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referencing the users of the products and services of SmartWorks. Customer may unilaterally withdraw their
<br />consent to the above promotional activities at any time by providing written notice to SmartWorks of said
<br />revocation.
<br />(d) Entire Agreement: This Agreement together with the Schedules attached to this Agreement constitute the
<br />entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and
<br />contemporaneous agreements, representations, negotiations, understandings, arrangements, and
<br />communications between the parties, both written and oral, relating to the subject matter hereof. No terms
<br />and conditions in any Customer orders, or in any other documentation employed by or on behalf of Customer
<br />in connection with this Agreement, regardless of the date of such documentation, will affect the terms of this
<br />Agreement, even if such document is accepted by the receiving party, with such provisions being deemed
<br />deleted. This Agreement may only be modified by a written amendment signed by an authorized
<br />representative of each of the parties.
<br />(a) Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior,
<br />concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective
<br />unless made in writing and signed by an authorized representative of the waiving party.
<br />(f) Assignment: Customer may not assign any of its rights or duties under this Agreement without the prior
<br />written consent of SmartWorks, such consent not to be unreasonably withheld. This Agreement shall inure to
<br />the benefit of and be binding upon the parties to this Agreement and their respective successors and permitted
<br />assigns.
<br />(g) Severability: If any provision of this Agreement is determined by a court of competent jurisdiction to be
<br />invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent
<br />necessary in order to render such provision valid and enforceable. If such provision may not be so saved, it
<br />shall be severed and the remainder of this Agreement shall remain in full force and effect.
<br />(h) Allocation of Risk: Customer acknowledges and agrees that the warranty disclaimer and limitation of liability
<br />contained in this Agreement are fundamental elements of the basis of the bargain between SmartWorks and
<br />Customer and set forth an allocation of risk reflected in the fees and payments due hereunder.
<br />(1) Relationship: The parties are and shall at all times remain independent contractors in the performance of
<br />this Agreement and nothing herein shall be deemed to create a joint venture, partnership or agency
<br />relationship between the parties. Neither party will have the power to bind the other party or to contract in
<br />the name of or create any liability against the other party in any way for any purpose. Neither party will be
<br />responsible for the acts or defaults of the other party or of those for whom the other party is law responsible.
<br />(j) Equitable Relief: Customer acknowledges and agrees that it would be difficult to compute the monetary loss
<br />to SmartWorks arising from a breach or threatened breach of this Agreement by Customer and that,
<br />accordingly, SmartWorks will be entitled to specific performance, injunctive or other equitable relief in addition
<br />to or instead of monetary damages in the event of a breach or threatened breach of this Agreement by
<br />Customer.
<br />(k) Force Majeure: No default, delay or failure to perform on the part of SmartWorks shall be considered a
<br />breach of this Agreement where such default, delay or failure is due to a force majeure or to circumstances
<br />beyond its control. Such circumstances will include, without limitation, strikes, riots, civil disturbances, actions
<br />or inactions concerning government authorities, epidemics, war, terrorist acts, embargoes, severe weather,
<br />fire, earthquakes, floods, acts of any governmental body, acts of God or the public enemy or default of a
<br />common carrier, unavailability of Third Party Components or other disasters or events.
<br />(1) Survival: Sections 1 (Definitions), 3 (Fees), 5 (Restrictions on Use), 6(f) (Compliance with Laws), 6(g)
<br />(Security), 8(b) (Warranty Disclaimer), 9 (Limitations on Liability), 11 (Effects of Termination), 12 (Ownership),
<br />13 (Confidential Information), 14 (Indemnity), 15 (General) and any other provision of this Agreement which
<br />is required to ensure that the parties fully exercise their rights and their obligations hereunder shall survive
<br />any termination or expiration of this Agreement unless and until waived expressly in writing by the party to
<br />whom they are the benefit.
<br />(m) Counterparts: This Agreement may be executed in counterparts (whether by facsimile signature, PDF via
<br />email, or otherwise), each of which when so executed shall constitute an original and all of which together
<br />shall constitute one and the same instrument.
<br />[Signatures on Following Page]
<br />N. Harris Computer Corporation - ConFldential Page 12 of 18
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