a. “Action” means any claim, suit, action, or proceeding.

b. “CAN-SPAM” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, as amended.

c. “CCPA” means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General.

d. “Deliverable(s)” means all documents, lists, work product, and other materials that are delivered to Customer under this MSA or prepared by or on behalf of Agile in the course of performing the Services, including any items identified as Deliverables in the Agreement.

e. “GDPR” means the General Data Protection Regulation ((EU) 2016/679, as amended), and any related regulations.

f. “Intellectual Property Rights” means all legal, equitable and contractual rights and associated rights of action relating to or arising from patent rights, copyrights, trademarks and service marks, trade secrets and know how, and including, without limitation, proprietary inventions, concepts, and ideas, whether patentable or not, improvements, discoveries, designs, and documentation.

g. “Knowledge” means skills, knowledge and experience that have a general applicability, including such skills, knowledge or experience gained by Agile in connection with performing Services for Customer.

h. “Losses” means losses, damages, liabilities, costs (including reasonable attorneys’ fees).

i. “Sublicensee” means Customer’s third-party service providers who have a need to download, use, and display the Data in order to provide services solely to Customer.

j. “Subscription Term” means the subscription term for the Data and Software as set forth in the Agreement.

k. “Suppression File(s)” means a file containing a list of individuals who have opted-out of inclusion in the Data.

l. “Third-Party Claim” means any Action brought by a third-party.

m. “Updates” means updates, alterations, modifications, improvements, or other changes to the Data made by Agile.

n. “Usage Data” means data generated in connection with Customer’s access, use and configuration of the Software and Services and data derived from it.

a. SERVICES. If the Agreement provides for Services, then, subject to the terms and conditions in this MSA, Agile will provide the Services that are listed in the Agreement. Within ten (10) days of completing the Services (unless otherwise requested by Customer in writing), Agile shall securely delete and dispose of all e-mail addresses contained in any Suppression File received from Customer.

b. GRANT OF LICENSE. Subject to the terms and conditions in this Agreement, Agile grants to Customer a limited, non-exclusive, non-sublicensable (except as permitted in Section 2.c), non-transferable, non-assignable (except as permitted in Section 11.c) license only during Subscription Term to download, use, and display the Data and Software solely for its internal business purposes, and those additional purposes which are described within the Agreement.

c. THIRD PARTY USE OF DATA. Subject to Customer’s compliance with the requirements of this Section 2.c, Agile grants to Customer the right to grant sublicenses (which right shall not include the right to grant further sublicenses) under the license to download, use, and display the Data granted in Section 2.a to any Sublicensees. Notwithstanding the foregoing, in no event shall Customer grant any sublicense hereunder to a direct competitor of Agile. For the avoidance of doubt, Customer shall ensure that no sublicense exceeds the scope of the rights and licenses to the Data granted to Customer under Section 2.a, and Customer shall ensure that no Sublicensee grants further sublicenses of any right or license sublicensed by Customer to such Sublicensee. Any purported sublicense not in compliance with the requirements of this Section 2.c is void.

d. PROHIBITED USE. As a condition to the license set forth in Section 2.a, Customer shall not: (i) copy, modify, or create derivative works or improvements on the Data or Software except for its internal business purposes; (ii) rent, lease, lend, sell, assign, distribute, publish, transfer or make the Data or Software available in any manner to any person or entity (except in accordance with Section 2.c); (iii) decompile, disassemble, interpret, reverse engineer, translate, or otherwise determine or attempt to determine any source code, algorithms, or underlying ideas of the Data or Software; or (iv) remove or modify any markings, identification, copyright or other notices on the Data or Software.

e. COMPLIANCE WITH LAWS. Customer shall ensure that any correspondence sent by Customer or on Customer’s behalf to email addresses contained in the Data strictly complies with CAN-SPAM and all other applicable laws. If Agile is providing deployment services as part of the Services for Customer, then Customer agrees that Customer is the “sender” for CAN-SPAM compliance and shall be identified appropriately as such. On a regular basis during the Subscription Term, Customer shall provide Agile with Suppression Files that include all email addresses that have opted-out of any previous messages sent by Customer or on Customer’s behalf. If Agile is performing deployment services, then Customer shall provide Agile with an updated Suppression File prior to the launch of each campaign. Customer shall indemnify, defend and hold Agile and its officers, employees, agents, successors, and assigns harmless from any third party claim, action, suit, or proceeding made or brought against Agile alleging that Agile failed to comply with CAN-SPAM when providing Services for Customer.

f. USAGE DATA. Agile may collect, analyze, and use Usage Data for the purposes of monitoring compliance with this MSA and improving the system performance, architecture, and functionality of the Services and Software.

a. FEES. In consideration for the rights and licenses granted and Services provided hereunder, Customer shall pay Agile the fees set forth in the Agreement. Customer shall make all payments to Agile in U.S. dollars upon receipt of an invoice, unless otherwise specified in the Agreement.

b. TAXES. All fees exclude taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Agile’s income.

c. LATE FEES. If Customer fails to make any payment within ten (10) days of the due date of the invoice, then Agile may charge interest on the past due amount at the higher of a rate of 3% per month or the highest rate permitted under applicable law, and Customer will reimburse Agile for all reasonable costs that Agile incurs when collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

a. AGILE’S RIGHTS. The Parties acknowledge and agree that all rights, title, and interest in and to Agile’s Knowledge and Intellectual Property Rights in the performance of the Services shall remain vested in Agile. Nothing in this Agreement prohibits Agile from using Agile’s Intellectual Property Rights or its Knowledge in performing services for other clients; provided, however, that the Knowledge does not include any Proprietary Information of Customer. As between Agile and Customer, Agile retains exclusively all rights, title, and interest in and to the Data and Software (and all Intellectual Property Rights related thereto). If either Party develops, authors, invents, creates and/or conceives, either solely or jointly with others (including with each other), any derivative works and/or improvements (as each of those terms is defined and applied under Title 17 and Title 35 U.S.C., respectively) to the Data or Software, then, as between Agile and Customer, Agile is and shall be the sole and exclusive owner of all rights and ownership in and to such derivative works and/or improvements (and any Intellectual Property Rights related thereto). For the avoidance of doubt, Agile retains exclusively all rights, title, and interest in and to any new Data obtained by Client as the result of any Services provided by Agile.

b. CUSTOMER’S RIGHTS. When Agile appends Customer’s Data or provides analytics, all Deliverables generated by Agile and delivered to Customer pursuant to the MSA and Agreement shall be the property of Customer. To the extent any of Agile’s Intellectual Property Rights are embedded or included in, or required for the use of any Deliverable, Agile shall grant and hereby does grant to Customer, solely for Customer’s internal business purposes, a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use such Agile Intellectual Property Rights solely in relation to Customer’s permitted use of the Deliverables.

c. PERSONAL INFORMATION. As used in this Section, “service provider” and “personal information” carry the same meaning as set forth under the CCPA. Except as otherwise agreed to in writing by the Parties, to the extent Customer discloses or makes available personal information to Agile and/or to the extent Agile receives and/or collects such personal information solely in its capacity as a service provider on behalf of Customer under this MSA, Agile will not (i) retain, use, or disclose such personal information other than to provide the Services and to otherwise perform its obligations under this MSA, or as otherwise permitted under the CCPA or required by applicable law; (ii) sell personal information; (iii) share personal information with anyone other than to provide the Services and to otherwise perform its obligations under this MSA; or (iv) combine personal information with information that it receives from any other customer. Notwithstanding the foregoing: (a) to the extent the CCPA and this MSA permit, Agile may aggregate, deidentify, and/or anonymize such personal information so it no longer meets the definition of “personal information” set forth in this MSA (such aggregated, deidentified, and/or anonymous information, “Deidentified Information”), and may use such Deidentified Information pursuant to the CCPA and the terms and conditions of this MSA; and (b) Agile may disclose personal information to its subcontractors pursuant to this MSA. To the extent that the CCPA or the GDPR, or any related regulations apply to this MSA, the Parties agree to abide by the applicable privacy policy, which is available upon Customer’s written request.

Each Party (the “Disclosing Party”) may disclose information to the other Party (the “Receiving Party”) that the Disclosing Party considers to be confidential or proprietary. Such confidential or proprietary information includes, without limitation, database products, data, services, suppliers, customers, financial information, software, processes, methods, knowledge, inventions, ideas, discoveries, current or planned activities, marketing promotions, research, development, or other information relating to the business activities or operations of a Party or those of its customers or suppliers (collectively, “Proprietary Information”). The Receiving Party shall: (a) protect and preserve such Proprietary Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information, but in no event less than a reasonable degree of care; and (b) not disclose such Proprietary Information to any party without the express written consent of the Disclosing Party other than to the Receiving Party’s employees who: (i) need to know such Proprietary Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this MSA; (ii) have been informed of the confidential nature of the Proprietary Information and the Receiving Party’s obligations under this Section; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Proprietary Information as the terms set forth in this Section. The obligations of this Section shall not apply to Proprietary Information which: (A) is or becomes a part of the public domain through no act or omission of the Receiving Party; (B) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (C) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (D) is independently developed by the Receiving Party without use of or reference to any Proprietary Information of the Disclosing Party. Upon the written request of the Disclosing Party, the Receiving Party shall promptly return, or if return is not feasible, destroy and certify to such destruction, all Proprietary Information and proprietary materials of the Disclosing Party and all copies thereof, in its possession or under its reasonable control. The Parties recognize and agree that there is no adequate remedy at law for breach of the provisions of this Section 5, that such a breach would irreparably harm the Disclosing Party and that the Disclosing Party is entitled to equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at law or in equity.

a. DELIVERY OF DATA. Subject to Customer’s compliance with this Agreement, Agile will electronically deliver the Data to Customer as outlined in the Agreement.

b. UPDATES TO DATA. Provided that Customer is current on all payments due to Agile, upon Customer’s written request during the Subscription Term, Agile shall deliver to Customer in a commercially reasonable manner all Updates to the Data. Notwithstanding the foregoing, Agile is not obligated to deliver Updates to Customer within thirty (30) days of the expiration of the Subscription Term but may do so in its sole discretion. All Updates are deemed part of the Data and are subject to the terms and conditions of this MSA.

a. BY BOTH PARTIES. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction; (ii) it has the full power and authority to enter into this MSA and Agreement, to perform its obligations under this MSA and Agreement; (iii) it will comply with all applicable laws relating to its performance and/or obligations under this MSA and Agreement; and (iv) the person signing this MSA and Agreement on its behalf has been properly authorized and empowered to do so.

b. BY AGILE. Agile represents and warrants that: (i) to its knowledge the Software does not contain any virus or malicious code; (ii) the Services will be performed in accordance with all applicable laws and government regulations; and (iii) the Services will be performed in a professional and workmanlike manner, consistent with industry standards, provided, however, that Customer must report any deficiencies in such Services within ninety (90) calendar days of completion of the Services in order to receive warranty remedies. For any defective portion of the Services covered by the foregoing warranty, Customer’s exclusive remedy, and Agile’s entire liability, shall be the re-performance of the applicable Services and if Agile fails to re-perform such Services as warranted, Customer shall be entitled to recover the fees actually paid to Agile specifically for the deficient Services.

c. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.A OR 7.B, CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE SOFTWARE, DATA, AND SERVICES ARE PROVIDED “AS IS,” WITH ANY AND ALL DEFECTS, ERRORS AND DEFICIENCIES. AGILE DOES NOT WARRANT THAT THE DATA WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN THE COMBINATION THAT CUSTOMER SELECTS FOR USE, OR THAT THE USE OF THE DATA WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE DATA WILL BE CORRECTED BY AGILE. EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 7.A OR 7.B, AGILE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

a. CUSTOMER’S INDEMNIFICATION OBLIGATIONS. Customer shall indemnify, defend, and hold Agile, its affiliates, and their respective officers, directors, employees, managers, members, and agents harmless from and against all Losses arising out of or in connection with any Third-Party Claim to the extent that such Losses arise out of or relate to: (i) Customer’s use of the Data beyond the scope of the license granted to Customer in Section 1(a) or in any other unauthorized manner, (ii) breach of this MSA, or (iii) any of the circumstances listed in Section 8.b(i)-(iv).

b. AGILE’S INDEMNIFICATION OBLIGATIONS. Agile shall indemnify, defend, and hold Customer harmless from and against any and all Losses incurred by Customer resulting from any Third-Party Claim alleging that the Software, Deliverables, or compilation of the Data, infringes or misappropriates any Intellectual Property Right or other right of any third party. The foregoing obligation does not apply to any Losses arising out of or relating to any: (i) use of the Deliverable, Software, or Data in combination with any materials, products, or services not provided by Agile if the infringement claim could have been avoided by not using the Deliverable, Software, or Data in such combination; (ii) modification of the Deliverable, Software, or Data other than by Agile if the infringement claim could have been avoided by not modifying the Deliverable, Software, or Data; (iii) use of a version of the Deliverable, Software, or Data which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Deliverable, Software, or Data which was made available to Customer; or (iv) use of the Software or Data after the end of the Subscription Term or beyond the scope of the license granted in Section 2.b.

c. INDEMNIFICATION PROCEDURES. Each Party (as the “Indemnified Party”) shall promptly notify the indemnifying Party (as the “Indemnifying Party”) in writing of any Action for which such Party believes it is entitled to be indemnified. The Indemnified Party shall cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in defending such Action. The Indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s failure to perform any of its obligations under this Section 8.c will not relieve the Indemnifying Party of its obligations under this Section 8 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

d. INFRINGEMENT MITIGATION. If the compilation and/or delivery of the Data or Software by Agile to Customer is, or in Agile’s opinion is likely to be, claimed to infringe any Intellectual Property Right or other right of a third party, Agile may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Data or Software as contemplated by this MSA and Agreement; (ii) modify the Data or Software, in whole or in part, in which case such modifications will constitute Data or Software under this MSA and Agreement. In the event neither (i) nor (ii) is commercially reasonable, as determined by Agile in its sole discretion, Agile may terminate this MSA and Agreement with respect to all or part of the Data or Software and require Customer to immediately cease any use of the Data or Software or any specified part thereof. In such event, Customer shall return all, or the relevant part of the Data or Software and Agile shall provide Customer with a pro-rated refund of pre-paid fees for unused Data or Software based on the current Subscription Term. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDY AND AGILE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE, DATA, OR THE COMPILATION OR DELIVERY THEREOF INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF ANY THIRD PARTY.

a. EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.C, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS MSA AND AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS, OR INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

b. EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.C, IN NO EVENT WILL EITHER PARTY’S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS MSA AND AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO AGILE UNDER THIS MSA AND AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT THAT GAVE RISE TO SUCH CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

c. TO THE EXTENT PERMITTED BY LAW, THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 9.a AND 9.b DO NOT APPLY TO LIABILITY FOR (i) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (ii) CUSTOMER’S USE OR MISUSE OF THE DATA OR SOFTWARE BEYOND THE SCOPE OF THE LICENSE GRANTED IN SECTION 2, (iii) THE INDEMNITY OBLIGATIONS IN SECTION 8 OR (iv) BREACHES OF SECTION 5.

a. SUBSCRIPTION TERM. This Agreement is effective as of the Effective Date and shall remain in effect for the Subscription Term.

b. AUTOMATIC EXPIRATION. This Agreement shall automatically expire at the end of the Subscription Term, unless otherwise noted in an executed Agreement, Addendum or Amendment.

c. TERMINATION FOR BREACH. Either Party may terminate this Agreement in the event that the other Party materially breaches any provision of this MSA or Agreement, which breach is not cured within fifteen (15) days after receipt of written notice from the non-breaching Party describing the breach in detail.

d. EFFECT OF EXPIRATION OR TERMINATION. Upon the expiration or termination of this MSA, the license granted to Customer in Section 1.a shall automatically terminate, and Customer shall (i) immediately cease using the Data and Software; (ii) return to Agile within thirty (30) days of the effective date of expiration or termination all documents and other tangible materials containing any of the Data or any other of Agile’s Proprietary Information in Customer’s possession, custody, or control, (iii) erase or otherwise remove all Data, Software, and other Proprietary Information from all computers, storage devices, and other systems Customer directly or indirectly controls; and (iv) certify to Agile in a signed written instrument that it has complied with the requirements of this Section 10.d. Further, Customer shall ensure that all Sublicensees comply with the obligations in this Section 10.d(i)-(iv). Customer hereby assumes all responsibility and attendant costs in returning the Data to Agile pursuant to this Section 10.d. If Customer continues to use Data or Software beyond the term of the MSA or Agreement without rights for its continued use, Agile may invoice, and Customer agrees to pay, for usage of the Data and Software at Agile’s published rates. The expiration or termination of this Agreement will not (A) prejudice or affect any right of action or remedy that has accrued or will accrue to either Party due to the other Party’s acts or omissions prior to the effective date of the expiration or termination, or (B) relieve Customer of its obligation to pay all charges that have accrued or have become payable to Agile under this Agreement.

e. CONTINUED USE OF ANALYTIC REPORTING. Upon the expiration or termination of this Agreement Customer shall be permitted to continue to use the analytic reporting it has created during the Subscription Term, provided that any such analytic reporting does not include any Data. Notwithstanding obligations in Section 10.d, Customer may retain the email addresses the Data is not explicitly contained within such reporting, as well as the personal information of individuals that have become Customer’s customers and individuals that have contacted Customer of their own volition during the term of the Agreement.

a. NOTICES. All notices under this MSA and Agreement shall be in writing and shall be deemed effectively given when received if delivered by a commercially recognized overnight carrier to the recipient’s address set forth herein. Notices may also be delivered by email to the email addresses set forth herein. Either Party may from time to time change its address for notification purposes by giving the other prior written notice of the new address and the date upon which it shall become effective.

If to Agile: Agile Education Marketing:
700 17th Street, Suite 2250
Denver, Colorado 80202
via email to: [email protected]
Attn: David Cohen

If to Customer: Address listed in the applicable Agreement

b. SEVERABILITY. If any provision of this MSA is declared or found to be illegal, unenforceable, or void by a court of competent jurisdiction, then both Parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable, or void, it being the intent and agreement of the Parties that this MSA shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective. If the remainder of this MSA shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.

c. ASSIGNMENT. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this MSA and Agreement, whether voluntarily, involuntarily, by operation of law or otherwise, without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations under this MSA and Agreement to an affiliate, in the course of a corporate reorganization, or in the event of a merger, sale or transfer of all or substantially all of its assets or equity that pertain to this MSA and Agreement, to an acquiring party. Any purported assignment, delegation, or transfer in violation of this Section 11.c is void. This MSA and Agreement is binding upon and inures to the benefit of and is binding upon the Parties and their respective permitted successors and assigns.

d. HEADINGS. Headings used herein are for reference purposes only and neither limit nor amplify the terms and conditions herein.

e. RELATIONSHIP OF THE PARTIES. The relationship between the Parties is that of independent contractors. Nothing contained in this MSA or Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

f. WAIVER. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this MSA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

g. GOVERNING LAW AND FORUM. This MSA and Agreement shall be governed by and construed in accordance with the laws of the State of Colorado as such laws are applied to contracts made and to be performed entirely in the State of Colorado, but without reference to any conflicts of laws rules or provisions that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. The Parties agree that venue and jurisdiction for any legal action arising in connection with this MSA and Agreement shall be exclusively in the federal or state courts sitting in Denver, Colorado.

h. SURVIVAL OF CERTAIN PROVISIONS. The rights or obligations of the Parties in this MSA and Agreement that, by their nature, should survive expiration or termination of this MSA and Agreement, will survive any expiration or termination of this MSA and Agreement.

i. ENTIRE AGREEMENT. This MSA, together with any Agreements and appendices attached hereto which are hereby incorporated herein by reference, constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications with respect hereto, all of which are merged herein. Except as specifically provided for herein, this MSA may not be altered, amended, or modified except by an instrument in writing signed by a duly authorized representative of each Party. In the event of a conflict between this MSA and any terms of any Agreement, the terms of this MSA shall control.

j. FORCE MAJEURE. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this MSA and Agreement, for any failure or delay in fulfilling or performing any term of this MSA and Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from a Force Majeure Event. The Party whose performance is affected by Force Majeure Event shall give prompt notice of such Force Majeure Event to the other Party. For purposes of this MSA and Agreement, a “Force Majeure Event” means a circumstance beyond such Party’s reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades, national or regional emergency, strikes, labor stoppages, or passage of law.