Additional Terms for the AST NetSuite Services Agreement

Client (as defined in the AST NetSuite Services Agreement) agrees that by signing the AST NetSuite Services Agreement these additional terms (“Additional Terms”) shall be incorporated into and made a part of the AST NetSuite Services Agreement (hereinafter, the Additional Terms and the AST NetSuite Services Agreement shall be collectively referred to as the “Agreement”).  Each of AST and Client shall be referred to as a “Party” and both of whom shall be referred to as the “Parties,” as appropriate.  In consideration of the covenants and obligations set forth in the Agreement, the Parties therefore agree as follows:

1       SERVICES

1.1 The Client retains AST, and AST shall provide, subject to the terms and conditions of the Agreement, the services (the “Services”) set forth in the AST NetSuite Services Agreement, executed by the Parties.

1.2 Changes to the scope of work. From time to time during AST’s performance of Services pursuant to the Agreement, Client may request AST to implement a change to the scope, schedule or Deliverables (as defined below) set forth in the AST NetSuite Services Agreement, or Client may request that AST perform a service that is outside the scope of the Services defined in the AST NetSuite Services Agreement.  Alternatively, a change may become necessary as a result of a change in the assumptions set forth in the AST NetSuite Services Agreement, an unanticipated event that affects Client’s needs or requirements, or a Force Majeure Event (as defined below).  Upon the occurrence of any of these events, AST will provide Client with a proposed change order describing the resulting changes to the project objectives, scope, approach and Deliverables and the impact upon the project activities, schedule, professional fees, out-of-pocket expenses and staffing, including any revised risks and/or assumptions or dependencies.  If the Parties agree to the change order (“Change Order”), each Party shall indicate its acceptance by signing it in the appropriate space provided.  Upon its execution by both Parties, the Change Order will become a part of the Agreement for all purposes.  If the Change Order is not fully executed by both Parties, neither Party shall have any obligation in respect thereof and AST shall continue performing the Services as set forth in the AST NetSuite Services Agreement.

1.3    Suspension.       Client may suspend performance of the Services by providing AST ten (10) days’ prior written notice.  Upon receiving a suspension notice, AST shall cease performing the Services in accordance with the notice. Within thirty (30) days of the date of the suspension notice, Client shall direct AST to immediately resume the performance of the suspended Services, and AST shall be entitled to an equitable adjustment of the fees and schedule/timeline under the AST NetSuite Services Agreement pursuant to a Change Order.  If Client does not so direct AST within such 30-day period, AST shall have the right to re-deploy the personnel who were performing the suspended Services, notwithstanding anything in the Agreement to the contrary and with no liability to AST.  If Client subsequently requests that AST resume performance of the Services, AST shall use commercially reasonable efforts to recall the same personnel and, if such personnel are not available, AST shall provide personnel of at least comparable skill and experience to resume performance of the Services.  Notwithstanding the foregoing, if Client has not directed AST to resume performance of the suspended Services within ninety (90) days of the date of the suspension notice, AST may terminate the Agreement for convenience upon notice to Client and Client shall promptly pay AST for all Services performed and reimbursable expenses incurred by AST to the date of suspension.  Nothing in this Section allows Client to withhold or delay any payment for Services performed prior to suspension.  AST reserves the right to suspend some or all of the Services if Client fails to make timely payment of its undisputed invoices upon thirty (30) days’ prior written notice (email is sufficient) to the Client.  If Client fails to make payment of the outstanding and undisputed invoices within thirty (30) days of receipt of such notice, AST shall have the right to re-deploy the personnel who were performing the suspended Services, notwithstanding anything in the Agreement to the contrary and with no liability to AST.

2       COMPENSATION

2.1  Pricing and Payment.  The AST shall invoice and the Client shall pay in full the fees to AST as set forth in the AST NetSuite Services Agreement. The Client shall pay the invoiced amounts via Automated Clearing House (“ACH”) within thirty (30) calendar days of receipt of the invoice.  Any invoices not paid within thirty (30) days of receipt shall bear compound interest at the rate of one and one-half percent (1 ½) per month or the maximum rate permitted under applicable law, whichever is less.

2.2  Client shall reimburse AST, at cost, for out-of-pocket travel expenses, per diem, mileage, and lodging expenses incurred by AST personnel in the performance of the Services as agreed in the AST NetSuite Services Agreement.

2.3  Taxes. The Client shall pay all taxes levied against or upon the Services provided hereunder or arising out of the Agreement, exclusive of taxes based on AST’s income, employment related or payroll taxes, including but not limited to FICA and FUTA, applicable state employment related taxes and other employment related expenses, which shall be paid by AST.

2.4  Disputed Invoices. If Client disputes any invoice it shall timely pay the undisputed portion and promptly notify AST in writing of the nature of the dispute as to the remainder, and the Parties will use commercially reasonable efforts to resolve the dispute expeditiously pursuant to Section 12.6 of these Additional Terms.  In the event the dispute is not resolved within the time period set forth in Section 12.6, AST may suspend performance, without limitation or waiver of any other right or remedy available under the Agreement or at law.  Unless otherwise mutually agreed in writing, no partial payment by Client shall be deemed to be other than on account of the full amount otherwise due, nor shall any endorsement or statement on any check or in any communication regard or accompanying any payment be deemed an accord and satisfaction, and AST shall be entitled to accept such payment without compromise or prejudice to any of the rights of AST hereunder or under applicable law.

3      TERM AND TERMINATION

3.1  Termination for Convenience. Either Party may terminate the Agreement for convenience upon thirty (30) days’ written notice to the other Party. In each event, the Client agrees to pay AST for any Services performed up to the effective date of termination.

3.2  Termination for Cause. Either Party may terminate the Agreement at any time if (a) the other Party materially breaches any of its obligations under the Agreement and such breach (where remediable) has not been cured within thirty (30) days of written notice specifying the nature of the breach; or (b) any assignment is made of the other Party’s business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other party, or if a receiver or similar officer is appointed to take charge of all or part of the other party’s property, or if the other party is adjudicated a bankrupt.

3.3 Obligations on/Effect of Termination.

3.3.1  Upon termination of the Agreement for cause or for convenience, AST shall have no further obligation to provide any Services.

3.3.2  Upon notice of termination of the Agreement, AST shall terminate all subcontracts and settle all outstanding liabilities and termination settlement proposals arising from the termination of such subcontracts.

3.3.3  AST shall be entitled to compensation for the Services rendered up to and including the effective date of termination and reimbursement of the cost associated with termination of subcontracts. The Client shall cause payments to be made to AST within thirty (30) calendar days after receipt of AST’s invoice.

3.3.4  AST shall deliver to the Client, as directed by the Client, any: (i) completed or partially completed Deliverables; and (ii) any plans, working papers, forms and documentation for which the Client has paid the fees to AST.

3.3.5  In the event of termination, any software license fees and hosting services fee paid prior to the termination date shall be forfeited by the Client.

3.4  Survival. All provisions of the Agreement that by their nature reasonably should be deemed to survive, including without limitation all provisions relating to ownership and Intellectual Property Rights, warranties and disclaimers, payment and taxes, indemnification, confidentiality and data protection, remedies and limitations of liability, non-solicitation, compliance with law and dispute resolution, shall survive the termination for any reason.

4    CONFIDENTIAL INFORMATION

4.1  Definitions. As used herein, “Confidential Information” shall include all information, material and data of the disclosing Party (i) labeled or designated in writing as confidential or proprietary, (ii) which the receiving Party or its Representatives are advised is proprietary or confidential or (iii) which, in view of the nature of such information and/or the circumstances of its disclosure the receiving Party knows or reasonably should know is confidential or proprietary.  “Representatives” shall mean the officers, directors, employees and agents of a Party to this agreement, those of any Affiliates of a Party and those of any subcontractors of any such Party.  “Affiliate” shall mean an entity that directly or indirectly Controls, is Controlled by, or is under common Control with, a Party hereto, and “Control” shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of an entity whether by contract, ownership of shares, membership on the board of directors, agreement or otherwise. “Controlled” and “Controls” shall have corollary meaning.

4.2  Obligations with Respect to Confidentiality. During the term of the AST NetSuite Services Agreement and for a period of five (5) years thereafter, the receiving Party agrees that it shall not use for any purpose other than performance of Agreement , or disclose to anyone, other than its Representatives with a need to know, any Confidential Information disclosed to the receiving Party by the disclosing Party.

4.3  Actions with Respect to Representatives.  The receiving Party shall take such actions with its Representatives as are commercially reasonable to effectuate the intent of this Section 4, including but not limited to advising each permitted Representative to whom Confidential Information is disclosed of his/her obligations regarding confidentiality and non-use of such information.  With respect to Representatives who are not employees of the receiving Party, the receiving Party shall, prior to any disclosure of Confidential Information, require such Representatives to execute a written confidentiality agreement containing terms no less restrictive than those of this Section 4.  The receiving Party shall be fully responsible for any breach of this Section 4 by its Representatives.

4.4  Exclusions.  The confidentiality obligations herein shall not apply to any such information (i) which is or becomes publicly known without any fault of or participation by the receiving Party, (ii) was in receiving Party’s possession prior to the time it was received from disclosing Party or came into receiving Party’s possession thereafter, in each case lawfully obtained from a source other than disclosing Party and not subject to any obligation of confidentiality or restriction on use, (iii) is independently developed by the receiving Party by persons not having exposure to disclosing Party’s Confidential Information; or (iv) is required to be disclosed by judicial, arbitral or governmental order or operation of law, in which event the receiving Party shall, if permitted by law, notify the disclosing Party of the requirement of disclosure before making such disclosure and shall comply with any protective order or other limitation on disclosure obtained by the disclosing Party.  The receiving Party shall be permitted to use Confidential Information of the disclosing Party in connection with any legal proceeding arising out of or in connection with the Agreement, provided the receiving Party uses commercially reasonable efforts to disclose and/or file such Confidential Information under seal or to obtain a mutually agreed protective order governing the use and disclosure of such Confidential Information in the legal proceeding.  Disclosure of any Confidential Information pursuant the foregoing sentence or pursuant to subsection (iv) above shall not be deemed to render it non-confidential and receiving Party’s obligations with respect to such Confidential Information shall not be changed or lessened by virtue of any such disclosure.

4.5  Return or Destruction of Confidential Information.  The receiving Party agrees to return to the disclosing Party, or to securely destroy, any and all Confidential Information received pursuant to the Agreement, together with all copies that may have been made, promptly upon request of the disclosing Party or, if not requested earlier, upon completion of the Services.

4.6  Equitable Relief.  Each receiving Party acknowledges that use or disclosure of Confidential Information in violation of the Agreement will result in irreparable harm to the disclosing Party for which monetary damages would be an inadequate remedy, and agrees that the disclosing Party may seek injunctive or other equitable relief seeking to restrain such use or disclosure, without limitation or waiver of any other remedy available at law or in equity.

4.7  Ownership of Confidential Information.  Confidential Information shall remain the exclusive property of the disclosing Party and no patent, copyright, trademark or other proprietary right is licensed, granted or otherwise transferred by any disclosure of Confidential Information to the receiving Party, except as otherwise expressly set forth in the Agreement.

5      INTELLECTUAL PROPERTY RIGHTS

5. 1  Client’s Intellectual Property.

a.) AST acknowledges that ownership of and title in and to all the Client intellectual property that exists as of the Effective Date or that may be created by the Client thereafter (“Client IP”), and all intellectual property rights therein and in all derivative works based on the Client IP, including but not limited to patent, trademark, service mark, copyright, moral rights, trade dress, logo and trade secret rights (“Intellectual Property Rights”), will remain with the Client. The Client IP shall be considered Client Confidential Information and AST shall not use or disclose the Client IP for any purpose other than as explicitly set forth in the AST NetSuite Services Agreement.

b.) If identified in the AST NetSuite Services Agreement, AST shall supply to Client the items identified as deliverables in the applicable AST NetSuite Services Agreement (“Deliverables”) and Client shall own and have the Intellectual Property Rights in such Deliverables upon payment of AST ’s invoices associated with each such Deliverable and subject to the provisions of this Section.

5.2  AST’s Intellectual Property. Notwithstanding anything in Section 5.1 to the contrary, AST  will retain exclusive ownership of and all Intellectual Property Rights in all (i) AST’s know-how, concepts, techniques, methods, methodologies, ideas, templates, software, interfaces, utilities, productivity aids and tools (and any design, architecture and techniques of software development related thereto) that existed prior to the performance of Services, and all updates, modifications, improvements, enhancements and derivative works of the same created or developed by anyone during the course of performance of the Services, and (ii) ideas, concepts, techniques, know-how and incidental developments discovered, created or developed by AST during the performance of the Services that are of general application and that are not based on or derived from Client’s Confidential Information ((i) and (ii), collectively, “AST IP”).  The Contactor IP shall be considered AST Confidential Information and Client shall not use or disclose the AST IP for any purpose other than as explicitly set forth in the AST NetSuite Services Agreement.  To the extent the Deliverables incorporate AST IP, AST gives Client a non-exclusive, non-transferable (except to Client’s permitted assigns), perpetual, royalty-free right to use such AST’s IP for Client’s internal business purposes solely in connection with such Deliverables.  Nothing in the Agreement or any Order or Change Order will be construed to give Client any right to separate AST IP from the Deliverable into which it is incorporated, or to market or commercially exploit such AST IP on a standalone basis, or to otherwise assign, sublicense or grant any other party any rights to use, copy of otherwise exploit, or create derivative works from, AST IP.  Notwithstanding anything to the contrary contained the Agreement, AST reserves the right to provide Services similar to the Services provided to the Client hereunder to any third party, including without limitation any competitor of the Client, and to provide work product and deliverables similar in form and function to those provided to the Client hereunder, provided that any such Services, work product or deliverables provided to any third party do not violate the Client’s rights to Client IP or utilize or rely upon the Client’s Confidential Information.

6    INSURANCE

AST shall procure and maintain in effect during the Term of the Agreement the following insurance coverage:

Workers’ Compensation in statutorily required amounts and Employers Liability insurance with liability limits of not less than One Million Dollars ($1,000,000) per accident, One Million Dollars ($1,000,000) per employee, and One Million Dollars ($1,000,000) aggregate.

Commercial General Liability with limits of not less than One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) aggregate.

Comprehensive Automobile Liability including bodily injury and property damage in the amount of not less than a combined single limit of One Million Dollars ($1,000,000).

Technology Errors and Omissions in the aggregate amount of not less than Three Million Dollars ($3,000,000).

If requested, AST can provide Client with a certificate of insurance naming Client as an additional insured on the Commercial General Liability and Comprehensive Automobile Liability policies.

7   INDEMNIFICATION

7.1  AST shall indemnify, defend at its own expense, and hold harmless the Client, its agents, and employees from and against all third-party claims, actions, liabilities, losses, costs, including reasonable attorney’s fees, arising out of any actual or alleged bodily injury, sickness, disease or death, or injury to or destruction of tangible property including the loss of use resulting therefrom, to the extent caused by the intentional misconduct or negligence of AST in connection with the performance of the Agreement.

7.2  The Client shall defend, at its own expense, and indemnify and hold AST and AST’s affiliates harmless from and against any claims, actions, liabilities, losses, costs (including reasonable attorney’s fees), suits, damages, costs, or demands, arising out of or relating to any claim by a third party to the extent based on any intentional misconduct or negligent act or omission of Client.

8   ACCEPTANCE; WARRANTIES; CLIENT RESPONSIBILITIES

8.1  Acceptance. If applicable, testing criteria and procedures required for acceptance of the Services or Deliverables (“Acceptance”) will be jointly agreed by AST and Client and will be specified in the AST NetSuite Services Agreement.  If the AST NetSuite Services Agreement does not state any Acceptance criteria or procedures, then Acceptance of Services and/or Deliverables shall be based on Client’s use of the Services or Deliverables in the conduct of its business or Client’s failure to deliver written notice of non-conformance of such Services or Deliverables to AST  within thirty (30) days of performance of the Services or delivery of the Deliverables to Client ten (10) days in the case of interim Deliverables).

8.2  AST Warranty. AST warrants that it shall perform the Services in a professional manner that meets or exceeds the standards of the information technology consulting industry, and that upon delivery the Deliverables shall conform in all material respects to their specifications as set forth in the AST NetSuite Services Agreement.  In the event that the Services and/or Deliverables do not conform to this warranty, and provided that Client notifies AST in writing specifying the nature and extent of the non-conformity within thirty (30) days of the Acceptance of the Services or Deliverables claimed to be non-conforming, AST shall take the appropriate action pursuant to cure the non-conformity as promptly as possible, but in any event within such period as agreed upon by the Parties in writing.

8.3  Client’s Disclaimer. The warranties in the Agreement are the exclusive warranties of AST. AST HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTIES IMPLIED BY COURSE OF DEALING, USAGE OF THE TRADE OR OTHERWISE.

8.4  Client Assistance.  Client shall assist and cooperate with AST as reasonably necessary by making Client’s personnel available to AST for consultation, providing reasonable access to Client sites and providing other information and data required for the performance of the Services.  Client acknowledges that AST’s performance is dependent on Client’s performance of the responsibilities identified as being those of Client in the Agreement or Change Order and on timely decisions and approvals by Client.  AST shall be entitled to rely upon the accuracy and completeness of all information provided by, and upon the decisions and approvals of, Client in connection with the Services.  Client acknowledges that AST’s performance of the Agreement is dependent in part on Client’s actions and that any dates or time periods relevant to the performance by AST will be appropriately extended to account for any delays caused by the Client’s actions or omissions or failure to perform any of its obligations pursuant to the Agreement.

8.5  Client Network and Systems.  Client shall ensure that its network and systems comply with the relevant specifications for the software and hardware to be used, implemented or integrated in AST’s performance of the Services and Client shall at all times remain up to date with all applicable virus protections, patches, updates and security requirements as related to such network, systems, software and hardware.  Client shall be solely responsible for password and access protocols in respect of, and for the security of, its network, systems and telecommunications infrastructure as related to AST’s provision of the Services, and for all delays, delivery failures and other loss or damage arising from or relating to Client’s network connections, telecommunications links or vulnerabilities in its systems.  AST is not providing any hosting services pursuant to this Agreement and shall have no responsibility or liability for viruses, malware, ransomware or other malicious attacks on Client’s systems by third parties or for unauthorized alteration, theft or destruction of Client’s data, files or programs caused thereby.    

9    LIMITATION OF LIABILITY

9.1  Limitations. Subject to Section 9.2, (i) neither Party shall be liable for any indirect, incidental, special, punitive or consequential damages, including without limitation loss of reputation, goodwill,  profits (otherwise than in respect of any obligation to pay the fees due to AST), savings, revenue, business or data, however arising, whether in contract, tort (including negligence) or any other legal or equitable theory, even if it has been advised of the possibility of such damages; and (ii) the Parties’ liability shall not exceed, in the event of Client’s liability to AST, the fees and expenses due and owing to AST, and in the event of AST’s liability to Client, the fees and expenses actually paid by Client to AST under the Agreement.

9.2  Scope. The limitations set forth in Section 9.1 shall apply regardless of whether a claim or liability is in contract, tort (including negligence) or any other legal or equitable theory, and notwithstanding the failure of any limited remedy of its essential purpose.

9.3  Third Party Software. Client’s sole and exclusive remedy with respect to any alleged breach of a license or subscription agreement for, any warranty under a license or subscription agreement for, or the suitability, characteristics, functionality or performance of, or infringement of Intellectual Property Rights shall be in accordance with the terms of the license or subscription agreement or related agreements between Client and the third party software vendor and AST shall have no liability therefor.

10   NON-SOLICITATION

During the Term of the Agreement and for a period of one (1) year thereafter, neither Party shall solicit for employment, employ or engage, directly or indirectly, the services of any employee of the other Party who performed services on behalf of such other Party in connection with, or was otherwise involved in the procurement or performance of the Agreement or a Change Order, without the prior written consent of the other Party.  This provision shall not restrict general advertisements of employment or the rights of any employee of one Party, on that Party’s own initiative, or in response to general advertisements, to seek employment from the other Party and under such circumstances, for the other Party to hire such employee.

11    COMPLIANCE WITH LAW

11.1  General. Each Party shall act in strict accordance with all applicable laws, ordinances, regulations and other requirements of any and all governmental authorities, including without limitation all applicable anti-bribery, anti-corruption, export and data protection laws and regulations, in connection with its performance under the Agreement.  Without limiting the generality of the foregoing, Client shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Deliverables or any technical data (including processes and services) received from AST, without first obtaining any license required by the applicable government, including without limitation, the United States government acting under the authority of the Export Administration Act and implementing Export Administration Regulations, and/or any other applicable competent authority.  Client agrees that the Deliverables and any other results of services or products obtained from or through AST will not be sold or otherwise transferred to any US-embargoed destination or any entity subject to a US denial order or to any person, company or entity if Client knows or has reason to believe that they will re-exported, sold or transferred in violation of US or other applicable laws or regulations.  Client also certifies that the Deliverables and other results of services or products obtained from or through AST will not be sold or otherwise transferred to, or made available for any entity or end use that is engaged in the design, development, production, stockpiling or use of nuclear, biological or chemical weapons or missile technology, or for any entity with specific end use that is engaged in conventional weapons or any other military activities.

11.2  Personal Data. In relation to all Personal Data provided by or through Client to AST, AST shall be a data processor (or equivalent term), and Client shall be responsible as sole data controller (or similar term) for complying with all applicable privacy and data protection or similar laws that regulate the processing of Personal Data.  As used herein, “Personal Data” shall mean any information that can be used to identify, contact or locate a living individual, including, without limitation, first and last name, home or other physical address, telephone number, email address or online identifier associated with an individual, date of birth, Social Security number or other national identifying number, passport number, driver’s license number, user name, password, IP address or similar identifier, employment, financial or health information, or any other information relating to an individual that is combined with any of the foregoing.  By submitting Personal Data to AST, Client authorizes and agrees that AST and its Affiliates may process, transmit and/or store such Personal Data to the extent necessary for, and for the sole purpose of, enabling AST to perform its obligations under, and to administer, the Agreement.  Client shall ensure that it is entitled to transfer the Personal Data to AST so that AST may lawfully collect, use, process, disclose and transfer the Personal Data in accordance with the Agreement on Client’s behalf.  Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such collection, use, processing, disclosure and transfer as required by all applicable data protection legislation.  Client is solely responsible for determining that processing of Personal Data by AST under the  Agreement according to Client’s instructions will not place AST in breach of applicable data protection or privacy laws.  Each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of Personal Data or its accidental loss, destruction or damage.

12     MISCELLANEOUS PROVISIONS

12.1  Independent AST Status. AST is and shall remain an independent AST and is not an agent, employee, partner, fiduciary or joint venturer of the Client.

12.2  H1-B Employee Notice. In order to meet U.S. Department of Labor regulations (20 CFR 655.734), the Client shall allow AST to post a Notice regarding AST’s H-1B employee(s) at the work site prior to the employee’s arrival on site, and if required provide a letter confirming that AST’s H1-B employee is required for AST’s performance of the Services.

12.3   Force Majeure.  Notwithstanding anything herein to the contrary, the Parties hereto shall not be deemed in default with respect to the performance of, or compliance with, the terms, covenants, agreements, conditions, or provisions of the Agreement (except payment obligations), if the delay or failure to perform or comply shall be due to any strike, lockout, civil commotion, invasion, rebellion, hostilities, sabotage, acts of God, epidemic, pandemic or other cause beyond the control of the affected Party, including without limitation breach of the Agreement by the other Party.

12.4  No waiver of any right or remedy will be implied by failure to enforce such right or remedy and no express waiver will affect any rights or remedies other than that to which the waiver is applicable and only for that occurrence.  No provision of the Agreement shall be deemed waived unless such waiver is in writing and signed by an authorized representative of the waiving Party.

12.5  Publicity. AST may refer to Client as a Client of AST, both internally and in externally published media. Client grants to AST a worldwide, royalty-free, limited right to use Client’s company and brand name and/or logo in promotional materials within any  medium,  including press releases, presentations and Client references regarding the Agreement.  AST agrees to obtain Client’s prior written approval for publicity that contains claims, quotes, endorsements or attributions by Client, with such approval not to be unreasonably withheld.

12.6  Except in the event of breach of the confidentiality, non-solicitation or intellectual property provisions of the Agreement , in the event of any dispute arising out of or relating to the Agreement, the disputed matter shall be referred to the Parties’ respective executives responsible for administration of the Agreement for resolution.  In the event these executives fail to resolve the dispute within fifteen (15) days after the referral of the dispute to them, the Parties shall escalate the dispute to the Parties’ respective more senior designees for resolution.  If such designees are unable to resolve the dispute within fifteen (15) days of the referral of the dispute to them, or such longer period as agreed to in writing by the Parties, each party shall have the right to commence any legal proceeding as permitted by law.

12.7  Governing Law and Venue. The Agreement is made pursuant to, and shall be resolved in, governed by and construed in accordance with the laws of the State of Illinois without application of the choice of law principles thereof.  Jurisdiction and venue of any legal action arising out of or relating to the Agreement shall be exclusively found in a court of competent jurisdiction located in the County of DuPage, Illinois or the United States District Court for the Northern District of Illinois, as appropriate.  TO THE FULLEST EXTENT PERMITTED BY LAW, AST AND CLIENT WAIVE TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.

12.8  Notice. All notices in connection with the Agreement shall be deemed given: (i) five days after deposit in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (ii) one (1) business days after being sent by recognized overnight courier service or (iii) upon being sent via email (or the next business day, if send after the recipient’s business hours), in each case addressed to the designated person(s), who may be amended by either Party by giving written notice to the other Party pursuant to this Section.

12.9  No modification, waiver or amendment of any term or condition of the Agreement shall be effective unless and until it shall be in writing and executed by both Parties hereto or their legal representatives.

12.10  Neither Party may assign the Agreement or Change Order or assign or delegate any rights or obligations hereunder without the express written consent of the other Party, except that (a) a Party may assign the Agreement and such rights and obligations to a third party that has acquired all or substantially all of the business or assets of such Party related to the performance of the Agreement through a sale, merger, consolidation, reorganization or similar transaction; and (b) certain Services may be performed by subcontractors to AST, provided that AST shall have in place written agreements with such subcontractors sufficient to enable AST to comply with its obligations under the Agreement and shall remain responsible for the performance of such subcontractors AST hereunder,  Any attempted assignment in violation of this Section 12.10 shall be void.  The Agreement shall inure to the benefit of and be binding upon the Parties, their successors and permitted assigns.

12.11  In the event that any provision hereof shall be held to be illegal or void, such determination shall not affect the validity or legality of the remaining provisions of the Agreement, which shall continue in full force and effect unless the particular provision held to be illegal or void renders the balance of the Agreement impossible to perform.

12.12  Entirety. The Agreement, and Change Orders, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any prior agreements, negotiations, representations and promises, written or oral, between the Parties respecting such subject matter. No terms, provisions or conditions of any purchase order, acknowledgement or other business form, or of any electronic data interchange, internal or third party portal, or any other electronic means, that either Party may use in connection with the transactions contemplated by the Agreement shall have any effect on or shall otherwise modify the rights, duties or obligations of either Party under the Agreement, regardless of any failure of a receiving Party to object to such terms, provisions or conditions.  Each Party agrees that in entering into the Agreement and Change Order hereunder it does not rely on any statement, representation, warranty or understanding other than as expressly set out in the Agreement or Change Order.

12.13  No Third Party Beneficiaries. Except pursuant to the indemnity obligations expressly set forth in the AST NetSuite Services Agreement, the provisions of the Agreement are for the benefit of the Parties and not for any other person.

12.14  Execution in Counterparts. The Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.  The Parties agree that a faxed or scanned signature may substitute for and have the same legal effect as the original signature.