Acoustic Research Systems, INC. Neutron Services Terms And Conditions

1. Services

a. General. ARS agrees to provide the services set forth in each SOW attached hereto as Exhibit A (the “Services”). Each SOW executed by the Parties under this Agreement shall be subject to these Terms and Conditions. When fully executed by authorized signatories of the Parties, each SOW shall be incorporated into, and shall form a part of, this Agreement. The provisions of the various Agreement documents shall, to the extent possible, be interpreted so as to supplement each other and avoid any conflict between them. In the event of a conflict between these Terms and Conditions, on the one hand and any provision contained in an SOW on the other hand, these Terms and Conditions shall control, unless explicitly stated otherwise in the SOW.

b. Terms of SOW. Each SOW shall, to the extent applicable, contain: (a) a description of the project and the services to be performed by ARS; (b) a description of the tasks to be performed by Customer; (c) a description of the deliverables, if any, to be produced by ARS; (d) the schedule for completion of each deliverable and/or stage of the project, if applicable; and (e) the fees to be paid to ARS and a schedule for payment.

c. Changes. During the course of ARS’s performance of services under any SOW, Customer may request changes in the Services to be rendered. ARS shall incorporate any such changes, provided that the Parties mutually execute a change order setting forth the amended scope of work, any changes in scheduled completion dates for deliverables and/or services, and any change in the applicable fees or payment terms.

2. Payment Terms.

a. Payments. ARS shall invoice Customer for fees due pursuant to the payment schedule and milestones set forth in the applicable SOW. Unless otherwise specified in the applicable SOW, Purchaser shall pay ARS a non-refundable implementation fee in the amount set forth on the SOW no later than thirty (30) days after the Effective Date. Payment of each invoice shall be due thirty (30) days after Customer receives such invoice. Customer shall pay all amounts due in U.S. dollars, via wire transfer to an account designated by ARS to Customer from time to time, or at ARS’s election, through automated clearing house (“ACH”) transfers from Customer directly to ARS, or as otherwise mutually agreed upon by the Parties. The fees are exclusive of all sales, use, export, value added, or similar taxes, which Customer shall pay. If Customer has tax exempt status, Customer shall provide a certificate of tax exemption or other written evidence of such status satisfactory to ARS prior to the receipt of ARS’s invoice.

b. Invoices. Any invoice, or portion thereof, unpaid thirty (30) days or more following the invoice date is subject to a late charge of one and one half percent (1.5%) per month or such maximum amount as is permitted by applicable law.

c. Disputes. In the event that Customer fails to remit payment for an invoice to ARS in accordance with the above terms for more than thirty (30) days following the invoice date, the Parties shall confer immediately to formulate a payment plan that will result in Customer’s compliance with this Section 2. If such result is not reached within thirty (30) days from such conference, ARS may, in its sole discretion, either permanently or until payments due are received, terminate its obligations under this Agreement without any further obligation. Such right of discontinuance of service shall be in addition to any other rights which ARS may have at law or in equity.

d. Effect of Termination. Notwithstanding anything to the contrary in this Agreement, termination of this Agreement shall neither relieve Customer of any accrued obligations to pay money to ARS nor entitle Customer to any refund of fees for ARS software licenses or other amounts paid hereunder.

3. Shipping and Title.

The Service Fees are exclusive of all shipping costs and expenses, which Customer shall pay, unless otherwise set forth in a SOW. ARS shall ship NEUTRON and any applicable Equipment (defined below) to the address specified in the SOW (the “Testing Location”), and Customer shall ensure that the Testing Location has sufficient capacity (e.g., freight bays, elevators) to receive delivery. Title to the Equipment shall remain with ARS throughout the Term of the Agreement and shall never pass to Customer. “Equipment” means all acoustic devices (including, if applicable, the NEUTRON system(s)), equipment, machinery, tooling, including, but not limited to, microphones, amplifiers, computers, and software utilized to perform Direct Field Acoustic Noise testing services owned or otherwise provided by ARS.

4. Intellectual Property.

a. Ownership of ARS Technology. ARS has created, acquired or otherwise has rights in, and may, in connection with the performance of the Services hereunder, create, acquire or otherwise obtain rights in, various equipment, data, technology, methods and methodologies, know-how, ideas, techniques, models, development tools, routines, subroutines, software code, documentation, tools, software and interfaces, utilities, and logic, coherence and methods of operation of systems, as well as information and materials that ARS may develop independently of this Agreement, and including any intellectual or proprietary rights inherent in any of the foregoing or appurtenant thereto (collectively, the “ARS Equipment and Technology”). ARS shall retain and shall own exclusively all right, title and interest in and to all ARS Equipment and Technology and all improvements, modifications and derivative works thereof and all related intellectual property rights. For the avoidance of any doubt, the ARS Equipment and Technology is not a “work made for hire” and no ARS Equipment and Technology is assigned to, or owned by, Customer under this Agreement. In addition, ARS retains all other rights in and to the ARS Equipment and Technology, including the right to use, in any manner whatsoever and on its own behalf or on behalf of others, ARS’s knowledge, experience and know-how, including processes, ideas, concepts and techniques developed in connection with or as a result of the Services provided under this Agreement.

b. Limited Licenses. Each Party grants the other Party a limited, nonexclusive, nontransferable (without any right to sublicense), terminable license for the duration of the Term to use the other Party’s intellectual property and Confidential Information (defined below) solely for the purpose of, and to the extent necessary, to perform the obligations under the SOW(s). Neither Party will copy the other Party’s intellectual property or Confidential Information except to the extent necessary to perform its obligations and shall comply with any other restrictions or the use thereof as set forth in this Agreement or the SOW.

c. Trademark License; Attribution. ARS is the owner of the “NEUTRON” and “ARS” trademarks (“Trademarks”) and warrants that it has the right to grant the licenses granted hereunder. ARS hereby grants to Customer a nonexclusive, nontransferable (without any right to sublicense) license to use the Trademarks in connection with the use of NEUTRON. Customer shall properly attribute NEUTRON as an ARS product and prominently display the ^TMsymbol in conjunction with any Trademark being used. Any public display or use of NEUTRON shall require that proper attribution is given to ARS and that the Trademarks are prominently displayed and unaltered or removed. Customer shall not destroy, remove, display, copy, modify, transmit or otherwise use the Trademarks except as described in this Agreement, or otherwise agreed in writing by ARS. Customer may not use the Trademarks to show NEUTRON or ARS services in any disparaging or derogatory light, or in any way that may be damaging to ARS’s brand or interests in the Trademarks. In addition to any other right that ARS may have to enforce the terms of this Agreement, Customer must promptly comply with any request that ARS makes for Customer to cease (i) use of the Trademarks, or (ii) failure to properly attribute to ARS ownership of the Trademarks in a way that is non-compliant with this subsection.

d. Feedback. To the extent Customer provides ARS with any feedback, suggestions, enhancements, improvements, or similar information regarding the ARS Equipment and Technology, including NEUTRON (collectively, the “Feedback”), ARS shall have the right to use such information for any purpose whatsoever, including optimization, enhancement or modification of ARS Equipment and Technology and related services. All rights, title and interest of Customer in the Feedback and any intellectual property generated therefrom shall be automatically and irrevocably assigned to ARS without consideration to Customer (including any rights to royalties or other payments). ARS has no obligation to furnish Customer with inventions or discoveries made or conceived by ARS in the course of or in connection with this Agreement, including any intellectual property rights therein or integrating any Feedback into ARS Equipment and Technology.

e. Customer Data. Except as otherwise set forth in this Section 4, ARS acquires no right, title or interest from Customer under this Agreement in or to any customer equipment, materials, or data, including business information, Customer’s customer information, financial information, and all other data of any kind that may be provided to ARS hereunder by Customer (“Customer Data”). To the extent any Services or Feedback requires or includes the disclosure of Customer Data, such Customer Data remains the property of Customer, and ARS is granted a nonexclusive, nontransferable license during the term of this Agreement to use such Customer Data as necessary for ARS to provide the Services under this Agreement and for ARS’s internal purposes, and such Customer Data will be treated as Confidential Information. Notwithstanding anything to the contrary set forth herein, ARS may use, reproduce, sell, publicize or otherwise exploit De-Identified Data in any way, in its sole discretion (“De-Identified Data” refers to Customer Data which has been aggregated, de-identified or anonymized, and statistical data, insights, or other predictive data that sufficiently different from the Customer Data such that it cannot be reverse engineered or otherwise identified from analysis or processing of the derived information).

f. No Other License. Except as expressly set forth in this Section 4, no license is granted by either Party to the other with respect to any technical or business information, or with respect to rights in any patents, trademarks, copyrights or other rights of authorship and other intellectual property or proprietary rights, including but not limited to ARS Equipment and Technology, or any intellectual property or proprietary technology held by the Customer. Nothing in this Agreement shall be construed to grant to either Party any ownership or other interest in the Confidential Information or proprietary technology of the other or of third parties, except as may be provided under a license specifically applicable to such Confidential Information or technology.

g. Customer shall not modify or reverse engineer any ARS Equipment and Technology.

5. Confidentiality and Security.

a. Definition. In connection with the Services to be provided under this Agreement, either Party (the “disclosing party”) may provide the other Party (the “receiving party”) with, and the receiving Party may have access and exposure to certain information belonging to the disclosing party or third parties which is confidential, proprietary or nonpublic concerning the business, prospects, operations, financial structure and assets of a Party, including, but not limited to, products system designs, system planning, financial and business modeling data, technical, engineering and research and development information and market research and analysis information and data (collectively, “Confidential Information”). The receiving Party agrees to treat the Confidential Information in accordance with this Section 5.

b. Obligations. The Parties agree that the Confidential Information will be used by the receiving Party solely for the purpose of complying with the terms and conditions of this Agreement. Neither Party shall disclose the other Party’s Confidential Information, in whole or in part, in its original form or in any other form, except to its legal and financial advisors, or its employees or independent contractors (“Representatives”) who have a “need to know” in connection with this Agreement and are subject to written confidentiality restrictions consistent with those herein. The receiving Party agrees to: (i) take all appropriate precautions to maintain the confidentiality of the Confidential Information; and (ii) to inform its Representatives of the confidential nature of such information, and of their obligations to keep the same in confidence and not disclose or use the same except as permitted under this Agreement. The receiving Party further agrees that it will not permit or allow its Representatives to alter, amend, delete, change, modify, revise, reformat or erase any Confidential Information. Upon any termination of this Agreement, or earlier upon the disclosing party’s request, the receiving party shall return or, at its option, destroy, all Confidential Information of the disclosing party then in its possession. The terms and conditions of the Agreement are each Party’s Confidential Information.

c. Exclusions. Notwithstanding any of the foregoing, “Confidential Information” excludes information that: (w) is now or subsequently becomes generally available to the public through no fault or breach on the part of the receiving party; (x) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (y) is independently developed by the receiving party without the use of any of the disclosing party’s Confidential Information; or (z) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it.

d. Permitted Disclosure. In the event that a Party is requested or compelled by court order, decree, subpoena or other process of requirement of law to disclose the Confidential Information, such Party shall provide immediate notice (if permitted by law) to the other Party of any such requirement so that the other Party may, at its option and expense, seek a protective order or other appropriate remedy. The Parties shall cooperate in any such proceedings. Regardless of whether such protective order or other appropriate remedy is obtained, each Party will only furnish that portion of the Confidential Information that it is required to turn over.

6. Relationship of the Parties.

a. Independent Contractor. Any use of the term “partner” or “partnership” in the Agreement (including any SOW, Exhibit, attachment, and any other document or agreement entered into or used in connection with this Agreement or the Services) is for reference purposes only. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed to constitute, create, give effect to, recognize or imply that there exists between the Parties any partnership, joint venture or other form of joint enterprise or combined business organization, any agency, employment or fiduciary relationship between the Parties, and the respective rights and obligations of the Parties shall be only those expressly set forth in this Agreement and any SOW or Exhibit. Neither Party has any authority hereunder to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party, or to bind the other Party in any way whatsoever.

b. Employees. It is understood and agreed that the employees furnished by ARS and, if applicable, Customer to perform the obligations hereunder shall be deemed to be ARS’s and Customer’s employees exclusively; that said employees shall be paid by each Party separately for all services in connection with this Agreement and that ARS and Customer separately shall be responsible for all obligations and reports covering social security, employment insurance, workers’ compensation, income tax and other reports and deductions required by state or federal law. Customer shall not control the manner by which ARS or ARS’s employees, contractors, or agents perform the Services.

c. Compliance with Customer Policies. When on Customer premises, including during the performance of the Services in the Testing Location, ARS and its personnel shall comply with all rules, regulations and policies applicable to other contractors at such Customer premises, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures, provided that Customer shall provide written copies of all such rules, regulations and policies to ARS no later than thirty (30) days prior to the start date set forth in an SOW.

7. Term and Termination.

a. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and, unless sooner terminated pursuant to provisions contained in this Section 7, shall terminate at the completion and delivery of the Services set forth in the SOW.

b. Termination without Cause. Except as stated in any SOW to the contrary, either Party may terminate this Agreement or any SOW, upon thirty (30) days’ advance written notice. Upon any such termination, ARS shall advise Customer of the extent to which performance has been completed through such date and collect and deliver to Customer whatever deliverable that then exists. ARS agrees to wind up its work in a commercially reasonable manner in order to preserve the value of the work created prior to termination. ARS shall be paid for all work performed and expenses incurred through the date of termination, including charges for any products and equipment ordered by ARS on Customer’s behalf which cannot be returned for a full refund; provided however, that in the event that ARS elects to terminate this Agreement, Customer will pay ARS only for work associated with an agreed upon deliverable as defined in an SOW that has been received and accepted by Customer.

c. Termination for Cause. If either Party (a) fails to perform its obligations under this Agreement or any SOW and such failure continues for a period of fifteen (15) days after written notice thereof, (b) ceases to carry on its business substantially as such business is conducted on the date hereof, (c) institutes or suffers the institution against such Party of bankruptcy, reorganization, liquidation receivership or similar proceedings, or (d) generally becomes unable to pay its debts as they become due, then, without prejudice to any other rights or remedies available to it, the other Party shall have the right to terminate this Agreement immediately. In addition, ARS may terminate this Agreement or any SOW fifteen (15) days after written notice in the event Customer fails to pay ARS in accordance with the terms of any SOW and Section 2 of this Agreement.

d. Remedies. The remedies set forth in this Agreement are not exclusive unless expressly so provided and, unless exclusive, are in addition to all other remedies available under applicable law. The Parties’ obligations with respect to Confidential Information shall survive termination of this Agreement or termination of any license granted herein.

8. Authorized Use.

Customer shall not allow any individual to access, use or operate the Equipment, including NEUTRON, unless such individual is an Authorized User. An “Authorized User” is any Customer personnel who has completed the Authorized Use Training provided by ARS and executed an Acknowledgment of Training Completion, attached hereto as Exhibit B. Customer shall ensure that all of its Authorized Users shall comply with the safety policies, procedures and protocols provided by ARS, including those contained in the Authorized Use Training, the NEUTRON User Manual and any other policies and safe operating instructions provided by ARS to Customer (collectively, the “ARS Safety and Authorized Use Policies”), as well as take all other actions necessary to safely operate NEUTRON. Customer is responsible for the acts and omissions of its Authorized Users relating to the Agreement, including compliance with these Terms and Conditions, and the ARS Safety and Authorized Use Policies as though they were those of Customer. ARS shall not be responsible for any health and safety issues related to access to and use and operation of the Equipment by Purchaser and any of its employees and personnel, including its Authorized Users.

9. Prohibited Uses.

Customer may not use, or encourage, promote, facilitate, or instruct others to use the Equipment, including NEUTRON, for any illegal, harmful or offensive use. Prohibited uses include:

a. Use of the Equipment in a way that violates, or threatens to violate a person’s privacy; or
b. Intentional damage to or abuse of the Equipment or operation of the Equipment outside of specifications set forth in the NEUTRON User Manual;
c. Use of the Equipment that is otherwise illegal or solicits or promotes conduct that is illegal under applicable law.

ARS shall have no liability to Customer arising from or related to Customer or any Customer employee, personnel, or Authorized User’s failure to comply with or violation of the ARS Authorized Use and Safety Policies or this Section 9.

10. Support and Service Levels.

a. Support Services. If applicable to the Services as indicated in the SOW, ARS will provide support services (“Support Services”) subject to the terms and conditions in this Section 10. If applicable, during the Term, ARS will use commercially reasonable efforts to provide industry standard support if designated in the SOW.

b. Services Warranty. ARS represents and warrants that the Services will be performed in a competent and professional manner by qualified personnel in a manner consistent with industry standard.

c. Limitations. ARS shall not be responsible for any issues related to or caused by: (i) expendable parts and/or Customer’s installation thereof; (ii) cosmetic damage or ordinary wear-and-tear to the Equipment, including NEUTRON; (iii) Customer’s or any of its Authorized User’s failure to follow operating instructions provided by ARS, including any portion of the ARS Safety and Authorized Use Policies; (iv) Customer’s or any of its Authorized User’s use of NEUTRON outside of the operating parameters described in the documentation provided by ARS, including any portion of the ARS Safety and Authorized Use Policies; (v) Customer’s use or combination of parts with NEUTRON that were not provided by ARS; (vi) use of NEUTRON by anyone other than Customer’s Authorized Users; and (vii) modifications to NEUTRON made by anyone other than ARS or its authorized personnel.

d. Remedies. This Section 10 sets forth ARS’s sole liability, and Customer’s sole and exclusive remedy, for any performance issues relating to NEUTRON.

11. Force Majeure.

In the event either Party is delayed or prevented from performing this Agreement, excluding payment obligations, due to any cause beyond its reasonable control, including but not limited to, of an act of God, accident, fire, pandemic, epidemic, strike, labor or civil unrest or dispute, riot, work stoppage, embargo, blockage, protest, act of public enemy, law, enactment, rule, order, or act of any government or governmental instrumentality, failure of technical facilities, failure or delay of transportation facilities, such delay shall be excused during the continuance of such delay, and the period of performance shall be extended to such extent as may be reasonable to perform after the cause of delay has been removed. In the event any such delay continues for a period of more than thirty (30) days, either Party may terminate any SOW under which performance is delayed upon written notice to the other Party. In the event of any such termination, Customer shall pay ARS for work performed through the effective date of termination.

12. No Warranty.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICES PROVIDED BY ARS TO CUSTOMER HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND. ARS CUSTOMER ACKNOWLEDGES SERVICES MAY ONLY BE USED FOR INFORMATION PURPOSES AND ARE NOT INTENDED PROVIDE A COMPLETE SOLUTION TO ENSURING THAT ANY WORK BASED ON THE SERVICES PERFORMED BY THE CUSTOMER IS ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT NEITHER ARS NOR ANY OF ITS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING ANY SERVICES HEREUNDER MAKES ANY GUARANTIES OR WARRANTIES, EXPRESSED, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION, WARRANTIES REGARDING THE ACCURACY OR COMPLETENESS OF ANY TESTING SERVICES AND OUTCOMES, WARRANTIES THAT THE RESULT OF ANY TESTING SERVICES WILL BE FREE OF ERRORS, OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT OF THIRD-PARTY RIGHTS.

13. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ARS AND ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, COST, DAMAGE, OR OTHER INJURY, OF ANY KIND WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY: (I) CUSTOMER USE OF, INABILITY TO USE, OR RELIANCE ON, ANY PART OF THE SERVICES PERFORMED HEREUNDER, (II) ANY ERRORS OR OMISSIONS RESULTING FROM THE SERVICES OR CONTENT PROVIDED BY ARS HEREUNDER, OR (III) ARS OR ANY OTHER PERSON’S PERFORMANCE OF ANY OBLIGATIONS UNDER OR IN CONNECTION WITH THE TERMS AND CONDITIONS HEREUNDER. IN NO EVENT WILL ARS OR ANY OF ITS MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, AND AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR SIMILAR DAMAGES, LOSS OF PROFITS, LOSS OF OR DAMAGE TO DATA OR SYSTEMS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR ANY OTHER DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

14. Insurance.

Customer shall maintain insurance at the levels set forth in the SOW. Customer shall provide certificates of insurance or other evidence of compliance with the requirements set forth in the preceding sentence and shall provide ARS with ten (10) days’ prior written notice in the event of a cancellation or material change to its insurance. ARS shall be named as additional insured on Customer’s insurance policies required by this Section 14.

15. Export Control.

The Parties shall comply with all national, federal, state and local laws and regulations in connection with the performance of this Agreement, including all applicable export control laws and regulations. In addition, Customer shall not export, directly or indirectly, any technical data acquired from ARS, or any products utilizing such data, to any country in violation of any applicable export control laws or regulations or any applicable laws, regulations or sanctions of the United States or the United Nations.

16. Customer Premises.

ARS makes no certifications that the Equipment or any Services comply with any environmental protection, health, safety, and fire protection regulations and requirements, and ARS shall have no liability to Customer relating to any of the foregoing. Customer shall be exclusively responsible for, shall bear, and shall relieve Customer from liability for all loss, expense, damage or claim resulting from bodily injury, disability, sickness or disease, including death, at any time resulting therefrom, sustained by any person or persons, or on account of damage to or destruction of property, including that of Customer, arising out of, or in connection with the performance of the Services at the Testing Location or otherwise on Customer premises, except to the extent such loss, expense, damage or claim is caused directly by ARS’s gross negligence or willful misconduct.

17. Notices.

All notices required shall be in writing and shall be effective on the date of mailing to the parties at the addresses set forth on the signature page of this Agreement, or to such other address as designated by the parties in writing, and sent via registered U.S. mail, electronically with a “read” receipt, or by a mutually recognized overnight delivery service. Notices delivered personally shall be effective upon delivery against receipt. Notices transmitted by facsimile shall be effective when received, provided that the burden of proving notice when notice is transmitted by facsimile shall be the responsibility of the Party providing such notice. Notices delivered by overnight courier shall be effective when received. Notices delivered by registered or certified mail shall be effective on the date set forth on the receipt of registered or certified mail, whichever is earlier.

18. Publicity.

ARS shall be permitted to identify Customer as a business partner, to use Customer’s name in connection with proposals to prospective customers, to hyperlink from Customer’s web site to ARS’s home page, to display Customer’s logo on ARS’s website, and to otherwise refer to Customer in print or electronic form for marketing or reference purposes. Customer shall not issue or cause the publication of any press release or other public announcement, or otherwise make any public statement concerning the transactions contemplated by this Agreement without ARS’s prior written consent (which consent shall not be unreasonably withheld or denied).

19. Miscellaneous.

a. Controlling Law. This Agreement shall be governed by and construed in accordance with the laws of the State of West Virginia (without application of principles of conflicts of law). The Parties agree that any claim or cause of action between the Parties arising out of or in connection with this Agreement shall have exclusive jurisdiction and venue in state court in Shepherdstown, West Virginia, or the United States District Court for the Northern District of West Virginia, whichever is proper. Notwithstanding the preceding sentence, nothing in this Agreement shall restrict or limit either Party seeking injunctive or similar relief in any jurisdiction to protect its Confidential Information.

b. Injunction. Both Parties acknowledge that a Party’s intellectual property and/or Confidential Information is a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of a Party’s intellectual property rights shall be deemed a material breach of the Agreement, for which a Party may not have adequate remedy in money or damages, as such a Party shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.

c. Assignment and Subcontracting. ARS may assign this Agreement without Customer’s consent in connection with a merger, sale or other disposition of substantially all the assets of ARS’s business. ARS may delegate any part of its duties required of ARS by the Agreement, provided that ARS shall remain primarily responsible for compliance with its obligations under this Agreement.

d. Successor and Assigns. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective transferees, successors and permitted assigns.

e. Non-Exclusivity.This Agreement is not exclusive. Subject to the Parties’ respective confidentiality obligations, nothing in this Agreement shall preclude either Party from working with third parties on similar projects or, in the case of Customer, exploring other services or technologies that may be similar to or competitive with NEUTRON, and in the case of ARS, exploring business opportunities with commercial entities that may be similar to or competitive with Customer.

f. Non-Solicitation. Customer agrees that, for the Term of this Agreement, it shall not employ or tender any offer of employment, contract or any other form of engagement to any employee of ARS without first obtaining ARS’s prior written consent, which may be withheld for any reason. For the purposes of this paragraph only, the term “employee” of ARS extends to all present and future employees of ARS during the period of their employment and continues for a period of six months after any such employee leaves the employ of ARS. Provided, however, that this paragraph shall not apply in the event ARS should cease conducting all business operation.

g. Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent by a court of competent jurisdiction, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law, but only as long as the continued validity, legality and enforceability of such provision or application does not materially alter the terms of this Agreement or diminish the benefits or burdens of this Agreement.

h. Waiver. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

i. Survival. The provisions of the Agreement which by their explicit terms or their manifest intent are intended to survive, including without limitation those which relate to intellectual property, Confidential Information, limitation on liability, and governing law, shall survive termination of this Agreement.

ARS Neutron Services Terms & Conditions: Test Services