Roble Terms and Conditions

1.     SAAS Rights, obligations and limitations.

1.1.          Provision of Services and Platform. Subject to the provisions of this Agreement, Roble will make available to Customer and its end users on a limited-term, non-exclusive and non-transferable basis the Subscription Services and Platform in accordance with the applicable Subscription Order and other terms of this Agreement. Roble will furnish all equipment, computer programs, personnel, resources and services necessary for furnishing the Subscription Services and Platform, except as expressly provided otherwise in this Agreement. Roble will comply while on-site at the Building with Customer’s on-site safety policies and procedures provided to Roble in writing in advance by Customer. The Subscription Services, Onboarding, Support Services and any Additional Services are collectively referred to as the “Services.”

1.1.1.      Subscription Services. Roble offers the following subscription based services for each Building: utility bill upload, consolidation, analysis, management, storage, and anomaly detection; benchmarking against other buildings in Customer’s portfolio on the Platform and databases to comparable buildings; integration with and uploading of utility bill data and other information from ENERGY STAR Portfolio Manager for historical performance tracking; and portfolio data aggregation, visualization, and analytics in the case that Customer has multiple Buildings on the Platform (the “Subscription Services”). The exact Subscription Services to be provided to Customer under this Agreement shall be detailed in the Subscription Order(s).

1.1.2.      Platform. Roble offers a proprietary cloud-based, online platform (including data, databases, software applications, interfaces, scripts, portals, libraries, tools, code, processes, devices, equipment, routers and telecommunications services and other technology) designed to provide energy consumption and carbon emissions monitoring, analysis and reporting; identification, evaluation, and implementation of building optimization retrofit projects; and access to as-a-service retrofit project financing (the “Platform”). The Platform currently includes (a) Carbon Emissions Manager – utility bill consolidation and analysis, performance benchmarking, and ESG reporting; planned future releases include, (b) Retrofit Analytics Tool – public and private data aggregation, building performance baseline and trend analysis, energy efficiency simulation, project financial modeling, and data visualizations, and (c) Sustainable as-a-Service Financing – financial products for building retrofit projects.

1.1.3.      Limitation on Scope of Services. Roble’s Services related to the Building Information and Energy Data are limited solely to collecting and incorporating the Building Information and Energy Data into the Platform to allow Roble to provide the Services. Any use and/or analysis does not include an evaluation of the adequacy or constructability of the Building Information. Roble is not a licensed architect or engineer nor a general contractor, and will not be responsible for any errors or design defects in the Building Information. Customer remains responsible for all design fees due to any design professional or engineer retained during the preparation of the Building Information. Roble will not administer the Building Information or Energy Data on behalf of the Customer. Roble will not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the maintenance of the Building. Roble will not be responsible for any failure or delaying in installing or maintaining any Building equipment, materials or systems in accordance with the Building Information, Energy Data, third party manufacturer’s specifications or Customer’s policies and procedures.

1.2.          Access and Use Rights. Subject to the terms of this Agreement and in accordance with the Subscription Order(s) and all applicable laws and regulations, Roble hereby grants to Customer the non-transferable, non-exclusive, nonsublicensable, limited right (i) to use and access the Subscription Services and Platform; (ii) to view or generate carbon emissions calculations for the management of the Building and Customer’s internal business use; and (ii) to export data in .csv or other Roble approved data format via a Roble-approved data feed to Customer’s own database at its own expense; provided that Customer’s interface, export and processing of such data does not materially impede or impair the operation and functionality of the Subscription Services or the Platform, as determined in Roble’s sole discretion. Such use and access are provided to Customer and its authorized users only with respect to the Building(s) specified in the Subscription Order and only during the Term.

1.3.          Customer Responsible for Authorized Users & User IDs. Roble will assign each of Customer’s authorized users with a User ID to authenticate and verify the authorized user’s right to access and use the Subscription Services via the Platform. Customer will be responsible for ensuring the security and confidentiality of all User IDs and authorized user’s compliance with the terms of this Agreement. Customer acknowledges that it will be fully responsible for all liabilities incurred through use of any User ID (whether lawful or unlawful) and that any transactions completed under a User ID will be deemed to have been lawfully completed by Customer. Customer will contact Roble in writing if any designated authorized user is no longer employed or engaged by Customer, including the information needed to designate a new authorized user and to issue a new User ID.

1.4.          Excluded Equipment. Customer shall be responsible for obtaining, maintaining, and providing adequate security measures for any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Services and Platform, including, without limitation, internet, modems, hardware, servers, software, operating systems, networking, web servers and the like.

1.5.          Subscription Orders. The initial Subscription Order is attached hereto as Exhibit A (Subscription Order) and includes all attachments thereto. The Subscription Order details the Subscription Services provided, the location and address of each building owned or managed by Customer in which the Subscription Services will be provided (each a “Building”), the contract start and end date (the difference between the start and end date being the “Initial Term”), the fees due to Roble and the billing frequency.

1.6.          Limitations on Use. Except as otherwise provided in this Agreement, Customer will not: (i) sell, rent, lease, sublicense or otherwise transfer or distribute the Platform or any copies thereof; (ii) modify, translate, reverse engineer, decompile or disassemble the Platform; (iii) create or prepare derivative works based upon the Platform; (iv) create any copy of or “mirror” the Platform; or (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Platform. Further, Customer may not remove or export from the United States or allow the export or re-export of the Subscription Services, Platform or anything related thereto, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

2.     Ancillary Services.

2.1.          Onboarding Services. Roble will provide the following onboarding services unless modified in the applicable Subscription Order (“Onboarding”).

2.1.1.      Subscription Services Onboarding. Roble’s onboarding of the Subscription Services includes: (a) collection of information related to building design, utilization and operations (“Building Information”); (b) integration of Building systems data and utility provider accounts with the Platform; (c) mapping of collected data into the Platform; (d) provisioning of access to the Platform Customer and its authorized users; (e) creation of building performance baseline; and (f) preliminary measuring and graphical outputs for carbon emissions for properties onboarded to the Platform.

2.1.2.      Carbon Emissions Onboarding. Roble will meet with Customer to collect information related to the Building’s utilities, including account login information, and ESG reporting practices; Roble will integrate with the Building’s utility providers’ web-based portals and map collected data to the Platform to facilitate automated bill collection; and Roble will integrate the Platform with ENERGY STAR Portfolio Manager to facilitate data upload and performance tracking.

2.1.3.      Other Onboarding. For each Building, Roble will test the operation of the Platform, the collection and mapping of the Energy Data into the Platform, and the functionality and features of the Subscription Services. Upon Roble’s completion of testing, the Subscription Services via the Platform will be made available to Customer and its authorized users. Roble will use commercially reasonable efforts to implement the Onboarding in a timely manner, which performance is dependent upon Customer’s timely delivery of any requirements (including without limitation Building Information).

2.2.          Support Services. During Roble’s standard business hours, which are subject to change from time to time, the following support services will be available to Customer: user interface features and functionality support; infrastructure support services for the Platform, including monitoring, backups, server maintenance, and patching for the applications, databases, and operating systems; and non-critical support services via e-mail at support@roble.eco (the “Support Services”).

2.3.          Additional Services. Customer may elect from time-to-time to obtain from Roble services that are in addition to the Support Services and Platform provided hereunder including, additional onboarding services (including Platform design, implementation and reconfiguration) performed after initial Onboarding, customized user training, specialized support, integration, enhancements, and any material changes requested by Customer to existing Platform features or Subscription Services after initial implementation (“Additional Services”). Any such Additional Services shall be performed by Roble as specified and at the cost specified in the Subscription Order or other documentation setting out a description of the Additional Services and the fees and expenses related thereto. Customer agrees to pay Roble for all such Additional Services (and related expenses), which have been authorized under this Agreement or otherwise agreed upon in writing by Customer and agrees that any such Additional Services shall be subject to the terms and conditions of this Agreement.

3.     FEES.

3.1.          Subscription Services & Platform Fees. Customer will pay to Roble the charges set forth in the applicable Subscription Order for the provision and use of the Subscription Services and Platform, and initial Onboarding (the “SaaS Charges”), subject to the other provisions of this Agreement.

3.2.          Fees for Additional Services. Customer will pay to Roble the charges for any Additional Services, if any, as set forth in the applicable Subscription Order or other documentation relating to such Additional Services (the “Additional Charges”), subject to the other provisions of this Agreement.  

3.3.          Payment of Fees. All amounts payable by Customer under this Agreement (“Charges”) are due and payable at the billing frequency stated in the Subscription Order and within thirty (30) days of Customer’s receipt of the applicable invoice. If a Charge is not paid within ten (10) days after Customer’s receipt of a notice from Roble of a past due Charge, a late payment fee of one percent (1.0%) of the balance due or the maximum amount permitted by law, whichever is lower, will be due and payable by Customer to Roble for each month such invoice remains unpaid, in addition to any expenses of collection including attorneys’ fees, and may result in immediate termination of the Services.

3.4.          Reimbursement of Expenses. Customer will reimburse Roble for any reasonable out-of-pocket expenses which are approved in advance by Customer.

3.5.          Taxes. Except for taxes based upon Roble’s income in connection with providing the Services under this Agreement, Customer will be responsible for all sales, use, excise, duties, tariffs, or any other form of taxes (excluding withholding taxes related to Roble, its employees, agents or subcontractors) resulting from Customer’s use of the Platform or imposed, levied or assessed in connection with Customer’s use of the Subscription Services and Platform.

4.     OWNERSHIP.

4.1.          Roble Ownership Rights. The Parties acknowledge and agree that all right, title and interest in and ownership of the Platform and Roble’s Confidential Information, including all Roble Technology are and will remain vested in Roble at all times and for all purposes (subject to any limited rights of access and use set forth in this Agreement). Customer acknowledges and agrees that the Platform, derivatives thereof, ideas, methods of operation, modifications, changes, enhancements, conversions, upgrades, additions, sub-systems and modules included in the Platform are proprietary material which contain valuable trade secrets of Roble. Customer will not take any action to challenge, contest or other action inconsistent with Roble’s rights in and to the Roble Technology. If Customer is deemed to have any ownership interest in Roble’s Confidential Information or the Roble Technology, including any and all derivative works, enhancements, or other modifications thereto, then Customer will assign, and hereby does assign, irrevocably and royalty-free, all of such ownership interest or other rights exclusively to Roble and Customer will, at Roble’s reasonable request and expense, complete, execute, and deliver any and all documents necessary to effect or perfect such assignments.

For purposes of this Agreement, the term “Roble Technology” includes Roble’s proprietary inventions, works of authorship, materials, trade secrets, information and technology, and all intellectual property rights relating thereto, including without limitations, copyrights, hardware designs, algorithms, software, software and application programming interfaces, code, scripts, libraries, tools, configurations, GUI, and user-interface designs, architecture, documentation (both printed and electronic), network designs, know-how, trademarks, patents, copyrights, trade names, trade dress, methodologies, processes, works of authorship, trade secrets, confidential information, and any related intellectual property rights throughout the world (whether owned by Roble or licensed to Roble from a third party), used in the Services or incorporated into the Platform, or the Subscription Services, or any other reports, documentation or materials provided by Roble or generated from Customer’s or its authorized user’s access and use of the Platform, and any derivatives, improvements, enhancements, feedback, suggestions or extensions related to any of the foregoing, conceived, reduced to practice, or developed whether alone or jointly with others by Roble. The Roble Technology further includes all technology (including software, interfaces, configurations, code and scripts) that Roble developed prior to the rendering of the Services or in connection with its performance of similar services under other customer engagements.

4.2.          Customer Ownership Rights. Roble acknowledges and agrees that, as between the Parties, Customer exclusively owns all right, title, and interest in and to Customer’s Confidential Information, Building Information, and Energy Data, including all intellectual property rights therein, irrespective of whether such information is stored or processed through or in the Subscription Services or Platform. Customer hereby grants Roble a non-exclusive, worldwide, transferable, perpetual, royalty-free, fully paid, irrevocable license to copy, distribute, modify, host, translate, use and create derivative works of the Building Information and Building-specific performance and energy consumption data collected and processed from the Building’s BAS and equipment and from the Building’s utility providers (“Energy Data”) for the purposes set forth in this Agreement and in the performance of Services, including marketing, case studies, and aggregated data analysis on an anonymized basis, for its customers and in its business (including refining its technology and Platform) without accounting or royalty to Customer. Customer represents that it owns or has sufficient rights in and to the Building Information and Energy Data to grant the rights to Roble as set forth in this Agreement.

4.3.          Blind Data. The Parties acknowledge and agree that Roble will have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, analyze and commercially exploit any de-identified or aggregated data or any non-personally identifiable data or information that is not readily identifiable to the Building, the Customer or any particular individual (“Blind Data”) resulting from Customer’s and its authorized user’s use of the Services or otherwise generated from the collection, processing and/or use of the information provided by Customer. To the extent that any Blind Data is collected by Roble, such Blind Data will be solely owned by Roble and may be used by Roble for any lawful business purpose without a duty of accounting or royalty to Customer; provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data.

5.     Term and Termination.

5.1.          Term. This Agreement shall commence on the Effective Date and continue for the Initial Term set out in the Subscription Order, unless terminated earlier as provided below. Thereafter, this Agreement will automatically renew for additional one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party is notified of the other Party’s intent not to renew this Agreement in writing at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. Within ninety (90) days of the expiration of the then current Term, Roble will notify Customer of the upcoming expiration and of any proposed changes (including without limitation, changes in the amount of the fees) for the Renewal Term.

5.2.          Termination. This Agreement may be terminated by either Party by providing written notice to the other Party (i) in the event of a material breach of this Agreement by the other Party, which breach remains uncured for a period of thirty (30) days after the receipt of written notice thereof or that is not capable of being cured and (ii) immediately in the event the other Party makes an assignment for the benefit of creditors, commences or has commenced against it, proceedings under any bankruptcy law, or ceases to do business.

5.3.          Effect of Termination. Except as expressly set forth otherwise in this Agreement, upon termination of this Agreement: (i) the access and rights granted hereunder will be terminated and Customer will immediately cease using the Platform and Roble’s Confidential Information, (ii) the Platform (and associated Services) will cease to be accessible to Customer or to its users, (iii) upon the other Party’s written request, each Party will immediately return or destroy all Confidential Information of the other Party, and (iv) Customer will pay all accrued and outstanding Charges within thirty (30) days.

6.     CONFIDENTIAL INFORMATION.

6.1.          Definition. The term “Confidential Information” means all trade secrets and non-public data and information, which is marked or otherwise designated as “confidential” by the disclosing Party or which is learned by observation or inspection or that is of the type or nature that a reasonable, prudent person would consider to be “confidential”. Confidential Information also includes all Roble Technology, and any confidential or proprietary information of a third party in the possession or control of the disclosing Party that may be disclosed to the receiving Party. Confidential Information does not include any information that (a) is or becomes generally available to the public through no improper action or inaction by the receiving Party, (b) becomes known from a source other than the disclosing Party without breach of this Agreement and otherwise not in violation of disclosing Party’s rights, (c) was independently developed by either Party without the benefit of the information received from the other Party, or (d) was disclosed under legal process or other legal requirement provided that the receiving Party provides prompt, advance written notice thereof to enable the disclosing Party to seek a protective order or otherwise prevent such disclosure, and further provided that the receiving Party only discloses only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose.

6.2.          General. During the Term of this Agreement and thereafter, each Party will treat as confidential all Confidential Information of the other Party, will not use or copy such Confidential Information except in the performance of the Services or as otherwise provided under this Agreement or authorized in writing, and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Each of the Parties will use at least the same level of care which it uses to prevent the disclosure of its own Confidential Information, but in no event less than reasonable care.

6.3.          Remedies. If either Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other Party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest. The non-breaching Party will be entitled to recover its costs and expenses, including reasonable attorneys’ fees, in enforcing its rights under this Agreement.

6.4.          Return. Upon the disclosing Party’s written request, the receiving Party will promptly return or destroy all copies of the disclosing Party’s Confidential Information.

7.     TRADEMARK USAGE. Each Party grants to the other Party a limited, non-exclusive, nontransferable, royalty-free license during the Term to use such Party’s Marks, in connection with the Platform and Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of either Party (the “Customer Marks” and the “Roble Marks,” respectively, and generally, the “Marks”). Notwithstanding anything to the contrary herein, the Customer Marks and all goodwill related thereto will remain the property of Customer, and the Roble Marks and all goodwill related thereto will remain the property of Roble. All uses of a Party’s Marks by the other Party will be in the form and format specified or approved by the other Party. Neither Party will use the other Party’s Marks without the prior, express, written consent of the other Party.

8.     PUBLICITY. The Parties agree to conduct mutual public relations efforts to promote the Roble Platform and the Parties’ relationship governed by this Agreement (e.g., blog and social media posts, case studies, etc.). Notwithstanding the foregoing, no Party will issue a press release, public announcement, public disclosure or otherwise refer to the other Party in any manner with respect to this Agreement or otherwise, without the prior written consent of the other Party.

9.     WARRANTY AND DISCLAIMER. Roble shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Roble or by third party providers, or because of other causes beyond Roble’s reasonable control, but Roble shall use reasonable efforts to provide advance notice of any scheduled Service disruption. ROBLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ROBLE DISCLAIMS ALL WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AS TO SATSIFACTORY QUALITY, MERCHANTABILITY ACCURACY OF RESULTS, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

10.  INDEMNITY

10.1.       Indemnification of Customer. Roble will defend, indemnify and hold Customer and its successors, parents, subsidiaries, affiliates, officers, directors, employees, users, and attorneys harmless from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys’ fees court costs, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties) (collectively, “Losses”) arising out of or relating to any third party claims, demands, or proceedings (a “Claim”) asserting that the Platform, Services, or the use thereof (as permitted under this Agreement) infringes or misappropriates any third party’s patent, copyright, trade secret or other intellectual property; provided that Roble is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Roble will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components (a) not supplied by Roble, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Roble, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Roble to be infringing, Roble may, at its option and expense (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for a license to continue the Services without infringement, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.

10.2.       Indemnification of Roble. Customer hereby agrees to indemnify and hold harmless Roble and its successors, parents, subsidiaries, affiliates, officers, directors, employees, and attorney against any Losses in connection with any Claim that arises from Customer’s violation of this Agreement or use of the Services.

11.  LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ROBLE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ROBLE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ROBLE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.  Miscellaneous.

12.1.       Independent Contractor; Non-Exclusivity. It is the express intention of the Parties that they are performing their respective obligations under this Agreement as independent contractors. Nothing in this Agreement shall in any way be construed to constitute either Party as an agent, employee or representative of the other Party. Roble’s personnel, whether employees, independent contractors or subcontractors, performing Services will at all times be under Roble’s exclusive direction and control and will not be deemed employees of Customer. Without limiting the generality of the foregoing, neither Party is authorized to bind the other Party to any liability or obligation or to represent that such Party has any such authority. Nothing in this Agreement will restrict or limit Roble from performing services similar in nature to the Services for any other person or entity in any industry both during and after the Term.

12.2.       Entire Agreement. This Agreement together with the exhibits constitutes the entire agreement between Roble and Customer with respect to the subject matter of this Agreement, and supersedes all prior written and oral agreements between the Parties regarding the subject matter hereof.  

12.3.       Amendment/Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.4.       Assignment. This Agreement will be binding on the Parties hereto and their respective successors and assigns. Neither Party may, sell, assign or delegate any rights or obligations under this Agreement without the other Party’s prior written consent; provided that either Party may freely assign this Agreement to one of its affiliates or to a successor-interest in the event of a merger, acquisition or sale of all or substantially all of such Party’s equity, business or assets. Any purported assignment in contravention of the foregoing will be null and void.

12.5.       Notices. Except as provided in any express provision of this Agreement, any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to this Agreement will be in writing (e-mail communications are permitted) sent to the address set forth in the signature blocks below and will be deemed given upon actual delivery, if delivery is by hand or by email, or one (1) day after being sent by overnight courier. A Party may from time to time change its address or designee for notification purposes by giving the other Party prior written notice of the new address or designee as provided in this Section.

12.6.       Dispute Resolution. This Agreement is governed by and construed in all respects in accordance with the laws of the State of Texas (without regard to conflicts of laws principles).Any claim arising out of or relating to this Agreement shall be brought only in the U.S. District Court for the Western District of Texas  or, if such court would not have jurisdiction over the matter, then only in the State courts located in Travis County, Texas, and each of the Parties hereto irrevocably submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The prevailing Party in any action shall be entitled to an award of reasonable costs and expenses, including reasonable attorneys’ fees. 

12.7.       Cumulative Remedies. Except as otherwise expressly provided herein, all rights and remedies of the Parties are separate and cumulative. The waiver or failure of either Party to exercise in any respect any right or remedy provided herein will not be deemed a waiver of any further right or remedy hereunder.

12.8.       Headings. Headings are used for reference only and shall not be considered when interpreting this Agreement.

12.9.       No Third Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the Parties and their respective successors and permitted assigns.

12.10.    Severability. If any provision of this Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement will otherwise remain in full force and effect.

12.11.    Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, communications failure or degradation, ordinary course mechanical or electrical degradation and/or failure, material changes in law, war, terrorism, riot, or acts of God.