Let’s Think Wireless Terms & Conditions

These Terms & Conditions comprise a Master Agreement (“Agreement”) between Let’s Think Wireless, LLC,” a Nevada limited liability company, with a principal address of 26 Chapin Road, Suite 1112, P.O. Box 628; Pine Brook, NJ 07058, (“LTW”) and Client signatory to a LTW Letter of Agreement (“Client”). Each is a “Party” or collectively, the “Parties”. This Agreement governs the purchase of Products and Services by Client from LTW and takes effect on the date a Letter of Agreement has been signed.

1. Definitions.

1.1 Certain Defined Terms. For purposes of this Agreement:

“LTW’s Confidential Information” means: (i) this Agreement and any Orders and SOWs; (ii) Trade Secret Materials and LTW Resources; (iii) other information which relates to LTW’s business (including methods, processes or techniques utilized in LTW Resources); and (iv) other non-public information, including sales quotes, business plans, clients, technology, or financials that LTW designates in writing to Client as confidential.

“LTW Materials” means all Copyright Materials and all Trade Secret Materials.

“LTW Resources” means all software, documentation, information and materials used by LTW, or by LTW’s contractors on behalf of LTW, in LTW’s performance under this Agreement.

“Client’s Confidential Information” means Client Technology and information which relates to Client’s research, development, systems, employees, customers, or business that Client designates in writing to LTW as confidential.

“Client Technology” means Client’s network, routers, switches, computers, communication lines and other equipment, hardware, software or data used in Client’s business.

“Confidential Information” when used without a modifier shall mean each applicable party’s Confidential Information as separately defined above.

“Copyright Materials” means all works of authorship recorded or copied on the Deliverables, or otherwise provided to Client by LTW, and which may include all architectural design documents, plans, blueprints, manuals, diagrams, activity reports, security assessments, and other written materials.

“Deliverables” means the tangible media on which Copyright Materials or Trade Secret Materials, either or both, may be delivered to Client under this Agreement.

“Products” means any hardware, software, documentation, accessories, cabling, material, supplies, parts, and other goods, and any related Product Maintenance, that LTW sells or resells to Client, except any Product Maintenance specifically included in any Services.

“Product Maintenance”  means any maintenance and support of any hardware, software, documentation, accessories, cabling, material, supplies, parts, or other goods that are performed by a third party (e.g., Cisco SMARTnet, Cisco Software Application Services).

“Purchase Order” means a purchase order or other similar document or communication from Client to LTW delivered in connection with a sales quote or a SOW.

“Statement of Work” or “SOW” means a statement of work, Letter of Agreement or other agreement (and any appendices, attachments and exhibits thereto) that defines the services to be performed by LTW under this Agreement.

“Services” means specific consulting, network management, telecommunications expense management, or business process outsourcing services, or other related services, requested by Client from time to time that are set forth in a particular SOW, and Supplemental Services performed by LTW on an as-needed or emergency basis.

“Trade Secret Materials” means all non-public information, whether or not recorded or copied on Deliverables, which is provided to Client under this Agreement, and which may include patent applications, trade secrets, technical and non-technical data, business methods and models, drawings, processes, formulas, ideas, concepts, know-how, techniques, sketches, models, inventions, processes, algorithms, formulas, and including information regarding experiments, developments, designs and specifications.

1.2 Other Defined Terms. If a capitalized term used in this Agreement is not defined in Section 1.1 above, then that term shall have the definition ascribed to that term elsewhere in this Agreement.

2. Orders.

Client shall place an order for Products or Services (each, an “Order”) by:  (i) with respect to Products, submitting the Order to LTW on Client’s standard Purchase Order form, an alternate order form approved by LTW, or electronic means acceptable to LTW; or (ii) with respect to Services, executing and delivering to LTW a SOW.  Client’s Order shall be deemed to incorporate these terms and conditions with or without reference in the Order to this Agreement.  Orders for Products shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates.  All Orders are subject to acceptance by LTW, which acceptance may be evidenced by:  (a) with respect to Products, either a written confirmation of LTW acceptance sent by mail, facsimile, or other electronic means, or by shipment of the Products; or (b) with respect to Services, by the execution and delivery of the SOW by LTW.  Except as provided in Section 13.2.2 below, no Orders for Products may be terminated, cancelled, or rescheduled without LTW’s consent.  If Client asks LTW to cancel or reschedule a Product Order less than ten (10) days before the original scheduled shipping date, and LTW consents to such cancellation or reschedule, then such Order shall be subject to a charge of fifteen percent (15%) of the total invoice amount relating to the affected Products.  LTW reserves the right to allocate sales of Products and Services among its customers in its sole discretion.

3. Products.

3.1 Delivery and Title. All shipments by LTW are F.O.B. Origin (LTW’s facility or the facilities of any LTW supplier) and all transportation charges shall be paid by Client in addition to the price of the Products. Subject to LTW’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Client and title and risk of loss shall thereupon pass to Client. Selection of the carrier and delivery route shall be made by LTW unless specified by Client. LTW shall use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Client’s requested delivery dates.  Client acknowledges that delivery dates provided by LTW are estimates only and that LTW is not liable for failure to deliver on such dates, provided that LTW will use commercially reasonable efforts to inform Client of delivery status.  LTW reserves the right to make deliveries in installments.  Delivery of a quantity which varies from the quantity specified shall not relieve Client of the obligation to accept delivery and pay for the Products delivered.  Delay in delivery of one installment shall not entitle Client to cancel other installments.

3.2 Acceptance and Returns. All sales are final except with respect to Products that do not meet applicable manufacturer’s specifications or that are not identified in the Order.    Inspection and acceptance of the Products shall be Client’s responsibility.  Client is deemed to have accepted the Products unless written notice of rejection is received by LTW within ten (10) days after delivery of the Products.  Client waives any right to revoke acceptance thereafter.  Client shall report any discrepancy in shipment quantity or damage within ten (10) days after delivery.   No return of Products shall be accepted by LTW without a Return Material Authorization (“RMA”) and associated number, which may be issued by LTW in its sole discretion.  Returned Products must be in their original, unaltered, undamaged condition, and must be returned in the original manufacturer’s shipping cartons complete with all packing materials.  All Products for return shall be returned freight prepaid in the manner specified in the RMA.  If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products.  Products not eligible for return shall be returned to Client, freight collect.

3.3 Use of Products in Certain Applications. Products sold by LTW are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Client uses or sells the Products for use in any such applications: (i) Client acknowledges that such use or sale is at Client’s sole risk; (ii) Client agrees that LTW and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) Client agrees to indemnify, defend and hold LTW and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

3.4 Export Control. The sale, resale or other disposition of Products and any related technology or documentation are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries.  Client agrees to comply with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited.  Client acknowledges its responsibility to obtain any license to export, re-export or import as may be required.

3.5 Intellectual Property. If a Product Order includes software or other intellectual property, such software or other intellectual property is provided by LTW to Client subject to any applicable copyright(s) and user license(s), the terms and conditions of which may be set forth in a license agreement accompanying such software or other intellectual property.  Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement.

4. Services.

4.1 SOWs. The Services provided by LTW to Client under this Agreement, and any additional terms and conditions for such Services, shall be contained in SOWs. SOWs may include:  (i) a description of the Services and the Deliverables to be provided by LTW; (ii) the timeframe for the Services and compensation to be paid to LTW; (iii) any additional terms and conditions for the Services; and (iv) each party’s responsibilities.  Each SOW must be signed by duly authorized representatives of both parties to be effective.  Unless otherwise provided in a SOW, LTW shall be compensated for Services on an hourly basis under LTW’s standard hourly rates.  Fees related to certain Services in a SOW may be variable or may be adjusted if certain Services assumptions, including project timeframes or scope of Services, increase, change or are incorrect.  Notwithstanding the foregoing, any changes to a SOW shall be made in writing signed by duly authorized representatives of both parties. Each SOW shall be attached to, incorporated into, and governed by this Agreement by reference.

4.2 Personnel. LTW and Client shall each designate a project representative.  All LTW and Client personnel assigned to participate on their behalf shall be knowledgeable in their assigned areas of responsibility.  Unless otherwise provided in a SOW, each party has the right to determine the assignment and re-assignment of its personnel.  LTW’s obligations under this Agreement may be performed by divisions, subsidiaries, or affiliates of LTW.  LTW also may engage services of independent contractors or subcontractors selected by LTW to assist LTW in the performance of its duties hereunder.

4.3 Supplemental Services. LTW, in its sole discretion, may also provide Client with certain limited services needed by Client on an as-needed or emergency basis where such services are not included within the scope of the Services as described in the applicable SOW (the “Supplemental Services”).  LTW shall notify Client of the fees for any Supplemental Services requested by Client and obtain Client’s approval prior to providing such Supplemental Services.  If LTW reasonably determines that the Supplemental Services are required on an emergency basis, LTW may provide such Supplemental Services without the consent of Client and thereafter provide notice of the Supplemental Services to Client; and Client shall pay for such Supplemental Services under  LTW’s standard hourly rates.

4.4 Ownership and License.

4.4.1 Ownership.  All rights and title to any Deliverables shall belong to Client when delivered to and fully paid for by Client.  All rights and title to LTW Materials shall belong to LTW, subject to the license expressly granted in this Agreement. All rights and title to LTW Resources shall belong to LTW, without any license with respect thereto Client or any third party.  All rights not expressly granted by LTW hereunder are reserved by LTW.

4.4.2 License. Subject to Client’s performance under this Agreement, including without limitation the timely payment of all amounts owed to LTW, LTW hereby grants to Client a nonexclusive, nontransferable, limited license (without the right to grant sublicenses), to use, execute, copy and create derivative works of the Copyright Materials, and to use the Trade Secret Materials: (i) solely for Client’s internal business purposes, unrelated to the design, development, manufacture or marketing of goods or services competitive with those of LTW; (ii) not for the benefit of, or access by, any third party other than Client’s contractors who are subject to written confidentiality agreements consistent with this Agreement and who act solely for the benefit of Client and not any third party; and (iii) subject to all other provisions of this Agreement, including Section 6.

4.5 Client Obligations. In connection with the Services provided under each SOW, Client shall, at all times and diligently and in good faith, comply with LTW’s reasonable requests to furnish LTW or perform, at Client’s expense: (i) all technical matter, data, information and operating supplies, together with knowledgeable personnel, as reasonably determined by LTW to be necessary for the performance of the SOW; (ii) access to Client Technology, and Client personnel; and (iii) any other specific obligations of the Client set forth on a SOW.

5. Payment Terms.

5.1 Prices. Prices shall be as specified by LTW and shall be applicable for the period specified in the LTW sales quote or the SOW (as applicable). If no period is specified, prices shall be applicable for thirty (30) days.  Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in LTW’s costs or other circumstances beyond LTW’s reasonable control.  Prices are exclusive of taxes, impositions and other charges, including sales, use, excise, value added and similar taxes or charges imposed by any government authority; domestic and international shipping charges; forwarding agent’s and broker’s fees; consular fees; document fees; and import duties.  If LTW shall be liable for or shall pay any of the foregoing (with the exception of any LTW income or employee taxes), same shall be paid by Client to LTW in addition to the price of the Products and Services.

5.2 Expenses. Client shall reimburse LTW any and all reasonable expenses incurred by LTW in connection with the performance of the Services, including travel expenses, lodging, meals, parking fees, copying charges, delivery charges, postage, telephone charges and other related expenses.

5.3 Due Date; Late Payments. Amounts due for each Product (other than Product Maintenance) may be invoiced by LTW upon delivery of the Product to the carrier at the point of origin; as such, an order for multiple Products may result in multiple invoices.  Amounts due for Product Maintenance may be invoiced by LTW upon LTW’s receipt of the applicable third party invoice for such Product Maintenance.  Amounts due for Services may be invoiced by LTW monthly or as otherwise expressly provided in the SOW.  Client agrees to pay the net amount of each invoice without offset or deduction within 30 days after the date of LTW’s invoice (unless otherwise noted on the invoice).  If any amount is not paid upon the due date, LTW shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due.

5.4 Credit Approval; Application of Payment. All SOWs and Orders are subject to credit approval by LTW.  Client agrees to submit such financial information from time to time as may be reasonably requested by LTW for the establishment and/or continuation of credit terms.  Any payment received from Client may be applied by LTW against any obligation owing from Client to LTW.

5.5 Security Interest. Client hereby grants to LTW a security interest in each and every Product purchased hereunder, together with any proceeds thereof.  Client hereby irrevocably appoints LTW and/or its designee as its attorney-in-fact to execute and file any financing statements or other applicable documents that are necessary to perfect LTW’s security interest.  LTW shall have all rights and remedies for breach provided under applicable law with respect to each security interest.  As to each Product, LTW’s security interest shall terminate when LTW has received all amounts due to LTW for that Product.

5.6 Leasing Option. LTW may from time to time, in its sole discretion, offer Client with the option of leasing Products or Services through a third party instead of directly purchasing them from LTW. The Client must provide LTW with notice and the identity of the lessor before LTW accepts the applicable Order.  The exercise of this option is subject to acceptance by LTW on terms and conditions established by LTW in its sole discretion, which shall include:   (i) prior to shipment of the Products or commencement of the Services, Client must provide LTW with the lessor’s purchase order; and (ii) no later than five (5) days after the delivery of all of subject Products or commencement of the subject Services, Client must provide LTW and the lessor with a signed “Certificate of Acceptance” or other similar document used to confirm the lease arrangement for the applicable Products and/or Services.  Client shall be solely responsible for the lease transaction, and shall remain liable for all of its payment obligations and other obligations hereunder notwithstanding such lease.

6. Intellectual Property; Confidentiality.

6.1 Intellectual Property Rights. Each party (the “Receiving Party”) acknowledges the claim of the other party (the “Disclosing Party”) that the Disclosing Party’s Confidential Information constitutes valuable trade secrets of the Disclosing Party.  The Receiving Party shall give immediate written notice to the Disclosing Party of any claim of infringement of which it becomes aware with respect to any of the Disclosing Party’s Confidential Information.  The Receiving Party agrees not to use, copy, modify, transfer, download, merge, or make any translation or derivative work of the Disclosing Party’s Confidential Information except as expressly provided in this Agreement.  In no event shall the Receiving Party: (i) cause or permit the disassembly, reverse compilation or other decoding of any software in the Disclosing Party’s Confidential Information; or (ii) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed upon or contained within the Disclosing Party’s Confidential Information and shall further copy the same on all copies.  The Receiving Party further agrees not to impair or infringe the Disclosing Party’s Confidential Information and shall maintain the same free of all liens, taking all reasonable steps to confirm proper ownership of and title in the Disclosing Party’s Confidential Information.

6.2 Confidentiality. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strictest confidence and not to copy, reproduce, sell, assign, license, market, transfer or otherwise disclose such information to third parties or to use such information for any purpose whatsoever, except to perform the Receiving Party’s obligations under this Agreement, and to advise the Receiving Party’s employees, agents, independent contractors and representatives of their obligations to keep such information confidential.  The Receiving Party shall take reasonable precautions to protect the confidentiality of such information, at least as stringent as the Receiving Party takes to protect its own Confidential Information.  Confidential Information of the Disclosing Party shall not include information that: (i) at the time of its disclosure, or thereafter, becomes publicly known (through means other than a party’s breach of this Agreement); (ii) was known to the Receiving Party as of the time of its disclosure without any obligation of confidentiality; (iii) is independently developed by the Receiving Party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the Disclosing Party or any other party.  This Agreement does not transfer to the Receiving Party any title to or ownership rights in the Disclosing Party’s Confidential Information.  Upon termination of this Agreement, the Receiving Party shall promptly return or delete any Confidential Information of the Disclosing Party which it has in its possession.

7. Client Technology.

Client agrees that if, in the course of performing the Services, it is necessary for LTW to access or use the Client Technology, LTW is hereby granted and shall have a nonexclusive, royalty-free license, during the term of this Agreement, to access and use the Client Technology solely for the purposes of delivering the Services to Client.

8. Warranties and Disclaimers.

8.1 Product Warranties. ALL PRODUCTS ARE PROVIDED BY LTW “AS IS.” LTW MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS.  LTW hereby transfers to Client, to the extent transferable, whatever transferable warranties and indemnities LTW receives from the manufacturer of the Products, including any transferable warranties and indemnities respecting patent infringement.   Client, recognizing that LTW is not the manufacturer of Product, expressly waives any claim that Client may have against LTW based upon any alleged or actual product liability or infringement of any patent, copyright, trade secret, or other intellectual property right with respect to any Product, as well as any right to indemnification from LTW on account of any such claim made against Client by a third party.

8.2 Service Warranties.

8.2.1 LTW Services. LTW warrants that (i) LTW shall provide the Services in a professional, workmanlike manner consistent with this Agreement and generally accepted industry standards of care and competence, and (ii) for thirty (30) days after date of delivery, the Services, the Deliverables, and the LTW Materials shall materially conform to their descriptions on the applicable SOW.  These warranties are voided to the extent of any alterations to any Services, Deliverables, or LTW Material that are not performed or authorized in writing by LTW.  Client must bring any breach of these warranties to LTW’s attention promptly in writing within thirty (30) days of the date that the Services, Deliverables, or LTW Materials that are the subject of the breach were performed.  Upon any breach of the warranties set forth in this section, LTW may, at its election, (i) use reasonable efforts to re-perform such Services or to correct any defect in any such Deliverables or LTW Materials, at no charge to Client, or (ii) terminate the applicable Service and return the fees paid by Client to LTW for such non-conforming Services (without interest) that are appropriately apportioned for the subject Service, Deliverable, or LTW Material.  THE REMEDIES SET FORTH ABOVE SHALL BE CLIENT’S SOLE REMEDY AND LTW’S SOLE LIABILITY WITH RESPECT TO A BREACH BY LTW OF THE WARRANTIES SET FORTH IN THIS SECTION 8.2.1.

8.2.2 Third Party Services. LTW makes no independent warranty with respect to any Services performed by a third party.  LTW hereby transfers whatever transferable warranties and indemnities LTW receives from the applicable third parties that perform Services (“Service Providers”), including any transferable warranties and indemnities respecting patent infringement.

8.3 Disclaimers. EXCEPT FOR THE EXPRESS LIMITED REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES CONCERNING SERVICES, DELIVERABLES, LTW MATERIALS, OR PRODUCTS PROVIDED BY LTW, EXPRESS, IMPLIED OR STATUTORY, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, CONDITION, OR INCREASED EFFICIENCY OF USE OF CLIENT TECHNOLOGY. LTW DOES NOT AUTHORIZE ANY PERSON TO ASSUME FOR IT THE OBLIGATIONS CONTAINED HEREIN.

9. Infringement and Indemnification.

9.1 Infringement. LTW agrees to defend or settle, at its option or discretion, any claim against Client alleging that any Deliverable or LTW Material directly infringes any U.S. patent, copyright, or trademark; provided that:  (i) the subject Deliverable or LTW Material is used strictly as permitted by this Agreement; and (ii) Client gives LTW prompt written notice of each such claim, tenders to LTW the defense or settlement of each such claim at LTW’s expense, and cooperates with LTW, at LTW’s expense, in defending or settling each such claim.  If LTW receives notice of an alleged infringement, or if Client’s use of the subject Deliverable or LTW Material shall be prevented by permanent injunction, LTW may, at its sole option and expense, procure for Client the right to continue using such items as provided hereunder, modify such items so that they are no longer infringing, or replace such items with other items of equal or superior functional capability.  THE RIGHTS GRANTED TO CLIENT UNDER THIS SECTION 9.1 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND LTW’S SOLE OBLIGATION FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT.

9.2 Indemnification. Client shall, at its sole expense, defend (through attorneys selected by or acceptable to LTW), indemnify, and hold harmless LTW and any of its parents, affiliates and subsidiaries from any and all third party claims, lawsuits, actions, demands, losses or causes of actions, damages, benefits, judgments, settlements, costs, expenses, taxes, contributions, penalties or fines arising from: (i) any negligent act or omission or willful misconduct on the part of Client (and/or its employees and/or any person or entity acting on Client’s behalf); (ii) any injuries or death to any LTW personnel, or any damage to LTW’s property, arising in connection with the Services, except as may result from the gross negligence or willful misconduct of LTW or its employees or agents; (iii) the occurrence or nonoccurrence of any event alleged to be proximately caused by the failure of any Client Technology; (iv) any claim that the Client Technology, including the use of the Client Technology by LTW, infringes any third party patent, trademark, copyright or other right; or (v) any claim based on LTW compliance with Client’s designs, specifications or instructions, or modification of any products by parties other than LTW, or use in combination with other products.

10. Limitations of Liability.

10.1 NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, REMOVAL, REINSTALLATION, OR REPROCUREMENT COSTS, LOSS OF PROFIT, REVENUE, DATA, CUSTOMERS, OR GOODWILL, OR CLIENT TECHNOLOGY DAMAGE, FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO ALL CAUSES OF ACTION OR CLAIMS OF RELIEF UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, INCLUDING TORT, INDEMNIFICATION, BREACH OF CONTRACT, AND BREACH OF WARRANTY.

10.2 EXCLUDING DAMAGES FOR BODILY INJURY, IN NO EVENT SHALL CLIENT’S RECOVERY FROM LTW FOR ANY CLAIM EXCEED (I) THE PURCHASE PRICE PAID FOR THE PRODUCT GIVING RISE TO THE CLAIM, OR (II) THE AMOUNTS PAID FOR THE PRODUCT MAINTENANCE OR SERVICES GIVING RISE TO THE CLAIM THAT WERE PROVIDED DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT ALL OF THE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, AND THAT THE PRICES OF SERVICES AND PRODUCTS ARE DETERMINED IN PART BY TAKING INTO ACCOUNT THE EXISTENCE OF THE LIMITATIONS.

10.3 No action arising out of the performance of any Services pursuant to this Agreement may be brought by either party more than two (2) years after such cause of action accrues, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.

11. Insurance.

LTW and Client, respectively, shall be responsible, at their own cost and expense, for maintaining in effect the following types and amounts of insurance insuring against claims, demands or actions arising out of or in relation to the Services provided pursuant to this Agreement: (i) workers’ compensation insurance in an amount sufficient by virtue of the laws of the states where the Services are performed; (ii) general liability insurance in which the limit of liability for injuries, including accidental death, and property damage, is no less than $1,000,000 for any one occurrence; and (iii) automobile liability insurance in which the limit of liability for injuries, including accidental death, and property damage is no less than $1,000,000 for any one occurrence. Such insurance shall be underwritten by companies qualified to do business in the state in which the Services are to be performed.  Each party shall, upon the reasonable request of the other party, deliver a validly executed certificate of insurance evidencing the above.

12. Client Assumption of Risk.

Notwithstanding anything to the contrary contained anywhere in this Agreement (including any SOWs), Client understands and acknowledges that in the normal course of business a substantial risk exists that unauthorized persons or entities may, among other things, gain access to, attach and/or impair the confidentiality, integrity, availability and/or operability of the Client Technology, including misappropriation, alteration, disabling or erasure of Client Technology whether at the time of implementation or at some unknown future time, and/or other actions that could temporarily or permanently cause damage to all or part of the Client Technology and/or business operations resulting in economic harm to Client.  Client understands, acknowledges, accepts, and assumes the risk that events such as those described above may occur notwithstanding that LTW has used reasonable efforts to provide any Services in a professional, workmanlike manner.

13. Term and Termination.

13.1 Term. This Agreement shall be effective as of the Effective Date, and shall remain in full force and effect until terminated under the terms of this Section 13.

13.2 Termination.

13.2.1 Subject to the terms of Section 13.3.1 below, either party may terminate this Agreement for any reason (with or without cause) at any time by giving the other party at least sixty (60) days’ prior written notice, provided that the party seeking termination is not in default under this Agreement.

13.2.2 If LTW believes in good faith that Client’s ability to make payments may be impaired, or if Client fails to pay any invoice when due and does not make such payment within ten (10) days after receipt of notice from LTW of such failure, LTW may, in its sole discretion, either: (i) suspend delivery or performance of any SOW or Order, or any remaining balance thereof, until such payment is made; or (ii) terminate any SOW or Order, or any remaining balance thereof. In either event, Client shall remain liable to pay for any Products already shipped, any Services already performed, and all non-standard Products (as designated by LTW) ordered by Client.

13.2.3 Either party may terminate a SOW or an Order upon a material breach of the SOW or Order by the other, if the breaching party does not cure the breach within thirty (30) days after receipt of written notice from the other party specifying the breach.

13.3 Effects of Termination.

13.3.1 All SOWs and Orders existing at the time of termination of this Agreement shall remain in effect and shall be performed under the terms of this Agreement (all of which shall survive with respect to such SOWs and Orders), except for any SOWs or Orders terminated under Section 13.2 above.

13.3.2 If Client terminates a SOW or Order or a portion thereof, then Client shall pay for all work in process (including charges for labor and materials) and all Products ordered as of the effective date of termination for the particular SOW or Order, as applicable. In addition, if a SOW specifies a term for which LTW shall provide Services to Client (e.g., 36 months), and that SOW is terminated by LTW for cause (including nonpayment) or by Client without cause, then all future, recurring Service fees associated with the remaining term of such SOW shall become immediately due and payable, and shall be paid by Client to LTW upon the effective date of such termination.

13.3.3 The exercise of the right to terminate this Agreement and any SOW or Order shall be in addition to any other right and remedy provided in this Agreement or existing at law or equity that is not otherwise excluded or limited under this Agreement.

14. Miscellaneous Provisions.

14.1 No Hiring. Client agrees that the personnel of LTW as well as the personnel of any Service Provider are critical to LTW and the Service Provider’s ability to provide services.  Therefore, Client agrees not to solicit, make offers of employment, or hire in any capacity, either directly or indirectly, or enter into any consulting relationships or agreements with, any LTW or Service Provider associated with this Agreement during the term of this Agreement and for a period of one (1) year thereafter.  If Client violates this prohibition, Client shall immediately pay to LTW an amount equal to twice the annual compensation of the LTW personnel solicited or hired, or the amount LTW would then be liable to the Service Provider pursuant to any agreement with it.

14.2 Independent Contractor. LTW, its personnel, agents, subcontractors and independent contractors are not employees or agents of Client and are acting as independent contractors with respect to Client.  Neither party is, nor shall be considered to be, an agent, distributor, partner, joint venturer or representative of the other party for any purpose, and neither party shall have the authority to act on behalf of, or in the name of, or to bind the other party in any manner whatsoever.

14.3 Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, telecommunications interruption provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.

14.4 Entire Agreement; Construction; Modifications. This Agreement, including any and all SOWs and Orders, constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written.  The parties further agree that there are no other inducements, warranties, representations or agreements regarding the matters herein between the parties except as expressly set in this Agreement.  In the event of any conflict between this Agreement and any sales quote or Order, this Agreement shall control, except that in the event of any conflict between this Agreement and a SOW, the SOW shall control.  As used herein, the term “including” shall mean “including, without limitation”; the term “includes” as used herein shall mean “includes, without limitation”; and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular.  This Agreement may not be modified, amended or altered in any manner except by a written agreement signed by both parties, and any attempt at oral modification shall be void and of no effect.

14.5 Purchase Orders. LTW SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CLIENT, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY PURCHASE ORDER.

14.6 Assignment. Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of LTW.  Any attempted assignment or delegation without such consent will be void and LTW may immediately terminate this Agreement for cause.  Except as provided above, this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their successors and assigns.  Client agrees that this Agreement may be assigned by LTW to a successor or an acquiring organization.  LTW may assign or subcontract its rights and obligations under this Agreement, in whole or in part, provided that no such assignment or subcontracting shall be deemed to release any of LTW’s obligations or duties under this Agreement.

14.7 No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.

14.8 Governing Law; Severability. This Agreement shall be governed by and construed under the laws of the State of New Jersey without regard to choice of law principles. The parties consent and submit to the jurisdiction and venue of the state and federal courts located in the State of New Jersey for any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies).  Notwithstanding the foregoing, LTW shall have the right to seek injunctive or pre-judgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of LTW’s Confidential Information or intellectual property rights.  No Federal Acquisition Regulations shall be construed to apply to LTW without LTW’s written agreement thereto.  The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.  If any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect.

14.9 Marketing. Client agrees that LTW may refer to Client by name, logo, trade name, service marks and trademarks (“Marks”) and may briefly reference Client’s business in LTW’s marketing, promotional and other related materials and on LTW’s web site, and Client hereby grants LTW a limited license to do so.

14.10 Attorneys’ Fees. The prevailing party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys’ fees, court costs, costs of investigation, expert fees and other related expenses incurred in connection with any enforcement of rights under this Agreement in law or in equity, including an action for declaratory relief.

14.11 Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, payment, and no hiring, and any other provisions which must survive in order to give effect to their meaning, shall survive the termination of this Agreement.

14.12 Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the parties at the addresses specified below or at such other addresses as either party may in the future specify in writing to the other.

14.13 Headings; Counterparts. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement.  This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.

 

Notices.

LTW address for notices:
Let’s Think Wireless, LLC
26 Chapin Road, Suite 1112
PO Box 628
Pine Brook, New Jersey 07058
Facsimile No.:  973-882-4563
Attention:  Legal Department

Client
As designated on Letter of Agreement