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contrary, (i) regardless of the form of action (whether in contract, tort, strict liability or
<br /> otherwise), the maximum aggregate liability of NES arising from, in connection with
<br /> or relating to this Agreement shall not exceed the total fees contemplated by this
<br /> Agreement and (ii) in no event will NES be liable for lost profits, business interruption, or
<br /> for indirect, special, incidental, punitive, consequential or similar damages, even if advised
<br /> of the possibility thereof. NES will not be liable for any failure or delay in the performance
<br /> of its obligations hereunder by reason of any cause which is beyond its reasonable control.
<br /> 10. INDEPENDENT CONTRACTOR. This Agreement does not establish NES as an
<br /> employee, agent or legal representative of the Client for any purpose whatsoever, nor does it
<br /> grant to NES any right or authority to assume or to create any obligation or responsibility,
<br /> express or implied, on behalf of or in the name of the Client or to bind the Client in any manner
<br /> except as otherwise expressly provided herein. At all times, NES, in fulfilling its obligations and
<br /> in rendering the services called for hereunder, shall be acting as an independent Contractor with
<br /> respect to the Client. Nothing contained herein shall imply a joint venture, partnership or
<br /> association between the parties.
<br /> 11. APPLICABLE LAW. The validity, performance, and construction of this
<br /> Agreement shall be governed by and interpreted in accordance with the laws of the State of
<br /> California, and NES and the Client consent to the exclusive venue and jurisdiction of the courts
<br /> of the State of California located in Sacramento County, California, with respect to any cause of
<br /> action or other legal proceeding arising from, relating to or in connection with this Agreement or
<br /> the services performed by NES hereunder.
<br /> 12. ATTORNEY'S FEES. In any action between the parties to this Agreement arising
<br /> from, relating to or in connection with this Agreement, or the services provided by NES
<br /> hereunder, the losing party shall pay to the prevailing party reasonable attorneys' fees, costs and
<br /> expenses, court costs and other costs of action incurred in connection with the prosecution or
<br /> defense of such action, whether the action is prosecuted to a final judgment.
<br /> 13. NOTICES. All notices, requests, demands, instructions or other communications
<br /> required or permitted to be given under this Agreement shall be in writing and shall be deemed
<br /> to have been fully given: (i) upon actual delivery, if delivered personally or by overnight delivery
<br /> service; or (ii) three (3) business days after deposit in the U.S. Mail if mailed first-class, postage
<br /> prepaid, registered or certified mail, return receipt requested, to the address set forth in the Letter
<br /> of Agreement. Either party hereto may change the address to which such communications are to
<br /> be directed by giving written notice to the other party of such change in the manner above
<br /> provided.
<br /> 14. TESTIMONY. If at any time during the term of this agreement or anytime thereafter,
<br /> NES receives a subpoena to appear as a witness or to produce documents related to the services
<br /> provided as a result of this agreement or if NES is requested to participate or be present at a legal
<br /> action such as but not limited to a deposition, arbitration, mediation or any other court ordered
<br /> meeting related to this agreement, NES will notify Client. NES will appear or produce the
<br /> specified documents listed in the subpoena unless the Client can successfully petition the court to
<br /> negate the subpoena. In such cases, Client agrees to pay NES our expert witness rates as set forth
<br /> in our current Schedule of Fees less any amounts paid to NES from an opposing attorney or
<br /> opposing attorney's client for any services rendered. Testimony rates at deposition, trial,
<br /> mediation or arbitration applies to office or courtroom waiting time as well as actual time
<br /> testifying and will be 3
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