Introduction

The terms “you” or “your” refer to Subscriber. These “Terms and Conditions” are part of a Master ServiceAgreement between the Parties consisting of a Contract Cover Page signed by the Subscriber and TFL, these Terms and Conditions, and such additional Orders that are submitted by Subscriber and accepted by TFL during the Term.

Your placement (and TFL’s acceptance) of the initial Order as reflected on the Contract Cover Page or any subsequent Order, or renewal Order (including any automatic renewal) of the Agreement, constitutes your acceptance of these Terms and Conditions, and your agreement that these Terms and Conditions will govern the services and related products contained in all Orders under which you are entitled to receive active services, binding upon you unless otherwise agreed in writing by you and TFL.

1. Service Orders

Service requires that you purchase TFL device(s) and ancillary accessories (collectively, the “Hardware”) that directly interfaces with TFL’s software application(s) and any and all TFL data and content (collectively, the “Application Services”), as well as access to the Application Services and Licensed Technology (as defined below). It is your responsibility to order and install the Hardware.
Once an Order for Service has been signed and accepted by TFL, the Order is binding and not subject to cancellation by Subscriber, regardless of whether or not you have received or installed the Hardware. “Licensed Technology” shall mean collectively (i) software and firmware, if any, embedded within the Hardware, and (ii) the access provided by TFL to the cellular data network(s) to which the Hardware is connected (the “Communication Network”).

2. Grant of Rights

2.1 Provision and Access. Subject to the provisions of this Agreement, including the payment, when due of all applicable Fees, TFL agrees to provide Subscriber with the right to access and use the Application Services or Licensed Technology during the Term solely for Subscriber’s internal business use.

2.2 License Grant. Solely in furtherance of the access granted in Section 2.1 above, TFL grants Subscriber a limited, non-transferable, non-sublicensable, non-exclusive, royalty-free license to use the Licensed Technology during the Term in a fully assembled state and not separately as components, solely for Subscriber’s own internal business use.

2.3 Restrictions. Subscriber shall not with respect to the Application Services or Licensed Technology, or any component thereof, unless expressly permitted or required by law, directly or indirectly: (i) authorize or permit use by persons other than Authorized End Users (as defined below); (ii) modify, translate, reverse engineer, decompile, disassemble, or in any manner decode any object code in order to derive, obtain or perceive the source code; (iii) copy, reproduce or create derivative works; (iv) assign, sell, lease, license, transfer, encumber or pledge as security, permit liens against or otherwise convey any rights therein; (v) permit use for the development of new, or the modification of existing products or services, whether offered by Subscriber or a third party; or (vi) permit use for the benefit of any third parties (e.g., in a timeshare, service bureau or outsourcing relationship) or use other than in the intended manner;.

2.4 Intellectual Property Rights. TFL reserves for itself and without restriction all rights not expressly granted herein to Subscriber. Without limiting the foregoing, except as specifically set forth in this Agreement, TFL and its third-party vendors own all rights, titles and interests in and to: the TFL proprietary software, the Application Services, the Licensed Technology; all TFL-owned domain names, trademarks and logos, and all intellectual property rights pertaining to the foregoing, including all improvements, modifications and derivative works.

2.5 Subscriber License Grant and Intellectual Property Rights. Subscriber grants to TFL a non-exclusive, royalty-free right and license to: (i) use all Subscriber’s information and data (including any third-party information and data in the possession or custody of Subscriber), collected or transmitted by the Application Services or stored on TFL computer server(s) in accordance with this Agreement (collectively, the “Subscriber Data”), to provide the services, conduct internal testing and continued product development; and (ii) disclose, use, provide and sell the Subscriber Data for traffic forecasting and patterns and other business purposes, provided that any Subscriber Data disclosed is anonymous data without reference to or identification of the Subscriber or its customers.

2.6 Authorized End Users. Subscriber may permit any individual employee or contractor of Subscriber (an “Authorized End User”) to access or use the Application Services and Licensed Technology solely for the benefit of Subscriber. All such access shall be in compliance with the terms of this Agreement. Subscriber shall be liable for all acts and omissions of, and any breach of this Agreement caused by its Authorized End Users.

3. Performance; Third Party Services; Terms of Use

3.1 Performance. TFL may utilize agents and independent subcontractors in the performance of this Agreement.

3.2 Network Service: Subscriber acknowledges that (i) access to, transmission speed and quality of the Data Network, Global Positioning System (“GPS”) network, and the Internet are dependent upon network infrastructures owned by, operated by, or under the control of third parties, and made available to Subscriber subject to availability, limitations and conditions over which TFL assumes no control or responsibility; and (ii) connectivity, functionality and performance of these networks are dependent upon, and limited by a variety of factors including network technology, equipment, coverage and calling areas, cell site availability, inherent capacity and other system limitations, interference and failures, network user congestion, environmental variables due to weather and atmospheric conditions, topography, locations of buildings and other structures, periodic software and equipment updates and maintenance, and other internal factors determined solely by each network provider.

3.3 Subscriber Acknowledgements. Subscriber acknowledges and agrees that TFL shall not be liable for any delays, loss or damage including loss of data or compromised data security. Subscriber also acknowledges that the Application Services have not been designed as, and are not effective as a security system or to provide security or emergency response for person (including remote medical monitoring) or property, including driver/passengers, vehicle and its contents, whether alone or in conjunction with any other security or emergency system (e.g. a vehicle security/alarm system), and any use of the features or functionality of the Application Services for such purpose is unauthorized and at Subscriber’s sole risk and liability.

3.4 Third-Party Application and Interface acknowledgements. Application Services specifications may allow for an interface with certain third-party workforce and service management applications (“Third-Party Applications”). TFL has no responsibility for such Third-Party Applications and availability of an interface is not guaranteed by TFL.

3.5 OBD II (on-board diagnostics interface) Acknowledgements. If Subscriber’s Hardware is a TFL OBD II plug-in device(s), the following applies: The OBD II Hardware device is based on the OBD II standard and plugs into the OBD II port on Subscriber’s vehicle. Subscriber acknowledges and agrees that (i) the vehicle must support the OBD II standard and the OBD II port must be free of any damage, properly powered, and fully functioning and communicating with all vehicle systems as designed, and (ii) the data parameters available through the OBD II port or the ability to access them vary among vehicle manufacturers and vehicle models, and as a result not all data may be available for transmission to the OBD II Hardware device.

3.6 Disclosure of Relationship with Service Providers. Subscriber understands and will communicate to each of its Authorized End Users, that the Application Services furnished by TFL depend upon services provided by third parties (“Service Providers”) pursuant to agreements between such Service Providers and TFL, and are subject to certain terms, conditions and limitations set out in such agreements. Subscriber expressly understands and agrees that it and its Authorized End Users have no contractual relationship with the Service Providers and that Subscriber and its Authorized End Users are not a third-party beneficiary of any agreement between TFL and such Service Providers. The agreements and terms in this Section 3.6 shall survive the termination of this Agreement. Subscriber expressly understands and agrees that it has no contractual relationship whatsoever with the underlying wireless telecommunications Service Provider or its affiliates or contractors. Subscriber understands that TFL and Service Provider cannot guarantee the security of data transmissions and will not be liable for any lack of security relating to the use of the Application Services or the transmission of data. Subscriber further acknowledges that the Service Providers disclaim all liability of any nature to Subscriber, whether direct, indirect, incidental or consequential, arising out of use of the Application Services, and Subscriber agrees that it shall have no claims against the Service Providers of any kind with respect thereto.

4. Hardware

4.1 Hardware. Services are to be used only in accordance with TFL-approved Hardware and only in accordance with TFL Hardware installation and operating instructions. Use of any other hardware, use of TFL Hardware other than as approved by TFL, or modification of the Hardware constitutes a breach of this Agreement and may result in termination of Services.

4.2 Limited Hardware Warranty. All Hardware is subject to the terms of TFL’s limited hardware warranty terms and conditions.

4.3 Hardware Malfunction. If a Hardware malfunction impacts Service performance as a result of a Hardware failure, improper installation, use of TFL Services with unauthorized hardware or software or any other reason, TFL may terminate Services until the malfunction is corrected. TFL will notify Subscriber in the event of any such termination of Services. It is Subscriber’s responsibility to make sure that the Hardware malfunctions are promptly addressed and do not impact the Services.

5. Support; Updates; Services

5.1 Customer Support. Customer Support is available by telephone or email during normal business hours as posted on TFL’s website. On-site support or service, or other professional services, are not available unless separately purchased and included in an Order and if applicable, a statement of work.

5.2 Updates. Updates and upgrades to the Application Services or the Licensed Technology will be made available when offered to TFL’s entire subscriber base.

Licensed Technology updates or upgrades will be installed by “over-the-air programming.”

6. Fees and Payment

6.1 Fees and Expenses. Subscriber shall pay the fees and charges set forth in the applicable Order (“Fees”), which will include quarterly Subscriber fees per Hardware unit (including Communication Network Fees, if applicable), and any additional fees and charges set forth in such Order or elsewhere in this Agreement. All Fees are in U.S. dollars. Subscriber Fees under each Order will commence prior to the first Hardware unit(s) shipped under such Order. Subscriber Fees will continue throughout the Term and will be invoiced automatically and paid quarterly. Subscriber shall be responsible for all data transmissions associated with the SIM card or ESN number embedded within the Hardware. Subscriber may not abate, reduce, or set-off any Fees or other amounts due.

6.2 Invoices and Payment. All Fees will be invoiced. Subscriber Fees are invoiced in advance. Fees for additional services, charges and any incidental expenses will be invoiced in arrears unless advance payment is required by TFL. All amounts due will be paid concurrent with the invoice if an Electronic Funds Transfer authorization or credit card authorization has been provided by Subscriber, and otherwise are payable within thirty (30) days of the invoice date except payment of certain charges that TFL may require to be paid in advance. Subscriber agrees that time is of the essence. TFL reserves the right to charge a late payment calculated daily as a percentage of the unpaid invoice balance from the date due, at the lesser of one and one-half percent (1-½%) per month or the maximum rate permitted under applicable law. Subscriber agrees to indemnify and hold TFL harmless against any and all losses, liabilities, claims, damages, costs or expenses, including costs of collection, attorneys’ fees, court costs and expenses incurred by TFL by reason of, arising out of or relating to any failure by Subscriber to make any payments under this Agreement as and when due.

6.3 Taxes and Other Fees. All prices and rates on an Order, or for any additional charges due or for services to be provided, do not include present and future personal property, sales, use, excise, GST, Universal Service Charge, value-added, franchise, license, gross receipt, foreign, federal, state or local fees, taxes, duties or similar taxes or charges (collectively “Taxes”), which shall be paid by Subscriber (except for taxes based on the net income of TFL). Taxes associated with the Communication Network are included in the initial Sales Order but increases in Taxes from the wireless telecommunications service provider during the Term may be passed on and charged to Subscriber.

7. Term and Termination

7.1 Term. The Term of this Agreement will commence on the Effective Date. The Term of this Agreement will continue in effect for the minimum number of months specified on the Contract Cover Page as the Initial Term (the “Initial Term”) which is the minimum Term of this Agreement. The Term for each subsequent Order will be equal to the minimum number of months specified on the Contract Cover Page as the Initial Term unless the Order specifies a longer period. The Term of this Agreement and the Term of all Orders not previously terminated will be automatically extended to coincide with the latest expiration date for Application Services purchased under any subsequent Order, and otherwise such Term will be automatically renewed upon its scheduled expiration, for successive one (1) year periods. The Term will include all such automatic extensions or renewals of the Term, the latest expiration of which together with the Initial Term will constitute the “Term.” Each subsequent Order (once accepted by TFL) and automatic renewals are binding and Subscriber’s obligations for the Term and all renewal periods are irrevocable, non-cancellable and unconditional, and are independent of any other agreement entered into between Subscriber and any third party. Notwithstanding the foregoing, either Party may give written notice of intent not to renew this Agreement (or any specific Order) at least ninety (90) days.

Prior to the scheduled expiration of the then-current Term, however, Subscriber agrees that its failure to maintain a service renewal rate on at least eighty-five percent (85%) of all Hardware units previously activated under this Agreement (determined on a cumulative basis during the Term), may result in TFL’s upward adjustment of the monthly Subscriber Fees for the remaining active units for the balance of the Term.

7.2 Termination for Cause. (i) TFL may terminate this Agreement or any Order upon written notice if Subscriber breaches any of its payment obligations under this Agreement or applicable Order and fails to cure such breach within five (5) days of written notice thereof. (ii) Either Party may terminate this Agreement or any Order hereunder upon written notice if the other Party: (a) materially breaches this Agreement or the applicable Order and fails to cure such breach within thirty (30) days following receipt of written notice of such breach; (b) becomes insolvent, files a petition in bankruptcy, or becomes subject to a petition in bankruptcy filed against it that is not dismissed within thirty days of its filing; (c) is placed under the control of a receiver, liquidator or committee of creditors; or (d) dissolves, ceases to function as a going concern, makes or attempts a general assignment for the benefit of creditors, or otherwise fails to conduct its business in the normal course.

7.3 Termination Other Than for Cause. Subscriber may for its convenience terminate this Agreement or any Order, or deactivate any Hardware unit(s) hereunder, prior to the end of the Term by providing not less than thirty (30) days prior written notice to TFL and by complying with Section 7.4 below. In the event that TFL is prevented from performing all or any part of this Agreement by any (i) law, regulation, requirement or ruling from any judicial, governmental or other authority, including, without limitation, the FCC (and nothing herein shall require TFL to pursue any legal or other recourse), or (ii) inability to procure from third party vendors through commercially reasonable means any rights, technology or Hardware components, then TFL may in its sole discretion immediately cease performance without liability, and may immediately terminate this Agreement or any Order.

7.4 Termination Fee. In order to exercise its right to terminate under Section 7.3, Subscriber shall pay an early termination fee (“Termination Fee”) to TFL in lieu of actual damages. The Termination Fee shall be determined by multiplying the number of Hardware units deactivated or terminated times the sum of (i) one hundred seventy-five dollars ($175.00) plus (ii) the additional sum of fifteen dollars ($15) per each such Hardware unit for which the minimum activation term has not been completed as of the Termination Date. The Termination Fee shall be in addition to all sums due or which become due under this Agreement or the applicable Order up to the Termination Date. The Termination Fee is due and payable to TFL within ten (10) days of the Termination Date. Subscriber and TFL acknowledge and agree that this formula represents a fair and reasonable means to permit Subscriber to terminate this Agreement or a particular Order or deactivate specific Hardware earlier than the scheduled expiration of the Term, and to compensate TFL for its losses associated with such early termination.

8. Warranty Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICES AND LICENSED TECHNOLOGY AND ANY OTHER MATERIALS, SOFTWARE, CONTENT, DATA AND/OR SERVICES PROVIDED BY TFL ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SUBSCRIBER ASSUMES ALL RISK AND LIABILITY ASSOCIATED WITH THE PERFORMANCE, USE AND RESULTS THEREOF.

TFL EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY OR NON-INFRINGEMENT. NO WARRANTY IS MADE BY TFL ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. NO EMPLOYEE OR CONTRACTOR OF TFL (INCLUDING ANY SALESPERSON OR INSTALLER) IS AUTHORIZED TO CREATE ANY WARRANTY OR PROMISE OR MODIFY ANY PROVISION OF THIS AGREEMENT.

9. Limitation of Liability

9.1 TFL SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY OTHER PERSON FOR ANY LOSS OR DAMAGE CAUSED BY THE USE OF THE APPLICATION SERVICES OR LICENSED TECHNOLOGY OR FOR ANY INTERRUPTION OF THE SERVICES, REGARDLESS OF CAUSE. IN NO EVENT SHALL TFL’S LIABILITY TO SUBSCRIBER EXCEED THE AMOUNT PAID BY SUBSCRIBER FOR THE SERVICES IN QUESTION. TFL SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, GENERAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF OR DAMAGE TO SUBSCRIBER’S VEHICLES OR ASSETS OR LOSS OF PROFITS, REVENUES OR DATA, EVEN IF TFL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN OF THE ABOVE LIMITATIONS MAY NOT APPLY IN SOME STATES. TO THE EXTENT THAT ANY SUCH LIMITATIONS ARE PRECLUDED IN A GIVEN STATE, SUCH PRECLUSION SHALL NOT AFFECT ANY OTHER LIMITATIONS NOT SO PROHIBITED OR PRECLUDED.

9.2 Open Source Applications. Subscriber acknowledges that TFL embeds some Open Source Applications in some of its Hardware. These Open Source Applications are not licensed by TFL to Subscriber pursuant to the provisions of this Agreement and this Agreement may not be construed to grant any such right and/or license. Subscriber shall have only such limited rights and/or licenses, if any, to use the Open Source Applications as are set forth in the relevant agreements, available to Subscriber upon request during the Term, solely as embedded in the Hardware in a fully assembled state and not separately as components.

10. Security; Personal Information and Privacy

Subscriber agrees and understands that it is responsible for maintaining the confidentiality of passwords associated with any account it uses to access the Services. Accordingly, Subscriber agrees that it will be solely responsible to TFL for all activities that occur under its account. Subscriber agrees that, in order for TFL to perform its obligations under this Agreement, TFL may collect personal information about it or, if applicable, Subscriber’s customers, and when the Services are used, and about Subscriber or, if applicable, Subscriber’s customers’ assets.

Subscriber understands and agrees that TFL and/or its agents or service providers may monitor the activities and location of Subscriber or, if applicable, Subscriber’s customers’ assets and the usage of the TFL system. Further, Subscriber understands that privacy cannot be guaranteed on the TFL system or other systems such as those used in order to provide the Services, and TFL shall not be liable to Subscriber or any other third party for any claims, loss, damages or costs which may result from a lack of privacy. Subscriber consents to TFL using information about Subscriber and Subscriber’s assets to (i) administer the services, (ii) electronically locate Subscriber or, if applicable, Subscriber’s customers’ assets equipped with a unit in conjunction with providing the services, (iii) provide information to third party service providers, wireless carriers or other persons for the purpose of providing the services, or in response to a subpoena or other legal process, (iv) enforce the terms of this Agreement, (v) prevent fraud and respond to regulatory and legal requirements, or in conjunction with a government inquiry, or in litigation or dispute resolution, and (vi) share information with TFL affiliates in conjunction with the services and for the purpose of providing Subscriber with any promotional offers and marketing materials. Subscriber shall advise all occupants or users of Subscriber’s or, if applicable, Subscriber’s customers’ assets equipped with a unit about how information about them may be collected, used and disclosed by TFL.

11. General

11.1 Force Majeure. Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for delay, failure in performance, loss or damage due to any of the following force majeure events: fire, strike, embargo, explosion, interruptions or irregularities in power or connectivity, earthquake, nuclear accident, terrorism, volcanic action, flood, war, water, the elements, labor disputes, civil disturbances, the requirements of any government, civil or military authority, acts of God or public enemy, inability to obtain or secure products or transportation facilities, acts or omissions of common carriers or other causes beyond a Party’s reasonable control, whether or not similar to the foregoing. Force majeure may not be asserted by Subscriber to excuse or suspend Subscriber’s payment obligations.

11.2 Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, provided consent is not required in conjunction with the merger, transfer or sale of a majority of a Party’s outstanding voting capital stock or substantially all of its assets, or other transaction effecting a change of control, nor is consent required for TFL’s sale of assets primarily pertaining to or required for the performance of its obligations under this Agreement, or its sale or assignment of accounts receivable or subcontracting any of its performance obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.

11.3 Compliance with Laws; Indemnity. Subscriber agrees that with respect to the Application Services and Licensed Technology, Subscriber’s use will comply with all applicable laws, statutes, regulations, ordinances, and rules of governmental authority, and Subscriber shall indemnify, defend and hold TFL harmless from and against any claims, liability or loss (including reasonable attorney’s fees) arising out of any (i) breach by Subscriber of this Agreement, or (ii) asserted or established violation of said laws, statutes, regulations, ordinances or rules by Subscriber or anyone Subscriber authorizes to use a vehicle equipped with the Application Services or Licensed Technology. TFL is not liable for any claims or damages that may arise out of the fact that GPS technologies are not permitted, or used in compliance with applicable law, in a particular jurisdiction. Subscriber will not directly or indirectly export, re-export or transmit in violation of any export laws, rules or regulations of Canada or the United States. Where applicable, Subscriber will advise its authorized drivers, employees and contractors that vehicles are tracked and detailed operating information is collected, stored and reported. If Subscriber has authorized a third party to receive data and information from TFL related to Subscriber’s account, including data pertaining to vehicle location and driver operating behavior, then to the extent TFL agrees to provide such data and information, Subscriber agrees that such third party (and not TFL) is solely responsible for the handling of that shared data and information, including responsibility for compliance with all laws (including the laws of privacy) pertaining to the sharing, use and retention thereof.

11.4 Notices. Except as otherwise provided in this Agreement, all notices or other communications hereunder to be effective shall be in writing and either delivered in person by a nationally recognized overnight delivery service (with delivery confirmation), or deposited in the United States mail, postage prepaid, certified mail, return receipt requested, and addressed to Subscriber or to TFL at the addresses specified in this Agreement. Notices shall be effective upon receipt (or first attempted delivery, if refused or unclaimed). Either Party may send a notice changing its address for receipt of notices under this Section.

11.5 No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties, their successors and permitted assigns. There are no express, implied, legal or equitable rights or benefits conferred upon any third party.

11.6 Independent Contractors. Each Party is an independent contractor and not a partner, joint venturer, or agent of the other, and will have no authority to bind the other to any contract or commitment of any type.

11.7 Promotion. Each Party may use the other Party’s name and logo in connection with speaking engagements, web sites, client proposals and other communications sent to existing and potential customers and others, to the extent necessary to indicate the relationship of the Parties. TFL may also document a business case for the technology solution deployed for Subscriber, with Subscriber’s review prior to release. Either Party may distribute a press release announcing the execution of this Agreement, with the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, provided no confidential information is disclosed.

11.8 Order of Precedence. These Terms and Conditions take precedence over those contained in any Order. Any additional or different terms contained in a Subscriber purchase order whether or not such terms would materially alter this Agreement, shall be deemed objected to by TFL and of no force or effect unless the Parties expressly amend this Agreement in writing. Execution of an Order shall not operate as an amendment to this Agreement.

11.9 Waivers of Default. A Party’s waiver of any breach or default shall not be deemed a waiver or modification of any term or condition of this Agreement, a continuing waiver of such breach or default or a waiver of any other breach or default.

11.10 Survival. The expiration or termination of this Agreement shall not terminate vested rights of either Party unless this Agreement expressly specifies otherwise, or release either Party from any liabilities or obligations incurred prior to expiration or termination, or from obligations which by their express terms or by their nature are intended to survive expiration or termination in order to achieve the intent of the Parties.

11.11 Governing Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes regarding this Agreement shall be brought exclusively in the Santa Clara County Superior Court and the Parties consent to the jurisdiction of such court.

11.12 Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court or other forum of competent jurisdiction, such invalidity or unenforceability shall not invalidate or render unenforceable the entirety of this Agreement. Unless a failure of consideration would result, the invalid or unenforceable provision will be deemed revised to the minimum extent necessary in order to make this Agreement valid and enforceable (provided this Agreement as revised continues to substantially reflect its original intent).

11.13 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed by the exchange of facsimile or scanned signatures or electronic signature.

11.14 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior oral or written proposals, negotiations and agreements between the Parties relating to the subject matter. No modifications to this Agreement or waivers will be enforceable unless evidenced in writing and signed by both Parties.