Higharc, Inc. Master Service Agreement

Higharc, Inc. Master Service Agreement

Subject to the terms of this Master Service Agreement, entered into between Higharc, Inc. (“Higharc”) and you (“you” or “Customer”), Higharc will use commercially reasonable efforts to provide you the Services (as defined herein).  

1. DEFINITIONS.

1.1. “Account” means an online account that Customer creates by registering with the Services using its secure authentication credentials.

1.2. “Authorized User” means an employee, consultant, agent, or contractor of Customer who has (i) been authorized by Customer to register to access and use the Services and (ii) been assigned authentication credentials, or access to the single sign-on feature to access and use the Services. Authorized User also includes any invitees that the foregoing invite to access and use the Services. For the avoidance of doubt, third party collaborators that the Authorized Users engage with via the Services shall not be deemed Authorized Users.

1.3. “Customer Agreement” means an ordering document that Customer and Higharc enter into from time to time and which specifies the details about the Services contracted for.

1.4. “Customer Agreement Term” has the meaning ascribed to the term in Section 12.2.

1.5. “Customer Data” means any Content that Customer or its Authorized Users transmit, provide, upload or otherwise make available to the Services, including all Output.

1.6. “Customer Marks” means Customer’s name, trademarks, and logos, which are used to identify Customer and its business.

1.7. “Content” means text, graphics, images, music, software, audio, video, designs, interactive features, works of authorship of any kind, data and information or other materials that are posted, generated, provided or otherwise made available through the Services.

1.8. “Higharc Intellectual Property” means, in addition to Higharc’s Intellectual Property Rights as specified in this Agreement and the Higharc Platform (and any revisions, modifications or enhancements thereto by Higharc), all settings, formulas and algorithms to produce Outputs, including, but not limited to, takeoffs, pricing, and construction documents.  For the avoidance of doubt, Higharc Intellectual Property excludes Customer Data.  

1.9. “Higharc Platform” means proprietary software and related service, websites, applications, plug-ins, components, functionality and programs.

1.10. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, moral rights, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world and any derivative works thereof.

1.11. “Output” means the following list of outputs generated by Customer’s use of the Services: takeoffs, plan designs, option data, construction documents, photorealistic renders, sales brochures, DXF exports, community maps, community and lot data, and prices as generated by Customer for the use of building and selling homes (including Customer’s vendor pricing).  

1.12.“Services” means the services provided by Higharc to Customer hereunder and as set forth in the Customer Agreement, including but not limited to access to the Higharc Platform.

2. REGISTRATION; AUTHENTICATION CREDENTIALS; SECURITY

2.1. Registration Subject to Customer’s compliance with the terms of this Agreement, Customer may register for the Services by creating an online Account. Customer agrees to provide complete, accurate and current information when registering an Account to use the Services, and shall update such registration information promptly should it change or become inaccurate.

2.2. Authentication Credentials. Customer will create a user identification and associated secure access credentials for access to the Services. Customer is responsible for maintaining the confidentiality of all user identifications and access credentials for Authorized Users and for ensuring that each user identification number and/or access credentials is used by only one Authorized User and not shared with any third party or any other Authorized User. Customer is solely responsible for any and all activities that occur under its Account and all charges incurred from the use of the Services accessed from its Account. Customer agrees to immediately notify Higharc of any unauthorized use of Customer's Account, any user identification and/or access credentials, or any other breach of security known to Customer. Higharc shall have no liability for any loss or damage arising from Customer's failure to comply with the terms set forth in this Section.

3. SERVICES

3.1. The Services.  During the relevant Customer Agreement Term, Higharc will make the Services available to Customer and its Authorized Users solely for Customer’s internal business purposes in accordance with the limitations set forth in the Customer Agreement(s), including, but not limited to, the number of Authorized Users who are permitted to access and use the Services. Each Customer Agreement is a part of this Agreement and is incorporated into the Agreement by reference.  The first Customer Agreement is attached hereto on the first page above.  

3.2. Restrictions.  Customer will not allow access to or use of the Services by anyone other than Authorized Users.  Customer shall not, directly or indirectly, and shall not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (v) perform, publish or disclose to third parties any performance or benchmark tests or analyses relating to the Services or the use thereof without Higharc’s prior written consent; or (vi) use the Services for any purpose other than its intended purpose. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, the Higharc Platform or anything related thereto, or any direct product thereof 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.  As defined in FAR section 2.101, the Platform Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

4. CUSTOMER OBLIGATIONS

4.1. Building Designs.  Customer is solely responsible for its use and implementation of all building designs, specifications, drawings, plans and other materials that may be created in connection with Customer’s use of the Services and the Higharc Platform (“Designs”) and Customer hereby warrants that it shall review the Designs with an architectural and/or building professional prior to any implementation thereof.  All drawings must be reviewed by local professionals to assure conformance with local and state codes. Additional engineering work or stamped plans are the responsibility of Customer.  Customer hereby agrees that Higharc shall not be held liable for any errors or omissions within or changes made to the Designs and that Higharc is not responsible for construction means, methods, techniques, sequences, procedures or for safety precautions and programs in connection with construction activities.

4.2. Resources.  Customer will provide (i) a single point of contact to communicate with and provide feedback/reviews to Higharc’s representative in a timely manner and (ii) Customer’s logo, architectural plans, option information, material details and sample documents necessary for Higharc to configure the Higharc Platform as required.

4.3. Marketing Support.  Customer grants to Higharc a non-exclusive, limited right to use the Customer Marks on Higharc’s websites and in the production of marketing materials to depict Customer as a customer of Higharc.  All goodwill developed from such use will be solely for the benefit of Customer.

4.4. Enforcement.  Customer will ensure that all its Authorized Users comply with the terms and conditions of this Agreement.  Customer will promptly notify Higharc of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Higharc with respect to: (a) investigation by Higharc of any suspected or alleged violation of this Agreement and (b) any action by Higharc to enforce the terms and conditions of this Agreement.  Higharc may suspend or terminate any Authorized User’s access to the Services upon notice to Customer in the event that Higharc reasonably determines that such Authorized User has violated the terms and conditions of this Agreement or any other agreement between Higharc and such Authorized User pursuant to which such Authorized User is permitted to access and use the Services.  Customer will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.

5. CUSTOMER DATA

5.1. Customer Data Representations.  Customer represents and warrants that: (i) it has all rights, power and authority that are necessary for Higharc’s collection, use and processing of the Customer Data as contemplated by this Agreement; (ii) Customer’s and Authorized Users’ use and provision of Customer Data to Higharc pursuant to this Agreement will not breach any agreement between Customer and any third party or violate any applicable local, state, federal, or foreign laws, regulations, orders or rules (including without limitation, data privacy and security laws), and (iii) the Customer Data or the use of Customer Data as contemplated by this Agreement does not infringe, misappropriate or violate a third party’s rights including without limitation, any Intellectual Property Rights or rights of privacy or publicity of a third party.

5.2. Disclaimer. HIGHARC WILL FOLLOW ITS STANDARD ARCHIVAL PROCEDURES FOR STORAGE OF ANY CUSTOMER DATA.  IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA, HIGHARC WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE LOST OR CORRUPTED CUSTOMER DATA FROM THE LATEST BACKUP OF SUCH CUSTOMER DATA MAINTAINED BY HIGHARC IN ITS REGULAR COURSE OF BUSINESS.  HIGHARC WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER DATA.  HIGHARC’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 5.2 WILL CONSTITUTE HIGHARC’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.

6. FEES AND PAYMENT.

6.1. Fees. Customer agrees to pay the amounts listed on the Customer Agreement(s) then in effect between Customer and Higharc, as fees for the Services (“Service Fees”). However, Higharc reserves the right to increase the Service Fees charged for the Services at the end of an Initial Customer Agreement Term or a Renewal Customer Agreement Term.  In addition, Higharc reserves the right to increase the Service Fees charged for the Services: (i) should Higharc offer new or additional features to the Services that Customer accepts as part of the Services or (ii) to the extent that during the Customer Agreement Term, Customer’s use of the Services materially increases beyond the scope of the usage reasonably assumed in the applicable Customer Agreement as measured in comparison to average usage by Customer over the trailing 12 month period.  If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.

6.2. Payment Terms.  Customer shall pay Higharc fees for the Services at the rates and on the payment terms specified in the Customer Agreement. All payments are due in U.S. Dollars within thirty (30) days of Customer’s receipt of an undisputed invoice, unless otherwise specified in the Customer Agreement.  

6.3. Overdue Charges. Without limiting its rights or remedies, Higharc may add an interest charge of 1.5% per month or the highest rate permitted by applicable law, whichever is lower, to any Service Fees that is not received by the due date.

6.4. Taxes. The Service fees are exclusive of all sales, use, value-added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Higharc’s net income).

6.5. Cancellation and Suspension of Services. Higharc may suspend its Services if Customer fails to pay the applicable Service Fees or any other amounts payable under this Agreement, when due.  Higharc reserves the right to cease the operation of its Services at its sole discretion or to cancel Customer’s subscription to the Services if Higharc has reason to believe that Customer is not compliant with any of its obligations under this Agreement or the applicable law; provided Higharc refunds Customer the pro-rated amount of Service Fees for the remaining Customer Agreement Term.

7. OWNERSHIP

7.1. Higharc Services and Higharc Platform. As between Higharc and Customer, all right, title and interest in the Services, Content (subject to Customer and Authorized Users’ rights in the Customer Data), any Higharc Intellectual Property and any other Higharc materials furnished or made available hereunder, and all modifications and enhancements thereof, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Higharc. Customer acknowledges that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content. Subject to Customer’s compliance with this Agreement (including payment of all applicable Service Fees), Higharc grants to Customer and its Authorized Users during the Term, a limited, non-exclusive, non-transferable license, with no right to sublicense, to use the Services for internal business purposes only.

7.2. Feedback. Customer hereby does and will irrevocably assign to Higharc all suggestions, ideas and feedback proposed by Customer regarding the Services (“Feedback”), and all Intellectual Property Rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Higharc may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or Intellectual Property Rights therein cannot be assigned by Customer to Higharc, Customer hereby grants to Higharc an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Higharc may reasonably request, to perfect ownership of the Feedback. If Customer is unable or unwilling to execute any such document or take any such action, Higharc may execute such document and take such action on Customer's behalf as Customer's agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.

7.3. Customer Data. As between Higharc and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein, belong to and are retained solely by Customer and nothing in this Agreement will be deemed to restrict any rights that Customer may have to use and exploit Customer Data. By making any Customer Data available through the Services, Customer hereby grants to Higharc a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, access, process, save, store, modify, create derivative works based upon, distribute, transmit, publicly display, and publicly perform the Customer Data solely in connection with operating and providing the Services.

7.4. Aggregate Data. Higharc may monitor Customer's use of the Services, and create usage data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregate Data"). As between Higharc and Customer, all right, title and interest in the Aggregate Data and all Intellectual Property Rights therein, belong to and are retained solely by Higharc, and Higharc may use such information to the extent and in the manner it deems fit including without limitation, as required by applicable law or regulation and for purposes of data gathering, analysis, enhancement and improvement of Services, research and development, for future product and service offerings, and marketing, provided that no such Aggregate Data identifies Customer, its Authorized Users, or its Confidential Information.

8. CONFIDENTIALITY.

8.1. Definition.  “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.  For clarity, (i) Customer Data is considered to be Confidential Information of Customer and (ii) the design, “look and feel”, specifications, components, functionality or operation and payment terms and pricing (if applicable) of the Services and the Higharc Platform are considered Confidential Information of Higharc.

8.2. Exclusions.  The obligations and restrictions set forth in Section 8.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.

8.3. Use and Nondisclosure.  A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in Section 8.  Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information, but in no event less than a reasonable standard of care.

8.4. Permitted Disclosures.  The provisions of Section 8 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request.  The party responding to such an order or requirement will only disclose that information that is expressly required.

9. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HIGHARC AND ITS LICENSORS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HIGHARC OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.  HIGHARC MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. HIGHARC MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT.

10. INDEMNITY.  Customer will defend any suit or action brought against Higharc to the extent that it is based on any use of the Services of the Higharc Platform by Customer or its Authorized Users in breach of this Agreement and Customer will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Higharc.  Customer’s obligations under this Section 10 are contingent upon: (i) Higharc providing Customer with prompt written notice of such claim; (ii) Higharc providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (iii) Customer having sole authority to defend or settle such claim.

11. LIMITATION OF LIABILITY

11.1. Limitation on Direct Damages. EXCEPT FOR THE BREACH OF CONFIDENTIALITY PROVISION, IN NO EVENT SHALL HIGHARC’S AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

11.2. Waiver of Consequential Damages. EXCEPT FOR THE BREACH OF CONFIDENTIALITY PROVISION, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT HIGHARC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. HIGHARC WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

11.3. Essential Purpose. Customer acknowledges that the terms in this Section 11 are an essential basis of the bargain described in this Agreement and that, were Higharc to assume any further liability, the Fees would out of necessity, be set higher.

12. TERM AND TERMINATION.

12.1. Term.  This Agreement shall commence as of the Effective Date and shall remain in effect for as long as Higharc is performing Services pursuant to any Customer Agreement, unless earlier terminated as provided herein.  

12.2. Customer Agreement Term.  The term for each Customer Agreement will commence on the effective date of the Customer Agreement and will continue for a period twelve (12) months, unless specifically stated to the contrary in the Customer Agreement (“Initial Customer Agreement Term”). Thereafter the term for each Customer Agreement will renew automatically for additional twelve (12) month periods (“Renewal Customer Agreement Term”) unless one party notifies the other in writing at least ninety (90) days in advance of the end of the then current Customer Agreement term of its intention not to renew.  The Initial Customer Agreement Term and Renewal Customer Agreement Terms are referred to collectively as the “Customer Agreement Term.” Termination or expiration of a particular Customer Agreement does not terminate this Agreement or any other Customer Agreement, but termination of the Agreement will terminate all the Customer Agreements under it.

12.3. Termination for Cause.  Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.

12.4. Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, Customer’s and its Authorized Users’ right to access and use the Services will immediately terminate, Customer and its Authorized Users will immediately cease all use of the Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.  Higharc may destroy or otherwise dispose of any Customer Data in its possession unless Higharc receives, no later than thirty (30) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data.  Higharc will use reasonable efforts to deliver the back up to Customer within thirty (30) days of its receipt of such a written request, in an industry-standard format reasonably acceptable to Higharc. Also upon expiration or termination of this Agreement, Higharc will cease use of the Customer Marks; provided, however, that (i) Higharc will have a reasonable time to remove the Customer Marks from promotional materials, (ii) Higharc will be entitled to exhaust materials printed during the Term that include the Customer Marks, and (iii) Higharc will not be required to remove any such printed materials from circulation. Without limiting the generality of the foregoing, Customer’s right to use the Services under a particular Customer Agreement is based upon the terms and conditions of that Customer Agreement in addition to the terms and conditions of this Agreement. Accordingly, upon the expiration or termination of a Customer Agreement, Customer’s (and its Authorized Users’) right to use the Service under that Customer Agreement will also terminate.

12.5. Survival.  The rights and obligations of Higharc and Customer contained in Sections 1, 2.2, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5 and 13 will survive any expiration or termination of this Agreement

13. GENERAL.

13.1. Governing Law.  This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the District of Delaware.  Higharc and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

13.2. Waiver; Severability.  The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

13.3. Notices.  All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to the addresses set forth above or delivered in person.  The notices will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.

13.4. Force Majeure.  Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

13.5. Compliance with Laws.  Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

13.6. Relationship Between the Parties.  Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

13.7. Assignment.  Customer may not assign or transfer this Agreement, in whole or in part, without Higharc’s prior written consent.  Higharc may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise.  Any attempted assignment or transfer in violation of this Section 13.7 will be null and void.  Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.

13.8. Entire Agreement.  This Agreement, and the exhibits attached hereto (including the Customer Agreements and any Addenda), constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.  This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.

13.9. Conflict.  In the event of an inconsistency between a Customer Agreement and this Agreement, the terms of the Customer Agreement will prevail to the extent of such inconsistency. In the event of a conflict between any addendum to this Agreement and the terms of this Agreement, the terms of this Agreement will prevail, unless otherwise provided in the addendum. Any additional or different terms or conditions issued by Customer in any purchase order are hereby rejected by Higharc and this Agreement supersedes any additional or different terms proposed by Customer in a purchase order or similar document, except as otherwise separately agreed in writing by Higharc.

13.10. Headings.  The headings in this Agreement are for the convenience of reference only and have no legal effect.
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