MASTER SERVICES AGREEMENT
Standard Terms and Conditions

These Standard Terms and Conditions are incorporated by reference into the Agreement between AUSTIN WEB DEVELOPMENT and the Customer identified in the AUSTIN WEB DEVELOPMENT Master Services Agreement Cover Page and the Initial Services Addendum attached thereto. In exchange for the covenants and promises herein, which the parties agree are sufficient consideration, the parties agree as follows.

1. SERVICES.

a. Customer Area and Equipment. If the Services are provided or performed in an IDC, the “Customer Area” shall mean the location(s) within an IDC that AUSTIN WEB DEVELOPMENT designates for placement of Customer Equipment. As part of Services, Customer is hereby granted a license, subject to the terms and conditions of this Agreement, to install, maintain, use, operate, monitor, repair and replace in the Customer Area certain equipment owned or controlled by Customer as set forth in the customer notebook which is prepared by AUSTIN WEB DEVELOPMENT with Customer’s input, and any tools, devices, supplies or materials brought into the IDC by Customer (collectively the “Customer Equipment”). Customer may not use the Customer Area for any purpose other than as set forth herein. Customer is not granted, and specifically disclaims, any possessory, leasehold, or other real property interest in the Customer Area, the IDC, or any other portion of the building or premises in which the IDC is located. Customer has no rights whatsoever under AUSTIN WEB DEVELOPMENT’s lease for the IDC

b. Deliverables. If Services include any deliverables, they shall be specified in a SOW. Unless otherwise specified in the SOW, AUSTIN WEB DEVELOPMENT retains exclusive ownership rights of all deliverables and materials developed pursuant to this Agreement (the “Deliverables”); except that, in exchange for full and timely payment for the Deliverables, AUSTIN WEB DEVELOPMENT grants Customer a non-exclusive, revocable license to Customer to use the Deliverables internally and solely for the benefit of Customer in any legal manner. Customer shall not have any right to sell, sublicense, allow the use of, or transfer the Deliverables to any third party. The information contained within the Deliverables may become outdated by, for example but not limitation, new law or upgrades to systems or software. AUSTIN WEB DEVELOPMENT shall not be liable for any misinformation or harm resulting from Customer’s continued use of Deliverables which have become outdated or superseded.

c. Change Orders. After receiving Customer’s request detailing the nature of any desired changes to the Services, Deliverables and/or the scope or quantity thereof under the Agreement, AUSTIN WEB DEVELOPMENT may review Customer’s requested change upon Customer’s payment to AUSTIN WEB DEVELOPMENT of a mutually agreed review and proposal fee. If AUSTIN WEB DEVELOPMENT is willing to make the desired changes, AUSTIN WEB DEVELOPMENT may present Customer with a proposal for the changes including any additional fees, charges and extensions to any projected target schedules. Such proposal shall be automatically rejected unless manually signed and physically returned by Customer to AUSTIN WEB DEVELOPMENT within (3) three business days after Customer’s receipt. To avoid confusion, verbal discussion and any form of notice (including email) other than physically delivered written notice which is manually signed by Customer shall be ineffective as evidence of acceptance of such proposal. If the proposal is timely signed and returned as provided in this Section, it shall become an amendment (“Change Order”) and binding addendum to the Agreement. AUSTIN WEB DEVELOPMENT shall not be obligated to make any alterations, additions or deletions to any Services or products until receipt of an effective Change Order under this Section; provided, however, any election by AUSTIN WEB DEVELOPMENT to begin or complete alterations, additions or deletions requested in writing by Customer but not documented by a Change Order shall not constitute a waiver by AUSTIN WEB DEVELOPMENT to its right to compensation, and AUSTIN WEB DEVELOPMENT shall be paid for the reasonable value of such work. AUSTIN WEB DEVELOPMENT will not be obligated to proceed with any changes until a Change Order is signed and any advance payments described therein are paid. AUSTIN WEB DEVELOPMENT has no obligation to stop work while a Change Order is being discussed, unless continued work would be counterproductive to the proposed change order and Customer pays any additional costs and expenses that are reasonably estimated by AUSTIN WEB DEVELOPMENT to result from such work stoppage.

2. FEES AND BILLING.

a. Charges. Unless otherwise specified in a SOW, regardless of whether Customer has commenced use of the Services, Customer’s payment obligation for Services becomes due in full on the “Installation Date”, which is the later of (i) the applicable Install By Date, set forth on the Service Order Form, or (ii) the date on which the applicable Service is provisioned by AUSTIN WEB DEVELOPMENT and ready for Customer’s use (“Service Commencement Date”). Customer shall pay AUSTIN WEB DEVELOPMENT in U.S. dollars for all charges for the Services provided under this Agreement in accordance with its terms. All such charges are exclusive of any sales taxes and other federal, state, municipal, or other governmental taxes or levies applicable to the delivery of Services hereunder (collectively “Taxes”) now in force or enacted in the future, all of which Customer will be responsible for and shall pay in full on the earlier of the due date or AUSTIN WEB DEVELOPMENT’s demand.

b. Billing and Payment Terms. AUSTIN WEB DEVELOPMENT issues invoices monthly or as set forth in an applicable SOW. Monthly Recurring Charges are invoiced in advance, except that usage-based Services are invoiced in advance at the minimum charge and, as applicable, are adjusted based on actual usage. On the Installation Date, Customer will be invoiced for all non-recurring charges, and the Monthly Recurring Charges for the then current month. Customer shall pay all charges other than a Disputed Charge upon receipt of the invoice, and payment shall be past due if not paid within seven days after date of the invoice. Past due payments will accrue interest at the lower of 1½% per month, or the highest rate allowed by law. If any amount owed by Customer becomes more than seven days past due, AUSTIN WEB DEVELOPMENT may (i) suspend or terminate all or part of the Services to Customer; (ii) proceed against the Collateral (defined below), (iii) deny Customer access to the IDC, and/or (iv) upon written notice to Customer, require a security deposit or other reasonable assurances to secure Customer’s payment obligations hereunder, and/or (v) exercise all rights available under this Agreement, at law and in equity.

c. Disputed Charges. Any invoiced charges that are not disputed by Customer in accordance with this Section shall be deemed accepted and correct. Customer may reasonably and in good faith dispute any charge in an AUSTIN WEB DEVELOPMENT invoice (the “Disputed Charge”) and withhold payment only for the Disputed Charge after giving written notice to AUSTIN WEB DEVELOPMENT describing in reasonable detail the basis for such Disputed Charge within seven days after receiving AUSTIN WEB DEVELOPMENT’s invoice. The parties shall work together in good faith to resolve any such Disputed Charge. If the parties mutually determine the Customer owes any Disputed Charge, Customer shall, within five business days, pay such amount including interest accrued from the date the payment was due as if it were not a Disputed Charge. If the parties are unable to resolve the Disputed Charge within ten days of Customer’s notice of the same, the parties shall be entitled to pursue all available remedies.

d. Security Deposit. Concurrent with Customer’s execution of this Agreement, a SOW, or an Amendment or on AUSTIN WEB DEVELOPMENT’s request, and as a condition of AUSTIN WEB DEVELOPMENT’s obligation to perform under this Agreement, Customer shall pay to AUSTIN WEB DEVELOPMENT a security deposit in the amount, if any, set forth on the Deposit Receipt form provided to Customer (part of the credit application package) or as requested by AUSTIN WEB DEVELOPMENT (individually and collectively, the “Security Deposit”). If Customer Defaults under this Agreement, AUSTIN WEB DEVELOPMENT may, without further notice to Customer and without prejudice to AUSTIN WEB DEVELOPMENT’s other remedies, apply part or all of the Security Deposit toward the cure of Customer’s Default. In such event, Customer shall, within five business days after written demand, pay AUSTIN WEB DEVELOPMENT an amount equal to the amount so applied to restore the Security Deposit to its original amount. AUSTIN WEB DEVELOPMENT may co-mingle the Security Deposit with its own funds. Customer shall not be entitled to receive interest on the Security Deposit. The Security Deposit repayment procedures are set forth on the Deposit Receipt form, and otherwise, any part of the Security Deposit not used by AUSTIN WEB DEVELOPMENT shall be returned to Customer within sixty days after this Agreement expires or is terminated, after applying the Security Deposit to any outstanding amounts due and payable to AUSTIN WEB DEVELOPMENT. If AUSTIN WEB DEVELOPMENT assigns this Agreement, then AUSTIN WEB DEVELOPMENT shall be relieved of liability for the Security Deposit upon delivery of the Security Deposit to the assignee.

e. Security Interest Grant. As security for its obligations hereunder, Customer hereby pledges and grants to AUSTIN WEB DEVELOPMENT a security interest in all right, title and interest of Customer now owned or hereafter acquired in and to Collateral now or hereafter located at an IDC or now or hereafter existing on or used by or in any Equipment. “Collateral” means (i) equipment and fixtures (including servers, peripherals, cabling, wiring and other tangible assets of Customer located or used at an IDC), together with all additions and accessions thereto and replacements therefor (collectively, the “Equipment”), (ii) general intangibles in written and electronic form (including customer and supplier lists, books, records, information, contracts and software) (collectively, the “General Intangibles”), (iii) records evidencing both a monetary obligation and a security interest in specific goods, a security interest in specific goods and software used in the goods, a security interest in specific goods and license of software used in the goods, a lease of specific goods, or a lease of specific goods and license of software used in the goods (collectively, the “Chattel Paper”), and (iv) all proceeds of the foregoing (including whatever is receivable or received when Collateral or proceeds are sold, collected, exchanged, returned, substituted or otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to payment and insurance proceeds and premium returns and refunds under insurance with respect to any Collateral, and all rights to payment with respect to any cause of action affecting or relating to the Collateral). As used in this Section, “monetary obligation” means a monetary obligation secured by the goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods.

f. Secured Creditor Rights. Upon a Customer Default, AUSTIN WEB DEVELOPMENT shall have the rights of a secured creditor under the UCC, all rights granted by this Agreement and by law, including the right (a) at Customer’s expense to store, process, repair or recondition the Collateral or otherwise prepare it for disposition in any manner and the right to store, process, repair or recondition it or otherwise prepare it for disposition in any manner, (b) to use without charge in connection with such preparation and disposition, any trademark, trade name, copyright, patent or technical process used by Customer, and (c) to eradicate or render unreadable any information stored on or in the Collateral. Customer hereby agrees that ten (10) days’ prior notice to Customer of any intended sale or disposition of any Collateral is reasonable. Customer acknowledges and agrees that it will not remove any Collateral from an IDC or place of storage, as the case may be, without AUSTIN WEB DEVELOPMENT’s prior written consent or payment in full of all amounts payable to AUSTIN WEB DEVELOPMENT.

g. Intellectual Property License. Customer hereby grants to AUSTIN WEB DEVELOPMENT an unconditional, irrevocable, non-exclusive license (exercisable without royalty or other payment by AUSTIN WEB DEVELOPMENT, but only in connection with the exercise of its remedies) to use, license or sublicense any patent, trademark, trade name, copyright or other intellectual property in which Customer now or hereafter has any right, title or interest, together with the right of access to all media in which any of the foregoing may be recorded or stored.
h. Further Assurances. Customer agrees to promptly procure, execute and deliver from time to time any endorsements, assignments, financing statements and other writings reasonably deemed necessary or appropriate by AUSTIN WEB DEVELOPMENT to perfect, maintain and protect its security interest hereunder and the priority thereof and to deliver promptly to AUSTIN WEB DEVELOPMENT all originals of Collateral consisting of instruments. Customer hereby irrevocably appoints AUSTIN WEB DEVELOPMENT as its attorney-in-fact and agrees that AUSTIN WEB DEVELOPMENT may perform in the name and stead of Customer at Customer’s expense (but AUSTIN WEB DEVELOPMENT shall not be obligated to and shall incur no liability to Customer or any third party for failure so to do) any act which Customer is obligated by this Agreement to perform, and to exercise such rights and powers as Customer might exercise with respect to the Collateral, including the right to (i) collect by legal proceeding or otherwise and endorse, receive and receipt for all distributions, proceeds and other sums and property now or hereafter payable with respect to or on account of the Collateral; (ii) insure, process and preserve the Collateral; (iii) make any compromise or settlement, and take any action it deems advisable, with respect to the Collateral; (iv) pay any indebtedness or obligations of Customer relating to the Collateral; and (v) execute, deliver and file any and all UCC financing statements and other documents, instruments and agreements required hereunder. Except as expressly required by this Agreement or by a nonwaivable provision of law, AUSTIN WEB DEVELOPMENT shall not be required to make any presentment, demand or protest, or give any notice in connection with Customer’s breach of this Agreement or nonperformance by Customer of its obligations hereunder or with respect to the Collateral.

3. RIGHTS AND OBLIGATIONS.

a. Rules and Regulations. When a party’s employees, invitees, agents, and contractors are on the other party’s premises, they shall comply with all applicable rules, regulations and policies of the other party. Customer will comply at all times with the terms of AUSTIN WEB DEVELOPMENT’s general rules and regulations relating to Customer’s use of and access to the IDC, incorporated into this Agreement as set forth at www.austindev.com/tos.php (the “Rules and Regulations”). AUSTIN WEB DEVELOPMENT may amend the Rules and Regulations provided that Customer is informed in advance of any such amendments and the amendments do not materially and adversely alter the provision of Services hereunder.

b. Access Control. Customer will provide to AUSTIN WEB DEVELOPMENT’s Operations Manager or designee written notice of the individuals who are authorized to have access to the Customer Area and of any periodic changes to such authorization (the “Permitted Individuals”). AUSTIN WEB DEVELOPMENT will have the right (i) to deny Customer’s access after a Customer Default to the IDC, and (ii) to limit Customer’s access to the IDC solely to the list of Permitted Individuals (“Access List”). If AUSTIN WEB DEVELOPMENT receives conflicting Access Lists from different Customer representatives, AUSTIN WEB DEVELOPMENT shall comply with the last current Access List provided to it before the conflict arose. Customer releases, indemnifies, defends, and holds harmless AUSTIN WEB DEVELOPMENT from any exposure, lawsuits, claims, demands, or liability for complying with the last current Access List.

c. Acceptable Use. Customer’s use of the Services shall comply with all laws and AUSTIN WEB DEVELOPMENT’s Acceptable Use Policy (“AUP”), as the same may be modified by AUSTIN WEB DEVELOPMENT periodically. As of and after the Effective Date but prior to a Customer Default,, Customer shall have access to the AUP, by password, at Customer’s FlowView portal. Customer acknowledges that AUSTIN WEB DEVELOPMENT exercises no control whatsoever over the content of information passing through the Customer Equipment, or through equipment and facilities used by AUSTIN WEB DEVELOPMENT to provide Services, and that it is Customer’s sole responsibility to ensure that the information it transmits and receives complies with all applicable laws and regulations.

d. Restrictions on Use. Customer shall not and shall not permit others, including its employees and agents, to reproduce, reverse-engineer, de-compile, disassemble, alter, translate, modify, adapt, market, resell, or sublease any AUSTIN WEB DEVELOPMENT Services, unless expressly permitted by this Agreement. Other than as specified herein, no license, title, or right is granted or transferred to Customer in or to any service marks, trademarks, copyrights, patents, trade secrets or other intellectual property rights of AUSTIN WEB DEVELOPMENT (“Proprietary Information”), and Customer shall not have any right to use any Proprietary Information, or any AUSTIN WEB DEVELOPMENT software or hardware. Without AUSTIN WEB DEVELOPMENT’s prior written consent, Customer may not, directly or indirectly resell, or permit others to use, all or part of any: cabinet space; SuiteSpace; Customer Area; custom floor, temporary, or equipment space within the IDC; or roof space associated with the IDC premises. Customer may not solicit any AUSTIN WEB DEVELOPMENT customers. Customer may not directly connect Customer’s Equipment with equipment of a third party within the IDC or any other AUSTIN WEB DEVELOPMENT facility. AUSTIN WEB DEVELOPMENT reserves the right to take any action to prevent harm to the services, personnel, or property of AUSTIN WEB DEVELOPMENT (and its affiliates, vendors, and customers) or other persons.

e. Emergency Contacts. Customer shall designate to AUSTIN WEB DEVELOPMENT, in writing, emergency contacts, including name, address, telephone, pager and/or email address, who will be the primary emergency contacts to be notified in case of any Services-related emergency. Customer shall ensure that AUSTIN WEB DEVELOPMENT (i) has current contact information at all times, and (ii) is notified reasonably in advance of any change to the contact information.

f. Cooperation. Customer shall reasonably, timely, and in good faith cooperate with AUSTIN WEB DEVELOPMENT and AUSTIN WEB DEVELOPMENT’s designees and agents to facilitate AUSTIN WEB DEVELOPMENT’s performance of Services and shall provide AUSTIN WEB DEVELOPMENT with access to the necessary information, including system or platform design, network architecture, IP addresses, hardware, and software specifications (“Customer Information”) to provide the Services described in this Agreement. It is essential to AUSTIN WEB DEVELOPMENT’s performance hereunder that AUSTIN WEB DEVELOPMENT has such access to Customer Information. Customer shall (i) configure the Customer Equipment, and if applicable for the Services, any of Customer’s equipment not located in the IDC, according to the technical specifications provided by AUSTIN WEB DEVELOPMENT; and (ii) maintain any necessary licenses associated with any of Customer’s equipment. AUSTIN WEB DEVELOPMENT assumes no responsibility to obtain from Customer’s licensors necessary licenses or consents to monitor or access Customer Equipment to perform the Services. If Customer modifies Customer Information in a manner that necessitates a change to the Services, then Customer shall pay in advance for all materials and time charges that AUSTIN WEB DEVELOPMENT estimates that it will incur to troubleshoot, modify, or make repairs necessary to adapt to the Customer modifications. The parties shall account to each other on demand for any difference between the actual and estimated charges. Unless specified otherwise in a Service Order Form or SOW, Customer is responsible for purchasing and maintaining all manufacturer warranties, updates, patches, upgrades, and service plans reasonably required to ensure that the Customer Equipment and Customer Information remains in working order through the Term and AUSTIN WEB DEVELOPMENT shall not be responsible for any delay or failure by Customer to purchase or maintain same.

4. INSURANCE.

a. Minimum Levels of Insurance (for collocation customers only). During the Term of this Agreement, both parties will keep in full force and effect insurance policies covering: (i) commercial general liability insurance in an amount not less than one million dollars per occurrence; (ii) workers’ compensation insurance in an amount not less than that required by applicable law; and (iii) property insurance covering each party’s own property and equipment for the perils customarily insured for full replacement cost at the time of the loss. Within twenty business days after written request, a party will provide to the other evidence of the foregoing insurance. Neither party has any obligation to insure the equipment or property of the other. The insurance policies required in this Agreement will be issued by financially secure insurance companies authorized to issue such insurance in the state in which the issuing party is conducting business or receiving Services.

b. Waiver of Subrogation. Neither party, nor its officers, directors, shareholders, employees, agents or invitees, will be liable to the other party or to any insurance company insuring the other party (by way of subrogation or otherwise) for any loss or damage to its equipment or property within the IDC, or for loss of business revenue or extra expense arising out of or related to its equipment or property within the IDC, if a party is required in this Section to maintain insurance for such loss or damage or expense.

5. CONFIDENTIAL INFORMATION.

a. Confidential Information. Each party may have access to certain non-public information of the other party. All such information, if in writing, shall be specifically and obviously marked as “confidential” by the disclosing party at the time of disclosure, or if disclosed orally, shall be orally designated as confidential and thereafter identified as confidential by written notice to the receiving party within a reasonable time (“Confidential Information”). The Deliverables, the pricing and terms of this Agreement, and each party’s method of providing its respective services are hereby deemed Confidential Information. Neither party will use for its own account or the account of any third party, nor disclose to any third party (except as required by law or as reasonably necessary to the receiving party’s attorneys, accountants and other advisors who are obligated to maintain the confidentiality of such information), any of the other party’s Confidential Information. Subject to the rights of AUSTIN WEB DEVELOPMENT under Section 2, the disclosing party retains all right, title and interest in all Confidential Information it discloses under this Agreement and all improvements and modifications made thereto. Each party will use reasonable care, at least equivalent to the care used for its own similar Confidential Information, to protect the confidentiality of the disclosing party’s Confidential Information. Each party’s obligation under this Section will survive for a period of two years following the expiration or termination of this Agreement.

b. Exceptions. Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement and through no fault of the receiving party; (ii) the receiving party was legally in possession of prior to receiving it; (iii) the receiving party can demonstrate was developed by it independently and without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure. If a party is required to disclose Confidential Information by law, court order, or government agency, such disclosure shall not be deemed a breach of this Agreement.

c. Remedy. Any unauthorized copying, transfer, or use of any Confidential Information of the other party shall cause irreparable injury to the disclosing party that cannot be adequately compensated by monetary damages and the disclosing party shall be entitled to seek equitable relief, including injunctive relief, with bond waived, against the receiving party as a remedy for any material breach of this Section. The disclosing party may in addition to equitable relief, pursue any and all legal and contractual remedies available to the disclosing party.

6. REPRESENTATIONS AND WARRANTIES.

a. Warranties by Customer. Customer represents and warrants to AUSTIN WEB DEVELOPMENT that (1) Customer has the legal right and authority to place and use the Customer Equipment as contemplated by this Agreement; (2) Customer is duly organized and has the authority to enter into this Agreement and to perform its obligations hereunder; (3) the person signing this Agreement on behalf of Customer is authorized to do so, and upon its execution by such person, this Agreement is the legally binding obligation of Customer; (4) Customer’s and Customer’s end users’ use of the Services and of the Customer Equipment does not, as of the Installation Date, and will not during the Term, violate applicable laws or regulations; (5) Customer has read the Rules and Regulations and the AUP, and Customer and Customer’s end users are in compliance with and shall continue to comply with both during the Term; and (6) the Services do not include any voice telephony transmission services and Customer will use the Services only for Internet and data transmission.

b. AUSTIN WEB DEVELOPMENT Warranties. AUSTIN WEB DEVELOPMENT represents and warrants to Customer that (1) AUSTIN WEB DEVELOPMENT has the legal right and authority to provide the Services; (2) AUSTIN WEB DEVELOPMENT is duly organized and has the authority to enter into this Agreement and to perform its obligations hereunder; (3) the person signing this Agreement on behalf of AUSTIN WEB DEVELOPMENT is authorized to do so, and upon its execution by such person, this Agreement is the legally binding obligation of AUSTIN WEB DEVELOPMENT; and (4) subject to the accuracy of Customer’s representations and warranties, AUSTIN WEB DEVELOPMENT’s Services as supplied to Customer under this Agreement do not, as of the Installation Date, and will not during the Term, violate applicable laws or regulations.

c. NO OTHER WARRANTY. THE WARRANTIES IN SECTION 6(b) ARE THE ONLY WARRANTIES OFFERED TO AND RELIED ON BY CUSTOMER. EXCEPT FOR ANY EXPRESS WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE IDC AND THE SERVICES IS AT ITS OWN RISK. AUSTIN WEB DEVELOPMENT DOES NOT MAKE AND HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AUSTIN WEB DEVELOPMENT DOES NOT WARRANT AND HEREBY DISCLAIMS THAT THE SERVICES WILL PROVIDE PROTECTION FROM (I) VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, CANCELBOTS, OR OTHER HARMFUL OR DELETERIOUS PROGRAMMING ROUTINES; (II) DATA LOSS; (III) UNAUTHORIZED OR UNKNOWN SECURITY BREACHES, ACCESSES, OR ATTACKS INTO OR AFFECTING CUSTOMER EQUIPMENT OR SYSTEMS, WHETHER OR NOT FORESEEABLE; AND (IV) ANY FORM OF REAL-TIME DETECTION OF ANY OR ALL OF THE FOREGOING. Neither party shall make any representations or warranties on the other party’s behalf. AUSTIN WEB DEVELOPMENT is not responsible for any defects or damages to Customer Equipment or Services resulting from (x) Customer’s, Customer’s agents’, or Customer’s employees’ mishandling, abuse, misuse, or accident; (y) Force Majeure; or (z) Customer’s use or provisioning of equipment electrically or mechanically incompatible with Services or of inferior quality.

d. Customer shall notify AUSTIN WEB DEVELOPMENT of any breach of a representation and warranty in Section 6(b) within the earlier of (i) 30 days after discovery by Customer or (ii) 90 days after the first occurrence of any isolated, repeating or continuing breach. Failure to give notice of any representation and warranty breach within the time required by the preceding sentence shall constitute a waiver by Customer of such breach. AUSTIN WEB DEVELOPMENT shall be entitled to initiate corrective action within 30 days after receiving Customer’s notice of breach. If AUSTIN WEB DEVELOPMENT fails to cure such breach within a reasonable time (in no event to be less than 30 days) after commencing such efforts, AUSTIN WEB DEVELOPMENT shall be liable for Customer’s actual damages, subject to the limitations of Section 7, not to exceed the lesser of (i) the reasonable cost subsequently expended by Customer to obtain similar services to the Services impacted by such breach or (ii) the amount paid to AUSTIN WEB DEVELOPMENT for the Services affected by such breach.

e. THE PROVISIONS OF SECTION 6(d) CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF A REPRESENTATION AND WARRANTY OF SECTION 6(b).

7. LIMITATION OF LIABILITY AND INDEMNIFICATION.

a. IN ADDITION TO THE OTHER LIMITATIONS OF THIS AGREEMENT AND EXCLUDING LIABILITY FOR BREACH OF SECTION 5, NO PARTY SHALL BE LIABLE IN EXCESS OF THE AMOUNT PAYABLE TO AUSTIN WEB DEVELOPMENT FOR THE TERM (INITIAL OR RENEWAL, AS THE CASE MAY BE) IN WHICH A CAUSE OF ACTION FOR SUCH LIABILITY ACCRUES.

b. EXCLUDING DAMAGES FROM A BREACH OF SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, REPLACEMENT GOODS, DOWNTIME COSTS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OR INTERRUPTION OF SERVICES OR EQUIPMENT), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE OR THE PERFORMANCE, NONPERFORMANCE, USE, INABILITY TO USE, CONDITION, QUALITY, RESULT OR EFFECT OF ANY OF THE FOREGOING, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHER LEGAL THEORY, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

c. EXCEPT FOR DIRECT PERSONAL GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NO AFFILIATE, DIRECTOR, OFFICER OR SHAREHOLDER OF A PARTY SHALL BE LIABLE FOR ANY DAMAGES SUFFERED BY THE OTHER PARTY UNDER RESPONDEAT SUPERIOR, VICARIOUS LIABILITY OR OTHER LEGAL THEORY.

d. Each subsection of Sections 6 and 7 of this Agreement are intended to be independent of and severable from each other.

e. The disclaimers and liability limitations set forth in Sections 6 and 7 shall not apply to the extent of gross negligence, willful tortious conduct or as otherwise prohibited by applicable law.

f. Indemnification. Each party (the “Indemnifying Party”) will indemnify, defend and hold the other party and its directors, shareholders, officers, and employees (collectively an “Indemnified Party”) harmless from and against any and all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively “Losses”) resulting from any claim, suit, action, demand, or proceeding (each, an “Action”) brought by any third party against the Indemnified Party, to the extent not covered by the Indemnified Party’s insurance, (i) alleging or arising from the gross negligence or willful misconduct of the Indemnifying Party or its employees, agents, contractors, or invitees, in the performance or non-performance of its obligations hereunder, (ii) arising from any failure by the Indemnifying Party or its employees, agents, contractors, or invitees, to comply with the Rules and Regulations, the AUP, or the law, or (iii) arising from or connected with any claims of ownership or superior rights by a third party to any of the Indemnifying Party’s rights in or to Equipment. The Indemnifying Party’s obligations hereunder are conditioned upon: (1) prompt notice to the Indemnifying Party upon receipt of written notice of an Action for which the Indemnified Party seeks indemnity; (2) tendering control of the defense of such Action and any related settlement discussions to the Indemnifying Party if the Indemnifying Party has adequate resources to fully finance and resolve the Action and pay the Losses (the Indemnified Party may participate in such defense, at its own expense, with counsel of its own choosing that Indemnifying Party reasonably approves); (3) the reasonable cooperation of the Indemnified Party, at the Indemnifying Party’s request and expense; and (4) obtaining the Indemnified Party’s prior written consent (which shall not be unreasonably withheld, delayed, or cause any delay or harm in the settlement discussion), for any settlement of an Action that does not include an unconditional release of the Indemnified Party from the indemnified liability.

8. TERM.

a. Initial and Renewal Terms. Subject to earlier termination in accordance with this Agreement, the term of this Agreement will commence on the Effective Date and continue for the Initial Term and Renewal Terms (the “Term”). This Agreement shall automatically renew for successive terms of equivalent length of the Initial Term (each a “Renewal Term”), unless notice of non-renewal is provided in a writing signed by the non-renewing party no less than ninety days before expiration of the Initial Term or applicable Renewal Term or unless terminated: (i) without cause by AUSTIN WEB DEVELOPMENT upon 90 days’ prior notice to Customer; or (ii) by either party in accordance with this Agreement. To avoid confusion, verbal discussion and any form of notice (including email) other than physical written notice manually signed by Customer shall be ineffective as evidence of notice of non-renewal.

b. Removal of Customer Equipment. Immediately upon expiration of the Term or promptly upon earlier termination of this Agreement for any reason, Customer shall remove, absent contrary action or claim by AUSTIN WEB DEVELOPMENT pursuant to any of subsections (e) through (h) of Section 2, all of Customer’s Equipment from the IDC and shall return to AUSTIN WEB DEVELOPMENT any hardware, software, or AUSTIN WEB DEVELOPMENT Equipment belonging to AUSTIN WEB DEVELOPMENT associated with the Services terminated. If Customer fails to return any AUSTIN WEB DEVELOPMENT Equipment, or hardware or software belonging to AUSTIN WEB DEVELOPMENT, Customer shall be assessed and shall pay to AUSTIN WEB DEVELOPMENT the replacement value for such equipment.

c. Acceleration of MRC. AUSTIN WEB DEVELOPMENT’s damages from a Payment Default are difficult to ascertain. For that reason, AUSTIN WEB DEVELOPMENT may accelerate the maturity of, and Customer agrees to pay on demand, 100% of the remaining Monthly Recurring Charges and of any charges due and payable under any applicable SOWs through the then current Term, plus 100% of any third party termination or cancellation charges that AUSTIN WEB DEVELOPMENT incurs as a result of Customer’s Payment Default for any of the Services ordered for and provided to Customer under this Agreement or any subsequent amendment to this Agreement. This provision does not waive, exclude or alter any remedies available to AUSTIN WEB DEVELOPMENT under this Agreement for Customer’s Default.

9. DEFAULT AND REMEDIES.

a. Default by AUSTIN WEB DEVELOPMENT. The occurrence of any of the following will be a “Default” by AUSTIN WEB DEVELOPMENT: (i) AUSTIN WEB DEVELOPMENT fails to perform a material obligation under this Agreement after receiving thirty days advance notice from Customer of such failure; (ii) AUSTIN WEB DEVELOPMENT’s insolvency or liquidation as a result of which AUSTIN WEB DEVELOPMENT ceases to do business{“insolvency clauses” are generally unenforceable”}; or (iii) the material breach of any representation or warranty made by AUSTIN WEB DEVELOPMENT in this Agreement, except to the extent such breach is susceptible to cure, in which case there shall be no Default unless such breach is not cured by AUSTIN WEB DEVELOPMENT within thirty days after receiving written notice from Customer of such breach. A violation of any SLA by AUSTIN WEB DEVELOPMENT shall not constitute a breach of a representation or warranty or a Default hereunder.

b. Default by Customer. The occurrence of any of the following will be a “Default” by Customer: (i) Customer fails to pay in full, when due, any fees or charges owing to AUSTIN WEB DEVELOPMENT under this Agreement (a “Payment Default”); or (ii) Customer fails to pay (or repay) timely any or all of a Security Deposit and does not cure such failure within five business days after written notice thereof (“Security Default”); (iii) the breach of any representation or warranty made by Customer in this Agreement; (iv) Customer fails to comply with any obligations (other than payment or security deposit obligations) under this Agreement, unless all effects of such failure are susceptible to being fully cured, in which case there shall be no Default unless such effects are not fully cured by Customer within thirty days after receiving notice from AUSTIN WEB DEVELOPMENT of such failure; or (v) Customer’s insolvency or liquidation as a result of which Customer ceases to do business.

c. Remedies for Default. If a party Defaults, the non-defaulting party will be entitled, at its election to exercise any one or more of the following remedies, as applicable, then or at any time thereafter: (i) to exercise any remedy for such Default set forth elsewhere in this Agreement; (ii) to pursue any remedy available at law or in equity, and/or (iii) to terminate this Agreement. In addition to and without waiving any other remedies for Default available to AUSTIN WEB DEVELOPMENT hereunder, AUSTIN WEB DEVELOPMENT may: (1) suspend or discontinue Services or performance under this Agreement; (2) accelerate the maturity of all amounts payable hereunder; (3) treat as abandoned, dispose of, or retain and use, free of any rights or claims thereto from Customer or anyone claiming by, through or under Customer, any of all of the Customer’s Equipment that Customer fails, within twenty business days after AUSTIN WEB DEVELOPMENT’s request, to remove from the IDC or place of storage, as the case may be, upon termination of this Agreement or at the expiration of a Term without renewal.

10. SERVICE LEVEL AGREEMENTS. AUSTIN WEB DEVELOPMENT’s Service Levels Agreements (“SLAs”) {these should be reviewed to avoid conflicts with this Agreement} constitute Customer’s sole and exclusive remedy for AUSTIN WEB DEVELOPMENT’s provision of or failure to provide Services to Customer, except that AUSTIN WEB DEVELOPMENT shall have no obligation to compensate Customer under any SLA if a Customer Default has occurred. As of and after the Effective Date but prior to a Customer Default, Customer shall have access to the SLAs, by password, at Customer’s FlowView portal. AUSTIN WEB DEVELOPMENT may amend the SLAs periodically provided that (i) Customer is informed in advance; and (ii) the amendment does not materially alter the provision of Services.

11. MISCELLANEOUS SERVICES.

a. Power. AUSTIN WEB DEVELOPMENT provides, as standard power, one 20 Amp 120v AC circuit per Customer Cabinet (or per the equivalent of one Customer Cabinet for any custom floor space or SuiteSpace). Customer is responsible to ensure that the total of the manufacturer’s rated amperage for all equipment on any given Customer circuit does not exceed the amperage size of that circuit, and that the total running amperage per Customer circuit, as measured by AUSTIN WEB DEVELOPMENT, does not exceed 80% of the amperage size for that circuit. AUSTIN WEB DEVELOPMENT reserves the right to increase power charges, at any time, if the cost of power to AUSTIN WEB DEVELOPMENT is increased.

b. Equipment. If Customer purchases or accesses any equipment from AUSTIN WEB DEVELOPMENT, the equipment is provided to Customer “AS IS.” AUSTIN WEB DEVELOPMENT DOES NOT MAKE AND HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THE EQUIPMENT, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. If the manufacturer provides a warranty on equipment purchased by Customer, Customer shall be considered the record owner of the Equipment for purposes of such warranty, to the extent such warranty follows the equipment. Customer’s only recourse for any issue with the equipment lies with the manufacturer of the equipment. Risk of loss to purchased equipment passes to the Customer upon shipment. Until AUSTIN WEB DEVELOPMENT receives full payment for the equipment, AUSTIN WEB DEVELOPMENT has a purchase money security interest in and to the equipment, and Customer shall promptly execute a security agreement and a UCC-1 financing statement, upon request. If Customer does not pay for the equipment when due, then, in addition to its other remedies, AUSTIN WEB DEVELOPMENT shall be entitled to repossess the equipment. Upon full payment for the equipment, full title shall pass to Customer and any security interest obtained by AUSTIN WEB DEVELOPMENT under this section shall be released; provided, however, the security interest granted under Section 2 shall remain in full force and effect.

c. Right of First Refusal. If the Services include a right of first refusal (“ROFR”) for additional cabinet or custom floor space locations, the charges therefor will be set forth in a Service Order Form. Unless specified otherwise, each ROFR is valid for the Initial Term only, unless earlier terminated as provided herein. If AUSTIN WEB DEVELOPMENT wishes to make available to another customer a cabinet location subject to Customer’s ROFR, AUSTIN WEB DEVELOPMENT will so notify Customer in writing (the “ROFR Notice”). If Customer then elects to exercise its ROFR, Customer must so notify AUSTIN WEB DEVELOPMENT in writing within ten business days after the ROFR Notice and Customer will immediately become obligated for the full Installation Charge and Monthly Recurring Charge for the cabinet(s) or custom floor space subject to the ROFR. If Customer does not notify AUSTIN WEB DEVELOPMENT timely of its intent to exercise the ROFR, then Customer’s ROFR will terminate and AUSTIN WEB DEVELOPMENT will have no further obligation to Customer under the ROFR.

12. CERTAIN DEFINITIONS.

a. “Amendment” shall mean the Service Change Form/Amendment memorializing modifications, supplements, or amendments to this Agreement, which shall be valid and binding when signed by both parties and shall be effective as of the date signed by AUSTIN WEB DEVELOPMENT. An Informal Service Request (“ISR”) is a type of Amendment used to document any one-time or non-standard lower price services requested by Customer, such as a recurring monthly charge equal to or less than $200 and/or a one-time charge equal to or less than $1,000.

b. “IDC” means an AUSTIN WEB DEVELOPMENT Internet data center facility or facilities. If this Agreement relates to more than one Internet data center location, then the term “IDC” shall refer to each IDC individually and collectively.

c. “Initial Term” shall mean, subject to earlier termination in accordance with this Agreement, the time period commencing on the Effective Date and continuing for the number of months specified on the Cover Page or, if not so specified, for 12 months.

d. “Install By Date” shall mean the target date by which a Service is to be provisioned and ready for Customer’s use, as shown on a Service Order Form and calculated from the Effective Date of this Agreement or the effective date of any Amendment. The Install By Date is an estimated and not guaranteed date and shall be automatically extended for any delays by Customer in providing any requested information, equipment or resources.

e. “AUSTIN WEB DEVELOPMENT Equipment” shall mean all AUSTIN WEB DEVELOPMENT owned, leased, or developed hardware, software, equipment, machinery, tools and devices (i) located in any IDC, except for Customer Equipment, and/or (ii) located in the Customer’s premises to provide Services hereunder, and as may be more fully defined in any applicable Service Order Form, Amendment, or SOW.

f. “Service Order Form” shall mean the form attached to the Agreement and/or to any Amendment that itemizes the Services and charges for such Services purchased by Customer.

g. “Services Description” shall mean the description of the Services, in addition to any description herein. The Services Descriptions are located at Customer’s FlowView portal, with the SLAs, or such other location as AUSTIN WEB DEVELOPMENT may periodically designate, and as of and after the Effective Date, Customer shall have access to the portal, by password.

h. “Statement of Work” or “SOW” shall mean the form attached to an Agreement and Amendments setting forth any purchased consulting or unique Services and associated charges.

13. OTHER PROVISIONS.

a. Non-Assignment; No Third-Party Rights. Customer shall not assign this Agreement or any rights hereunder in whole or in part without AUSTIN WEB DEVELOPMENT’s prior written consent, which will not be unreasonably withheld, provided that Customer may assign this Agreement without prior written consent to a more creditworthy entity who is a subsidiary, parent, or affiliated company as of the Effective Date. A Change of Control shall constitute an assignment for purposes of this Agreement. “Change of Control” means the transfer of the Control of Customer from the person(s), entity or entities having such Control on the Effective Date of this Agreement to one or more other persons or entities. “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of Customer, whether through the ownership of voting securities, by contract, or otherwise. AUSTIN WEB DEVELOPMENT may assign this Agreement in whole or in part. Any assignment in violation of the foregoing restriction will be void. Except as restricted above, this Agreement will be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Agreement is for the sole and exclusive benefit of the parties, and nothing in this Agreement shall be construed to give rights to any non-party.

b. Independent Contractors. The parties have the status of independent contractors, and neither this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

c. Non-Waiver/Severability. Failure or delay of either party to enforce any of its rights hereunder will not be deemed to constitute a waiver of its future enforcement of such rights or any other rights. If any provisions of this Agreement are held to be invalid, illegal, or unenforceable under present or future laws, such provisions will be struck from the Agreement or amended, but only to the extent of their invalidity, illegality or unenforceability. The parties remain legally bound by the remaining terms of this Agreement, and this Agreement will be deemed reformed in a manner as consistent as reasonably possible with the original intent of the parties as expressed herein.

d. Force Majeure. Either party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements (collectively, “Force Majeure”). The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. If, after the Agreement is executed, the economic situation changes substantially, or if events constituting Force Majeure or other events beyond AUSTIN WEB DEVELOPMENT’s control arise as a result of which AUSTIN WEB DEVELOPMENT would no longer be interested in implementing, providing or completing the Services or Deliverables described in the Agreement, then AUSTIN WEB DEVELOPMENT will have the option either to rescind the Agreement or to extend the agreed delivery periods. If AUSTIN WEB DEVELOPMENT exercises these rights, AUSTIN WEB DEVELOPMENT shall have no liability to Customer and Customer will not be entitled to assert any claims against AUSTIN WEB DEVELOPMENT. No delay or default of AUSTIN WEB DEVELOPMENT in performing its obligations shall be considered a breach, and no damages shall be owed to Customer in connection therewith, if such delay or default is caused by or results from unforeseen circumstances or an event beyond the reasonable control of AUSTIN WEB DEVELOPMENT, including fire, flood, earthquake, explosion, accident, governmental action, failure of suppliers, strike, lockout, riot, acts of war (whether or not so declared), sabotage or defects or errors in hardware or software (including alpha and beta release software tools chosen by AUSTIN WEB DEVELOPMENT in its discretion) used in connection with any Services or Deliverables.

e. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the state of Texas, without regard to conflict or choice of law principles. Any controversy between the parties involving the construction, application, performance or breach of any of the terms, provisions, or conditions of the Agreement, shall on written request of either party, be submitted first to mediation and then if still unresolved to binding arbitration. Any mediation or binding arbitration shall be conducted in Austin, Texas in accordance with the rules of the American Arbitration Association for Commercial Disputes (“Arbitration Rules”) unless the parties stipulate otherwise. The arbitrator(s) shall not render any award or decision inconsistent with the terms and conditions of the Agreement including its limitation of liability provisions. If any arbitration or action at law or in equity is necessary to enforce or interpret the terms of the Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements incurred both before and after any judgment or decision in addition to any other relief to which such party may be entitled. Each party waives any right to adjudicate any controversy in any other court or forum, except that a party may seek interim relief before the start of arbitration as allowed by the Arbitration Rules and such other injunctive relief to the extent not available by arbitration. Jurisdiction and venue for all purposes shall be in Travis County, Texas.

f. Integration. The Agreement expresses the complete and final understanding of the parties with respect to the subject matter hereof, and supersedes all prior communications between the parties, whether written or oral with respect to the subject matter hereof. No modification of this Agreement will be binding upon the parties hereto, unless in writing and executed by Customer and AUSTIN WEB DEVELOPMENT. The parties expressly agree that this Agreement and any amendments executed by the parties shall supersede the terms and provisions of any Customer purchase order or other ordering document submitted to AUSTIN WEB DEVELOPMENT by Customer.

g. Attachments Incorporated. The Master Services Agreement Cover Page, Rules and Regulations, AUP, SLAs, Service Descriptions, Service Order Forms, Amendments, SOWs, and Addendum, as applicable to the Services itemized on a Service Order Form or SOW, (each an “Attachment”) are incorporated and made a part of these Standard Terms and Conditions as if fully set forth herein. These Standard Terms and Conditions shall govern to the extent of any conflict unless expressly stated otherwise in the Attachment.

h. Collection Costs. Customer shall reimburse AUSTIN WEB DEVELOPMENT for the reasonable cost of any collection or other action to recover any amounts due hereunder.

i. Notices. Except as otherwise provided in Sections 1(c) and 8(a) of these Standard Terms and Conditions: (i) electronic mail shall be deemed to be a written notice signed by the person electronically indicated as the sender of such e-mail; and (ii) any notice or communication required or permitted to be given hereunder shall be made in writing and shall be deemed to have been given to the intended recipient upon (1) hand delivery, (2) actual or attempted delivery to such party’s address according to evidence of delivery by a recognized independent courier service, (3) electronic facsimile transmission according to the facsimile transmission confirmation receipt, or (4) electronic confirmation of electronic mail delivery. All such notices will be addressed to the Customer at the Customer Address or to AUSTIN WEB DEVELOPMENT’s Law Department at the AUSTIN WEB DEVELOPMENT Notice Address set forth on the Cover Page, with a copy to the General Manager at each IDC in/from which Services are provided, as applicable. Either party may change its address for notices hereunder by notice to the other party.

j. Survival. Upon termination or expiration of the Agreement, all rights and duties of the parties toward each other shall cease except the following shall survive indefinitely: (i) the Customer shall pay, within thirty (30) days of the effective date of termination or expiration, all amounts owing to AUSTIN WEB DEVELOPMENT under this Agreement at such effective date, including any expenses; (ii) these Standard Terms and Conditions shall survive such termination or expiration, and (iii) the respective rights and obligations of AUSTIN WEB DEVELOPMENT and Customer which by their nature would continue beyond the termination or expiration of the Agreement.

k. Export Administration Regulations. If Customer exports any Deliverables outside of the country in which the Deliverables are delivered to Customer, Customer assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. Customer will not export or re-export any technical data in violation of United States Export Administration regulations or other applicable export regulations.

l. Interpretation. The term “Section” shall be construed as a subsection when the context requires and single-digit section references include all subsections and provisions therein. References to “herein” and “hereunder” shall mean the Agreement and not a particular Section. Whenever in the Agreement the singular number is used, the same shall include the plural where appropriate (and vice versa), and words of any gender shall include each other gender where appropriate. As used in the Agreement, (i) “or” means “and/or”; (ii) “business day” means any day on which banks in Texas are open for business; and (iii) “including” or “include” means “including without limitation.” Section and other headings are for reference purposes only and are not intended to describe, interpret, define, or limit the scope, extent, or intent of the Agreement or any of its provisions. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, singular or plural, as the identity of the person or persons may require. The parties are sophisticated and were or could have been represented by counsel during the negotiation of this Agreement. As a result, the parties believe the presumption of any laws or rules relating to the interpretation of contracts against the drafter thereof should not apply, and hereby waive any such presumption and agree that this Agreement shall be construed fairly and not against either party. Time is of the essence for purposes of the Agreement.