Revised June 2023
Note: The provided Terms & Conditions are a component of the Master Subscription Agreement for CHSI Technologies Corp dba Spear Technologies. Terms and Conditions are subject to change and/or negotiation. www.spear-tech.com 

TERMS & CONDITIONS 

1.	SPEAR PRODUCTS.

1.1.	Purpose and Scope.   The Agreement sets forth the terms and conditions under which Customer may obtain from Spear the right for Customer to access and use certain software and services during the Term (defined below) for certain software applications (the “Spear Product”) and (ii) if applicable, all other Professional Services (defined below) related to Customer’s access to, and use of, such Spear Products as described and set forth on the applicable Statement of Work (defined below).    
1.2.	Grant for Use.  Subject to the terms and conditions herein, Spear will use best efforts to provide Customer and Customer’s Affiliates (defined below), and the clients of Customer’s Affiliates (each an “Authorized Entity” and collectively “Authorized Entities”) and each of the authorized employees and contractors of Authorized Entities  (“Authorized Users”) as may be further identified on a Statement of Work with access to the Spear Products more specifically identified in the applicable Statement of Work.  Accordingly, Spear grants to Authorized Entities a non-exclusive, non-transferrable, non-sublicensable, limited right and license during the Term to access and use the Spear Products within the United States, as may be identified further in a Statement of Work, together with any Documentation solely for internal business purposes. If a Statement of Work sets forth a specified population of authorized employees or contractors of an Authorized Entity, the license shall be limited to the population so specified within the applicable Statement of Work and may not be used, without Spear’s written permission and additional payment to Spear, beyond such population.  “Documentation” means Spear’s training materials, guides, product descriptions, product specifications, supporting materials and updates describing the Spear Products provided to Authorized Entity in printed and/or electronic form that are listed in an applicable SOW and that are actually provided to Customer.  Notwithstanding anything to the contrary herein, Spear may, in its sole discretion, make any changes to any Spear Products that it deems necessary or useful to (i) maintain or enhance the Spear Products or (ii) to comply with applicable laws or regulations. As used in the Agreement “Affiliate” means Customer and any other current or future entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with Customer. 
1.3.	Statement of Work.  Spear and Customer shall agree to the specifics of the Spear Products and Professional Services to be made available to Authorized Entities in one or more statements of work (“Statements of Work” or “SOW”) referring to the Agreement.  Each Statement of Work, when executed by authorized representatives designated to act on behalf of both Parties, shall also be subject to the terms and conditions of the Agreement. In the event a provision in any Statement of Work directly conflicts with the Agreement, the provision in the Statement of Work shall control. In the event that a provision in any Statement of Work directly conflicts with a provision in another Statement of Work, the provision in the Statement of Work with the latest SOW Effective Date shall control.  
 
1.4.	Microsoft Power Platform™.  Notwithstanding Section 1.10 below, Customer shall directly license from Microsoft® its access to the Microsoft Power Platform™ and shall be solely responsible for: (i) registering as an authorized user with Microsoft®, (ii) paying any licensing or other fees charged by Microsoft®, (iii) complying with all Microsoft® licensing terms regarding use of the Microsoft Power Platform™ and (iv) and renewing its use of the Microsoft Power Platform™ as applicable. Spear shall be the Digital Partner of Record assigned by Customer’s customer administrator at the time of licensing the Microsoft Power Platform™ solely as it relates to Spear Product and Professional Services. Spear shall only access Confidential Information, Customer Data, and PHI though Customer's Microsoft® platform and shall not migrate, copy, store, process, duplicate, or otherwise use any Confidential Information, Customer Data, or PHI on any other systems, whether Spear, third-party, or otherwise.

1.5.	Restrictions.  Except as explicitly set forth in the Agreement otherwise, Customer will not, and will not assist others, to: (i) copy any Spear Products or Documentation; (ii) use the Spear Products or Documentation for any purpose other than as set forth in Section 1.2 above; (iii) remove Spear’s proprietary rights notices; or (iv) analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Spear Products to ascertain, derive, and/or appropriate the source code or any trade secret embodied therein.

1.6.	Usage Limitation.  Customer’s use of the Spear Products is subject to any applicable limitation such as, by way of example only, maximum user counts, licenses purchased, server calls or page views as may be set forth in the applicable SOW.    

2.	PRICING AND PAYMENT.  
 
2.1.	Fees.  Fees for the Spear Products, including maintenance and support, if any, and Professional Services will be as set forth on each Statement of Work.  
 
3.	TERM; TERMINATION; EFFECT OF TERMINATION.

3.1.	Term; Renewal.  The Agreement shall become effective upon the Effective Date and will continue for so long as there is an in-force SOW and one (1) year thereafter, unless terminated earlier as provided herein (the “Term”). SOW term lengths shall be defined in each respective SOW and shall automatically renew if at all in accordance with the terms of the respective SOW (“SOW Term”).

4.3.	Termination.

4.3.1.	Either Party may terminate the Agreement and all underlying SOWs, effective upon written notice to the other Party (the "Defaulting Party"), if the Defaulting Party:

4.3.1.1.	materially breaches the Agreement or such SOW or any Exhibit incorporated herein, and the notifying Party reasonably determines that the breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party fails to cure such breach within thirty (30) days after receipt of written notice detailing the alleged breach;
4.3.1.2.	becomes insolvent or admits its inability to pay its debts generally as they become due;
4.3.1.3.	becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing and which completely prevents Authorized Entities’ or Authorized Users’ access to the Spear Products or results in a complete stoppage of any Professional Services being provided; 
4.3.1.4.	is dissolved or liquidated or takes any corporate action for such purpose; 
4.3.1.5.	makes a general assignment for the benefit of creditors; or 
4.3.1.6.	has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

4.4.	Effect of Termination.  Upon expiration or termination of the Agreement for any reason:

4.4.1.	Each Party shall provide reasonable cooperation and assistance for a period of no more than one hundred and eighty (180) days for Spear to transition the services to an alternate service provider, and on a pro rata basis, pay all fees and non-cancellable expenses incurred but unpaid through such date (“Transition Period”) such payments only being required to the extent the Transition Period extends past the timeframe for which Spear is being paid a  Discontinuation Fee. During the Transition Period, no new Authorized Entities may be added or provided access to the Spear Products. 
 
4.4.2.	Each Party shall (i) return to the other Party or destroy at their option all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party's Confidential Information, Customer Data, and PHI, (ii) permanently erase, if reasonably feasible, all of the other Party's Confidential Information, Customer Data, and PHI from its computer systems and (iii) certify in writing to the other Party that it has complied with the requirements of this clause; provided that copies may be maintained pursuant to receiving Party’s standard electronic backup and archival procedures if (a) access to such retained copies is restricted to information technology personnel as reasonably necessary for the performance of archival duties (such system recovery) and (b) receiving Party may (1) keep one (1) copy of any Confidential Information to the extent required to defend or maintain any litigation relating to the Agreement or the Confidential Information, Customer Data, or PHI, (2) keep such copies to the extent required to comply with requirements of applicable law or (3) any presentations provided to its board of directors or any committee thereof, investment committee or any minutes of any meetings of such persons that contain Confidential Information, Customer Data, and PHI; and provided further that any information so retained by receiving Party shall be maintained confidentially and shall not be used for the benefit of receiving Party or any other Party or for any purpose except as set forth in this Section.
 
4.4.3.	If the Agreement is terminated under Section 4.1 all licenses under any outstanding SOW(s) shall continue until the expiration of the respective term set forth in the applicable SOW without option of renewal. Upon termination of the Agreement and any underlying SOW(s) under Section 4.2 above, all licenses granted to Customer under the Agreement and the respective SOW(s) shall immediately terminate.

4.5.	Survival.  The rights and obligations of the Parties which, by their nature, should survive termination or expiration of the Agreement, including Sections 1.9, 4.3,5,6,7,8, and 9.
 
4.6.	Continuity of Service.  In the event of a sale, merger, acquisition or divestiture of substantially all of the assets of either Spear or Customer, the Parties agree to provide written notice of such an event within a commercially reasonable period of time and agree to continue all service, obligations and responsibilities pursuant to the Agreement; provided that if Customer is purchased by a direct competitor of Spear, Spear may elect, in its discretion, to either approve such continuity or terminate the Agreement on thirty (30) days’ prior written notice.

5.	CONFIDENTIALITY.

5.3.	Duty Not to Use or Disclose.  During the Term of the Agreement, from time to time, either Party may disclose (the “Disclosing Party”) or make available to the other Party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products or services in connection with the Agreement (together, “Confidential Information” as further defined below).  The Parties agree and understand that the Confidential Information is confidential and proprietary to the Disclosing Party; that it constitutes trade secrets of the Disclosing Party, and the Parties understand that it is of great value to the success of the Disclosing Party’s business as well as the success of the partnership under the Agreement. Each Party’s Confidential Information and all tangible expressions of the same, in any form, are the sole property of that Party.  Each Party agrees that the Receiving Party will use the Disclosing Party’s Confidential Information only for the approved obligations and responsibilities under the Agreement and will not download, copy, reproduce, or transfer Confidential Information from any access system for either the approved use or for any other purpose. The Parties agree not to disclose Confidential Information to third-parties and each Party shall safeguard Confidential Information with the same standard of care that is used with their respective Confidential Information, but in no event less than reasonable care. 
 
5.4.	Definition.  “Confidential Information”  includes, but is not limited to, all information not generally known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, databases, manuals, records, articles, systems, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, bank account information, credit card information, payment method information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, system architecture, security and privacy reports, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, specifications, customer information, customer lists, client information, client lists, distributor lists, Intellectual Property (defined below), investor information and investor lists of the Disclosing Party or its businesses or any existing or prospective client, customer, vendor, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Disclosing Party in confidence.  The Receiving Party understands that the above list is not exhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.  For purposes of clarification, Confidential Information of Spear shall include Spear Data and Confidential Information of Customer shall include Customer Data and PHI. 

5.5.	Exceptions.  For purposes hereof, Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party without disclosure restrictions; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).

6.	INTELLECTUAL PROPERTY AND DATA.
6.3.	Definitions.  “Intellectual Property” means tangible and intangible discoveries, inventions, developments, improvements, works of authorship, mask works, identifying marks, trade dress, confidential or proprietary information, know-how, designs, processes, technologies and other items for which Intellectual Property Rights may be secured throughout the world.  “Intellectual Property Rights” means all tangible and intangible rights throughout the world in patents, patent applications, utility models, design rights, copyrights, moral rights, trade secrets, mask work registrations, trademarks, service marks, and other intellectual and industrial property rights of every kind and nature whether arising by operation of law, contract, license or otherwise.  
6.4.	Spear Intellectual Property.  Nothing herein shall be deemed to convey ownership of any Spear Intellectual Property, including any pre-existing Intellectual Property used by Spear in connection with the Spear Products and any derivative works, modifications, alterations or other improvements, including any Intellectual Property created by Spear pursuant to any Professional Services provided. All proprietary rights, title and ownership rights, including worldwide ownership, in and to such Intellectual Property remain vested in Spear.  Spear may, in its sole discretion, make any changes to the Spear Products that it deems necessary or useful to (i) maintain, improve or enhance, the Spear Products or (ii) to comply with applicable laws or regulations. 
 
6.5.	Specific Restrictions.  Except as expressly authorized by Spear in writing, Customer shall not copy, modify, reverse engineer or decompile, any tangible or intangible item in which Spear’s Intellectual Property is embodied, including within the Spear Products or assist others to do so.  No such item or Intellectual property may be distributed, sublicensed or otherwise disseminated without Spear’s prior written consent, which may be withheld in its sole and absolute discretion.  
 
6.6.	Ownership and Use of Spear Data.  Spear Data, defined below, and any derivative works thereof shall be and remain the property of Spear. Customer shall have a perpetual, worldwide, royalty free license with no duty to account for the Spear Data and the work product from Professional Services for internal business uses only. Except as expressly permitted in the Agreement or Statement of Work, Customer shall not sell, assign, lease, disseminate, or otherwise dispose of the Spear Data or any part thereof to any other person, and Customer shall not commercially exploit any part of the Spear Data.  Customer shall not allow its employees and/or subcontractors to do any of the foregoing and shall take reasonable measures to prevent such misuse. “Spear Data” means data in de-identified form that is (a) collected or provided by Customer or its employees or contractors to Spear or its affiliates in connection with the Spear Products, (b) generated from Customer or its Authorized Users’ participation and use of the Spear Products, including generic usage or generic transactional data (e.g. how often or how many times individuals contacted customer support, where on the screen individuals touched or clicked etc.) or (c) generated, stored or processed by Spear from such input in connection with the Spear Products, including data, such as engagement data, provided in reports to Customer. 

6.7.	Records and Audit.   Spear agrees that, during the term of the Agreement and for a period of five (5) years after the expiration or termination of the Agreement or the applicable SOW, as applicable, or for longer periods required by applicable law, Spear agrees to maintain accurate and complete records relating to the provision of Spear Products and Professional Services provided under the Agreement. At most once during each calendar year, Customer, and/or an independent auditor designated by Customer and reasonably acceptable to Spear may, on not less than ten (10) business days’ notice to Spear, verify the integrity of Customer Data, Confidential Information, and PHI and the systems that process, store, secure, support, and transmit that data (“Audit”).  Spear will cooperate with any such Audit(s) and provide access to books, records, data and other documentation reasonably requested by Customer directly relating to the subject of the Audit. Spear may require the auditor to execute a reasonable confidentiality agreement maintaining in confidence all information obtained in the course of an Audit, including a prohibition on the disclosure to Customer of any information other than that necessary to document Spear’s noncompliance with its obligations hereunder.  Audits will be conducted during normal business hours, and at Customer’s expense and in such a manner as to not disturb Spear’s business, the Spear Products. 

6.8.	Spear Trademarks. Customer shall not do business under any Spear trademark or tradename ("Marks") or any derivative or variation thereof and shall not directly or indirectly hold itself out as having any relationship to Spear or its affiliates other than as set forth herein.  All Customer advertisements, catalogs, promotions or similar material using Marks, or any reference thereto shall be subject to pre-publication review and approval by Spear. Customer will not alter or remove any Mark or other markings applied to the Spear Products without the prior written approval of Spear. Nothing in the Agreement creates in Customer, and Customer agrees not to assert, any rights in or to the Marks. If, in Spear's sole judgment, any use of Marks by Customer is detrimental to the Marks or Spear's reputation, or otherwise undesirable, Spear may withdraw such permission without liability. Usage of the Marks shall be governed by the then-current Spear guidelines.

7.	LIABILITY.

7.1.	Limited Liability.  Each Party will be responsible for its own acts and the results thereof and shall not be responsible for the acts of the other Party and the results thereof.  Each Party therefore agrees that it will assume all risk and liability to itself, its agents or employees, for any injury to persons or property resulting in any manner from the conduct of its own operations and the operations of its agents or employees under the Agreement, and for any loss, cost, damage, or expense resulting at any time from any and all causes due to any act or acts, negligence, or the failure to exercise proper precautions, of or by itself or its agents or its own employees, while conducting activities under and pursuant to the Agreement.

7.2.	Limitation of Liability., IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE OF THE SPEAR PRODUCTS OR FOR ANY SPECIAL, RELIANCE, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDIES HEREUNDER.  IN NO EVENT SHALL THE TOTAL LIABILITY OF SPEAR ARISING UNDER THE AGREEMENT AND ALL EXECUTED SOWS EXCEED, IN THE AGGREGATE, TO THE COVERAGE AMOUNTS 
OF APPLICABLE PRIMARY AND EXCESS INSURANCE POLICIES REQUIRED TO BE MAINTAINED IN THE AGREEMENT, PROVIDED HOWEVER, THAT IF SUCH POLICIES ARE NOT MAINTAINED AS REQUIRED IN THE AGREEMENT, THERE SHALL BE NO LIMITATION OF LIABILITY. 
LIMITED INDEMNITY OF CERTAIN CLAIMS.
7.3.	Intellectual Property Indemnification.  Spear will, at its own expense, defend, indemnify, and hold Customer harmless from, and/or settle any third party claim, suit or proceeding brought against Customer to the extent it is based upon a claim that the Spear Products used as contemplated by the Documentation: (i) infringes upon any patent, trademark or copyright alleged to be valid in the United States or (ii) misappropriates any trade secrets of any third party alleged to be valid in the United States (“IP Right”).  Spear will defend, indemnify and hold Customer harmless from all amounts (i) awarded by a court of competent jurisdiction in such matter (including damages, costs and fees) but only to the extent attributable to an allegation that Customer’s use of the Spear Products, authorized hereunder, infringes an IP Right or (ii) agreed in a settlement to which Spear has assented in writing. The foregoing is contingent on Customer providing Spear prompt written notice of any such claim or action and giving Spear full information and assistance in connection with defending and/or settling such claim, at Spear’s sole expense.  Spear shall have the sole right to control the defense of any such claim or action and the sole right to settle or compromise any such claim or action. If the Spear Products are, or in Spear’s opinion might be, held to infringe or misappropriate as set forth above, Spear may, in addition to its aforementioned obligations and at its sole option and expense, replace or modify the Spear Products so as to avoid infringement or misappropriation, or procure the right for Customer to continue the use of the Spear Products as applicable.  If neither of such alternatives is, in Spear’s opinion, commercially reasonable, at Spear’s request, the licenses granted hereunder shall terminate and Spear’s sole and exclusive liability, in addition to its obligations for damages, costs and expenses as set forth in this Section 7.5, shall be to refund unused prepaid License Fees.  
7.4.	Limitations to Section 7.3.  The foregoing obligations of Spear will not apply to any claim arising out of: (i) the unauthorized alteration of the Spear Products by Customer, Authorized Entities, or Authorized Users; (ii) the combination of the Spear Products with goods or services not provided by Spear where such infringement arises from the combination and where the Spear Products could have been used, in the manner contemplated by its applicable Documentation, in a manner not giving rise to such infringement, or; (iii) the failure to use the latest version of any software contained in the Spear Products, after a reasonable period of time after the latest version is released, in each case to the extent that infringement or misappropriation otherwise would have been avoided.
7.5.	Other Indemnification. Spear will, at its own expense, defend, indemnify, and hold Customer harmless against any and all liability, costs (including, without limitation, costs of litigation and attorneys' fees), claims, expenses, damages, or judgments asserted against, imposed upon, or incurred by Customer to the extent it is based on a breach of the Agreement or a failure to comply with applicable law.  
7.6.	Exclusive Remedies. TO THE FULL EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, SPEAR’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS SECTION 8 SHALL BE A SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INTELLECTUAL PROPERTY RIGHTS, THE ALLEGED INFRINGEMENT OR MISAPPROPRIATION THEREOF AND ANY IMPLIED OR STATUTORY TERMS, CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF NON-INFRINGEMENT.
8.	WARRANTY.
8.1.	General Warranties.  Each Party represents and warrants to the other that: (i) it is duly formed and validly existing under applicable laws and in good standing in applicable business locations as required; (ii) it has all necessary right, title, license and authority to enter into and perform its obligations under the Agreement; and (iii) the person signing the Agreement (including each attachment) has full authority to bind that Party to the terms and conditions hereof.
8.2.	Warranty of Title.  Spear represents and warrants that it is the exclusive owner or licensor of all right, title and interest in the proprietary rights applicable to the Spear Products and Professional Services and that neither the Spear Products nor Professional Services infringes on the intellectual property of any third-party. 
8.3.	Product and Service Warranty.  Spear represents and warrants that Spear Products and Professional Services shall be good, professional, workmanlike, secure, uninterrupted except as provided in applicable Service Levels, and conform to generally accepted industry standards and practices. 
8.4.	Exceptions.  Spear’s limited warranty under this Section 8 shall not extend to problems affecting the Spear Products, except where caused or contributed to by errors, acts, or omissions by Spear, that result from: (i) third party software; (ii) any alterations of the Spear Products by Authorized Entities or Authorized Users other than those performed or authorized in writing by Spear under the Agreement; (iv) material misuse of the Spear Products by Authorized Entities or Authorized Users; or (v) operation materially outside of the Documentation by Authorized Entities or Authorized Users.
8.5.	Limitations.  Except as otherwise specifically provided by the Agreement, Spear’s sole liability under the warranty in this Section 9, shall be limited to the remedies described in Section 9.7 regardless of whether liability is based on contract or other theory.
8.6.	DISCLAIMER.  EXCEPT AS SET FORTH ELSEWHERE IN THE AGREEMENT OR ANY STATEMENT OF WORK, SPEAR SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SPEAR DOES NOT WARRANT THAT THE SPEAR PRODUCTS WILL BE ERROR-FREE, AND FURTHER DOES NOT WARRANT THAT THE SPEAR PRODUCTS WILL ALWAYS BE ACCESSIBLE, UNINTERRUPTED OR AVAILABLE FROM THE CELLULAR NETWORK OR INTERNET, INCLUDING WIFI.  
8.7.	Warranty Remedies.  The warranties by Spear are conditioned on Customer notifying Spear in writing of any material non-conformity within ten (10) days of Customer becoming aware thereof, such notification to include (a) Customer’s estimation of the severity of such non-conformity and (b) such documentation and details of such non-conformity as Spear shall reasonably request.  Spear shall, at its own expense, promptly use reasonable commercial measures to correct such non-conformity; provided that if such measures are not commercially practicable, as determined by Spear in its reasonable judgment, Customer shall be entitled to an equitable reduction in price or a right to terminate. The foregoing remedies are sole and exclusive.

9.	MISCELLANEOUS.
9.1.	Entire Agreement.  The Agreement, together with its Exhibits and any SOWs between the Parties contains the entire Agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the Parties related to the subject matter hereof.   The Parties have made no representations, promises, warranties, covenants or undertakings other than those contained in the Agreement.  The Parties are not relying on and have not relied on any representations or warranties whatsoever regarding the subject matter of the Agreement, express or implied except for the representations and warranties in the Agreement.  In the event of a conflict between the terms and conditions of the Agreement and the terms and conditions of any SOW, the terms and conditions of the Agreement will control, unless the SOW makes specific reference to the Section of the Agreement that is to be amended or modified. 
9.2.	Severability.  If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
9.3.	Governing Law and Jurisdiction.  The Agreement shall be construed and enforced pursuant to the laws of the State of Nevada without regard to the conflicts of law principles thereof.  The Parties hereby irrevocably consent to the exclusive jurisdiction of any state or federal court in Denver, Colorado and consent that all service of process be sent by nationally recognized overnight courier service directed to the Parties’ respective address set forth herein.  The Parties agree that the venues provided above are the most convenient forum for both Parties, and each waives any objection to venue and any objection based on a more convenient forum in any action instituted under the Agreement.
9.4.	Assignment. Neither Party may assign the Agreement or any SOW (except the right to receive payments hereunder) without the prior written of the other Party; provided that either Party may freely assign all or any part of the Agreement, without the consent of the other incidental to a sale, transfer or other disposition by such Party of all or substantially all of the assets of the selling Party’s business having the benefit of the goods and/or services under the Agreement.  
9.5.	Third Party Beneficiaries.  The Agreement is entered into solely between, and may be enforced only by, Customer and Spear.  Subject to Section 1.10 above, the Agreement will not be deemed to create any rights in third parties or to create any obligations of a Party to any third parties.
9.6.	Delays or Omissions.  No delay or omission to exercise any right, power or remedy accruing to any Party under the Agreement, upon any breach or default of any other Party under the Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting Party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default previously or thereafter occurring.  Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under the Agreement, or any waiver on the part of any Party of any provisions or conditions of the Agreement, must be in writing to be effective and then only to the extent specifically set forth in such writing.  All remedies, either under the Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.  
9.7.	Binding Effect; Successors and Assigns.  The Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.  Nothing in the Agreement, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement, except as expressly provided in the Agreement.  
9.8.	Notice.  Any and all notices or other communications required or permitted by the Agreement or by law to be served on or given to either Party hereto by the other Party hereto shall be in writing and shall be deemed duly served and given when personally delivered to such Party to whom it is directed, or in lieu of such personal service, when: (i) deposited in the United States mail, first-class postage prepaid, return receipt requested; or (ii) deposited with a nationally recognized overnight delivery service, addressed to the Parties at the addresses set forth herein.  Either Party may change its address for the purpose of this Section by giving written notice of such change to the other Party (i) in the manner provided in this Section or (ii) via email, return receipt requested.  
9.9.	Force Majeure.  Neither Party shall be liable for delays or any failure to perform under the Agreement due to causes beyond its reasonable control.  Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed Party.  Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party.  However, the delayed Party shall use its best efforts to minimize the delays caused by any such event.  The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance.
9.10.	Non-Exclusive.  Except as otherwise provided in one or more SOWs, each Party retains the right to undertake research, marketing and development programs or to establish collaborations with third-parties in any area, including areas which are or become the subject of the Agreement, consistent with the rights expressly granted to the other Party under the Agreement and subject at all times, without limitation, to the confidentiality and intellectual property sections set forth in the Agreement.