Managed Services Provider Terms of Service

1. SERVICES. Enmark agrees to perform Managed Services, as specified in the Order Form, on a professional basis.

1.1. Order Form. The Order Form will include the description of the Managed Services and specify any specific personnel to perform such Managed Services if necessary. The Order Form will become a part of the Agreement. Changes in the scope of the Managed Services being performed under the Order Form will be made only in a writing (i.e. Change Order) signed by authorized representatives of the Parties, in the form of Exhibit CO attached hereto. Customer may terminate the Order Form by providing Enmark with at least thirty (30) days prior written notice. If Customer terminates the Order Form prior to the completion of Managed Services, then (a) Enmark shall stop all work under the Order Form, and (b) Customer shall timely pay all fees for Managed Services performed through the termination date, including any expenses incurred in anticipation of such performance. Either Party may terminate the Order Form if the other Party is in breach of its obligations thereunder and fails to cure the same within thirty (30) days of notice of the breach (provided that a breach of payment is subject to only a five (5) business day cure period).

1.2. Standards. Enmark will perform Managed Services in a professional, workmanlike manner and in accordance with accepted industry standards.

a. Personnel. Enmark shall be permitted to provide the Managed Services using Enmark’s employees, agents, affiliates or subcontractors (“Enmark Personnel”), provided that all such Enmark Personnel are subject to the terms of this Agreement or materially equivalent terms, including without limitation an obligation to protect Confidential Information and acknowledging that work product is owned by Enmark. Enmark shall remain liable for the acts of Enmark Personnel in the performance of the Managed Services hereunder. Enmark may, in its sole discretion, use third party contractors inside or outside the United States to perform any of its obligations under this Agreement, including but not limited to migration of Customer data. Enmark will indemnify, defend and hold Customer harmless from any claims by Enmark Personnel for employment or other claims and Enmark will ensure that all Enmark Personnel understand that such Enmark Personnel are not parties to this Agreement, nor third party beneficiaries, and therefore have no right to bring a claim against Customer under this Agreement.

b. Hours. The Managed Services shall not be performed outside of Enmark’s standard service hours (currently 8am – 6pm EST) on business days (i.e., Monday-Friday), not including holidays. Enmark shall not be expected to perform Managed Services using overtime. In the event that Enmark is required to provide Managed Services outside of normal business hours, or in the event any Enmark Personnel provides Managed Services in excess of 40 hours in a week, Customer will be charged for such overtime at rate of one and one-half (1.5 x) the normal hourly rate for such Enmark Personnel.

1.3. In the event that Enmark will be providing Managed Services, Customer acknowledges and agrees that: (a) Customer shall be responsible for complying with any hardware, Internet access or other requirements specified in the applicable Order Form which relate to the proprietary software or tools used by Enmark in the provision of Managed Services (collectively “Enmark Tools”); (b) Enmark’s sole liability for any disruption of or impact to Customer’s systems for such Enmark Tools is to remove and or modify the Enmark Tools from Customer’s systems; (c) any use right and/or license grant for Enmark Tools is solely for the duration of the provision of Managed Services and upon termination of the applicable Service Period for such Managed Services, Customer’s use and/or license rights to the Enmark Tools are terminated and Enmark Personnel are permitted to access Customer’s systems to ensure such Enmark Tools have been removed.

1.4. Additional Services. If Customer requests that Enmark provide services other than those outlined in the applicable Order Form, those requests will be documented in a written Change Order.

2. PRODUCTS.

From time to time, Enmark may provide a quote to Customer for certain hardware products (“Hardware”) or software products (“Software”) and collectively (“Third Party Products”) for which Enmark is an authorized reseller. Customer may submit a purchase order to Enmark to purchase such Third Party Products identified on such quote, and Enmark, in its sole discretion, reserves the right to accept or reject any purchase order. Each purchase order accepted by Enmark will be document in an Order Form and will be governed by the terms and conditions set forth in this Agreement. The terms of this Agreement take precedence over any conflicting terms in a purchase order. Enmark agrees to provide any Third Party Products specified on the Order Form.2.2 License Grants.

2.1. Transfer of Title; Risk of Loss. Transfer of title to the ownership and risk of loss for the Third Party Products will be satisfied at the time Enmark provides the Third Party Products to the carrier, FOB Origin.

2.2. PMSI. Enmark reserves a purchase money security interest (PMSI) in and to the Third Party Products, together with the cost of any Managed Services related thereto, sold hereunder as security for the performance of Customer’s obligations and may file the Agreement, together with any attached Order Form and/or purchase order, providing a description thereof, as notice of such interest in the event that Customer does not timely pay the Fees and Expenses for such Third Party Products. Customer agrees to cooperate with Enmark in perfecting the PMSI as reasonably requested.

2.3. Software. For all Software provided by Enmark under this Agreement, Customer shall be bound by the terms and provisions of the Licensor’s software license agreement (“Software License”). The terms and provisions of each Software License govern the use and limitations of the Software including, but not limited to, registration, use, copying, limitations on resale and distribution, prohibitions against reverse engineering and tampering with or otherwise infringing or misappropriating the Licensor’s rights. The Software Licenses may be available from time to time on Enmark’s web site, in shrink-wrapped form as part of physical media shipped from the software Licensor (or as otherwise supplied with the Software licensed hereunder), or upon request from Enmark.

2.4. Hardware. For all Hardware provided by Enmark under this Agreement, Customer agrees to comply with all of the Manufacturer’s specifications, instructions, and any other documentation provide with such Hardware. Enmark will pass through any Manufacturer limited warranty provided for such Hardware.

2.5. Installation. Customer is responsible for installing, configuring and maintaining all Third Party Products except to the extent that the Parties have agreed under an Order Form that Enmark shall provide professional services for such installation, configuration or maintenance (e.g., as part of the Managed Services).

3. FEES AND PAYMENT. Customer shall pay Enmark the Fees for the Managed Services as specified below.

3.1. Fees; Expenses. Customer shall pay the Fees and other compensation for Managed Services as set forth in the Order Form for the Service Period. Customer shall reimburse Enmark for reasonable expenses of travel, lodging, daily meals and other necessary and reasonable expenses incurred by Enmark in the performance of the Managed Services. Enmark will submit receipts for any Expenses submitted for reimbursement as requested by Customer. Expenses will include all shipping, customs and handling charges related to any Third Party Products ordered.

3.2. Invoices. Enmark shall invoice Customer for Managed Services and Expenses. The Order Form shall specify the timing when such invoices shall be due; if not specified the invoiced amounts are due NET 15 after the date the invoice is received. Customer shall pay Enmark directly for properly submitted, undisputed invoices within timing period based on receipt of invoice (or as otherwise specified in the Order Form).

a. Payment in US Dollars. Unless otherwise indicated in the Order Form, all payments and other financial requirements required under this Agreement shall be in the currency of United States Dollars (USD).

b. Disputes. In the event that Customer disputes all or a portion of any invoice, Customer shall notify Enmark in writing within the timely payment period (e.g., NET 15) with sufficient detail for Enmark to understand the dispute and Customer shall timely pay for the undisputed portion of the invoice.

c. Late Payments. If undisputed amounts remain past due for more than fifteen (15) days, Enmark in its sole discretion, may assess a late charge at the lessor of one and one-half percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law until payment is received in full. Enmark may also, in its sole discretion, either suspend Managed Services or delivery of Third Party Products and/or terminate the Order Form for any non-payment of Fees and Expenses due under the Order Form, in addition to any other termination rights specified in the Order Form or this Agreement.

3.3. Taxes. Charges for Managed Services hereunder do not include any direct, indirect, federal, state or foreign applicable taxes, assessments, duties, permits, fees and other charges of any nature or kind, exclusive of any taxes assessed on Enmark’s net income (“Taxes”). Any Taxes required to be paid as a result of the Managed Services or Third Party Products (other than Taxes based on Enmark’s net income) shall be Customer’s obligation and shall be billed to and paid by Customer. Such amounts shall also include without limitation any penalties, interest, fees or other expenses, if any, incurred as the result of any such Taxes not being paid at the time or in the manner required by the law that are the result of Customer’s action or inaction. If Customer is exempt from sales tax, uses the Third Party Products or Managed Services provided hereunder in an exempt manner or otherwise deems itself not subject to sales tax, then Customer must provide a valid and executed exemption certificate or direct pay permit to Enmark. Failure to provide such exemption certificate, for whatever reason, will result in tax being charged to Customer, if applicable.

4. PROTECTION OF INTERESTS.

a. Ownership; IP. Each Party utilizes (i) its name, logos, domain names, product names and other trademarks, (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, including without limitation implementations on third party platforms as managed packages or otherwise, and other tangible or intangible technical material or information (collectively “Technology”), and acknowledges that the Technology may be covered by intellectual property or proprietary rights owned or licensed by the Party (“IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the IP Rights are granted to the other Party and all such rights are expressly reserved.

b. Enmark’s IP. Notwithstanding anything to the contrary in this Agreement, Enmark will maintain ownership of all works developed, created or modified during Enmark’s performance of Managed Services unless Enmark expressly agrees otherwise in the Order Form, provided that such ownership does not extend to any Customer systems, technology (including software), or Customer Confidential Information. For any deliverable or Enmark Tools provided to Customer for the Managed Services, Enmark hereby grants Customer a worldwide, limited, non-exclusive, non-transferable license to use the same solely for Customer’s internal business purposes during the term of the Managed Services. For the avoidance of doubt, this clause does not apply to any modification or derivatives of Enmark Technology, including all processes, tools, programs, methodologies, know-how and techniques related thereto; all of which shall be owned by Enmark. Customer acknowledges and agrees that Enmark shall retain sole and exclusive ownership of and all rights, title and interest in and to Enmark’s work product and to any generic, non-Customer specific know-how, concepts, techniques, methodologies, ideas, processes, models, templates, tools, utilities, routines and trade secrets that do not contain any of Customer’s Confidential Information. To the extent necessary, Customer shall and hereby does assign all rights, title and interest in and to such modifications, derivatives or development based in whole or in part on Enmark Technology to Enmark.

c. Customer’s IP. Customer will maintain ownership of all Customer Technology and all related Customer IP Rights as well as any Customer Confidential Information provided to Enmark in order to provide Managed Services. Customer acknowledges that Enmark does NOT process Customer data as part of the Managed Services. In the event that Customer determines that Enmark will have access to any “personal information” as that term is defined under applicable law, Customer and Enmark will enter into a data protection addendum to be incorporated into this Agreement as to any obligations related to such Customer data. Customer remains fully liable for all obligations to protect and secure such Customer data, including any personal information, and for ensuring that any processing required by Enmark is permissible under such applicable law.

d. Marketing; Press Releases. Enmark may identify Customer as a customer in its marketing materials, including the Enmark website. Customer further grants Enmark a limited, non-exclusive license to use Customer’s name, trademarks or logos as necessary to provide the Managed Services. Each Party retains all rights, title and interest in and to its name, trademarks or logos. Neither Party shall issue a press release referring to the other Party without the other Party’s written consent, which consent shall not be unreasonably withheld.

e. Non-Solicitation. Customer agrees that during the Term of this Agreement and for a period of one (1) year after termination or expiration of this Agreement, Customer shall not (without the prior written consent of Enmark), on its own behalf or on behalf of any other person or entity, directly or indirectly employ or retain, or solicit the employment or retention of, any partner, principal, director, employee or independent contractor of Enmark. Customer and Enmark further agree that, if Customer breaches this covenant of non-solicitation, damages will be impossible to ascertain and in addition to any other remedies which Enmark may have at its disposal, Customer will pay to Enmark agreed and liquidated damages (and not as a penalty), a sum equal to one half (½) of the annualized direct and indirect compensation at the time of the breach for the partner, principal, director, employee or independent contractor.

4.2. Warranty; Disclaimer. Each Party represents and warrants that it has the legal power to enter into this Agreement and the execution and performance of this Agreement will not breach, conflict with, or interfere with any other agreement or contractual obligation of the Party. Enmark represents that it has the rights necessary to provide the Managed Services (in a workmanlike manner) and Third Party Products, if any, specified on the Order Form.

a. Disclaimer. Except as expressly provided for in this Agreement, THE MANAGED SERVICES AND THIRD PARTY PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. ENMARK MAKES NO ADDITIONAL WARRANTY, EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE THIRD PARTY PRODUCTS OR MANAGED SERVICES. ENMARK NEITHER WARRANTS THAT THE THIRD PARTY PRODUCTS OR MANAGED SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE, NOR DOES ENMARK MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE THIRD PARTY PRODUCTS OR MANAGED SERVICES. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Customer.

b. Third Party Products. Any warranties that run with the Third Party Products are those given by the Manufacturer or Licensor, as applicable. Enmark does not warrant the usability, functionality, or reliability of any Third Party Products. Customer understands that Enmark is not the Manufacturer or Licensor of the Third Party Products purchased by Customer hereunder and the only warranties offered for the Third Party Products are those of the Manufacturer or Licensor, not Enmark. In purchasing the Third Party Products, Customer is relying on the Manufacturer’s specifications only, and is not relying on any statements or specifications representing the Third Party Products that may be provided by Enmark.

5. INDEMNIFICATION; LIMITATION OF LIABILITY.

5.1. Indemnity. Each Party (“Provider”) shall defend and hold harmless the other Party (“Recipient”) against any third party claim arising from any information, design, specification, instruction, software, data or material furnished by the Provider (“Material”) and used by the Recipient in connection with the Managed Services that infringes a copyright, patent or other intellectual property right of a third party or misappropriates a trade secret of a third party, and will indemnify and hold harmless the Recipient from and against any loss, damage or costs (including reasonable attorney fees) incurred in connection with such third party claim, provided that: (ai) Recipient notifies Provider in writing within thirty (30) days of the claim; (b) Provider has sole control of the defense and all related settlement negotiations; and (c) Recipient provides Provider with the assistance, information and authority reasonably necessary to perform the above. Reasonable out-of-pocket expenses incurred by Recipient in providing such assistance shall be reimbursed by Provider. Notwithstanding the foregoing, Provider shall have no liability for any claim of infringement resulting from: (i) Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the reasonable use of a subsequent or unaltered release of the Material which was provided to Recipient; or (ii) any information, design, specification, instruction, software, data or material not furnished by Provider. In the event that some or all of the Material is held or is reasonably believed by Provider to infringe the intellectual property rights of a third party, Provider shall have the option, at its expense, to (x) modify the Material so it no longer infringes or misappropriates; (y) obtain for Recipient a license to continue using the Material; or (z) require return of the infringing or potentially infringing Material and all rights thereto from Recipient and Recipient shall be permitted to terminate the Order Form for cause due to such return. The remedies specified in sub-sections (x), (y) or (z) constitute Provider’s sole obligation and Recipient’s sole remedy in the event of such infringement claim related to Recipient’s use of the Material.

5.2. Limitation of Liability.

a. Limitation for Secondary Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, RELIANCE, PUNITIVE OR COVER DAMAGES, OR DIRECT OR INDIRECT DAMAGES FOR LOSS OF PROFITS, PROPERTY, REVENUE, DATA OR USE, OR BUSINESS INTERRUPTION, LITIGATION OR OTHER PECUNIARY LOSS, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN ACTION IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RELATING TO THE MANAGED SERVICES OR THIRD PARTY PRODUCTS PROVIDED HEREUNDER.

b. Damages Cap. OTHER THAN FOR CUSTOMER’S OBLIGATION TO PAY UNDISPUTED INVOICED AMOUNTS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT EVER EXCEED THE FEES CUSTOMER PAID FOR THE APPLICABLE THIRD PARTY PRODUCTS OR MANAGED SERVICES IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, MISREPRESENTATION AND/OR OTHER TORTS. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS. Enmark shall not be liable for damages that could have been avoided by Customer’s use of reasonable diligence. Notwithstanding any terms to the contrary, this Section 5.2.b. shall not apply to (i) either Party’s breach of its confidential or indemnification obligations, or (ii) Customer’s breach of its non-solicitation obligation.

c. Statute of Limitations. The Parties agree that notwithstanding any statute of limitations periods, that other than actions to enforce a Party’s IP Rights or Enmark’s collection of undisputed invoiced amounts, no claim may be brought against the other Party more than thirty (30) days after termination of this Agreement and the related Order Form.

d. Required Element. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE MANAGED SERVICES WOULD NOT BE PROVIDED TO CUSTOMER ABSENT SUCH LIMITATIONS OF LIABILITY. Customer acknowledges and accepts the reasonableness of the foregoing disclaimers and limitations of liability.

6. MISCELLANEOUS.

6.1. Term; Termination. The Term of this Agreement shall be co-terminus with the related Order Form.

a. Termination for Cause. In addition to any other remedy a Party may have in law or equity, a Party may terminate this Agreement and the related Order Form, in the event of material breach by the other Party, provided that the non-breaching party has given the breaching party thirty (30) days prior written notice of such breach, including sufficient details of the breach to allow the breaching party to confirm and correct the breach, and the breaching party has failed to cure the asserted breach within said notice period. In the event Customer terminates this Agreement, Customer shall pay Enmark all undisputed fees earned up to the effective date of such termination plus any additional amounts set forth in the Order Form still active.

b. Immediate Termination. Without limiting in any way the right of either Party to seek monetary damages or other relief for a breach hereof, either Party may terminate this Agreement, effective immediately upon delivery of written notice to the other Party, if the other Party (i) is unable to pay its debts as they mature or admits in writing its inability to pay its debts as they mature, (ii) makes a general assignment for the benefit of creditors, (iii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (iv) applies for the appointment of a receiver or trustee for substantially all of its assets or permits the assignment of any such receiver or trustee who is not discharged within a period of 30 days after such appointment, or (v) otherwise ceases to actively conduct its business. In the event that any of the above events occurs, that Party will immediately notify the other Party in writing of its occurrence. Termination under this Section 6.1.b. shall be effective as of the earlier of notice from the affected Party or the date of (i) – (v) in the event of no notice.

6.2. Cooperation. Each Party agrees to cooperate reasonably and in good faith with the other in the performance of the Managed Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: office accommodations, facilities, equipment, suitably configured computer equipment, assistance, cooperation, complete and accurate information and data from its officers, agents and employees, coordination onsite, online and telephonic meetings and other resources as reasonably necessary for satisfactory and timely performance of the Managed Services.

6.3. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. It is understood and agreed that neither Party shall the authority whatsoever to bind the other Party by contract or otherwise.

6.4. No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and are not to be construed as conferring any rights on any other persons.

6.5. Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the Parties to each other by a means evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon (a) personal delivery; (b) the fifth business day after mailing by certified mail; (c) 48 hours after sending by confirmed facsimile; or (d) 48 hours after sending by email (confirmed delivery). Notices to Enmark shall be addressed as noted below. Notices to Customer are to be addressed as specified in the Order Form.

Enmark: Enmark Systems, Inc.
Attn: Chief Financial Officer
220 E. Huron, Ste 650
Ann Arbor, MI 48104
notices@enmark.com
CUSTOMER: As specified on the Order Form

6.6. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

6.7. Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.

6.8. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, each Party may assign this Agreement without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section 5.8 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

6.9. Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Michigan, without regard to its conflicts of law provisions. The Parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods. Neither Party shall be liable for any failure to perform its obligations hereunder, where such failure results from any act of God or other cause beyond such Party’s reasonable control, excluding labor disputes, provided such Party immediately notifies the other Party.

6.10. Dispute Resolution; Venue.

a. Venue. The Parties agree to discuss in good faith any dispute arising out of or in connection with this Agreement, including any question regarding its validity, termination, or breach hereof (a “Dispute”). If the Parties cannot resolve a Dispute through good faith discussions, then, upon the written request of either Party, such Dispute may be asserted in a court of competent jurisdiction. The appropriate federal or state courts of the United States in the District of Michigan or Washtenaw County, Michigan shall have the exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Customer hereby consent to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.

b. Injunctive Relief. Nothing herein shall prevent a Party from seeking injunctive relief from an appropriate court of competent jurisdiction in those circumstances where such relief is warranted to prevent irreparable injury pending the initiation or completion of resolution of the arbitration. Nothing herein shall prevent a Party from seeking enforcement of an arbitral award or court order from an appropriate court of competent jurisdiction.

6.11. Confidentiality. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party“) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other Party (“Receiving Party“) or which should otherwise reasonably be understood to be confidential considering the nature of the information and/or the circumstances of disclosure, including without limitation the terms and conditions of this Agreement, Technology, IP Rights, and Enmark Tools. In addition, the Parties agree that any nonpublic technical or business information which the Receiving Party knows or has reason to know was confidential shall be Confidential Information. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (c) is received, without any confidentiality obligation, from a third party who obtained such information without any breach of any obligation owed to the Disclosing Party.

a. Obligation. The Receiving Party shall limit disclosure to those employees, contractors or agents who have a need to know and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

b. Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure.

6.12. Entire Agreement and Construction. This Agreement, the Exhibits, the Order Form and any Change Order constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom it is to be asserted. In the event of any conflict between the provisions in this Agreement, an Exhibit incorporated herein, or Order Form, the terms of this Agreement shall prevail.