1	Terms and Conditions

1.	Purpose and structure of agreement.
a.	Purpose of agreement.  eGroup Enabling Technologies, LLC (eGroup, herein) desires to enter into an agreement for the provision of certain software products (the “products”) and/or services (the “services”) to client.
b.	Structure of agreement.  The agreement (as defined below) consists of (i) the provisions set forth in this by SOW and the exhibits referenced herein, (ii) any SOWs (as defined below) executed the parties pursuant to the terms of this SOW, including any schedules or exhibits referenced in each such SOW and (iii) any pos (as defined below) executed by the parties pursuant to the terms of this SOW.  The parties agree to the terms and conditions set forth in this SOW and each SOW and/or po executed by the parties referencing this SOW.  Each SOW and/or po is incorporated into this SOW, and the applicable portions of this SOW are incorporated into each SOW and/or po. This SOW and any SOWs and/or pos are herein collectively referred to as the “Agreement.”  
C.	Definitions.  All capitalized terms used in the SOW shall have the meanings set forth in Exhibit A attached hereto. Other capitalized terms used in the agreement are defined where they are used and have the meanings so indicated. 
d.	Statements of work and purchase orders.  The services and products will be described in and be the subject of (i) one or more statements of work (each an “SOW” and collectively, “SOWs”) executed by the parties pursuant to this SOW, (ii) one or more purchase orders (each a “po” and collectively, “pos”) executed by the parties pursuant to this SOW, and (iii) this SOW.  In the event of a conflict, the provisions of any SOW or PO shall be governed by the terms of this SOW, unless an individual SOW or PO indicates the clear intent of the parties that such conflicting term prevails over a provision of this SOW. 
2.	The services and products.  
a.	eGroup will perform certain services and create or provide certain products, as more particularly described in the SOWs and/or pos which will be entered into from time to time and, upon execution by the parties, will be incorporated and made part of this agreement.  No obligation to provide any services shall be incurred by eGroup prior to receipt of an SOW, signed by both parties and a po, signed by client, that authorizes the performance of such services.  The existence of this SOW shall not be construed as imposing any obligation upon eGroup to agree to an SOW and/or po or to otherwise perform any services for client; provided, however, that the terms and conditions set forth in this agreement shall govern all matters between the parties for the duration of this SOW and any SOWs and/or pos issued hereunder.
b.	At a minimum, (i) each SOW will include: (a) a description of each party’s obligations, including the services and/or products to be furnished by eGroup; (b) an estimated performance schedule; (c) completion criteria that eGroup will meet to fulfill its obligations under the SOW; (d) the applicable fees and payment terms related thereto; (e) terms related to the change management process pursuant to which change orders are issued and (f) identification of primary contacts for eGroup and client; and (ii) each po will include: (a) the SOW project name and this SOW number, (b) the specific services and/or products, (c) quantity, (d) total purchase price, (e) bill-to and ship-to addresses, and (f) any other special instructions.
c.	The parties acknowledge and agree that during the term of the agreement, the services may be modified and/or expanded from time to time upon a written change order executed by an authorized representative of each party, as set forth in the applicable SOW.  For the sake of clarity, any services that are performed outside of the scope of the SOW (including, but not limited to, any modifications to such scope based on discoveries during the initial implementation meeting) will require a change order.  Any change order will be subject to eGroup’s then current time and materials rate.[1]
d.	eGroup will perform the services during eGroup’s and client’s normal business hours unless otherwise agreed.  Access to client’s place of business outside of normal hours will be at the discretion of client’s it staff, as set forth in the applicable SOW or PO, and must be mutually agreed upon by client and eGroup.  Client agrees to comply with all reasonable requests of eGroup and shall provide eGroup’s personnel with access to all documents and the facilities as may be reasonably necessary for the performance of the services under the agreement.  Client agrees to furnish without charge adequate space at client's premises for use by eGroup's personnel while performing the services.
E.	eGroup shall have a lead-time of up to 30 days to schedule services from the date that the signed po is received from client. eGroup reserves the right to reschedule services based upon events outside of eGroup’s control.  In addition, eGroup is not responsible for the failure to perform services in the event that eGroup is unable to access client’s place of business which is caused by client, client’s staff, or other associates or third parties operating under the control of client.  
f.	Products shipped are f.o.b. points of origin.  Title to and risk of loss of all products shall pass from eGroup to client upon delivery of products to the carrier.  Client shall pay all freight, handling, delivery, special packing, and insurance charges for shipment of products.  Choice of carrier and shipping method and route shall be at the election of eGroup.  eGroup shall have the right to deliver all products at one time or in separate shipments from time to time, within the time for delivery provided in the applicable SOW or PO. Client agrees to inspect and/or test the products promptly upon receipt.  
g.	Upon completion of the services and/or delivery of the products, client will review the services and products to confirm that the services and/or products meet client’s reasonable business requirements and comply with the specifications in the applicable SOW.  Client shall notify eGroup in writing within 30 days after completion of the services and/or delivery of the products of any defects or discrepancies in the quality or quantity, and eGroup will use its best efforts to correct said deficiencies and re-deliver the services and/or the products.  The passage of the 30-day period after completion of the services and/or delivery of the products without the notification described herein shall constitute client’s final acceptance of such services and/or products.
h.	Notwithstanding anything herein to the contrary, no item will be accepted for return without a valid return number. Due to manufacturers’ restrictions, eGroup reserves the right to refuse a product for return. Certain items such as software, special orders and discontinued products are sold “as is” and cannot be returned. If a returned product is not defective, eGroup reserves the right to assess a restocking charge. Final acceptance of the return is conditional upon receipt of the product in “like new” condition with all parts, packing materials and documentation intact. eGroup reserves the right to refuse a return which is not in “like new” condition. Cod shipments will be refused. 
I.	Client acknowledges and agrees that eGroup may use subcontractors and consultants to perform the services to be provided under this agreement.
3.	Fees and expenses.  
A.	Fees.  As compensation for performing all services specified in this agreement and for assuming all duties, responsibilities, and obligations required by this agreement, client will compensate eGroup for all fees (the "fees") incurred in accordance with (i) first, the terms of this SOW and any SOW and/or po entered into by the parties; and (ii) notwithstanding anything to the contrary set forth in this SOW or the applicable SOW, the rates specified in either: (a) eGroup’s then-current price list, less any applicable discount at the time of eGroup’s acceptance of client’s po or (b) a written price quotation submitted by eGroup.  eGroup may increase the hourly rate charges for the services by providing client with at least 15 days written notice of such increases. Rates are exclusive of taxes, levies, duties, governmental charges, and expenses (with the exception of any eGroup’s income taxes), which amounts will be billed to and paid by client (or, if applicable, client shall provide eGroup with tax exemption certificates reasonably acceptable to eGroup). Applicable taxes, if any, will be billed as a separate item on the invoice. eGroup reserves the right to increase the fees in the event that client determines any withholding tax obligation prevents eGroup from receiving the specified fees for such services pursuant to this Section 3(a).
B.	Expenses.  Client shall reimburse eGroup for reasonable expenses incurred by eGroup in connection its performance under this agreement, including, but not limited to: (i) installation, relocation and removal charges relating to any service and (ii) travel, meals and lodging associated with the services (together, the “expenses”). For the sake of clarity, such expenses will be invoiced monthly during the term of this agreement and are due Net 30 days from the date of the invoice. 
C.	Billing and payment.  
I.	eGroup shall prepare and submit invoices to client via [mail / email] for (a) all services performed, and expenses incurred in accordance with the terms provided in the applicable SOW and (b) any products delivered, on or any time after the completion of the delivery.  Client will pay invoices net 30 days from the date of the invoice.
II.	Unless this agreement is otherwise terminated pursuant to Section 4, any block of hours agreements, as set forth in the applicable SOW, will be valid for one year from the date set forth therein.  Any unused hours, as set forth in such SOW, will be forfeited after the one-year period and client will not be entitled to a refund for any unused hours.
III.	Payments due under this agreement must be made by wire transfer, certified check, bank check, valid visa, American express or master card credit card or such other method as may be agreed upon by eGroup; provided, however, that eGroup will charge a fee equal to 3% of the aggregate amount of any such payments due under this agreement, for accepting payment by way of credit card.[2]  client shall have no right of offset or withholding under this agreement. Any amounts not paid by client when due to eGroup shall be subject to interest charges, from the date due until paid, at the rate of 10% per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to eGroup from client becomes past due for any reason, eGroup may, at its option and without further notice, withhold further services until all invoices have been paid in full, and such withholding of services shall not be considered a breach or default of any of eGroup’s obligations under this agreement. eGroup reserves the right to adjust payment terms at any time due to consistent delays in payment by client. If payment has not been received within three months after the due date, eGroup will have no other option but to undertake collection and enforcement efforts. Client shall also reimburse eGroup for all reasonable costs incurred in collecting any late payments, including, without limitation, attorney’s fees.
Any payments made via wire transfer should be sent to: 
eGroup 
PO box 38
Mt. Pleasant, SC 29465

Us wire instructions: 
Woodforest national bank
25231 Grogan’s mill rd. 
The woodlands, TX 77380
Routing/aba: 113008465
Account number: 1312046657
iv.	Disputed charges.  Written notice of any disputed charge must be received by eGroup within 20 days of the date of issuance of the invoice in question or client forfeits the right to dispute the charge. This notice must include the invoice number in dispute, the item(s) and amount(s) disputed and a complete description of the basis for client withholding payment. Notice of any disputed charge does not release client from the obligation of paying any remaining balance of the invoice under the terms specified. Upon resolution of the disputed charge, eGroup will issue a credit memo or client will pay the total amount outstanding referenced by the dispute. Any disputed charge resolved in eGroup’s favor shall be liable to accrue late payment fees based on the terms set forth in this agreement.
d.	Compliance with laws; permits and licenses.  Client agrees, at its own expense, to operate in full compliance with all governmental laws, regulations, and requirements applicable to the duties conducted under this agreement. It shall be the responsibility of client to pay for any necessary licenses, permits, insurance and approvals as may be necessary for the performance of the services under this agreement, unless otherwise specified in an SOW and/or po.  If required for installation of products delivered to client, client is responsible for purchasing the minimum number of licenses to support the appropriate solution.
4.	Term and termination. 
A.	Term of agreement.  The term of this agreement shall commence on the effective date and will continue indefinitely until either party gives notice to the other party of its intent to terminate this agreement as provided herein; provided, that, if at the expiration of this agreement, there is an outstanding SOW or PO that has not been completed, this agreement will remain in effect until (i) the date of expiration or termination of such SOW or PO, or (ii) the date upon which the products and/or services to be provided thereunder have been delivered (and if applicable, accepted by client), whichever is later.
b.	Termination for breach.  Either party may terminate this agreement at any time in the event of a breach by the other party of a material covenant, commitment or obligation under this agreement that remains uncured: (i) in the event of a monetary breach, five calendar days following written notice thereof; and (ii) in the event of a non-monetary breach, after 30 days following written notice thereof. The non-breaching party shall have the right to suspend its performance under this agreement during any such notice period under this Section 4(b). Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either party. Termination shall be in addition to any other remedies that may be available to the non-breaching party. 
c.	Termination for bankruptcy, insolvency, or financial insecurity.  Either party may terminate this agreement immediately at its option upon written notice if the other party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within 90 calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this agreement pursuant to 11 U.S.C. §365. 
D.	Termination for convenience.  Notwithstanding anything in the applicable SOW or PO to the contrary, either party may terminate this agreement at any time with or without cause by giving 30 days prior written notice.  
E.	Effects and obligations upon termination.  
I.	Each service provided hereunder will terminate immediately upon termination of this agreement, unless otherwise agreed by the parties. Notwithstanding the foregoing, the parties’ ongoing obligations under any non-terminated SOWs will continue through the end of their defined term, unless otherwise agreed by the parties in writing. If, following termination of this agreement, client places pos and eGroup accepts such pos, then any such pos will be governed by the terms and conditions of this agreement notwithstanding the earlier termination of this agreement, unless the parties have entered into a subsequent master service agreement; provided, however, that acceptance by eGroup of any such po will not be considered a renewal of this agreement.
ii.	Termination of this agreement for any reason shall not discharge either party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination.  Client shall immediately pay eGroup for all services rendered and expenses incurred prior to termination; provided, however, that with respect to any SOW or PO issued hereunder that is the basis for the termination and is payable on a milestone or progress-payment basis, client will pay eGroup a pro rata amount of the fees due under such SOW or PO based on the percentage of completion.  Upon termination, each party shall return the other party's confidential information that is in its possession at the time of termination, in accordance with Section 9 and client shall promptly return to eGroup any equipment, materials or other property of eGroup relating to the terminated services which are in client's possession or control.
5.	Security interest.
A.	For and in consideration of the granting of terms to client, by eGroup, client hereby grants to eGroup a security interest in any and all equipment, purchased by client from eGroup to secure all obligations of client to eGroup, including but not limited to any obligation of payment.  The security interest granted to eGroup shall also cover all property of the same character as that covered by this security agreement that client may later acquire at any time until the termination of this security agreement. Client agrees that in the event of default in any payment and failure to cure same within a reasonable time, eGroup shall have, in addition to its rights under the law, the right to repossess such goods without further operation of law and without notice to client. Client further agrees to execute any additional documents necessary to perfect or continue the security interest created by this agreement. 
B.	eGroup may, at its sole option, withhold delivery of all or any part of any order or cancel the order if at any time client’s account with eGroup is in arrears.  If at any time, client is in arrears on account, eGroup may then cancel this agreement and seek redress for damages, including lost profits, offsetting any deposit there against, and further recover its costs including reasonable attorney fees. 
6.	Work performed.  Client is responsible for maintaining current backups of all data and as such, eGroup is not responsible for client’s loss of data during the term of this agreement. eGroup shall take commercially reasonable efforts to ensure that no virus or similar items are coded or introduced into the services or products.  If a virus is found to have been introduced into the services or products, eGroup will promptly notify client and eGroup shall use commercially reasonably efforts to eliminate the effects of the virus; provided, however, that unless it is ultimately determined that such virus was introduced by eGroup, such assistance will be billed to client at eGroup’s then current time and material rates.
7.	Warranty. 
a.	The services to be performed hereunder are in the nature of network system integrations. eGroup does not warrant in any form the results or achievements of the services provided or the resulting work product and deliverables. eGroup only warrants that that the services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices.
B.	With respect to particular products manufactured or supplied by third parties to eGroup for resale to client, eGroup makes no warranties of any kind in addition to or exceeding the warranty supplied or offered by the respective manufacturer or supplier, which shall be transferred or assigned to client, and client’s recovery is limited to recovery against such manufacturer or supplier for breach of any applicable warranties of manufacturer or supplier. In the event of a claim by client for breach of product warranty, eGroup must follow the warranty policy established by the manufacturer. This policy may require return of the warranted item to the manufacturer for repair. At client’s request, eGroup agrees to take all actions reasonably necessary or appropriate to secure client’s rights and to protect its interests under such third-party warranties. Work performed by eGroup, not covered by product warranty, will be invoiced to client.
8.	Disclaimers of express and implied warranties.  Except as expressly provided in Section 7 (warranty), eGroup makes no representation, warranty, or guaranty as to the reliability, accuracy, or completeness of the products or services, or the results which may be obtained therefrom.  Except as set forth in Section 7 (warranty), each party expressly disclaims all other representations or warranties, conditions and representations related to the subject matter of this agreement, whether express, implied, statutory, or otherwise, including, but not limited to, implied warranties of fitness for a particular purpose, noninfringement, and merchantability.  eGroup does not warrant that the products, as configured by eGroup or otherwise, will meet client’s requirements or expectations, particular legal requirements or will perform in a certain way. eGroup does not warrant that the use of products or services that it supplies or provides will prevent data breach, avoid loss of data, avoid interruption of access to data or computer services.  eGroup shall not be liable for any services or work product or deliverables provided by third party vendors identified or referred to client by eGroup during the term of this agreement, pursuant to any SOW, PO or otherwise.  Client's exclusive remedy for breach of Section 7 (warranty) is reperformance of the services, or if reperformance is not possible or conforming, refund of amounts paid under this agreement for such non-conforming services.
9.	Confidentiality.
a.	Confidential information.  The parties acknowledge that by reason of their relationship to the other under this agreement, each may disclose or provide access ("discloser") to the other party ("recipient") certain confidential information.  For purposes of this agreement, “confidential information” shall mean (i) information concerning a party's products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a party and its affiliates that may be at any time furnished, communicated or delivered by the disclosing party to the receiving party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a party's facilities; and (iv) all other non-public information provided by the disclosing party under this agreement that should reasonably be expected by the recipient to be proprietary or confidential in nature. In no event shall eGroup’s use or disclosure of information regarding or relating to the development, improvement, or use of any of eGroup’s services or products be subject to any limitation or restriction. All confidential information shall remain the property of discloser.
b.	Use of confidential information; standard of care.  Except as otherwise provided in this agreement, recipient hereby agrees that it shall only use discloser’s confidential information in furtherance of its performance obligations under this agreement and agrees not use such confidential information for any other purpose or for the benefit of any third party, without the prior written approval of discloser. Notwithstanding the foregoing, recipient may disclose confidential information to those employees, independent contracts, and advisors (including accountants, auditors, attorneys, financial or other advisors) who have a need to know such information, and who are bound to keep such information confidential.  Recipient shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect discloser’s confidential information from any unauthorized use, disclosure, dissemination, or publication. Recipient will be primarily responsible and liable for any breaches of the confidentiality obligations in this Section 9 and shall immediately advise discloser of any violation of the terms of this Section 9 and shall reasonably cooperate with discloser in relation thereto.
c.	Exceptions.  Confidential information does not include any information that: (i) has entered the public domain, except where such entry is the result of the recipient’s breach of this agreement, (ii) prior to disclosure under this agreement was already rightfully in recipient’s possession, (iii) subsequent to disclosure under this agreement was obtained by the recipient on a non-confidential basis from a third party who has the right to disclose such information to recipient, or (iv) is disclosed by recipient with discloser’s prior written consent.  
d.	Required disclosures.  If recipient is confronted with legal action to disclose confidential information received under this agreement, recipient shall, unless prohibited by applicable law, provide prompt written notice to discloser to allow discloser an opportunity to seek a protective order or other relief it deems appropriate, and recipient shall reasonably assist discloser in such efforts. If disclosure is nonetheless required, discloser shall limit its disclosure to only that portion of the confidential information which it is advised by its legal counsel must be disclosed.
e.	Unauthorized use or disclosure of confidential information; equitable relief. In the event recipient discovers that any confidential information has been used, disseminated, or accessed in violation of this agreement, it will immediately notify discloser; take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication; and take any and all necessary steps to prevent any further breach of this agreement. The parties agree and acknowledge that any breach or threatened breach regarding the treatment of the confidential information may result in irreparable harm to discloser for which there may be no adequate remedy at law. In such event, discloser shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this agreement, in addition to all other remedies available in law or at equity.
f.	Return of confidential information, survival.  Recipient shall promptly return, and shall cause its representatives to promptly return, or, at discloser’s option, certify destruction of all copies of confidential information at any time upon request or within 30 days following the expiration or earlier termination of the agreement.  Notwithstanding any expiration or termination of this agreement, recipient’s obligation to protect the confidential information pursuant to this Section 9 will survive for two years after the expiration or earlier termination of this agreement.
g.	Use of client’s name.  Notwithstanding anything to contrary in this agreement, with client’s prior approval, eGroup may use client’s name, trade name, service marks, trademarks, trade dress and logo as a client reference, including a general description of the services provided to client by eGroup, in its resumes, client list, case studies, and in other promotional information including, but not limited to, press releases, brochures, reports, letters, white papers and electronic media, such as email or web pages.
10.	Ownership.
a.	This agreement and any SOWs issued pursuant hereto (including the proposed combination of products and/or services contained therein) constitute intellectual property owned exclusively by eGroup that is based on work performed in preparing these documents. Except as set forth in Section 9, neither this agreement nor any SOWs and/or pos are to be shared or disclosed by client to any person or entity in any manner without eGroup’s prior written consent.
b.	This is not a work-for-hire agreement. The copyright in all deliverables created hereunder for client shall belong to eGroup. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice in the performance of eGroup hereunder are and shall remain the sole and absolute property of eGroup, subject to a worldwide, non-exclusive license to client for its internal use as intended under this agreement. This agreement does not grant client any license to any of eGroup's products, which products must be licensed separately. 
c.	Notwithstanding anything in this agreement to the contrary, each party will retain the exclusive ownership of all of its pre-existing intellectual property, confidential information and materials, including, without limitation, proprietary ideas, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology that are owned by a party prior to commencement of any services, or that are otherwise developed by or for such party outside the scope of this agreement (the “pre-existing technology”). 
d.	Notwithstanding anything in this agreement to the contrary, eGroup owns and will continue to own all right, title, and interest in and to all of eGroup’s pre-existing technology and the services, products, deliverables, data collection tools, reports, scripts, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology provided or developed by eGroup (or a third party acting on eGroup’s behalf) pursuant to this agreement, including modifications, enhancements, improvements or derivative works of any of the foregoing, regardless of who first conceives or reduces to practice, and all intellectual property in any of the foregoing (collectively, the “eGroup intellectual property”). 
E.	Notwithstanding anything in this agreement to the contrary, client at all times retains all right, title, and interest in and to all of client’s pre-existing technology and all intellectual property that is developed by client or by a third party on client’s behalf thereafter, other than eGroup intellectual property.  Third party products will at all times be owned by the applicable third party and will be subject to any applicable third-party license terms.
11.	Indemnification.  Each party (the "indemnifying party") agrees to indemnify, defend, and hold the other party and its affiliates and their respective officers, directors, employees, and agents harmless from and against any and all third party claims, losses, liabilities, damages, expenses, and costs, including attorney's fees and court costs, arising out of the indemnifying party's (a) gross negligence or willful misconduct or (b) its material breach of any of the terms of this agreement. The indemnifying party's liability under this Section 11 shall be reduced proportionally to the extent that any act or omission of the other party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the indemnifying party with prompt written notice of any claim and give complete control of the defense and settlement of the indemnifying party, and shall cooperate with the indemnifying party, its insurance company, and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the indemnifying party prompt notice to the extent such lack of notice prejudices the defense of the claim. This Section 11 states the entire obligation and the exclusive remedies 
12.	Limitation of liability; actions. 
a.	Except for liability arising under Section 9 (confidentiality) and Section 11 (indemnification), in no event shall either party or its affiliates be liable to the other party or its affiliates for any incidental, consequential, indirect, statutory, special, exemplary or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, inconvenience, lost business opportunities, damage to good will or reputation, and costs of cover, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen.  
b.	Notwithstanding anything to the contrary in this Section 12, the total aggregate liability of either party under this agreement shall not exceed the total amount paid by client to eGroup under this agreement. The foregoing limitation of liability shall remain in full force and effect regardless of whether either party’s remedies are determined to have failed of their essential purpose.  This limitation of liability (i.e., Section 12) does not apply to Section 9 (confidentiality) and Section 11 (indemnification).
c.	No action shall be brought for any claim relating to or arising out of this agreement more than one year after the accrual of such cause of action, except for money due on an open account. 
13.	Force majeure.  Either party shall be excused for delays or interruptions in the performance of its obligations under this agreement or the applicable SOW or PO to the extent such delays or interruptions are otherwise not foreseeable and beyond the reasonable control of such party, including but not limited to, strikes, acts of God, political unrest, embargo, failure of source of supply, or casualty (“force majeure”).  If force majeure occurs, the party affected by such force majeure shall promptly notify the other party in writing and use its best efforts to abate the effect of such force majeure and restore compliance with the terms of this agreement as soon as possible.
14.	Non-solicitation.  During the term of this agreement and for a period of 12 months thereafter, each party agrees that it will not, without the prior written consent of the other party, (a) directly or indirectly solicit, recruit or hire any employee of the other party, with whom such party has come into contact with as a result of this agreement or (b) induce or otherwise advise or encourage any employee of the other party, with whom such party has come into contact with as a result of this agreement, to leave his or her employment with the other party; provided, however, that nothing in this Section 14 shall restrict either party’s ability to engage or employ any person responding to a public job posting provided the party has not acted in bad faith prior to and after making the public job posting.  In the event of a breach of this Section 14, money or damages may not be an adequate remedy, and, therefore, in addition to any other legal or equitable remedies, the parties shall be entitled to seek an injunction against such breach. All the obligations set forth in this Section 14 are independent covenants and will survive termination of this agreement.
15.	Entire agreement.  This agreement constitutes the entire agreement between eGroup and client with respect to the subject matter covered herein and therein and supersede all prior agreements, arrangements, representations, and understandings, whether oral or written, regarding such subject matter.
16.	Amendment and modification; waiver.  This agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party. The waiver by either party of a breach or default of any of the provisions of this agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have under this agreement operate as a waiver of any breach or default by the other party; nor shall any single or partial exercise of any right, remedy, power or privilege under this agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  No modification, extension or waiver of this agreement will be effective unless explicitly set forth in writing and signed by an authorized representative of the party so waiving.
17.	Successors and Assigns, assignment.  This agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns. There are no third-party beneficiaries to this agreement.  Except as specifically provided in this agreement, client shall not assign this agreement nor any of its rights, interests, or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of eGroup.  eGroup may assign any of its rights or delegate any of its obligations under this agreement.  Any purported assignment or delegation in violation of this Section 17 is null and void. 
18.	Severability. If any provision of this agreement is found by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions or portions not affected by such invalidity, illegality or unenforceability shall remain in full force and effect. Upon such determination that any provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this agreement so as to affect 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. 
19.	Headings; construction and interpretation.  The headings in this agreement are for reference only and shall not affect the interpretation hereunder.  The parties have participated jointly in negotiating and drafting this agreement.  In the event that an ambiguity or question of intent or interpretation arises, this agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this agreement.
20.	Survival.  Each term and provision of this agreement that should by its sense and context survive any termination or expiration of this agreement, shall so survive regardless of the cause and even if resulting from the material breach of either party to this agreement.
21.	Rights cumulative.  The rights and remedies of the parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
22.	Authorized signatories.  It is agreed and warranted by the parties that the individuals singing this agreement on behalf of the respective parties are authorized to execute such an agreement. No further proof of authorization shall be required.
23.	Governing law and venue; jury waiver.  This agreement will be governed by and interpreted in accordance with the laws of the state of South Carolina, without giving effect to the principles of conflicts of law of such state.  The parties hereby agree that any dispute or claim arising out this agreement shall be brought solely in, and shall be subject to the exclusive jurisdiction of, any federal or state court located in Charleston County, South Carolina.  Each party hereby consents to and submits to the exclusive jurisdiction and venue of any such court.  The parties hereby waive trial by jury in any action arising under this agreement. 
24.	Arbitration.  Except to the extent not preempted by the federal arbitration act, 9 U.S.C. §1 et seq. (1970), any claim or controversy arising out of, or relating to, any provision of this agreement, or the breach thereof, shall upon written demand of any party, be settled by three arbitrators in accordance with the commercial arbitration rules then in effect of the American arbitration association, to the extent consistent with the laws of the state of South Carolina and the uniform arbitration act, S.C. code §15-48-10, et seq., (law. Co-op. 1976, as amended).
25.	Good faith.  Each party agrees that, in its respective dealings with the other party under or in connection with this agreement, it shall act in good faith and that its agreement relative to decisions and actions hereunder will not be unreasonably withheld.
26.	Relationship of the parties.  The relationship between the parties is that of independent contractors. Nothing contained in this agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
27.	Counterparts.  This agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.  A signed copy of this agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this agreement.
28.	Attorneys' fees and costs. If either party incurs any legal fees associated with the enforcement of this agreement or any rights under this agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, expenses, and costs incurred (including, but not limited to, court, arbitration, mediation, or other litigation expenses), in addition to any other relief to which it is entitled.
Notice.  All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a pdf document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the fourth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses provided in this agreement, or subsequently provided by the parties in writing.