Master Services Agreement

ARTICLE I. DEFINITIONS

Unless otherwise defined, terms for which meanings are provided in this Agreement shall have such meanings when used in the Engagement Documents, Engagement Document attachments, related amendments, and other communication delivered from time to time in connection with this Agreement.

Affiliate
Any entity, whether incorporated or not, which directly or indirectly is and remains controlled by the entity first identified as “Customer” above and executes an Affiliate Amendment to this Agreement. Control in an Affiliate requires ownership of more than fifty percent (50%) of: (i) voting stock of a company with voting stock, or (ii) ownership interest in any other enterprise. Customer agrees to confirm the Affiliate status of an entity upon request by Cloud Inventory. In the event an Affiliate ceases to comply with this definition, this Agreement shall terminate solely as it relates to the former Affiliate in accordance with the termination provisions in this Agreement. For purposes of this Agreement, Cloud Inventory’s affiliates shall be any entity in which Cloud Inventory has a ninety percent (90%) ownership interest, either directly or through a wholly owned subsidiary.

Customer
The entity first identified as “Customer” above and any Affiliate that executes an Affiliate Amendment to this Agreement.

Days
All days referred to in this Agreement shall be calendar days.

Cloud Inventory
The Cloud Inventory entity which delivers Services to Customer and submits associated invoices under this Agreement to Customer. Entities shall include Data Systems International, Inc. and its subsidiaries.

Cloud Inventory Programs
Cloud Inventory’s proprietary software programs, including any updates licensed for use by Customer under a separate agreement.

Engagement Document
Any signature required document including, but not limited, to any document titled Statement of Work, Scope of Engagement, Implementation Services Estimate, Initial Services Estimate, that details the Services offered by Cloud Inventory. An Engagement Document may include the following: (i) a description of the services and any deliverables to be provided; (ii) functional or technical specifications for any software, deliverable or work product to be provided by Cloud Inventory; (iii) an estimated implementation plan including milestones, estimated delivery dates or proposed deadlines and the parties’ respective responsibilities; (iv) fees payable under such Engagement Document, the manner in which such fees shall be calculated, and such other information as the parties deem necessary; and (v) a description of any resources required under such Engagement Document.

Licensed Products
Cloud Inventory’s proprietary software programs, including any updates provided, licensed by Customer under a separate agreement.

Services
The professional services, including without limitation, consulting, implementation, configuration of Cloud Inventory Programs or Licensed Products, or installation services offered by Cloud Inventory.

ARTICLE II. TERM AND TERMINATION OF SERVICES

1. Cloud Inventory will commence the Services upon or after Customer’s execution of the Agreement and any Engagement Document and Cloud Inventory’s acceptance of such document(s).
2. The term of each Engagement Document shall be as set forth therein or, if no term is specified, shall commence upon the parties’ full execution thereof and terminate when the parties have fully performed their obligations, unless terminated in writing upon thirty (30) days prior notice by either party prior to completion of the Services.

ARTICLE III. FEES FOR SERVICES

1. Unless otherwise agreed in an Engagement Document, Customer shall pay Cloud Inventory for the Services performed at the mutually established rates stated in the applicable Engagement Document. Cloud Inventory will submit invoices to Customer for the Services rendered during each billing period as set forth in the applicable Engagement Document.

2. Customer agrees to reimburse Cloud Inventory for all travel related expenses which may include, but are not limited to airfare, ground transportation, lodging, meals and incidental charges per the travel expense policy, which are reimbursable expenses and not part of Cloud Inventory’s total estimate for the Services. In the event that a specific policy cannot be adhered to, the parties agree to review the issue in a timely manner and will make reasonable efforts to accommodate exceptions.

3. Customer shall be solely responsible for all taxes related to Services provided by Cloud Inventory under this Agreement including, by way of example and not limitation, import duties and fees, sales, use, property, excise, value added, and gross receipts (“Taxes”). Notwithstanding anything to the contrary in this section, Cloud Inventory shall be solely responsible for all taxes based on its personal property and net income, as well as all taxes, withholding and insurance obligations associated with its employees. In the event Customer is exempt from taxes, Customer shall provide Cloud Inventory a tax-exempt certificate at the time of the initial order and on an annual basis thereafter. Should Customer be required by any withholding tax or other similar law to deduct any amount from the amounts due to Cloud Inventory under this Agreement, Customer agrees that it shall pay a sufficiently higher amount so that the net amounts received by Cloud Inventory after such withholding equal what was invoiced. Notwithstanding anything to the contrary in this Section, Cloud Inventory shall be solely responsible for all taxes based on its personal property and net income.

4. Payment for Services fees and any travel related expenses shall be due within thirty (30) days of invoice date. Unless otherwise agreed, all invoices shall be submitted electronically within twenty-four (24) hours of invoice date to contact designated by Customer.

5. Customer acknowledges that failure to remit payment according to the agreed upon payment terms as defined in the Agreement or an Engagement Document may result in (i) cancellation of scheduled engagements until such time as the account balance is brought into compliance with the agreed upon terms and (ii) loss of any discounted rates for Services.

6. During any period when Cloud Inventory ceases performance of services because of delinquent and unpaid invoices, Cloud Inventory will have the right to remove from Customer’s premises any software, hardware, documentation or other materials developed or provided by Cloud Inventory during the specific engagements for which Customer payment is delinquent, and retain the same until all submitted invoices are paid.

7. Customer shall pay Cloud Inventory interest at the rate of one and one-half percent (11⁄2%) per month or, if less, the highest amount permitted by law, from the due date on any undisputed payment due under this Agreement not received by Cloud Inventory on the due date. Customer shall notify Cloud Inventory in writing of disputed payments due under this Agreement and reason for such dispute within ten (10) days of invoice date and Cloud Inventory shall investigate and resolve such dispute within thirty (30) days of notice from Customer.

8. Invoices shall be submitted to Customer by the appropriate Cloud Inventory entity and Customer shall remit payment for such invoices to the invoicing Cloud Inventory entity and to the designated bank in the currency indicated on the invoice. All invoices to Customer will be sent to Customer’s address appearing in this Agreement. Except as provided herein all payments made are nonrefundable.

ARTICLE IV. CHANGE OF SCOPE OF ENGAGEMENT

1. Following execution of an Engagement Document, Customer may desire Cloud Inventory to provide additional or specialized personnel, additional services or change in the location for the performance of services, each of which shall constitute a change to the scope of Services (“Scope Change”). In the event of a Scope Change Request, Cloud Inventory and Customer will comply with the following:

(i) If Customer submits a Scope Change, Customer shall provide Cloud Inventory with written notice of such changes. Cloud Inventory will evaluate the requested changes and provide Customer with a Change Order document.

(ii) If Cloud Inventory recommends a Scope Change, Cloud Inventory prepare and submit to Customer a Change Order.

(iii) Any proposed Scope Change shall be set forth in a Change Order document prepared by Cloud Inventory and provided to Customer. In addition to setting forth the Scope Change, the Change Order shall include a statement of the availability of its personnel and resources, any impact on the completion date and an estimate of any additional costs or required resources.

2. Upon receipt of such Change Order, Customer may elect to:

(i) Continue under the then existing Engagement Document with no changes; or
(ii) Proceed under the amended Engagement Document revised by the Change Order; or
(iii) Terminate the Engagement Document.

3. If Customer terminates the Engagement Document, the termination is effective immediately and Customer will be invoiced and must pay only for Services provided by Cloud Inventory through and including the date of termination in accordance with the payment terms set forth in Article III.

4. If Customer wishes to proceed with the Scope Change, Customer must return a signed copy of the Change Order to Cloud Inventory within fifteen (15) days of receipt of the Change Order. Upon full execution of a Change Order, such Change Order will become part of the applicable Engagement Document, and will constitute an amendment to such Engagement Document.

ARTICLE V. COMMUNICATIONS, FACILITIES, AND PERSONNEL

1. Customer will identify its designated representative to whom all communications by Cloud Inventory may be addressed. The designated representative will have the authority to act on behalf of Customer and to provide information related to the services to be rendered by Cloud Inventory.

2. Customer will provide at no charge to Cloud Inventory reasonable office space, facilities, working environment and services, including data reproduction, which Cloud Inventory deems necessary to the performance of services under this Agreement.

3. Failure or delay by Customer to provide such services and facilities may result in additional charges to Customer if such failure or delay affects the obligations of Cloud Inventory under this Agreement.

4. Customer acknowledges that Cloud Inventory personnel providing services under this Agreement may perform similar services for other customers of Cloud Inventory, and this Agreement will not restrict Cloud Inventory from performing similar services or restrict Cloud Inventory in its choice of personnel assigned to Customer’s services. Cloud Inventory will attempt to respect Customer’s choices for particular Cloud Inventory personnel consistent with sound business practice. Cloud Inventory retains the sole right to determine personnel assignments.

ARTICLE VI. EMPLOYEE RECRUITING

Neither party, including its Affiliates, shall recruit or solicit, employ or otherwise engage an employee of other party who has had direct involvement in the provision of Services under this Agreement during, and for a period of six (6) months following the end of any Services engagement. Should a party violate this provision, the violating party shall pay the other party one hundred percent (100%) of the former employee’s annual base salary with the non-violating party as damages for the violation. Such payment shall be the non-violating party’s sole remedy with respect to the violating party. The foregoing shall not restrict either party from hiring a person responding to a general advertisement for employment or whose employment was terminated by the other party prior to any solicitation by such party.

ARTICLE VII. MUTUAL NON-DISCLOSURE

1. Each party to this Agreement may furnish the other party with certain proprietary or nonpublic information (the “Confidential Information”). The furnishing party shall be the “Discloser” and the receiving party shall be the ‘Recipient”. For purposes of this Agreement, Confidential Information is defined as:

(i) Disclosed information in printed, written, graphic, photographic or other tangible form marked as “Confidential,” “Proprietary,” “Private,” “Restricted,” or “Trade Secret” by Discloser. Both parties acknowledge that information regarding Discloser’s affiliates, customers, suppliers, prospects, business associates, principals, agents, officers, directors, shareholders, and/or employees, which is disclosed or learned by Recipient pursuant to, or in connection with this Agreement, including but not limited to either party’s intellectual property, proprietary processes and information, product information, sales data, trade secrets, inventory data, employee data, customer data, supplier data, operational data, financial data, size of either party and size and number of either party’s facilities, shall remain the proprietary and Confidential Information of Discloser;

(ii) Disclosed information in oral or demonstrative form, recorded as written minutes or notes of such presentations, which minutes or notes must be so marked and provided to Recipient within thirty (30) days after the date of disclosure;

(iii) Information relating to unreleased products and service offerings;
(iv) The terms and conditions of this Agreement; and
(v) Either party’s intellectual property.

2. Confidential Information shall not include information that:

(i) is or becomes part of the public domain without violation of this Agreement by Recipient;
(ii) is already in Recipient’s possession free of any restriction on use or disclosure;
(iii) becomes available to Recipient from a third-party provided that such party was free from restriction on disclosure of the information; or
(iv) has been independently developed by Recipient without reference to or use of the Discloser’s Confidential Information.

3.If Recipient is required by legal proceeding discovery request, “open records” or equivalent request, investigative demand, subpoena, court or government order to disclose Confidential Information, Recipient may disclose such Confidential Information provided that:

(i) the disclosure is limited to the extent and purpose legally required; and
(ii) prior to any disclosure and if permitted by applicable law, Recipient shall immediately notify Discloser in writing of the existence, terms, and conditions of the required disclosure and, at Discloser’s request and expense, cooperate in obtaining a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information.

4. Recipient shall hold the Confidential Information in confidence and only disclose the Confidential Information to its officers, employees, consultants, counsel, affiliates, independent contractors, or agents (collectively “Representatives”) who:

(i) need the Confidential Information to assist the Recipient with performing its obligations or exercising its rights under this Agreement;

(ii) have been instructed not to disclose the Confidential Information; and

(iii) for other than Recipient’s employees, have executed a nondisclosure or confidentiality agreement with Recipient at least as protective as this Agreement of the Confidential Information of Discloser.

Recipient shall use reasonable efforts to prevent its Representatives (including Representatives who, subsequent to the date of this Agreement, become former Representatives) from unauthorized use or disclosure of the Confidential Information. Recipient shall be responsible for all violations by its Representatives under this Agreement.

5. Recipient shall comply, and will require its Representatives to comply, with all applicable national, state/provincial and local data protection laws and regulations in the maintenance, disclosure and use of all personal information contained in any Confidential Information that is disclosed to Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that (i) relates to an individual person; and (ii) identifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual and all Personal Information is Confidential Information pursuant to this Agreement.

6. All Confidential Information shall, between Discloser and Recipient, remain the property of Discloser. Immediately (i) upon the written request of the Discloser or (ii) the termination or expiration of this Agreement, the Recipient shall, (a) return to the Discloser all documents and other tangible manifestations of Confidential Information, (b) destroy all documents (and all copies) created by the Recipient incorporating or referencing Confidential Information, and (c) cause an officer of the Recipient to certify in writing the return or destruction of all Confidential Information. Notwithstanding the foregoing, the Recipient may retain one copy of the Confidential Information solely for the purpose of the defense of its rights and obligations under this Agreement and archival copies stored in the ordinary course of business on the electronic back-up systems of the Recipient. All such retained Confidential Information remains subject to the confidentiality provisions of this Agreement.

7. Provided that Recipient does not utilize or base any such developments on Discloser’s Confidential Information, Recipient may at any time independently develop information similar to, or products and services that compete with products or services identified in, the Confidential Information.

8. The parties stipulate that a breach of this Article VII by Recipient will cause immediate and irreparable harm and significant injury to Discloser, for which there is no adequate remedy at law and that Discloser shall be entitled, in addition to any other rights and remedies it may have, to injunctive relief, specific performance and other equitable remedies to restrain any threatened, continuing, or further breach of this Article VII. Recipient shall immediately advise Discloser of any discovered breach by Recipient or its Representatives of this Agreement and shall reasonably cooperate, at Recipient’s expense, with Discloser in retrieving the disclosed Confidential Information and restricting any continuing breach.

ARTICLE VIII. PROPRIETARY INTERESTS

1. All configurations of Cloud Inventory’s intellectual property, documentation and other material provided to Customer under this Agreement, including computer program objects and source data, as well as, printed listings, manuals and other documents (“Cloud Inventory Property”), shall be owned by Cloud Inventory. Cloud Inventory grants to Customer a non-exclusive, non-assignable, royalty free, limited right to access and use the deliverables, as defined in an Engagement Document, solely for Customer’s internal business operations.

2. The discoveries, inventions, improvements, concepts, ideas, and data processing techniques developed under this Agreement, related to existing Cloud Inventory intellectual property remain the property of Cloud Inventory, which reserves all rights, may be used by, and only by, Customer and Customer’s Affiliates, if any, and may not be transferred, assigned, or disclosed by Customer to any third-party without the express written consent of Cloud Inventory. The discoveries, inventions, improvements, concepts, ideas, and data processing techniques developed under this Agreement related to existing Customer intellectual property remain the property of Customer, which reserves all rights, may be used by, and only by, Cloud Inventory in the performance of Services for Customer, and may not be transferred, assigned, or disclosed by Cloud Inventory to any third-party without the express written consent of Customer. In the event that a party grants such written consent, the requesting party agrees to require such third-party, in question, to execute in writing such necessary documentation so as to bind the third-party to the same confidentiality and non-disclosure provisions as set forth in this Agreement, to the same degree and extent that the requesting party is so bound.

3. Provided that such materials do not embody, rely upon, or otherwise use Customer’s intellectual property or Confidential Information, nothing in this Agreement will prohibit Cloud Inventory from developing competitive materials, whether similar to or not similar to, materials delivered to Customer under this Agreement.

4. All obligations described in this Article VIII shall survive and persist beyond the termination of this Agreement.

ARTICLE IX. DELIVERABLE MODIFICATION

Customer has the right to modify any software applications configured and delivered by Cloud Inventory to the Customer under this Agreement without the consent of Cloud Inventory. However, Customer understands that Cloud Inventory makes no warranty, expressed or implied, regarding any modified portions of the software applications, and that no modifications will reduce Cloud Inventory’s ownership or rights in the software.

ARTICLE X. DEFAULT; TERMINATION; REMEDIES

1. Failure by either party to perform any of its obligations under this Agreement or under any supporting Engagement Document shall constitute a default of this Agreement and result in the termination of the Agreement by a party, at its sole discretion. Termination shall not release the parties from their obligations related to the use and confidentiality of the other party’s Confidential Information.

2. Upon termination, the parties shall immediately return all tangible property of the other party. Customer shall remain obligated for the payment of all monies due to Cloud Inventory and Cloud Inventory shall have all other rights under this Agreement in law or in equity.

3. The parties acknowledge and agree that the other party shall be permitted to obtain equitable relief to preclude the other party from breaching or further breaching any of the other terms of this Agreement, including, without limitation, specific performance of the terms of this Agreement and injunctive relief against any breach hereof, as a remedy for any breach of this Agreement, without having to show any likelihood of irreparable harm and without having to prove that money damages would be an inadequate remedy.

4. If either party violates this Agreement, the non-violating party, in addition to any other rights available to it in law or equity, may give written notice of its desire to terminate and the specific grounds for termination. Following the giving of such notice, this Agreement will then terminate if the violating party fails to cure the breach within thirty (30) days of the notice. If such default is incapable of cure, this Agreement will terminate immediately upon notice.

ARTICLE XI. LIMITED WARRANTY

1. Cloud Inventory warrants (i) the Services supplied by Cloud Inventory under this Agreement shall be performed in a professional and workmanlike manner; (ii) the persons Cloud Inventory assigns to perform the Services shall have the appropriate skill, training and background to perform such services in a competent manner and (iii) any deliverables provided by Cloud Inventory under this Agreement will materially conform to the specifications detailed in the applicable Engagement Document. Except for the warranties set forth in this Agreement, CLOUD INVENTORY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, including, but not limited to, implied warranties of fitness for a particular purpose or use.

2. Cloud Inventory will have no responsibility for problems caused by alterations or modifications made by entities other than Cloud Inventory, problems arising from the malfunction of Customer’s equipment, or problems caused by errors in products not supplied by Cloud Inventory.

3. Cloud Inventory will have no responsibility for delays or interruptions in the delivery, installation, or operation of any software caused by events beyond the reasonable control of Cloud Inventory.

ARTICLE XII. LIMITATION OF LIABILITY

1. EXCEPT FOR A BREACH OF ARTICLE VII (MUTUAL NON-DISCLOSURE) OR ANY BREACH OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE RELEVANT SERVICES GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, PROFITS, DATA, (OR USE THEREOF), OR BUSINESS INTERRUPTION ARISING OUT OF EITHER PARTY’S ACT OR FAILURE TO ACT, WHETHER SUCH DAMAGES ARE LABELED IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY EXCLUSIVE REMEDY IN THIS

AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

2. Except for actions caused by nonpayment, Cloud Inventory and Customer agree that no action arising out of the Services provided under this Agreement may be brought more than two (2) years after the cause of action has occurred.

ARTICLE XIII. ESTIMATES

All manpower resource, time, and cost projections provided by Cloud Inventory to Customer shall be in writing and will be considered estimates unless explicitly stated otherwise. Such estimates will not be considered binding unless agreed to in writing and accepted by both parties.

ARTICLE XIV. FORCE MAJEURE

Neither party shall be in default under this Agreement by reason of its delay in the performance of, or failure to perform, any of its obligations under this Agreement, if, and to the extent that, such delay or failure is caused by strikes, natural disasters, acts of the public enemy or government actions or acts of terrorism. Upon claiming any excuse or delay under this section, such party shall promptly notify the other party, use reasonable efforts to remove the cause, and continue its performance under this Agreement whenever the cause is removed.

ARTICLE XV. DISPUTE RESOLUTION

Before initiating any legal claim or action (except with respect to equitable relief), the parties agree to attempt in good faith to settle any dispute, controversy or claim arising out of or related to Services provided under an Engagement Document (collectively, a “Claim”) through discussions which shall be initiated upon written notice of a Claim by either party to the other party. If the parties cannot come to a mutually agreeable resolution of the Claim within ten (10) business days, then such Claim shall be referred to members of the parties’ executive management (each such member a “Representative”) for resolution, which referral shall be evidenced by a written notice from either party to the other (the “Referral”). The parties’ representatives shall meet within ten (10) business days of such Referral. If the parties have not reached a mutually agreeable resolution of the Claim within ten (10) business days after their initial meeting, then either party may pursue its rights and remedies available at law or in equity.

ARTICLE XVI. MISCELLANEOUS

1. This Agreement is a services agreement and not a sale of goods. This Agreement shall not be subject to the United Nations Convention on Contracts for the Sale of Goods.

2. All disputes involving this Agreement, except actions arising under the copyright provisions of Title 17 of the US Code, shall be determined under the law of the State of Kansas without regard to its conflict of laws provisions. The parties agree that any controversy, claim or litigation arising out of or in connection with this Agreement shall be resolved in a federal or state court in the State of Kansas, and consent to the jurisdiction of such court over the parties hereto and such controversy, claim or litigation.

3. Any modification of any term or condition of this Agreement shall be effective only if in writing and signed by authorized representatives of both parties. No other act, usage, or custom shall be deemed to modify this Agreement.

4. If any provision of this Agreement is held to be invalid, the remaining portions of this Agreement shall remain in full force.

5. Either party’s failure to insist upon strict compliance with any provision of this Agreement in any instance shall not be construed as a waiver or relinquishment of the party’s rights to insist upon strict compliance in the future. Further, any waiver of any default or breach of this Agreement shall be effective only if in writing and signed by an authorized representative of the party providing the waiver. No such waiver shall be deemed to be a waiver of any other or subsequent breach or default.

6. All notices required or permitted to be given shall be in writing sent by courier or certified mail, return receipt requested, to the recipients at the addresses below or to such other recipients as the parties may specify from time to time by written notice to the other party, which shall be deemed effective upon delivery to the recipient.

7. Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any software, information, data, or other materials received under this Agreement except in full compliance with all United States and other applicable acts, laws, and regulations. Customer shall indemnify, defend and hold harmless Cloud Inventory from any loss, liability, cost or expense (including reasonable legal fees) related to any action arising from Customer’s failure to comply with this section.

8. This Agreement does not constitute and shall not be construed as constituting a partnership, agency, distributorship, or joint venture between the parties. Neither party shall have any right to obligate or bind the other party in any manner whatsoever and nothing herein shall give, or is intended to give, any rights of any kind to any third persons, except as specifically provided in this Agreement.

9. Upon any termination of this Agreement, Customer shall provide Cloud Inventory with all outstanding payments due within ten (10) days of the termination. Articles VII (Mutual Non-Disclosure), VIII (Proprietary Interests), XI (Limited Warranty) XII (Limitation of Liability), XV (Dispute Resolution) and Sections 1, 2, 6 and 7 of Article XVI (Miscellaneous) of this Agreement shall survive any termination.

10. The terms of this Agreement shall not supersede any software license agreement, software maintenance, and support agreement or cloud services agreement Customer has signed.

11. Any purchase order or other instrument of Customer accompanying either an attachment to this Agreement or a Customer payment is for Customer’s internal use only and its terms shall not alter or amend the terms of this Agreement, any additional or varying terms contained in such instrument being expressly rejected.

12. If a version of this Agreement is provided in a language other than English and there is an inconsistency between the terms and conditions of the two versions, the English version shall control.

EACH PARTY REPRESENTS THAT IT HAS FULL AUTHORITY AND POWER TO ENTER INTO AND PERFORM UNDER THIS AGREEMENT, AND THAT THE PERSON SIGNING ON BEHALF OF EACH HAS BEEN PROPERLY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT.