Consulting Services Agreement

ARCUITY, A Division of Abel Solutions, LLC Consulting Services Agreement

ARCUITY, A Division of Abel Solutions, LLC Consulting Services Agreement

Background

Arcuity provides real estate software products, consulting and implementation services.
Client desires to engage Arcuity to perform, and Arcuity is willing to perform for Client, consulting services in accordance with the terms and conditions of this Agreement.

Agreement

In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties, intending to be legally bound by this Agreement, agree as follows:

1. Scope of Services.

(a) Client may retain Arcuity from time to time to perform services (“Services”) and implement software solutions or related materials (“Deliverables”) as described in a written statement of work (“SOW”), which is executed by both parties. Each SOW shall specify (a) the Services to be performed, (b) the Deliverables to be provided, including any Third Party Licensed Material, (c) the specifications and requirements for the Services and Deliverables (the “Specifications”), (d) the time schedule for performance of the Services and Deliverables, (e) the payment rate, (f) any related support and maintenance services, (g) any materials, activities, or other conditions for which Client is responsible and the time schedule for the performance thereof (the “Client Responsibilities”), and (h) such other terms as may be described in this Agreement or as to which the parties may agree. Each SOW shall reference this Agreement and be numbered sequentially. Nothing contained in this Agreement shall be construed as obligating either party to enter into a SOW. Subject to the terms and conditions of this Agreement, Arcuity will perform the Services and develop the Deliverables as described in the SOW. Arcuity shall render such Services and deliver the Deliverables in accordance with the timetable and milestones set forth in the applicable SOW. Arcuity shall have no obligation to commence work on a SOW until the earlier of the execution of the SOW by both parties or such time as a deposit or payment has been accepted by Arcuity with respect to such SOW. All SOWs shall be a part of this Agreement and shall be subject to the terms and conditions hereof. For those future SOWs that require system modifications and/or special pricing, Arcuity will use commercially reasonable efforts to respond to Client within thirty (30) days of receiving such a request. (b) In the event Client desires to modify any SOW, Client shall provide written notice of the desired modification to Arcuity (the “Modification Notice”). Within five business days of receipt of the Modification Notice, Arcuity shall provide Client with a written estimate of the number of hours required to complete the modifications, together with any associated changes to the cost of the project or performance schedule. If Client approves of the estimate, Client and Arcuity shall enter into a written amendment to the SOW to include such modifications.

2. Performance Schedule.

Arcuity shall use commercially reasonable efforts to develop the Deliverables in accordance with the milestones and schedule set forth in the SOW. The SOW also identifies the designated primary contact personnel for both Arcuity and Client with respect to the development of the Deliverables. A performance schedule may be reasonably adjusted for delays in the fulfillment of any Client Responsibilities by the date indicated on the SOW (unless such delay is caused by a failure of Arcuity to timely perform) or Client’s failure to make timely payment of any amounts due hereunder (other than amounts being disputed in good faith). In the event Client fails to timely perform the Client Responsibilities as contemplated in the foregoing sentence, Arcuity shall immediately notify Client in writing of any effect on the time schedule, and Client and Arcuity shall work in good faith to establish a revised time schedule.

3. Assistance from Client

Client shall perform the Client Responsibilities set forth in the applicable SOW in a timely and professional manner.

4. Compensation.

(a) Client shall pay Arcuity according to the fee schedule set forth in the applicable SOW for the Services and the Deliverables. (b) For Services performed and Deliverables provided on a fixed-fee basis, Arcuity shall invoice Client for, and Client shall pay the fixed-fee and any related Expenses (as defined in Section 5(d)) on the payment milestones reflected in the SOW. (c) For Services performed and Deliverables produced on a time-and-materials basis, Client shall pay Arcuity’s then current hourly and daily rates reflected in the SOW, plus Expenses. Arcuity shall invoice Client monthly for Services performed on a time-and-materials basis. Any quantity of hours indicated in the SOW shall be construed as a reasonable estimate of the time required to perform the Services and complete the Deliverables. If Arcuity determines that it will materially exceed any such estimate, Arcuity shall promptly notify Client. (d) Client shall reimburse Arcuity for all reasonable and documented out-of-pocket expenses (collectively “Expenses”) incurred in rendering the Services. Expenses exceeding $100 shall be approved in advance in writing by Client. Such Expenses shall include out-of-town travel expenses (including transportation, lodging, and meals) and costs of courier services, photocopying, communications charges, long distance telephone calls, any tangible material acquired by Arcuity solely for Client’s benefit that is delivered to Client, including any Third Party Licensed Material, and computer resources charged to Arcuity that are used in connection with the Deliverables and the Services. (e) Client shall be responsible for all taxes and regulatory fees of any kind imposed by any federal, national, state, provincial, local, municipal or foreign government on any products, licenses or services provided under this Agreement and any SOW executed pursuant hereto; provided, however, that Arcuity shall be responsible for all taxes based upon Arcuity’s income. (f) If so indicated in the SOW, Arcuity may require a deposit against which accrued fees may be credited. (g) Unless otherwise indicated in the SOW, all invoices are payable in full, without reduction for any offset, withholding or other claims, within thirty (30) days after the date of the issuance of an invoice. (h) If Client reasonably objects to all or any portion of an invoice, Client shall notify Arcuity of that fact in writing within ten (10) days from the date of its receipt of Arcuity’ invoice, give reasons for the objection, and pay that portion of the invoice not reasonably in dispute. Failure of Client to provide such written notice within the allowed ten (10) day period shall be deemed to be a waiver of all objections to that invoice. (i) Client’s payment shall represent Client’s acceptance of the Services invoiced by Arcuity. Arcuity may suspend performance of Services under this Agreement if (1) Client fails to make payment in accordance with the terms hereof, or (2) Arcuity reasonably believes that Client will be unable to pay Arcuity in accordance with the terms hereof. Should any invoice or part of invoice remain unpaid after thirty (30) days from Arcuity’s issuance which has not been disputed as set forth in (h) above, Arcuity reserves the right, upon notification in writing to Client, to suspend such Services, including disabling any Third Party Licensed Material. Such suspension shall continue until Arcuity has been paid in full for all balances past due including applicable service charges and Client provides Arcuity with adequate assurance of Client’s ability to make future payments in accordance with the terms hereof. If any such suspension causes an increase in the time required for the performance of any part of the Services, the performance schedule and/or period of performance shall be extended for a period of time equal to the suspension period.

5. Term and Termination.

Unless otherwise earlier terminated as provided herein, the initial term (the “Initial Term”) shall commence on the date hereof and expire one (1) year thereafter. Unless terminated by either party upon thirty (30) days written notice prior to the expiration of the Initial Term (or any Renewal Term (as defined below)), the Initial Term and each Renewal Term shall be automatically renewed for an additional one (1) year period (each such renewal period hereinafter referred to as a “Renewal Term”). As used herein, “Term” means the Initial Term and all Renewal Terms. If one party materially breaches any term or condition of this Agreement, the other party may, upon no less than thirty (30) days prior written notice to the other party specifying the nature of the alleged breach, terminate this Agreement. Termination of this Agreement shall not relieve the terminating party of its obligations under Sections 4, 5, 7, 9, 10, 11, 12, 13, 14 and 15 unless such party is otherwise relieved of such obligations by this Agreement, by a subsequent agreement between the parties or by operation of law.

6. Rights and Licenses.

(a) The parties acknowledge and agree that all Deliverables provided under this Agreement and the SOW executed hereunder shall consist of: (i) data, computer programs, designs, methodologies and techniques and other material owned or developed by Arcuity prior to, or independent from, its engagement hereunder (“Arcuity Materials”); (ii) materials that are owned by third parties (“Third Party Licensed Materials”); (iii) works that are in the public domain; and (iv) Work Product. For purposes of this Agreement, the term “Work Product” means the software and related documentation and other materials included in a Deliverable created or developed by Arcuity specifically for Client pursuant to a SOW. Unless otherwise set forth in the SOW, subject to payment in full of all fees, Expenses and other amounts due Arcuity under a SOW, Arcuity will assign to Client, without further consideration, all right, title and interest in and to the copyright in all Work Product created or developed pursuant to the applicable SOW, excluding the Arcuity Materials. (b) Arcuity retains all right, title and interest in and to all Arcuity Materials. To the extent that the Deliverables include Arcuity Materials not subject to a Subscription Fee specified in the SOW, Arcuity grants to Client a nonexclusive, nontransferable, perpetual, worldwide, fully paid-up right and license to use the Arcuity Materials as part of the Deliverables. Except as expressly set forth herein or in the SOW, no right is granted hereunder to, and Client shall not directly or indirectly, (i) copy, print, record, display, publish or transmit all or any portion of the Arcuity Materials; (ii) sell, rent, lease, distribute, license or sublicense, or otherwise transfer all or any part of the Arcuity Materials or provide timeshare, service bureau or similar services to any other person using the same; (iii) modify or translate the Arcuity Materials, create any derivative works or otherwise merge or utilize all of any part of the Arcuity Materials with or into other computer programs or other materials; (iv) in any manner decompile, reverse engineer, decode, disassemble, or otherwise attempt to derive source code from all or any part of the Arcuity Materials; or (v) otherwise use the Arcuity Materials outside of the license granted hereunder. Further, Client shall not remove or alter, or permit any person to remove or alter, any notices on, contained within or affixed to any Arcuity Materials regarding copyright, patent, trademark and other proprietary rights, restrictions on use and confidentiality. Subject to the foregoing license, Arcuity reserves all right, title and interest in and to the Arcuity Materials, including, without limitation, any and all copyrights, and, except as expressly provided herein, Client shall have no right, title or interest in or to the Arcuity Materials, by implication or otherwise. (c) If Client has requested the inclusion of the Third-Party Licensed Materials, Client shall be responsible for obtaining the appropriate license for such Third-Party Licensed Materials.

7. Affirmative Covenants.

(a) Client represents and warrants to Arcuity that it has full authorization to enter into this Agreement and to perform its obligations under this Agreement and that performance of these obligations will not violate any contract to which it is a party or any law, regulation, government order or obligation by which it is bound. (b) Arcuity represents and warrants to Client that it has full authorization to enter into this Agreement and to perform its obligations under this Agreement and that performance of these obligations will not violate any contract to which it is a party or any law, regulation, government order or obligation by which it is bound.

8. Limited Services Warranty.

Arcuity warrants to Client that the Services shall be performed by qualified personnel in a professional and workmanlike manner.

9. Warranty Limitation; Remedies.

(a) EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7 AND 8, ARCUITY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, AND Arcuity HEREBY DISCLAIMS THE SAME. (b) Any claim for breach of the limited warranty set forth in section 8 must be made by Client in writing within 30 days after the warranty claim arose. If Arcuity, in its sole discretion, determines that the claim is valid, Arcuity will re-perform the work at no cost to client, and the limitations set forth in section 13 shall still apply. (c) With respect to Third Party Licensed Materials, Arcuity makes no warranties and disclaims any liability for such.

10. Non-Disclosure.

(a) From time to time during the term of this Agreement, a party (the “Disclosing Party”) may disclose Confidential Information (as defined below) to the other party (the “Receiving Party”). Except as permitted by this Agreement, each party agrees that it will maintain the confidentiality of any and all Confidential Information of a Disclosing Party and will not disclose any Confidential Information to any person. Each party agrees it will not use such Confidential Information except as permitted by the Agreement. As used herein, the term “Confidential Information” means any technical, business, and other information related to the other party’s business disclosed or otherwise obtained in connection with this Agreement or the performance of the Services, whether or not in writing, which derives value, actual or potential, from not being generally known to the public or to other persons who can obtain value from its disclosure or use. Anything in the foregoing to the contrary notwithstanding, all Arcuity Materials shall be considered Confidential Information of Arcuity under this Agreement, and all materials licensed by Client to Arcuity for use in connection with developing the Work Product and the Work Product itself shall be considered Confidential Information of Client under this Agreement. (b) In addition, each party agrees to hold the terms of this Agreement in confidence and to disclose such terms only to its employees, agents, contractors and representatives who need to know such information to perform their respective responsibilities and who shall be directed to hold such terms in confidence. (c) The obligations set forth in this Section do not apply if and to the extent the Receiving Party establishes that: (i) the information was already known to the Receiving Party, without obligation to keep it confidential, at the time of its receipt, as evidenced by documents in the possession of the Receiving Party prepared or received prior to disclosure of such information by the Disclosing Party, provided the exception set forth in this subsection (ii) shall not apply with respect to the Work Product; (iii) the Receiving Party received the information in good faith from a third party lawfully in possession thereof without obligation to keep such information confidential; (iv) the information was publicly known at the time of its receipt by the Receiving Party or has become publicly known other than by a breach of this Agreement; (v) the information is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information as evidenced by written records. The restriction contained in this Section 10 shall expire three years after the expiration or termination of this Agreement and all of the SOWs executed pursuant hereto with respect to information that does not constitute a trade secret under applicable law, but shall survive such three‑year period with respect to information that does constitute a trade secret under applicable law so long as such information remains a trade secret under applicable law. (d) Nothing herein shall preclude either party from disclosing information which it is legally required to disclose, whether pursuant to a valid legal process, court order, regulatory requirement or otherwise. A party that is legally required to make disclosures of any matter specified herein shall notify the other, as soon as practicable and in any event in advance of making such disclosure, specifying the information it is legally required to disclose. In addition, such disclosing party shall disclose only that portion of the information it is legally required to disclose and shall cooperate with the other party to seek any confidential treatment thereof, if available. (e) The rights and remedies set forth in this Section 10 are in addition to all rights and remedies to which a party may be entitled by law or in equity.

11. Indemnity.

(a) Arcuity and Client shall indemnify, defend and hold harmless the other party for any losses for bodily injury or damages to real property resulting directly from the indemnifying party’s negligence or willful misconduct, but in no event shall Arcuity’s indemnification obligations exceed the total fees paid to Arcuity under the agreement or statement of work that is the subject of the Indemnification. Each party agrees to notify the other party of any suits or claims that may require indemnification by the other party within thirty (30) days after becoming aware of the suit or claim. The Indemnifying Party shall have the right to control the defense and settlement negotiations (with full cooperation from the Indemnified Party), but this right shall pass to the Indemnified Party if the Indemnifying Party refuses to perform its obligations hereunder. (b) Defense of Infringement Actions by Arcuity. Arcuity, at its expense, shall defend, indemnify and hold Client harmless from any claim, suit or action brought against Client based upon an assertion that the Arcuity Materials or Work Product infringe the patent, copyright, trademark, trade name, service mark, service mark, trade secret, or other intellectual property rights (“Intellectual Property”) of any third party. Notwithstanding anything to the contrary in Section 11(b), as a condition precedent to such defense Client must: (i) notify Arcuity in writing of all available details of any such claim within thirty (30) days of becoming aware of the claim; and (ii) allow Arcuity the right to control the defense and any related settlement negotiations (with reasonable cooperation from Client at Arcuity’s expense). (iii) Exclusion. With respect to any Work Product, the indemnification obligations set forth in this Section 11 shall not apply where the infringement resulted from the inclusion of materials or specifications provided by Client or to the extent Client’s modification of the Work Product causes or gives rise to the infringement claim. THE FOREGOING PROVISIONS OF THIS SECTION 11(b) STATE THE ENTIRE LIABILITY AND OBLIGATION OF ARCUITY, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE ARCUITY MATERIALS OR WORK PRODUCT, AND CLIENT HEREBY EXPRESSLY WAIVES ANY OTHER SUCH LIABILITIES OR REMEDIES. (c) Defense of Infringement Actions by Client. Client, at its expense, shall defend, indemnify and hold Arcuity harmless from any claim, suit or action brought against Arcuity based upon an assertion that the Work Product infringes the valid Intellectual Property rights of any third party; provided, however, that this Section 11(c) shall only apply to the extent any such claims, suits or actions are due solely to the inclusion of materials or specifications provided by Client. Notwithstanding anything to the contrary in Section 11(c), as a condition precedent to such defense Arcuity must: (i) notify Client in writing of all available details of any such claim within thirty (30) days of becoming aware of the claim; and (ii) allow Client the right to control the defense and any related settlement negotiations (with reasonable cooperation from Arcuity at Client’s expense). (iii) Arcuity acknowledges it is not permitted any rights in respect of the Work Product, including any right to use or grant others the right to use the Work Product. This Section 11(c) shall not apply with respect to misuse by Arcuity of the Work Product. THE FOREGOING PROVISIONS OF THIS SECTION 11(c) STATE THE ENTIRE LIABILITY AND OBLIGATION OF CLIENT, AND THE EXCLUSIVE REMEDY OF ARCUITY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE DELIVERABLES, AND Arcuity HEREBY EXPRESSLY WAIVES ANY OTHER SUCH LIABILITIES OR REMEDIES.

12. Third Party Infringement.

(a) Arcuity reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of the Arcuity Materials or Arcuity’s rights therein or thereto. Client shall promptly notify Arcuity of any infringement or misappropriation of the Arcuity Materials or Arcuity’s rights therein or thereto of which Client becomes aware. (b) Client reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of the Work Product or Client’s rights therein or thereto. Arcuity shall promptly notify Client of any infringement or misappropriation of the Work Product or Client’s rights therein or thereto of which Arcuity becomes aware

13. Limitation of Liability.

(a) General Limitations. EXCEPT FOR CLIENT’S MISUSE OF ARCUITY MATERIALS OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS RESULTING FROM THE USE OR INABILITY TO USE THE DELIVERABLES OR SERVICES, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. (b) Cap on Liability. EXCEPT FOR CLIENT’S MISUSE OF ARCUITY MATERIALS OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED IN THE AGGREGATE THE TOTAL FEES PAID TO ARCUITY UNDER THE STATEMENT OF WORK THAT IS THE SUBJECT OF THE CLAIM.

14. Non-Solicitation.

During the term of this Agreement and for a period of one year thereafter, neither party will directly or indirectly solicit for employment, employ, consult with, or otherwise retain the services of any of the employees of the other with whom they have been introduced or otherwise had contact with as a result of the Services provided by Arcuity. Provided however, that the parties will not be restricted from making any general solicitations for employment through the use of media advertisements or through the use of third-party recruiters that are not specifically directed to target such employees.

15. Insurance.

Arcuity agrees to carry full insurance coverage for the Services and all activities reasonably connected with this Agreement, in the types and at the minimum annual amounts listed on the attached Schedule A.

16. General.

(a) Freedom of Action. This Agreement shall not be construed in any way to limit Arcuity’s right to grant others any right or license to use the Arcuity Materials. Except as may otherwise be specifically provided in this Agreement, this Agreement alone establishes the rights, duties, and obligations of Client and Arcuity with respect to its subject matter. (b) Assignment. Except as set forth in this Agreement, neither party may assign this Agreement or any interest in this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; except the Agreement may be assigned by either Arcuity or Client in connection with a sale of all or substantially all of its assets or stock or a merger, reconsolidation, or similar transaction. (c) Notices. All required notices and communications shall be in writing, in English, and shall be sent by registered mail or overnight courier, return receipt requested, or by electronic mail, to the parties at their addresses indicated above, addressed to the person who signed this Agreement on behalf of such party, or to such address and person as may be designated by such party in writing. Any such communications shall be deemed duly given five days after mailing if given by registered mail, two days after mailing if given by a reputable overnight courier, and when received (with verification of transmission sent properly to the recipient along with a hard copy of the communication sent by overnight courier) if given by electronic mail. (d) Force Majeure. Except for each parties’ infringement indemnification obligations under 11(b) and 11(c), neither party hereto shall be liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by: fire, flood, earthquake or other such catastrophes; wars (declared or undeclared), terrorist attacks, rebellions or revolutions; riots or civil disorder. (e) Amendment. This Agreement may not be amended or modified except by a written document executed by the authorized representatives of both parties. (f) Waiver. A party’s waiver of the other party’s non-compliance with any provision of this Agreement shall not constitute a waiver of any prior or subsequent non-compliance by the other party of that provision or a non-compliance by the other party of any other provisions of this Agreement. A party’s single or partial exercise of any right, remedy, privilege, or power provided for under or pursuant to this Agreement by either party shall not preclude or limit such party from any other or further exercise thereof or from pursuing any other right, remedy, privilege, or power available pursuant to this Agreement, at law or in equity. (g) Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary to render this Agreement legal, valid and enforceable. If any term of this Agreement, or any part thereof, not essential to the commercial purpose of this Agreement shall be held illegal, invalid or unenforceable under applicable law, it is the intention of the parties that the remaining terms hereof, or part thereof, shall constitute their agreement with respect to the subject matter hereof, and all such remaining terms, or parts thereof, shall remain in full force and effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision which will implement the commercial purpose of the illegal, invalid or unenforceable provision. (h) Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of Georgia, without giving effect to its conflict of law rules. (i) Independent Contractor. The parties acknowledge that the relationship of Arcuity and Client is that of independent contractors and that nothing contained in this Agreement shall be construed to place the parties in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party shall have, expressly or by implication, or represent itself as having any authority to make contracts or enter into any agreement in the name of the other party, or to obligate or bind the other party in any manner whatsoever. (j) Burdens and Benefits. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successor and permitted assigns. Each party accepts responsibility for ensuring that all of its employees, agents, contractors and other personnel comply with the obligations of such party under this Agreement as if such parties were directly bound by such obligations under this Agreement. (k) Captions, Sections, Articles and Schedules. The captions and headings in this Agreement are for convenience of reference only and shall not be referred to in the construction or interpretation of this Agreement. Any reference in this Agreement to an “Exhibit” or “Section” shall refer, respectively, to exhibits or sections in this Agreement. The terms of all SOWs are by this reference incorporated into this Agreement. (l) Interpretation. All parties hereto have participated substantially in the negotiation and drafting of this Agreement and each party hereby disclaims any defense or assertion that any ambiguity herein should be construed against the drafter of the Agreement. (m) Entire Agreement. This Agreement and the SOWs constitute the sole and exclusive agreement between the parties with respect to the subject matter hereof and supersede and cancel any and all prior or contemporaneous agreements or contracts, whether written or oral in relation thereto. (n) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. (o) Cooperation. Upon request of Client, Arcuity shall utilize any internal resources designated by Client to assist with the development services to be performed hereunder. (p) No Third-Party Beneficiaries or Parent Liability. This Agreement has been entered into solely between Client and Arcuity, and no third-party beneficiaries are created hereby. All duties, liabilities and obligations undertaken by Arcuity are undertaken exclusively by Arcuity and not by its parent company or any affiliates thereof. Any recourse resulting from this Agreement is likewise limited to Arcuity and not its parent or affiliated company (ies).

Acceptance

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives as of the Effective Date.

Client: [CLIENT LEGAL NAME]			Consultant: Arcuity, a division of Abel Solutions, LLC

By:			By:
Name:			Name:
Title:			Title:
Date:			Date: