemnification.

(a) Customer Indemnification.

(i) Customer shall indemnify, defend and hold harmless ZehnTek and its vendors, as well as their respective officers, directors, members, employees, successors, representatives, agents, assigns and affiliates (each an “Indemnitee”), from and against any and all Claims (as defined below) asserted against, imposed upon or incurred by an Indemnitee due to arising out of or relating to (I) any breach by Customer of any representation, term, condition or covenant under this Agreement; (II) any violations of the intellectual property rights of any third party with respect to designs, logos, or other information provided by Customer to ZehnTek; or, (III) the negligent or illegal act or omission or the willful misconduct of Customer. “Claim(s)” shall mean any and all foreseeable or unforeseeable and alleged or actual actions, causes of action (whether in tort, agreement or strict liability, and whether in law, equity, statutory or otherwise), bodily harm or personal injury (including sickness, disease or death of any person), claims, damages (including consequential, direct, economic, exemplary, future, incidental, indirect, noneconomic, past, special and punitive), demands, disbursements, judgments, lawsuits, legal proceedings, liability, litigation, losses (including lost income or profit), property damage (including any harm, impairment, theft, loss or loss of use), sanctions, settlement payments, costs or expenses of any nature whatsoever, whether accrued, absolute, contingent or otherwise, including, without limitation, attorneys’ fees and costs (whether or not suit is brought). Notwithstanding the foregoing, Customer shall not indemnify the Indemnitee for any Claims arising out of Indemnitee’s gross negligence or willful misconduct.

(ii) Upon receipt of notice, from whatever source, of Claims against an Indemnitee, Customer immediately shall take necessary and appropriate action to protect the Indemnitee’s interests with regard to the Claims. The Indemnitee shall notify Customer of the assertion, filing or service of any Claims of which Indemnitee has knowledge, as soon as is reasonably practicable.

(iii) Notwithstanding the foregoing, however, if Indemnitee reasonably determines that there may be a conflict between its position and that of Customer in connection with the defense of a Claim or that there may be legal defenses available to Indemnitee different from or in addition to those available to Customer, then, at Customer’s expense, counsel for Indemnitee shall be entitled to conduct a defense to the extent Indemnitee reasonably determines necessary to protect the interest of Indemnitee. If Indemnitee, in its reasonable discretion, determines that the counsel provided by Customer to defend Indemnitee is unacceptable or that a conflict of interest exists between Indemnitee and counsel, Indemnitee may request Customer replace the counsel. If Customer fails to timely replace counsel, Indemnitee may replace the counsel and, as part of Customer’s indemnification obligation to Indemnitee, Customer shall pay to the new counsel, or reimburse Indemnitee, any and all fees and expenses as to the new counsel, including any and all expenses or costs to change counsel.

(iv) Customer, in the defense of any Claim or litigation, shall not, except with the written consent of Indemnitee, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term the giving by the claimant or plaintiff to Indemnitee of a release from all liability and blame with respect to the claim or litigation. Indemnitee shall have the right at all times to accept or reject any offer to settle any Claim or litigation against it, in its reasonable discretion.

(b) ZehnTek Indemnification.

(i) ZehnTek shall indemnify, defend and hold harmless Customer and its officers, directors, members, employees, successors, representatives, agents, assigns and affiliates (each a “Customer Indemnitee”), from and against any and all Claims asserted against, imposed upon or incurred by a Customer Indemnitee due to arising out of or relating to (I) any breach by ZehnTek of any representation, term, condition or covenant under this Agreement; (II) any violations of the intellectual property rights of any third party with respect to designs, logos, or other information unless such information was provided by Customer to ZehnTek; or, (III) the negligent or illegal act or omission or the willful misconduct of ZehnTek. Notwithstanding the foregoing, ZehnTek shall not indemnify the Customer Indemnitee for: (i) any Claims arising out of Customer Indemnitee’s gross negligence or willful misconduct; or, (ii) any amount that exceeds the warranty set forth in Section 9 herein.

(ii) Upon receipt of notice, from whatever source, of Claims against a Customer Indemnitee, ZehnTek immediately shall take necessary and appropriate action to protect the Customer Indemnitee’s interests with regard to the Claims. The Customer Indemnitee shall notify ZehnTek of the assertion, filing or service of any Claims of which Customer Indemnitee has knowledge, within three (3) days of such knowledge.

(iii) ZehnTek, in the defense of any Claim or litigation, may, with or without the consent of Customer Indemnitee, consent to entry of any judgment or enter into any settlement that it determines is in the best interest of the Parties, in its reasonable discretion.

7. Warranty Disclaimer; Limitation of Liability.

(a) Services Warranty. ZehnTek represents and warrants to Customer that: (a) the Services to be performed under this Agreement and/or any SOW will conform to the specifications set forth in this Agreement and the relevant SOW; (b) the Services to be performed under this Agreement and any relevant SOW will not infringe any copyrights, patents, trade secrets or other intellectual property or other rights of any third party; and, (c) ZehnTek’s performance of the Services will not conflict with or constitute a breach of any other agreement to which ZehnTek is a party. Notwithstanding the foregoing, ZehnTek provides no representation or warranty with respect to any specifications or intellectual property provided by Customer to ZehnTek in connection with the Services.

(b) Product Warranty. ZehnTek provides no warranties as to products it procures for Customer. All such products shall be governed by the warranty provided by the manufacturer of such product. ZehnTek expressly disclaims all other warranties, whether express or implied, or arising by operation of law, including but not limited to, any warranty of merchantability or

fitness for any particular purpose.

(c) Warranty Disclaimer.

(i) ZEHNTEK MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES PROVIDED BY ZEHNTEK TO CUSTOMER ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ZEHNTEK DOES NOT WARRANT THAT THE FUNCTIONALITY OF ANY PRODUCT OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.

(ii) Protection of Customer’s data shall be the sole responsibility of the Customer regardless of the Services provided by ZehnTek. ZehnTek shall be held harmless in the event of any loss to Customer resultant from improper data protection by Customer. Customer agrees that ZehnTek is not liable for any loss to Customer resultant from delays regardless of nature or source, in completion of Services except for those losses arising out of ZehnTek’s gross negligence or willful misconduct.

(d) Warranty Remedies; Limitation of Liability.

(i) Product. In the event any Product fails to comply with the Product Warranty set forth in Section 9(b), Customer’s sole remedy shall be through the applicable manufacturer in accordance with the terms of the applicable manufacturer’s warranty. ZehnTek shall have no liability for defects of any Products.

(ii) Services. In the event that a Service fails to comply with the Service Warranty set forth in Section 9(a), Customer must contact ZehnTek immediately (but in no event later than fourteen (14) days from the date of Service) and describe the nature of the nonconformity. ZehnTek will investigate such nonconformity and if ZehnTek determines that the Service was nonconforming, then Customer’s sole and exclusive remedy for such Service nonconformance shall be, at ZehnTek’s sole election: (i) ZehnTek’s correction of the nonconforming Service; or, (ii) ZehnTek’s reimbursement of Customer for the prorated purchase price of the non-conforming Service. IN NO EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHALL ZEHNTEK’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SOW IN DISPUTE.

ZehnTek shall not be liable for defects caused by: (I) the acts or omissions of Customer in connection with the Services; (II) any modification of the Services by the Customer or any third party; or, (III) Customer’s misuse of the Services. Except for ZehnTek’s direct costs in repairing, correcting or replacing any nonconforming Service, ZehnTek shall not be liable for any other expense connected with the repair, correction or replacement of any Service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZEHNTEK BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITATION HEREIN SHALL APPLY TO ANY AND ALL LIABILITIES OR CAUSES OF ACTION HOWEVER ALLEGED OR ARISING, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, OR ANY OTHER CLAIM WHETHER IN TORT, CONTRACT, OR EQUITY.

(iii) Failure to submit a claim within the warranty period provided by an applicable manufacturer in the case of a product or fourteen (14) days in the case of a Service, shall be conclusive proof that the Products and Services are as warranted and shall release ZehnTek from any further liability with respect thereto.

8. Confidentiality.

(a) Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential Information (as defined hereinafter) from the other Party (the “Disclosing Party”) during the term of this Agreement and such Confidential Information will be deemed to have been received in confidence and will be used only for purposes of this Agreement. The Receiving Party shall use the Disclosing Party’s Confidential Information only to perform its obligations under this Agreement, including, any Procurement Request hereunder, and disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel having a need to know the information for the purpose of this Agreement. The Receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care. Upon the Disclosing Party’s written request, the Receiving Party shall return or certify the destruction of all Confidential Information, and the obligation of confidentiality shall continue for three (3) years from the expiration or termination of this Agreement; provided, however, the Receiving Party shall keep (i) any personally identifiable information (“PII”) confidential in perpetuity; and (ii) any trade secrets of the Disclosing Party confidential as long as such information is deemed a trade secret.

(b) The term “Confidential Information” includes, without limitation, (i) all information communicated by the Disclosing Party that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure; (ii) all information identified as confidential to which Receiving Party has access in connection with the subject matter hereof, whether before or after the Effective Date; and (iii) this Agreement, and shall include, without limitation, (A) all trade secrets, (B) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, (C) the Work Product, and (D) information relating to business plans; sales, purchasing, or marketing methods; vendor lists; financial information; and, customer lists or requirements.

(c) The obligations of either Party under this Section 10 will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality; (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the Receiving Party; or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the other party.

(d) In the event the Receiving Party is required by law, regulation, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (i) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (ii) limit the disclosure to minimum amount that is legally required to be disclosed.

9. Solicitation of Personnel.

During the term of this Agreement and for a period of one (1) year following termination or expiration thereof, Customer shall not, directly or indirectly, solicit for hiring, hire or accept any services or work from any employees, personnel or contractors of ZehnTek who are associated with this Agreement and/or with the performance of Services under any SOW. If Customer desires to solicit for hiring or accept any services or work from any employees, personnel or contractors of ZehnTek, Customer shall provide ZehnTek prior written notice. ZehnTek, in its sole discretion, may waive this Section 11 for purposes of such Customer notice by providing written notice to the Customer, with ZehnTek’s requested consideration and terms for such waiver. If the Customer agrees to ZehnTek’s requested consideration and terms for waiver, the Parties will execute a mutually agreed waiver form. If ZehnTek does not agree to provide a waiver, or the Customer does not agree to ZehnTek’s requested consideration and terms, the obligations of this Section 11 shall not be waived and will remain in full force and effect.

10. Independent Contractors.

Nothing contained herein and the Services hereunder shall not be construed to create any

partnership, joint venture or agency relationship between the Parties. Except as otherwise

provided in this Agreement, the Parties are not granted any express or implied right or authority

to assume or create any obligation on behalf of, or in the name of, the other Party hereto or to

bind the other Party in any manner.

11. Publicity and Use of Trademarks.

Neither Party shall use the name, logo, trademarks or trade names of the other Party in publicity releases, promotional material, customer lists, advertising, marketing or business-generating efforts, whether written or oral, without obtaining the other Party’s prior written consent, which consent shall be given at such Party’s sole discretion. Notwithstanding the foregoing, ZehnTek may use the logo, trademarks and/or trade names of Customer to the extent necessary to perform the Services.

12. Notices.

All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given: (a) when delivered by hand or confirmed e-mail or facsimile transmission; (b) one (1) day after delivery by receipted overnight delivery; or (c) three (3) days after being mailed by certified or registered mail, return receipt requested, with postage prepaid to the Party at the address set forth above to the attention of the person executing this Agreement and with a copy to the attention of the legal department, or to such address, e-mail address and/or facsimile number as either Party shall furnish to the other party in writing pursuant to this Section 14.

13. Disputes.

(a) Any dispute, controversy or claim arising out of or in connection with the interpretation of this Agreement and/or any SOW (including all appendices), or the performance, breach, termination or invalidity thereof (“Dispute”), shall, upon the written request (a “Request”) of any Party, be settled through good faith negotiation between the Parties. The Party asserting a Dispute may commence such negotiation by sending to the other Party a Request describing in detail the legal, evidentiary and business basis of the Dispute and any proposed remedy or solution; the other Party, upon receiving such Request, shall give the asserting Party a written response describing in detail its disagreements, if any, with the sending Party’s description of the basis of the Dispute and proposed remedy or solution. The representative of both Parties with due authority shall then resolve the Dispute by holding one or more discussions. Unless otherwise mutually agreed by the Parties in writing, the period for negotiation will be deemed ended thirty (30) days after receipt of the initial Request. If any Party suffers any loss due to the other Party’s failure to participate in good faith in the required negotiations, a court with competent jurisdiction shall have the authority to award compensation in favor of the suffering Party.

(b) If the Parties cannot resolve any dispute in the time period set forth in Section 15(a) above, the Parties unconditionally and irrevocably agree and consent to the exclusive jurisdiction of the federal or state courts located in Worcester County, Commonwealth of Massachusetts and waive any objection with respect thereto, and further agree not to commence any such claim except in any such Courts.

14. Miscellaneous.

(a) Entire Agreement. The Parties agree and acknowledge that this Agreement embodies the entire agreement and understanding between the Parties and supersedes any and all prior agreements and understandings relative thereto.

(b) Authority. Each Party represents and warrants to the other Party that the execution of this Agreement has been duly authorized and is binding on such Party.

(c) Costs and Expenses. All costs and expenses for the preparation, execution and consummation of this Agreement and of the transactions contemplated hereby, including, without limitation, attorneys’, accountants’ and outside advisers’ fees and disbursements shall be borne by the Party incurring such expenses.

(d) Modifications and Amendments. The terms and provisions of this Agreement may be modified or amended only by a written agreement executed by all of the Parties hereto.

(e) Force Majeure. Neither Party shall be responsible for any delay or failure in performance of any part of this Agreement (except for payment) to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, pandemic, government requirement or order, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control. If any such an event of force majeure occurs and such event continues for ninety (90) days or more, the Party delayed or unable to perform shall give immediate notice to the other Party, and the Party affected by the other's delay or inability to perform may elect at its sole discretion to: (i) terminate this Agreement; or, (ii) resume performance once the condition ceases with the option of the affected party to extend the period of this Agreement up to the length of time the condition endured. Unless written notice is given within thirty (30) days after the affected Party is notified of the condition, option (ii) shall be deemed selected.

(f) Waivers and Consents. No failure or delay by a Party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the Parties hereto, shall operate as a waiver of any such right, power or remedy of the Party. No single or partial exercise of any right, power or remedy under this Agreement by a Party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from any other or further exercise thereof or exercise of any other right, power or remedy hereunder. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by the Party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given and shall not constitute a continuing waiver or consent.

(g) Governing Law. This Agreement and the rights and obligations of the Parties hereunder shall be construed under and governed by the laws of the Commonwealth of Massachusetts, without giving effect to the conflict of laws principles thereof.

(h) Attorneys’ Fees. The Parties agree that in the event any dispute arises in any way relating to or arising out of this Agreement, the prevailing Party in any arbitration or court proceeding will be entitled to recover an award of its reasonable attorneys’ fees and costs.

(i) Severability. In the event that any court of competent jurisdiction shall finally determine that any provision, or any portion thereof, contained in this Agreement shall be void or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court determines it enforceable, and as so limited shall remain in full force and effect. In the event that such court shall determine any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.

(j) Headings. Section and paragraph headings herein are for convenience and reference only, and in no way define or limit the scope and content of this Agreement or in any way affect its provisions.

(k) Interpretation. All terms and words used in this Agreement regardless of the number and gender in which used, shall be deemed to include any other gender or number as the context or the use thereof may require. This Agreement may be interpreted without regard to any presumption or other rule requiring interpretation against the Party causing this Agreement or any part thereof to be drafted.

(l) Counterparts. This Agreement may be executed in one or more counterparts, and by different Parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(m) Assignment; Binding Effect. This Agreement shall be binding upon the Parties hereto and their successors and assigns. Neither the rights nor the obligations of either Party hereto may be assigned or delegated by such Party without the prior written consent of the other Party.

(n) Cooperation. Each Party hereto shall execute and deliver any and all additional papers, documents and other assurances, and shall do any and all acts and things reasonably necessary, in connection with the performance of each of their obligations hereunder to carry out the intent of this Agreement.