THIS DFLabs PARTNER AGREEMENT (this "Agreement") is made and entered into as of the date of the last signature (the "Effective Date"), by and between DFLabs Inc., a Delaware corporation with its principal offices at 88 Post Road West, Westport, Connecticut  06880 and Crust Marketing, a corporation with its principal offices at 2502 Waterford Road, Yardley, PA 19067.
Background

A.            ATI has developed and desires to promote, market and sell the software-as-a-service (“SaaS”) with the most current description available on the website at www.dflabs.com, as such descriptions are amended and updated from time to time (“ATI Services”).   S2 Partner may market the ATI Services using the ATI Trademarks or white labeling using their branded name(s).

B.            S2 Partner desires to obtain the right to act as an independent S2 Partner of the ATI Services.

1. The parties also desire that S2 Partner promote the ATI Services as set forth herein.

 

Agreement

NOW, THEREFORE, the parties agree as follows:

1.             Appointment

1.1          Appointment. On the terms and subject to the conditions set forth herein, ATI hereby appoints S2 Partner as an independent, non‑exclusive authorized S2 Partner of the ATI Services, solely in the territory defined in Exhibit A (the “Territory”), and S2 Partner hereby accepts such appointment.

                1.2          Restrictions.

1.2.1 S2 Partner may promote and resell the ATI Services solely to third party Customers in the Territory. For purposes of this Agreement, the term "Customer" means a person or entity that has acquired the ATI Services for its own internal use, rather than for resale or distribution.  Except as expressly authorized by ATI in writing, S2 Partner shall not authorize or appoint any dealers, agents, representatives, subcontractors, or other third parties to resell, market or provide the ATI Services. 

1.2.2       S2 Partner will not participate in the promotion and sale of ATI Services, as a reseller, distributor, channel partner or in any other capacity, except as expressly authorized by this Agreement.  If at any time S2 Partner participates in any other program to resell or otherwise distribute any ATI Services, then ATI will have the right to terminate this Agreement immediately upon notice to S2 Partner.

                1.3          All Rights Reserved.  All rights not specifically granted by ATI hereunder are reserved by ATI.  Without limiting the generality of the foregoing, ATI reserves the right to advertise, promote, market and sell the ATI Services, and to appoint third parties to advertise, promote, market and resell the ATI Services worldwide, including, without limitation, within the Territory.  Further, ATI reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the ATI Services or discontinue the sale of any or all of the ATI Services without liability of any kind or to reject a Customer order. ATI will notify S2 Partner sixty (60) days in advance of any material changes to the ATI Services.

1. S2 Partner's Promotion of the ATI Services

 

                2.1          Promotion.  S2 Partner agrees to complete ATI’s training programs deemed necessary by ATI.  S2 Partner will use its best efforts to market and promote the ATI Services to its current and prospective customers.  S2 Partner will at all times perform its activities hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by ATI. S2 Partner will: (a) conduct business in a manner that reflects favorably at all times on the ATI Services and the good name, goodwill and reputation of ATI; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to ATI, the ATI Services, or the public, including but not limited to disparagement of ATI or the ATI Services; (c) not advertise pricing other than the manufacturer’s suggested retail price (MSRP); (d) make no false or misleading representation with respect to ATI or the ATI Services; and (e) make no representations on behalf of ATI with respect to the ATI Services.

                2.2          Permits, Licenses and Compliance with Laws. 
                                2.2.1      S2 Partner will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations in the performance of this Agreement.  Without limiting the generality of the foregoing, (a) S2 Partner acknowledges that the ATI Services may be subject to United States and local export control laws and may be subject to the export or import regulations of other countries, (b) in the event that this Agreement authorizes S2 Partner to export or import the ATI Services, S2 Partner agrees to comply strictly with all such laws and regulations, (c) S2 Partner agrees to comply with all applicable international, national, federal, state, and local laws, rules and regulations with respect to the performance of the Agreement.

2.3          Trademarks
                                2.3.1       Attribution.  Subject to the terms and conditions of this Agreement and ATI’s prior written approval of each such use, S2 Partner will have the right to advertise, promote and distribute the ATI Services under the ATI Trademarks (as defined below), and  ATI hereby grants to S2 Partner a license to use the Licensed ATI Trademarks solely in connection with its advertising, promotion and distribution of the ATI Services in the Territory. S2 Partner’s use of the Licensed ATI Trademarks must comply with any guidelines issued by ATI with respect thereto.  ATI reserves the right to withhold or withdraw approval of any use of the ATI Trademarks for any reason in ATI’s reasonable discretion.
2.3.2       ATI Trademarks.  "ATI Trademarks" means all names, marks, logos, designs, trade dress, branded terms and other brand designations used by ATI in connection with its products and services.  Except as set forth in Section 2.3, S2 Partner is granted no right, title or license to, or interest in, any ATI Trademarks.  S2 Partner acknowledges and agrees that any use of the ATI Trademarks by S2 Partner will inure to the sole benefit of ATI. 
2.3.3         Use in Campaigns.  Without limiting S2 Partner’s obligations under Section 2.2, S2 Partner agrees that all marketing campaigns using ATI Trademarks or promoting ATI Services using ATI Trademarks or branded terms in any way that (a) involve email must be sent only to recipient(s) who explicitly consent to receiving the email or (b) involve cost-per-click (CPC) search engine marketing and are subject to the prior written approval by the ATI Marketing Department, and S2 Partner agrees to follow ATI marketing guidelines.
2.3.4       Ownership of ATI Trademarks.  ATI is the sole and exclusive owner of the ATI Trademarks.  S2 Partner will at no time use any trademarks, branded terms, service marks, trade names, logos or designs that are similar to the ATI Trademarks or that could be confused with any ATI Trademarks, and S2 Partner will not register or attempt to register in any country in the world any rights in or to any names, logos or designs that are similar to the ATI Trademarks.  If S2 Partner acquires any rights in any ATI Trademarks or any marks, branded terms, names, designs or logos similar thereto, in any country in the world, by operation of law or otherwise, it will immediately, at no cost or expense to ATI, assign such rights to ATI along with all associated goodwill, and take any reasonable action (including the execution of documents) to evidence such assignment.
2.4          Reporting.  S2 Partner will provide information with respect to market conditions and competition faced by S2 Partner.  S2 Partner will immediately notify ATI of any complaints with respect to the ATI Services made by Customers or prospective Customers.  In the event that S2 Partner is authorized by ATI to operate outside of the United States in connection with this Agreement, S2 Partner will advise ATI of any requirements of local law that may impact S2 Partner’s activities hereunder.

3.             ATI Marketing Assistance
                Marketing Materials. During the Term, ATI will provide to S2 Partner marketing materials with respect to the ATI Services, including, but not limited to user manuals, training materials, documentation and other materials detailing the ATI Services or software provided by ATI ("ATI Marketing Materials"), which may be provided in a format specified by ATI.  During the Term, ATI hereby grants to S2 Partner a non-exclusive, non-transferable, right and license to use, reproduce and distribute the ATI Marketing Materials, solely for purposes associated with S2 Partner’s conduct as authorized by this Agreement.   S2 Partner will not use the ATI Marketing Materials for any purpose other than promoting and marketing the ATI Services to current and prospective Customers and providing the ATI Services and related support to Customers.  S2 Partner will not use or create any derivative works from the ATI Marketing Materials for any purpose other than promoting and marketing the ATI Services.  Furthermore, S2 Partner agrees not to alter the ATI Marketing Materials in any way that changes the meaning, offer, intent or other aspects of the information contained therein.
                3.2          Certain Communications.  S2 Partner understands that ATI may from time to time send electronic communications, such as channel newsletter, service alert and information, to S2 Partner.
                3.3          Press Releases.  Either party may issue a press release, with the non-issuing party's prior written consent, such consent not to be unreasonably conditioned, delayed or withheld.

4.             S2 Partner Sales of the ATI Services S2 Partner will resell ATI Services only to a Customer who has entered into an end user agreement with S2 Partner that provides ATI with protection concerning proprietary rights, warranty disclaimers and limitations of liability that is at least as stringent as the protection provided to ATI pursuant to the Awareness Technologies, Inc. Terms & Conditions at http://www.awarenesstechnologies.com/agreement.htm  (a “Customer Agreement”). 

5.             Provisioning and Technical Support of ATI Services

                5.1          Provisioning. S2 Partner shall issue service order forms in the format as set forth by ATI for Customers that have executed Customer Agreements subject to the terms set forth in Section 4.  As between ATI and S2 Partner, S2 Partner will be responsible for provisioning the ATI Services to Customers.  S2 Partner will be responsible for ensuring that: (a) the Customer Authorized User count, and all other Customer information is properly entered by S2 Partner into the service order form;  (b) Customer download ATI Service agents; (c) notification is sent to ATI for the ATI Services to be de-provisioned when Customer Agreement expires or terminates, subject to ATI’s written approval for any early cancellation; and (d)  S2 Partner will comply with any guidelines and procedures issued by ATI with respect to the order processing, activation, de-activation, and support of ATI Services.

            5.2           Customer Support.  As between ATI and S2 Partner, S2 Partner will be responsible for technical support and all other obligations to Customers, including but not limited to training on the use of the ATI Services, ongoing customer service, and billing.  Customers may contact ATI for technical support when necessary.

6.             ATI Technical Support to S2 Partner.  During ATI’s business hours, ATI will provide S2 Partner with reasonable technical support, via telephone, email, and/or chat, with respect to S2 Partner’s use and delivery of the ATI Services as authorized herein.

7.             Ownership. The ATI Services, ATI Marketing Materials, provisioning console and control console are and will remain proprietary business assets of ATI.  ATI will retain sole ownership of all right, title and interest in and to the ATI Services, ATI Marketing Materials, provisioning console and control console, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights.  S2 Partner will have no rights with respect to the ATI Services, ATI Marketing Materials, provisioning console or control console, any derivative works thereof, or any individual components thereof, except as expressly set forth in this Agreement.  S2 Partner agrees not to allege that it owns any intellectual property rights, by adding any copyright legend of its own or other means, or in any of the ATI Services, provisioning console, control console or ATI Marketing Materials.

8.             Consideration

8.1          Prices to S2 Partner.  For each ATI Service ordered by S2 Partner under the terms of this Agreement, S2 Partner shall pay ATI the fees set forth in the Price List, less the applicable Discount Percentage.  ATI shall have the right, in its sole discretion, from time to time to change its Price List.
The Discount Percentage currently applicable to S2 Partner with respect to its use of the ATI Services and its resale of the ATI Services are set forth in Exhibit A hereto.

8.2          Prices to Customers; Collection from Customers.  S2 Partner will be entitled to set the prices at which it resells ATI Services to Customers in its sole discretion but understands that ATI does set a Manufacturer Suggested Retail Price (“MSRP”) for each of the ATI Services.  S2 Partner will bear all responsibility and risk associated with billings to and collections from Customers and bad debt.  S2 Partner shall pay ATI for all ATI Services provided to Customers regardless of whether the Customer pays the fees due to S2 Partner.

            8.3          Invoicing; Payment.   S2 Partner shall pay ATI through the credit card or Automated Clearing House (ACH) payment system.   For monthly recurring revenue (MRR) orders, ATI will invoice S2 Partner on a set day each month for: (a) advance payment of fees for the current month; plus (b) the prorated portion of any ATI Services provided in the prior month. For annual recurring revenue (ARR) orders, ATI, once the order is provisioned, will immediately charge S2Partner for: (a) the advanced payment of the fees for the current annual or multiyear term as detailed in the provision confirmation email; and (b) the advance payment of all fees on the anniversary date for order renewals.   All payments under this Agreement shall be in United States dollars. Payment to ATI is due upon receipt from the date of the ATI invoice for MRR orders and due upon provisioning for ARR orders, based on the number of Customer Authorized Licenses and as set forth in Section 8.1.  S2 Partner shall be entitled to no credits or offsets of charges.  In addition, if during a subscription term for a pre-paid service S2 Partner upgrades or otherwise changes the service, this will constitute a new service provision. S2 Partner shall be entitled to a credit related to any prepayments of the pre-existing service, but in no event will S2 Partner be entitled to a refund.

            8.4          Expenses.  Except as otherwise mutually agreed in writing, S2 Partner will be responsible for all costs associated with its performance under this Agreement.

8.5          Late Payments. Amounts not paid to ATI when due will accrue interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower.  ATI reserves the right to: (a)  suspend the ATI Services to S2 Partner and/or its Customers if an outstanding invoice is fifteen (15) days past due; and/or (b) cease accepting new applications for service.

8.6          Taxes.  All amounts due and payable hereunder will be exclusive of applicable federal, state, local and other taxes based or measured thereon.  S2 Partner will be responsible for the payment of all such taxes, excluding taxes based on ATI’s income, unless S2 Partner provides ATI with an appropriate certificate of exemption from such taxes.  S2 Partner will indemnify and hold ATI harmless from any obligation to pay to any governmental entity any employer statutory taxes, withholding taxes, social security taxes or other taxes, levies or duties in connection with S2 Partner's performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs of litigation) arising out of or resulting therefrom.

9.             Confidential Information

                9.1          "Confidential Information" Defined. “Confidential Information” includes: (a) the ATI Services and any user IDs and/or passwords that allow S2 Partner access to the Control Console Website and the Partner Portal, and the contents therein; (b) any and all information disclosed by a party, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary, including but not limited to a party’s business plans, strategies, financial information, marketing information, marketing strategies and customer lists; (c) any notes, extracts, analyses or materials prepared by the receiving party which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (d) the terms and conditions of this Agreement.  “Confidential Information” does not include information that the receiving party can clearly establish by written evidence: (x) is or becomes known to the receiving party from a third party without an obligation to maintain its confidentiality; (y) is or becomes generally known to the public through no act or omission of the receiving party; or (z) is independently developed by the receiving party without the use of Confidential Information. In the event of any termination of this Agreement ATI may market to, sell to or support S2 Partner’s customers of the ATI services.

                9.2          The Receiving Party’s Obligations. The receiving party will make no use of Confidential Information for any purpose except as expressly authorized in this Agreement.   Except as expressly authorized in this Agreement, the receiving party will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care.  Except as expressly authorized in this Agreement, the receiving party will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the disclosing party.  The receiving party will only disclose Confidential Information to its employees and professional advisors having a need to know for the purposes of this Agreement.  The receiving party will inform such persons of the limitations, duties and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by this Agreement, and will be responsible for any breach thereof.  The receiving party will notify the disclosing party immediately after learning of or having reason to suspect any breach of this Section 9.  In the event that the receiving party is required to disclose Confidential Information pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the disclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.

9.3          Return of Confidential Information.  Upon the expiration or earlier termination of this Agreement, each party will immediately terminate all use of and return to the disclosing party all Confidential Information of the disclosing party and all copies thereof or, at the disclosing party’s instruction, will certify in writing that it has destroyed the same.

10.          Disclaimer of Warranties.  ATI MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE ATI SERVICES, ATI MARKETING MATERIALS, PROVISIONING CONSOLE OR CONTROL CONSOLE WEBSITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT.  S2 PARTNER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF ATI.

11.          Indemnification

                11.1        Indemnification by S2 Partner.  S2 Partner will indemnify, defend and hold harmless ATI from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with: (a) S2 Partner’s violation of the rights and licenses granted herein; (b) any acts or omissions of Customer Authorized Licenses and/or Prospective Customer Authorized Licenses; or (c) S2 Partner's misrepresentations relating to ATI, its products and services, the ATI Services, or this Agreement, regardless of the form of action.

                11.2        Indemnification by ATI.  ATI will indemnify, defend and hold harmless S2 Partner from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with a third party claim that Customer Authorized Licenses’ use of the ATI Services infringes a United States patent, copyright or trademark. In the event that a claim of infringement is made or threatened, ATI may, at its option: (a) replace or modify the ATI Services to render them non-infringing; (b) secure for S2 Partner and/or the affected Customers the right to use the ATI Services; or (c) terminate this Agreement in accordance with this Section 11.2 and Section 13.

                11.3        Additional Obligations Regarding Indemnification.  Each party will provide the other party with prompt written notice of any claim, demand or action for which it is seeking or may seek indemnification hereunder. The indemnifying party will have the right to control the defense; provided that, it will: (a) keep the indemnified party fully informed concerning the status of any litigation, negotiations or settlements of any such claim, demand or action; and (b) allow the indemnified party, at its own expense, to participate in such litigation, negotiations and settlements with counsel of its own choosing; and provided further that, the indemnifying party will not have the right to settle any claim without the indemnified party’s written consent if such settlement arises from or is part of any criminal action, suit or proceeding, or contains a stipulation to, or an admission or acknowledgement of any wrongdoing (whether in tort or otherwise) on the part of the indemnified party.

12.          Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, ATI'S AGGREGATE LIABILITY UNDER THIS
AGREEMENT, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNT PAID BY S2 PARTNER HEREUNDER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.  IN NO EVENT WILL ATI BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ATI HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

13.          Term and Termination

                13.1        Term.  The initial term of this Agreement will commence on the Effective Date and will continue for a period of one year.  Thereafter, this Agreement will automatically renew for successive one-year terms unless either party provides written notice of its intention not to renew the Agreement at least sixty (60) days prior to the end of the then current term.

13.2        Termination 

13.2.1    Material Breach.  Either party may terminate this Agreement upon written notice to the other party if the other party breaches any material term or condition of this Agreement, and such breach is not cured to the non-breaching party's satisfaction within thirty (30) days of written notice specifying the breach. 

13.2.2    Insolvency.  This Agreement will terminate automatically in the event that: (a) a receiver is appointed for S2 Partner or its property; (b) S2 Partner makes an assignment for the benefit of its creditors; (c) any proceedings are commenced by, for or against S2 Partner under any bankruptcy, insolvency, or debtor's relief law for the purpose of seeking a reorganization of S2 Partner's debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement; or (d) S2 Partner is liquidated or dissolved.

13.2.3    Termination in Accordance with Express Terms.  ATI will have the right to terminate this Agreement in accordance with any section that expressly conveys such right, including, without limitation, Sections 1.2.2 and 11.2.

13.3        Effect of Expiration or Termination.  Upon the expiration or termination of this Agreement, S2 Partner will immediately cease all marketing, promotion, sales, use and performance of the ATI Services and will cease to access the Provisioning Console and Control Console Websites. If termination of this Agreement is based on Section 13.2.1 due to S2 Partner’s material breach or based on Section 13.2.2, S2 Partner agrees to (a) notify ATI of each Customer Agreement and the associated billing and payment records for the previous six (6) months; (b) assign to ATI each Customer Agreement requested by ATI; (c) provide to ATI a copy of all correspondence between S2 Partner and Customer in the previous six (6) months in relation to each Customer Agreement assigned to ATI under this Section 13.3; and (d) cooperate with ATI in notifying the Customer of such assignment.

                13.4        No Liability for Termination.  Neither party will be liable for any damages arising out of the termination of this Agreement in accordance with this Section 13.  S2 Partner acknowledges and agrees that ATI is not responsible for S2 Partner’s dependence on revenues hereunder, and S2 Partner agrees to release, hold harmless and indemnify ATI from any and all claims and liabilities relating to S2 Partner's revenues, financial forecasts or economic value that may result from any termination by ATI of this Agreement as permitted hereunder.

                13.5        Continuing Payment Obligation.  Within fifteen (15) days from the expiration or termination of this Agreement, S2 Partner will pay any and all fees owed to ATI hereunder.

                13.6        Survival.  Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination.  Rights and obligations which by their nature would ordinarily be expected to survive the expiration or termination of this Agreement will remain in effect after the termination or expiration of this Agreement, including but not limited to Sections 1.3, 2.3.2, and 7-26.

14.          Assignment.  ATI is entering into this Agreement with S2 Partner based in substantial part on the unique attributes that S2 Partner and its business offer; therefore, neither this Agreement nor any of S2 Partner’s rights or obligations hereunder may be assigned, subcontracted or otherwise transferred (by merger, operation of law or in any other manner) by S2 Partner without the prior written consent of ATI.  Any attempted assignment, subcontract or other transfer of this Agreement or any of S2 Partner’s rights or obligations hereunder in contravention of this Section 14 will be void ab initio and will be considered a material breach of this Agreement.  This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns.

15.        Governing Law; Jurisdiction and Venue.  Any action related to this Agreement will be governed by the substantive laws of the State of Connecticut without reference to the choice of law rules thereof.  The parties agree that any action will be brought exclusively in the state courts located in Fairfield County, Connecticut, or the federal courts located in Stamford, Connecticut, as applicable.  The parties hereby submit themselves to the personal jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

16.          Equitable Relief. Each party acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of the other party’s Confidential Information or intellectual property will result in irreparable harm for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, the non-breaching party will be entitled to seek injunctive or other equitable relief, as appropriate, without posting any bond.  If the non-breaching party seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement involving an unauthorized use of its Confidential Information or intellectual property, the other party agrees that it will not allege in any such proceeding that the non-breaching party’s remedy at law is adequate.  If the non-breaching party seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will it be deemed to have made an election of remedies.

17.          Attorney and Expert Fees.  The prevailing party in any controversy arising out of this Agreement will be entitled to recover its reasonable attorney and expert fees and costs, in addition to any other relief to which it may be entitled.

18.          Relationship of the Parties. This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. S2 Partner acknowledges and agrees that its relationship with ATI is that of an independent contractor, and S2 Partner will not act in a manner that expresses or implies a relationship other than that of an independent contractor.

19.          Notices.  All notices and consents provided for hereunder will be in writing and will be delivered by hand, sent by express courier or delivery service that guarantees delivery within two (2) business days (such as Federal Express or DHL) to the address of the party set forth below or to such other address as the party may designate in writing, expenses prepaid.  Copies of notices and communications will be sent in like fashion.  Such notices and communications will be deemed to have been received by the addressee upon receipt, but in no event later than forty-eight (48) hours after the notice or communication is delivered to a courier or delivery service that guarantees delivery within forty-eight (48) hours.  The parties’ current addresses are as follows:

If to DFLabs:
DFLabs

Address

Contact Info

If to S2 Partner:
Company listed on Signature Page.

20.          Waiver. Any waiver by either party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement.  Any waiver must be in writing.  Failure by either party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive such party of the right to insist upon strict adherence to that term or any other term of this Agreement.

21.        Severability.  If any provision of this Agreement is held unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.

22.        Force Majeure.  If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a “Force Majeure Event”), the party who has been so affected will immediately give notice to the other party and will do everything possible to resume performance.  Upon receipt of such notice, all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event.

23.        Further Assurances.  S2 Partner will execute such further documents as may reasonably be requested by ATI to achieve the intent of this Agreement.

24.        Entire Agreement.  This Agreement (including any and all exhibits or attachments hereto) constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.

25.        Amendments.  Except as provided herein, no amendments, modifications, or supplements to this Agreement will be binding unless they are in writing and signed by both parties hereto.

26.        Counterparts; Facsimile.  This Agreement may be executed in one or more counterparts, each of which when so executed will be an original, but all of which together will constitute one agreement.  This Agreement may be executed by facsimile signature.