DXFACTOR LLC

MASTER SERVICES AGREEMENT

This Master Services Agreement (this “Agreement”) is dated as of the last date of execution of the Statement of Work and is between DXFACTOR LLC, a Delaware limited liability company (“DXFactor”) and the party identified as client/customer on the applicable Statement of Work (“Client”). DXFactor and Client may be referred to herein individually as a “Party” and collectively as the “Parties.”
The Parties hereby agree as follows:

2. Payment. DXFactor shall invoice the Client on a monthly basis according to the pricing terms set forth in the SOW. Client will pay all invoices in full within five (5) business days of the invoice dates. Client shall pay DXFactor for any additional Services and Deliverables added by the Client after the Effective Date at DXFactor’s then prevailing prices for such DXFactor Services and Deliverables. DXFactor agrees to use its reasonable best efforts to ensure that DXFactor personnel maintain accurate time records for time spent on delivering Services under this Agreement. Payment obligations are non-cancellable, and all fees are nonrefundable in all aspects. Client shall reimburse DXFactor for all reasonable expenses incurred in accordance with any SOW, so long as such expenses are preapproved by the Client. If any fees owed by the Client are fifteen (15) days or more overdue, DXFactor may, without limiting its other rights and remedies, suspend Services and Deliverables until all amounts owing are paid in full. Client shall reimburse DXFactor for all costs incurred in collecting any late payments, including attorney fees.

3. Taxes. The Client shall pay all fees, charges, taxes, duties and similar items levied by any governmental authority (excluding taxes on DXFactor’s net income and payroll or other related staff costs generally) in connection with the performance of the Services, Deliverables and this Agreement, except to the extent a valid tax exemption certificate or other written documentation acceptable to DXFactor to evidence Client’s tax exemption status is provided by Client to DXFactor prior to the delivery of Services. The Parties shall negotiate in good faith payment of any disputed amount.

4 .Client Requirements

• As a prerequisite to DXFactor’s delivery of Services, the Client represents and warrants that (i) it has all the power, authority and rights to enter into this Agreement; (ii) ensure that all assumptions stated in this Agreement are accurate; (iii) provide DXFactor with reliable, accurate and complete information as required by this Agreement; (iv) make timely decisions and obtain all such approvals, licenses and consents required for the consummation of the transactions contemplated by this Agreement;  (v) Client currently has the financial capacity to meet its obligations to DXFactor , and the Client has no present knowledge of any circumstances which could cause it to become unable to meet such obligations in the future; and (vi) cause all levels of Client’s personnel to cooperate fully and timely with DXFactor.
• DXFactor shall be entitled to rely on all Client decisions and approvals made independently of this Agreement or prior to its execution by the Parties. Nothing in this Agreement shall require DXFactor to evaluate advice on, modify, confirm, or reject such decisions and approvals, except as expressly agreed to in this Agreement.

(a) Use and Disclosure. The receiving Party shall: (i) protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the receiving Party’s employees, contractors and agents who need to know the Confidential Information to assist the receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. 

(b) Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence by the receiving Party: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of by the receiving Party or any of its employees, contractors or agents; (ii) is or becomes available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the receiving Party or its employees, contractors or agents before being disclosed by or on behalf of the disclosing Party; or (iv) was or is independently developed by the receiving Party without reference to or use, in whole or in part, of any of the disclosing Party’s Confidential Information. In the event the receiving Party is required to disclose the disclosing Party’s Confidential Information under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, then the receiving Party may disclose such Confidential Information, so long as the receiving Party gives reasonable advance notice to the disclosing Party in advance of such disclosure, if not prohibited by applicable law; seeks confidential treatment of such information from the entity to which the disclosure is made; and discloses only that information which is legally required to be disclosed.

(c) Removal; Return. At any time during or after the Term (as defined in Section 16), at the disclosing Party’s written request, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic or other form or media, of the disclosing Party’s Confidential Information, or, at the receiving Party’s election, destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.

7.Deliverables; Ownership of Work Product.
(a) Except with regard to Licensed Property (as defined in 7(b) below), and upon Client’s payment of all fees owed to DXFactor, DXFactor agrees that all Deliverables described in this Agreement that are created for Client by DXFactor and provided to Client pursuant to this Agreement, shall be the property of Client. To the extent such Deliverables comprise or contain subject matter protectable under applicable intellectual property laws, including patent, trademark, copyright and trade secret laws (“Protectable Subject Matter”), and such Protectable Subject Matter is originally created by DXFactor solely based on the specifications furnished to DXFactor by Client pursuant to this Agreement, upon Client’s payment of all fees owed to DXFactor, DXFactor: (i) agrees that such Protectable Subject Matter shall be the sole property of Client; (ii) hereby assigns to Client all right, title and interest to all intellectual property rights for such Protectable Subject Matter; (iii) agrees that such Protectable Subject Matter shall be considered a “work made for hire” and Client shall be deemed the author thereof; and, (iv) to the extent any applicable law or treaty prohibits the transfer or assignment of any moral rights or rights of restraint DXFactor has in such Protectable Subject Matter, hereby waives those rights as to Client.

(b) To the extent the Deliverables comprise or contain Protectable Subject Matter: (i) created by DXFactor prior to the date of this Agreement; (ii) created by DXFactor during the term of this Agreement but not based solely on the specifications furnished to DXFactor by Client pursuant to this Agreement; or, (iii) owned by third parties (individually and collectively, “Licensed Property”), such Licensed Property is excluded from the assignment provisions of paragraph 7(a), above. However, upon Client’s payment of all fees owed to DXFactor, Client shall have, and DXFactor hereby grants to Client a non-exclusive, worldwide, irrevocable, perpetual, fully paid up, sub-licensable, and transferable right and license to use such Licensed Property, but only as incorporated in the Deliverables. DXFactor warrants that it possesses sufficient rights to license the Licensed Property as provided herein. Licensed Property is the Confidential Information of DXFactor, regardless of whether or not it is identified as confidential.

9. Records. DXFactor does not serve as Client’s record keeper and Client will be responsible for retaining copies of all documentation received from or provided to DXFactor in connection with the Services and Deliverables to the extent required by Client or applicable law.

10. Errors; Review of Data. All Services and Deliverables provided hereunder will be based upon information provided to DXFactor by Client or any person who is authorized by Client to use, access or receive the Services and Deliverables. Client will promptly review all documents and reports produced by DXFactor and provided or made available to Client in connection with the Services or Deliverables and promptly notify DXFactor of any error, omission, or discrepancy with Client’s records. DXFactor will promptly correct such error, omission or discrepancy and, if such error, omission or discrepancy was caused by DXFactor, then such correction will be done at no additional charge to Client.

11. Backup and Loss of Data. CLIENT IS SOLELY RESPONSIBLE FOR THE INTEGRITY OF ITS DATA AND FOR ASSURING THAT ITS DATA IS ADEQUATELY BACKED UP AND PROTECTED.

12. Software and Equipment; Disclaimer of Representations and Warranties.
DXFACTOR is not the manufacturer of any third-party hardware or software to be purchased or used by Client. DXFACTOR cannot modify third-party hardware or software to correct defects or inter-operability issues. If third-party hardware or software purchased by Client is faulty, DXFACTOR may work on Client’s behalf, at DXFactor’s normal hourly rates, in an attempt to help Client, resolve such faults.

(b) DXFACTOR IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATION OR WARRANTY AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES AND ANY LIABILITY WITH RESPECT TO, ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT CONTAINED THEREIN, ANY ERRORS OR OMISSIONS CONTAINED THEREIN, MANUFACTURING, MATERIAL, PERFORMANCE, DESIGN DEFECTS, LIBEL, INFRINGEMENT OR MISAPPROPRIATION OF RIGHTS OF PUBLICITY, PRIVACY, INTELLECTUAL PROPERTY RIGHTS, MORAL RIGHTS, OR OTHER PROPRIETARY RIGHTS, OR THE DISCLOSURE OF CONFIDENTIAL INFORMATION. CLIENT’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT TO ANY THIRD-PARTY HARDWARE, SOFTWARE, PRODUCTS OR SERVICES ARE AGAINST THE THIRD-PARTY VENDOR AND NOT AGAINST DXFACTOR.

(c) DXFACTOR WARRANTS THAT THE SERVICES SHALL BE PERFORMED WITH REASONABLE CARE IN
A DILIGENT AND COMPETENT MANNER. DXFACTOR’S SOLE OBLIGATION SHALL BE TO CORRECT ANY NONCONFORMANCE WITH THIS WARRANTY, BUT ONLY IF CLIENT GIVES DXFACTOR WRITTEN NOTICE WITHIN SIXTY (60) DAYS AFTER THE SERVICES ARE PERFORMED. 
 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES AND DELIVERABLES ARE PROVIDED ON “AS IS” BASIS AND DXFACTOR DOES NOT MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION AND WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD-PARTY. Client acknowledges and agrees that no other representations or warranties were made to or relied upon by Client.

13. Variances; Client Changes. DXFactor will not be responsible for any delays or unforeseen circumstances that are not in its control (e.g., actions or non-actions by Client that effect DXFactor’s effort), including without limitation, delays due to receipt of data or content from or on behalf of Client; delays in decisions related to DXFactor’s efforts; problems with software; delays due to changes to Client’s systems, network environment, platforms, or operations. If such issues are discovered during the course of performing the Services, DXFactor will bring these to Client’s attention and, where possible, will recommend and assist Client with resolving impact to the delivery of the Services that is caused by such issues. These additional services will be considered outside the scope of the Services and all costs will be subject to Client’s approval before any work commences.

14. Restrictive Covenants
(a) Non-Solicitation by Client. Beginning on the date of this Agreement and ending twenty-four (24) months after the date DXFactor last provides services to Client, whether under this Agreement or otherwise (the “Restricted Period”), Client shall not, directly or indirectly, either for itself or on behalf of any third party, (i) induce, advise or counsel any Restricted Person to terminate his or her relationship with DXFactor, (ii) solicit, recruit, hire, or engage any Restricted Person or (iii) otherwise interfere with or damage, or attempt to interfere with or damage, the relationship between DXFactor and any Restricted Person.
The term “Restricted Person” means any person employed or engaged by DXFactor who (i) performed services for Client at any time during the Restricted Period, or (ii) Client became aware of during the Restricted Period as a result of Client’s engagement of DXFactor.

(b) Certain Acknowledgements by Client. Client understands that DXFactor’s personnel are bound by certain restrictions and obligations that, among other things, prevent them from working for Parties that are or were clients of DXFactor and using, disclosing, relying upon or possessing any of DXFactor’s confidential information. Client also understands that any violation of those restrictions may subject such DXFactor personnel to, among other things, injunctive and monetary remedies (including attorney fees), and, in the case of personnel who are also option holders or shareholders of DXFactor (many of whom are, as DXFactor has broad employee equity participation), to the forfeiture of their equity interest in DXFactor, which may be of substantial value. Client further acknowledges that the foregoing applies independently of and despite the terms of this Agreement.

(c) No Inducement by Client. Client shall not at any time, directly or indirectly, either for itself or on behalf of any third party, induce, assist or cause any Restricted Person to breach, or otherwise fail to comply with, any restrictive covenant made by such Restricted Person to DXFactor, including, without limitation, any obligations relating to confidential information.

(d) Non-Solicitation by DXFactor. Subject to the following sentence, during the Restricted Period, DXFactor shall not directly or indirectly, either for itself or on behalf of any third party (i) induce, advise or counsel any employee or agent of Client to terminate his or her relationship with Client, (ii) solicit, recruit, hire, or engage any employee or agent of Client or (iii) otherwise interfere with or damage, or attempt to interfere with or damage, the relationship between Client and any of its employees or agents. The preceding sentence shall apply only to those employees and agents of Client that had meaningful direct contact with DXFactor personnel with respect to the services provided by DXFactor to Client during the period of Client’s engagement of DXFactor.

15. Certain Remedies

• If Client breaches Section 14 (Restrictive Covenants) and the Restricted Person terminates its relationship with DXFactor, then Client shall pay to DXFactor liquidated damages in an amount equal to the higher of (i) fifty (50%) percent of the total compensation (including salary, bonus and benefits) paid by DXFactor to such Restricted Person in the most recent twelve (12) months prior to such termination or (ii) fifty (50%) percent of such Restricted Person’s anticipated total monetary compensation (including salary and targeted or expected bonus) expected to be paid to or received by such Restricted Person during his or her first twelve (12) months of service for Client other than through DXFactor. The amount payable by Client under this Section shall be paid in cash upon demand from DXFactor.

(b) Client acknowledges and agrees that (i) it would be extremely difficult, if not impossible, to calculate the actual damages of DXFactor in the event of Client’s breach of any provision of this Agreement; and (ii) Client’s breach of any provision of this Agreement would result in ongoing damages to DXFactor that could not be adequately compensated by monetary damages. Accordingly, Client agrees that in the event of any actual or threatened breach of any provision of this Agreement, DXFactor shall be entitled, in addition to all other rights and remedies existing in its favor at law, in equity or otherwise, to obtain injunctive or other equitable relief (including without limitation a temporary restraining order, a preliminary injunction and a final injunction) against Client to prevent any actual or threatened breach of any such provision and to enforce this Agreement specifically, without the necessity of posting a bond or other security or of proving actual damages.

16. Term and Termination
(a) This Agreement shall be effective for the term identified in the SOW, unless earlier terminated by either Party. Subject to paragraph (c) below, and without prejudice to any other right or remedy available to the terminating Party under law or by virtue of the provisions of this Agreement, and except as stated in the following sentence, DXFactor may terminate this Agreement upon sixty (60) days prior written notice to the Client. DXFactor may terminate this Agreement immediately upon notice to Client if Client fails to make a payment when due under this Agreement. Client shall pay DXFactor for all Services performed by DXFactor up to and including the date of termination.

(b) Either Party may terminate this Agreement if there has been a breach, material inaccuracy in or failure to perform any representation, warranty, or obligation (each individually a “Breach”) and either the Breach cannot be cured or, if the Breach can be cured, it is not cured by the breaching Party within thirty (30) days after receipt of a written notice of Breach.

(c) If, anytime before or after Client’s breach of Section 14 (Restrictive Covenants), Client terminates this Agreement or makes or requests any modification or supplement to this Agreement that results or would result in a material reduction in the Services to be performed or the amount of fees expected to be received by DXFactor for its Services, then Client shall pay DXFactor, as liquidated damages, the amounts stated in applicable SOW. For purposes of this Section 16(c), the term “Agreement” includes any outstanding Statement of Work and, if any, outstanding Change Order.  

(d) Upon termination of this Agreement or earlier as requested by Client, upon request, DXFactor will return to Customer, or destroy, any and all documents, prototypes, samples, and other materials including but not limited to all Confidential Information (and including all copies thereof) in DXFactor’s possession.

17. Certain Acknowledgements. The Parties agree that the damages stated Sections 15(a) and 16(c) above are liquidated damages and not penalties; are a good faith estimate of DXFactor’s damages for the matters expressly described in such Sections; and that they are reasonable in light of the harm that will be caused by such matters, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. Such liquidated damages are DXFactor’s exclusive remedy for the damages caused by the matters expressly described in Sections 15(a) and 16(c), but they do not preclude other remedies for other injuries, including without limitation, those expressly stated in this Agreement.

18. Force Majeure
(a) Definition.  For purposes of this Agreement, the term “Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three of the following tests:
a. The act or event materially and adversely affects a Party’s (the “Nonperforming Party”)
ability to perform, in whole or in part, its obligations under this Agreement or satisfying any conditions to the obligations of the other party (the “Performing Party”) under this Agreement.
b. The act or event is beyond the reasonable control of Nonperforming Party and not the fault of the Nonperforming Party, including without limitation, action or inaction of United States of America or Indian governmental agency , civil or military authority, fire, strike, lockout or other labor dispute, inability to obtain labor or materials on time, epidemic or pandemic event,  flood, war, riot, theft, earthquake or other natural disaster.
c. The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of due diligence.

Despite the preceding definition, a “Force Majeure Event” excludes economic hardship, changes in market conditions and insufficiency of funds.  If there is an act or event that constitutes a force majeure event under a contract between DXFactor and any subcontractor or third-party contractor, as the case may be, then that act or event is a Force Majeure Event as to DXFactor.

(b) Suspension of Performance.  If a Force Majeure Event occurs, the Nonperforming Party is excused from (i) whatever performance is prevented by the Force Majeure Event to the extent prevented, and (ii) satisfying whatever conditions precedent to the Performing Party’s obligations that cannot be satisfied, to the extent they cannot be satisfied.  Despite the preceding sentence, a Force Majeure Event does not exclude any obligation by either the Performing Party or the Nonperforming Party to make any payment of any and all charges for Services or Deliverables provided pursuant to this Agreement prior to the occurrence of such Force Majeure Event (and any indemnification obligations hereunder).

(c) Resumption of Performance. When the Nonperforming Party is able to resume performance of its obligations under this Agreement, or satisfy the conditions precedent to the Performing Party’s obligations, it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement no later than two (2) working days after the notice is delivered.

(d) Existing Liabilities. No liability of either Party for an event that arose before the occurrence of the Force Majeure Event is excused as a result of the occurrence.

19. Limitation of Liability; Exclusion of Non-Direct Damages.
(A) EXCEPT AS STATED IN THE FOLLOWING SENTENCE, DXFACTOR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WILL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT DXFACTOR HAS ACTUALLY RECEIVED FROM CLIENT UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS STATED IN THE PRECEDING SENTENCE DO NOT APPLY TO DXFACTOR’S GROSS NEGLIGENCE OR MALICIOUS MISCONDUCT.

(B) IN NO EVENT SHALL DXFACTOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST OR ANTICIPATED REVENUE, PROFITS OR LOSS OR USE OF DATA OR INFORMATION OF ANY KIND) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, EQUITY, TORT (INCLUDING ANY FORM OF NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND WHETHER OR NOT DXFACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, THEN DXFACTOR’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT POSSIBLE.

20. Indemnification.

(a) Client. Client shall indemnify DXFactor and DXFactor’s shareholders, directors, officers, employees, agents, successors and assigns (each, a “DXFactor Indemnitee”) from and against all claims of third parties, and shall pay all damages, losses, liabilities, costs and expenses, including attorneys’ fees, incurred by each DXFactor Indemnitee with respect to such third party claims, arising out of or relating to: (i) the negligent or willful acts or omissions of Client or Client’s employees, agents or representatives; (ii) any use, misuse or modification by Client or Client’s employees, agents or representatives of the Deliverables, the Services, or both, after delivery by DXFactor; (iii) Client Data; and (iv) Client Indemnification Event (as defined below).

(b) DXFactor.
(i) DXFactor shall indemnify Client and Client’s shareholders, directors, officers, employees, agents, successors and assigns (each, a “Client Indemnitee”) from and against all claims of third parties, and shall pay all direct damages, losses, liabilities, costs and expenses, including attorneys’ fees, incurred by each Client Indemnities with respect to such third party claims, arising out of the bodily injury or death of any person or damage to real or tangible personal property incurred while DXFactor is performing the Services, but in every instance only to the extent such is directly caused by the gross negligence or malicious acts or omissions of DXFactor’s personnel or agents in performing the Services.

(ii) Intellectual Property Indemnification. Except for any liability or claim arising from use of Client Data, DXFactor will indemnify and defend Client Indemnitee from and against all claims by a third-party resulting from use or sale of any Services or Deliverables constitutes an infringement of any patent, trademark or copyright or misappropriation of any trade secret. DXFactor’s obligation under this Section 20(b)(ii) will not apply to the extent that indemnification or violation is caused by:
a. Modification of a Deliverable or Services by the Client if the modification was not reasonably contemplated by the Parties and the infringement or violation would not have occurred but for that modification;
b. The combination of the Service or Deliverables by the Client with other third-party products if the combination was not reasonably contemplated by the Parties and the infringement or violation would not have occurred but for that combination; or
c. Client’s continued use of infringing software after DXFactor provides Client with reasonable advance written notice of the infringement and provides non-infringing replacement software to the Client at no charge. ( Section 20(b)(ii)(a), (b) and (c) collectively referred to as “Client Indemnification Event”).

(c) Procedures for Indemnification.
(i) If any claim or other matter (each, a “Claim”) contemplated by this Section is threatened or commenced against a Client Indemnitee or a DXFactor Indemnitee (each, an “Indemnitee”), then in each such case, Indemnitee shall deliver prompt written notice thereof to the other Party (“Indemnitor”). After receipt of such notice, if Indemnitor acknowledges in writing to Indemnitee that the right of indemnification under this Agreement applies with respect to such Claim, then Indemnitor shall be entitled, if it so elects in a written notice delivered to Indemnitee not fewer than ten (10) calendar days prior to the date on which a response to such Claim is due, to take control of the defense and investigation of such Claim and to employ and engage attorneys of its sole choice to handle and defend same, at Indemnitor’s expense.
(ii) Indemnitee shall cooperate in all reasonable respects with Indemnitor and its attorneys in the investigation, trial, and defense of such Claim and any appeal arising from it; except that, Indemnitee may, at its own expense, participate, through its attorneys or otherwise, in such investigation, trial, and defense of such Claim and any appeal arising from it.  No settlement of a Claim that involves a remedy other than the payment of money by Indemnitor shall be entered into without the consent of Indemnitee, which consent will not be unreasonably withheld or delayed.
(iii) After notice by Indemnitor of its election to assume full control of the defense of any such Claim, Indemnitee shall not be liable to Indemnitor for any legal expenses incurred thereafter by Indemnitor in connection with the defense of that Claim.  If Indemnitor does not assume full control over the defense of a Claim subject to such defense as provided in this Section, Indemnitor may participate in such defense, at its expense, and the Indemnitee shall have the right to defend the Claim in such manner as it may deem appropriate, at the expense of Indemnitor.
a. For purposes of this paragraph (c), each of Client and DXFactor shall be obligated to cause their respective Indemnitees to comply with the terms of this paragraph (c).

d) Limitation on Indemnification; Duty to Mitigate. Each Party’s indemnification obligations under this Agreement will be reduced to the extent the other Party is held to have been contributorily negligent or otherwise at fault. DXFactor’s obligations and liability under this Section shall be limited to the extent such is covered by insurance. Any claim or action against DXFactor must be brought within twelve (12) months after the cause of action first arises. Each Party shall have a duty to mitigate damages incurred by each such Party for which the other Party is or may be responsible.

29. Notices
(a) Requirement of Writing; Permitted Methods of Delivery

. Each Party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Agreement shall give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, Registered or Certified Mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier (with all fees prepaid), facsimile or e-mail.

(b) Addressees and Addresses. Any Party giving a notice shall address the Notice to the appropriate person at the receiving Party (the “Addressee”) at the address listed on the signature page of this Agreement or to another Addressee or another address as designated by a Party in a Notice pursuant to this Section.

(c) Effectiveness of Notice. Except as provided elsewhere in this Agreement, a Notice is effective only if the Party giving the Notice has complied with paragraphs (a) and (b) and if the Addressee has received the Notice.

(a) No Oral Waivers. The parties may waive any provision in this Agreement only by a writing executed by the Party or Parties against whom the waiver is sought to be enforced.

(b) no act, omission or course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition.

(c) Each Waiver for a Specific Purpose. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other Person.

36. Forum Selection
(a) Designation of Forum. Any Party bringing a legal action or proceeding against any other Party arising out of or relating to this Agreement may bring the legal action or proceeding in any state or federal court of Fairfax county, Virginia.

(b)  Waiver of Right to Contest Jurisdiction. Each Party waives, to the fullest extent permitted by law:
a. Any objection that it may now or later have to the laying of venue or any legal action or
proceeding arising out of or relating to this Agreement brought in any in any state or federal court of Fairfax county, Virginia.; and
b. Any claim that any action or proceeding brought in any court specified in paragraph (b)(i) has been brought in an inconvenient forum.

(c) Submission to Jurisdiction. Each Party to this Agreement submits to the nonexclusive jurisdiction of state and federal courts of Fairfax county, Virginia and its appellate courts, for the purposes of all legal actions and proceedings arising out of or relating to this Agreement.

8. WAIVER OF JURY TRIAL. EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES. THIS WAIVER APPLIES TO ANY ACTION OR OTHER LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL, OR THAT IT HAD THE ABILITY TO SO CONSULT, BUT MADE AN INFORMED DECISION NOT TO DO SO.