NETFAST TECHNOLOGY SOLUTIONS, INC.
STANDARD TERMS AND CONDITIONS OF SALE AND SERVICES

1. General.  

1. Terms and Conditions.  This Exhibit C to the Agreement sets forth the terms and conditions under which Netfast will provide certain the goods and services to be provided to Customer pursuant to this Agreement (the “Deliverables”). A description of the goods to be provided hereunder (the “Goods”), if any, shall be set forth in Exhibit A (the “Bill of Materials”), which is attached hereto and made a part hereof. A description of the services to be provided hereunder (the “Services”), if any, shall be set forth in Exhibit B (the “Statement of Work”), which is attached hereto and made a part hereof. Any variations made by the Customer to this Agreement or any Exhibit attached hereto without Netfast’s prior written consent are void and shall have no effect. Any terms used in any Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.
2. Change orders.  The scope of the Deliverables to be provided hereunder shall not be changed in any material respect without a mutually agreed upon change order executed by an authorized representative of each party. Unless otherwise agreed to by the parties and set forth in the change order, all additional Services set forth in a change order shall be billable on a time and materials basis, at Netfast’s standard hourly rates then in effect.

2. Pricing and Payment Terms.

1. General.  For and in consideration of Netfast’s performance of its obligations hereunder, Customer shall pay to Netfast the Purchase Price described in this Agreement, plus costs for expenses, taxes and shipping, in accordance with the terms and conditions of this Section 2 and the payment terms set forth in the cover page of this Agreement. The Purchase Price shall be set forth on the cover page of this Agreement and shall be effective for a period of 30 days from the Effective Date of this Agreement (the “Price Lock-In Period”). If the Customer fails to return the executed Agreement within the Price Lock-In Period, Netfast shall be under no obligation to supply or otherwise offer to the Customer any of the Deliverables at the prices set forth in this Agreement.
2. All late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Customer shall make all payments in United States Dollars.
3. Time and Materials Rates.  In the event that Netfast provides Services hereunder on a “time and materials” rate basis, Netfast shall charge the Customer for the related Services at Netfast’s standard rates then in effect, unless otherwise agreed to by the parties in writing.
4. Fixed Fee Work.  In the event that Netfast provides Services hereunder on a “fixed fee” rate basis, such fixed fee will cover only the specific tasks, expenses, and deliverables that the Statement of Work defines as included within the fixed fee.  Any and all Deliverables that Customer requests that Netfast provide or perform that fall outside the Statement of Work or are otherwise not expressly included within such fixed fee payment schedule will be provided on a time and materials basis at Netfast’s standard hourly rates then in effect.
5. Overtime. Notwithstanding anything to the contrary in this Agreement, Customer shall be responsible for paying Netfast overtime rates for any Services performed by Netfast personnel, whether on a time and materials basis or fixed fee basis, under any of the following circumstances: (i) any Services performed by an individual before 9:00AM or after 6:00PM on a normal workday, (ii) any Services performed by an individual in excess of eight hours per day, (iii) any Services performed by an individual in excess of 40 hours per week in the aggregate, or (iv) any Services performed by an individual on a Saturday, a Sunday or a federal holiday.  Any overtime incurred hereunder by Netfast personnel will be invoiced to Customer at Netfast’s standard overtime rates then in effect.
6. Expenses. Customer shall reimburse Netfast for all reasonable out-of-pocket disbursements and expenses, including travel and lodging expenses, messenger and duplicating services, facsimile expenses and other customary expenditures, incurred by Netfast in connection with the performance of Netfast’s duties and obligations hereunder.  Upon request, Netfast shall submit reasonable documentation to Customer with respect to each such expense incurred.
7. Sales Taxes.  Netfast’s fees do not include sales, use, excise, occupation, privilege, value-added or similar taxes.  Any duty, tax, fee or other charge that Netfast may be required by any law of the United States of America, or any state governmental subdivision thereof, now in effect or hereafter enacted, to collect or pay with respect to the marketing, distribution, sale, delivery, and/or use of any Products or Services provided to the Customer shall be paid by, and is the sole responsibility of, the Customer.
8. Shipping Charges.  Customer shall pay for all costs and expenses of shipping and freight with respect to the shipment of the Products, and shall be invoiced by Netfast or otherwise invoiced directly by a carrier, as the case may be.

3. Customer Obligations. Customer agrees to: (i) make all agree-upon payments to Netfast in a timely manner (ii) comply with all laws applicable to Customer’s conduct, (iii) use reasonable security precautions, as determined by the manner in which you use the Services provided by Netfast, including encrypting all confidential or private information transmitted to or from, or stored on systems managed, monitored, hosted or operated for you by Netfast (iv) cooperate with Netfast’s investigation of security issues, outages, problems, and any suspected breach of this Agreement or violation of the law; and (vi) notify Netfast immediately if you suspect unauthorized use of any systems managed, monitored, hosted or operated for you by Netfast.

1. Customer agrees that all users of its systems, or of Netfast’s Goods or Services, shall act in accordance with the terms and conditions of this agreement as through such users were in Customer’s position in this Agreement. Customer acknowledges and agrees that it shall be responsible for all the actions of users of its systems, the Goods or Services.

4. Services

1. Acceptance.   All Services to be delivered hereunder shall be deemed accepted by the Customer, if not rejected within fifteen (15) days of Netfast’s submission to the Customer.  If the Customer rejects the Services rendered hereunder, the Customer shall provide a reasonable level of detailed information for the rejection, and Netfast shall correct and/or modify the non-conforming Services within fifteen (15) days thereof (or such other period of time as mutually agreed upon in writing between the parties).  In the event that the Customer remains unsatisfied with the delivery of such Services after resubmission by Netfast, Netfast and the Customer shall promptly meet and discuss the Customer’s rejection in good faith, and agree to a resolution of the Customer’s rejection.  In the event that Netfast and the Customer cannot resolve the Customer’s rejection and such rejection was not been made in connection with any failure or defect of any third party product or deliverable delivered by Netfast to the Customer, the parties hereto shall resolve the dispute in accordance with the terms and conditions of Section 20.
2. Teaming.  Netfast in its discretion may associate with other IT consultants with specific core competencies in the service areas for which services will be rendered, while retaining responsibility for the quality, timeliness and completion of the Services described in this Agreement.
3. Customer Responsibilities.  In connection with Netfast’s performance of the Services specified in the Statement of Work, Customer agrees to provide Netfast, in addition to performing those tasks and assuming those responsibilities specified in the Statement of Work, (i) reasonable access, both physical and virtual, in a timely fashion to Customer systems, facilities and content (if applicable) as reasonably required for Netfast to perform such Services, (ii) reasonable access to the appropriate Customer personnel including network, systems, operations and applications personnel during the term of this Agreement (iii) a lead project manager who will act as a direct liaison with Netfast’s project manager and be responsible for communicating with, and providing accurate information and feedback to, Netfast in a timely manner in connection with the Services provided hereunder and (iv) where certain Services are to be directed by Customer, accurate, complete and proper instructions regarding the implementation of such Services. Customer agrees to secure all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.  Customer agrees to back up all data, files and information prior to the commencement of any Services and assume sole responsibility for all such data, files and information.
4. Time Estimates. Any estimates of time provided in this Agreement or in connection with the Deliverables are good faith projections, but are not guarantees. Although Netfast strives to meet those estimates, additional time may be required to complete tasks in the Agreement or the Deliverables, and Customer agrees to pay Netfast for any time incurred beyond the estimates in the Agreement.
5. Suspension. Notwithstanding anything to the contrary herein, Netfast may suspend, interrupt or cancel the Goods or Services, in whole or in part, if (i) Netfast reasonably believes that you are using or intend to use the Goods or Services in violation of this Agreement or in violation of the law, (ii) you are accused by others of using the Goods or Services in violation of this Agreement or in violation of the law, (iii) we discover that you are or are affiliated with an individual or entity that has previously been accused of violating this Agreement or the law, (iv) Netfast believes that your system has been compromised or unlawfully accessed, (v) Netfast reasonably believes that suspension of  the Goods or Services is necessary to protect the infrastructure of Netfast or its affiliates, or is necessary to protect Netfast’s other customers, (vi) suspension is required or advisable under the law, or (vii) if you fail to pay the fees applicable under this Agreement.  Netfast will make reasonable efforts to notify you of such suspension and its cause. In the event that suspension is due to your breach of this Agreement, you shall not be entitled to a refund or reimbursement of any fees due to such suspension, such suspension shall not eliminate or remove your obligation to pay for the Services as through they had been rendered through the remainder of the Term, as applicable, and Netfast is granted the right to accelerate all future payments such that they shall become due and owing upon the event of suspension.
6. Data Security and Backup. Customer understands and agrees that, unless specifically included in a separate written agreement with Netfast, Netfast has no obligation to monitor Customer’s systems for incursions and security events and does not guarantee that security breaches will not occur or that your information will remain private or confidential. Further, unless specifically included in a separate written agreement with Netfast, Netfast is not responsible for the backup or retention of your data either during or after the Term of this Agreement. You understand and agree that all backup of data is solely your responsibility.
7. Availability. Unless you have signed a separate Service Level Agreement with Netfast, Netfast will, subject to planned downtime, make reasonable efforts to ensure that the systems managed, monitored, hosted or operated for you by Netfast are available. However, Netfast does not guarantee, represent or warrant that access to such systems will be uninterrupted or error-free, and Netfast does not guarantee that you will be able to access or use all or any of the system features at all times. Netfast will make reasonable efforts to notify you of system outages and scheduled downtime.
8. Additional Terms. Customer’s use of the Services may be conditioned upon Customer’s agreement to further agreements with Netfast’s suppliers and licensors, including software licensors.

5. Products.

1. Shipping.  Unless expressly agreed to by the parties in writing, Netfast shall ship all Products ordered by Customer FOB Destination (Incoterms 2000) using Netfast’s (or manufacturer’s, as the case may be) standard methods for packaging and shipping such Products.  Netfast may, in its sole discretion, make partial shipments of Products to Customer and shall incur no penalty for making any such partial shipments.
2. Delivery.  Any time quoted for delivery is an estimate only and Netfast shall not be liable in any way whatsoever for or in respect of any loss of damage whatsoever arising in connection with any failure to deliver or delay in delivery.  No delay in the shipment or delivery of any Products shall relieve Customer of its obligations hereunder, including without limitation accepting delivery of any remaining installment(s) of Products.  Netfast shall not be liable to Customer for any damages, whether incidental, consequential or otherwise, for any delay in filling orders or any delay in the shipment and/or delivery of any Products.
3. Product Cancellation and Refund.  If Netfast determines that it may be unable to deliver any part of the Product order within a reasonable time, Netfast may cancel the order and refund any amount already received from the Customer solely with respect to the undelivered Products.  In the event that the Product order is cancelled, the Customer shall be relieved of any obligation to accept or pay for the remaining undelivered Products comprising such portion of the cancelled Product order.
4. Inspection.  Customer shall have 48 hours upon receipt of any ordered Products to inspect and either accept or reject such Products (“Inspection Period”).  Any Products received by Customer shall be deemed to have been accepted by Customer unless Customer notifies Netfast in writing of any non-conforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Netfast.  In the event that Customer timely notifies Netfast of any non-conforming Products, Customer acknowledges and agrees that Netfast’s sole liability in connection with any such Products supplied hereunder shall be, at Netfast’s sole discretion, to: (i) replace such non-conforming Products with conforming Products; or (ii) refund the Product Price for such non-conforming Products together with all shipping and handling expenses incurred by Customer in connection therewith.

6. Title; Risk of Loss.

Title to all Deliverables purchased by Customer shall pass to Customer at the time of delivery by Netfast to the common carrier used to delivery to Customer.  Delivery of any and all Services shall be deemed to be made when rendered.

7. Independent Contractor.

At all times during the term of this Agreement, Netfast shall be an independent contractor in providing the Deliverables hereunder with the sole right to supervise, manage, operate, control and direct the provision of such Deliverables and the sole obligation to employ, compensate and manage its employees and business affairs.  Nothing contained in this Agreement shall be deemed or construed to create a partnership or joint venture, to create the relationship of employee/employer or principal/agent, or otherwise create any liability whatsoever of any party with respect to the indebtedness, liabilities, obligations or actions of the other party.

8. Intellectual Property Rights.  

1. Software Licenses.  Customer acknowledges that Netfast is not an authorized distribution partner for all of the equipment manufacturers whose goods are sold by Netfast, and that Netfast does not sell equipment software and firmware licenses. Customer acknowledges its understanding that some manufacturers have policies that require the inspection and re-licensing of equipment acquired from companies outside the authorized distribution chain. Customer agrees that it is responsible for all software and firmware licenses and agrees that Netfast is not liable or responsible for any fees incurred by Customer for inspection and licensing, if necessary.
2. Third Party Rights.  If the use of any Deliverable provided to the Customer hereunder requires the provision or use of, or if a Deliverable incorporates, any intellectual property rights owned or otherwise held by a third party, the Customer shall be responsible for obtaining any and all third party permissions or entering into any and all end-user licenses required by such third party owner in order to use such Deliverable.

9. Confidential Matters.

1. Confidentiality.  Netfast and the Customer agree that they may gain access to or become familiar with trade secrets, confidential computer databases, computer files, and other material that, by its circumstances, is reasonably understood to be confidential information, which may be valuable assets and property rights of the other party (“Confidential Information”). Information disclosed hereunder shall not be considered “Confidential Information” to the extent it: (i) is known to the receiving party prior to the disclosure thereof by the disclosing party, (ii) is or hereafter becomes, other than through the fault of the receiving party, generally available to the public, (iii) is disclosed to the receiving party by a third party other than in breach of an obligation of confidentiality owed by such third party to the disclosing party; or (iv) is independently developed by the receiving party as shown by the receiving party’s written records.  Netfast and the Customer each agree not to disclose or to divulge to any other party such trade secrets or Confidential Information during the term of this Agreement and for a period of two (2) years from the earlier of (a) the date of completion of the Services provided hereunder or (b) the date of termination of this Agreement pursuant to Section 10 herein. Netfast and the Customer further agree that at any time at the disclosing party’s request, the receiving party will surrender or destroy all copies, in any form or format, of the Confidential Information that were developed or provided during the conduct of the assignment.
2. Required Disclosure of Confidential Information.  Notwithstanding the foregoing, either party may use and disclose Confidential Information of the other party (i) to law enforcement or governmental agency (ii) pursuant to any governmental, judicial, or administrative order, subpoena, or discovery request, provided that the party from whom disclosure is sought uses commercially reasonable efforts to notify the other of such order, subpoena, or discovery request so that the other party may prevent such disclosure or otherwise seek to make such disclosure subject to a protective order or confidentiality agreement; or (iii) if a party reasonably believes that the other party’s conduct may violate criminal laws.
3. Remedy for Breach.   Each party acknowledges and agrees that any violation of this Section 9 may cause immediate and irreparable harm, which money damages would not sufficiently remedy, and that either party shall be entitled to equitable relief, including injunction and specific performance, to prevent the breach or threatened breach of such provisions and to secure their enforcement, in addition to all other remedies available to the party at law or in equity.

10. Term, Termination.

1. Term.  This Agreement shall commence on the Effective Date, and continue until the date of final acceptance of the final Deliverable under the Statement of Work, unless terminated earlier in accordance with the terms of this Agreement (the “Term”).
2. Termination.  This Agreement may be terminated prior to the expiration of the Term upon prior written notice: (i) by Netfast, if the Customer fails to pay any amount when due hereunder and such failure continues for a period of ten (10) days following written notice thereof, (ii) by either party, if the other party commits a material breach of any provision of this Agreement and such breach continues for a period of thirty (30) days following a written request to cure such breach, (iii) by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law or makes or seeks to make a general assignment for the benefit of its creditors or applies for or consents to the appointment of a trustee, receiver or custodian for a substantial part of its property, or (iv) by either party, in the event of a Force Majeure Occurrence (as defined in Section 11) affecting the other party which continues for more than sixty (60) days. The expiration or termination of this Agreement, for any reason, shall not release either party hereto from any liability which at said time has already accrued to the other party, including any payment obligation that has accrued hereunder.

11. Force Majeure.  

Neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including, but not limited to, strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, accident, delay in transportation, fluctuations or non-availability of electrical power, heat, light, air conditioning or Customer equipment, loss and destruction of property, intervention by governmental entities, change in laws, regulations or orders, other events or any other circumstances or causes beyond such party’s reasonable control (a “Force Majeure Occurrence”).

12. Disclaimer of Representations and Warranties.

Any description of the Deliverables is given by way of indication only and shall not constitute any representation or warranty as to the quality or nature of the relevant Deliverables or concerning their fitness for any purpose. Furthermore, Customer acknowledges that neither Netfast nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in this Agreement.  THE SERVICES, AND ANY GOODS SOLD OR PROVIDED BY NETFAST OR PERSONNEL SUPPLIED BY NETFAST, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND NETFAST DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NETFAST MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY OF THE SERVICES, GOODS OR INFORMATION PROVIDED BY NETFAST OR PERSONNEL SUPPLIED BY NETFAST. NETFAST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR SECURE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES AND GOODS ARE FREE OF ERRORS, DAMAGES, VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT THE RISKS OF THE GOODS AND SERVICE INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF DATA, LOSS OF PRIVACY AND LOSS OF PROPERTY.

13. Limitation of Liability.

EXCEPT PURSUANT TO SECTIONS 15, 16, 21, 22 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOST SAVINGS), OR LOSS OF USE OR DATA, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER AS A RESULT OF A BREACH OF THIS AGREEMENT OR OTHERWISE, AND WHETHER SUCH LIABILITY ARISES OUT OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE. IN THE EVENT THAT THIS LIMITATION ON LIABILITY IS NOT FULLY ENFORCED, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY MATTER ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT OF THE FEES PAID FOR THE PARTICULAR DELIVERABLES WHICH GAVE RISE TO SUCH CLAIM UNDER THIS AGREEMENT. THE REMEDIES PROVIDED HEREIN ARE THE PARTIES’ SOLE AND EXCLUSIVE REMEDIES. 

14. No Publicity.  

Neither party hereto shall issue any press release or make any other written public statement with respect to this Agreement and matters related hereto without the prior written consent of the other party.

15. Non-Solicitation.  

During the term of this Agreement and for a period of twelve (12) months after its expiration or termination, each of Netfast and the Customer shall not, without the prior written consent of the other party, solicit for employment any of each other’s employees with whom it shall have had a direct involvement or connection with the provision of Products and Services hereunder. In the event of a violation of this provision, the parties hereto understand and agree that actual damages will be difficult to determine and, therefore agree that the party violating this provision shall pay to the other party the sum of seventy-five percent (75%) of one year’s direct salary of each employee solicited and hired as liquidated damages and not as a penalty.

16. Defense and Indemnification.

Customer agrees to defend, indemnify and hold Netfast harmless from any against any damages, liabilities, judgments, expenses and costs (including attorneys’ fees) arising out of or related to any allegation, claim, action, suit or proceeding brought or threatened against Netfast resulting or related to Customer’s acts, omissions or misrepresentations relating to the Goods or Services, or from any breaches or alleged breaches of this Agreement.

17. Notices.  

All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given, five (5) business days following sending by registered or certified mail, postage prepaid, when sent, if sent by facsimile (provided that the facsimile transmission is promptly confirmed by telephone), when delivered, if delivered personally to the intended recipient, and one (1) business day following sending by overnight delivery via a national courier service.

18. Survival.

The provisions of Sections 3 through 9, 12 through 17, and 19 through 22 shall survive the expiration or earlier termination of this Agreement for any reason; provided that with respect to Sections 9 and 15, the survival of the terms of these Sections shall be limited to the respective time periods set forth therein.

19. Governing Law.  

This Agreement and any and all other matters between the parties hereto shall be construed in accordance with, and governed by, the laws of the State of New York, without regard to the application of conflicts of law principles.

20. Dispute Resolution.  

Each party agrees to submit any and all disputes, claims and controversies arising between the parties hereto to final and binding arbitration, which shall be administered by the American Arbitration Association (“AAA”) in accordance with its Technology Arbitration Rules then in effect.  Any arbitration brought hereunder shall be heard by three (3) independent and impartial arbitrators.  Two arbitrators shall be selected by the respective parties, one by the claimant(s) and one by the respondent(s).  The third arbitrator shall be appointed by the two party-appointed arbitrators or by the AAA if such two arbitrators cannot agree.  The place of the arbitration shall be New York, New York.  Any party’s refusal to select, or unreasonable delay in selecting, an arbitrator shall be considered a material breach of this Agreement.  The arbitrators shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding intended to resolve a dispute.  Notwithstanding the foregoing, either party shall be entitled to seek preliminary injunctive relief from any court of competent jurisdiction, pending the final decision or award of the arbitrators.  The award rendered in an arbitration hereunder shall be final and non-appealable.  Judgment on the award rendered may be entered in any court having jurisdiction thereof.  Each of the parties shall keep the proceedings and any and all transcripts, statements, documents, discovery, correspondence and all other non-public information produced or otherwise disclosed in connection with any such arbitration confidential.  Each party shall be responsible for and shall pay its own direct and indirect costs and expenses incident to any arbitration brought hereunder, including all attorney fees and travel-related expenses.  If any dispute arises in connection with this Agreement or the Deliverables to be provided hereunder, Customer shall not be entitled to deduct monies otherwise due hereunder by way of set off or otherwise.

21. Export Restrictions.  

Customer agrees that unless prior authorization is obtained from the U.S. Department of Commerce, neither Customer nor its subsidiaries or affiliates shall export, re-export, or release, directly or indirectly, any Product or related technology, software, or software source code (collectively, “Restricted Goods”), purchased from Netfast, or export, re-export, or release, directly or indirectly, any direct product of such Restricted Goods, to any destination or country to which the export, re-export or release of any of the Restricted Goods is prohibited by applicable federal law.  Customer further agrees to obtain any necessary export license or other documentation prior to the exportation or re-exportation of any Restricted Goods acquired from Netfast under this Order or any direct product of such Restricted Goods.  Customer shall give notice of the need to comply with such laws and regulations to any person, firm or entity which it has reason to believe is obtaining any such Restricted Goods from Customer with the intention of exportation.

22. Safety-Critical and Military Applications.  

None of the Deliverables or Services hereunder are authorized for use in (i) safety-critical applications (such as life support) where a failure of any Deliverable would reasonably be expected to cause property damage, environmental damage, personal injury or death, or (ii) military/aerospace applications or environments, unless officers of each party hereto have executed an agreement specifically governing such use.  The Customer shall fully indemnify Netfast and its directors, officers, shareholders and representatives against any damages arising out of the unauthorized use of the Deliverables in such safety-critical and/or military/aerospace applications.  The Customer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and the Customer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning any use of the Deliverables in Customer’s applications or business, notwithstanding any related services or support that may be provided by the Company in connection therewith.

23. General.  

1. Entire Agreement.  This Agreement as set forth herein, together with the Exhibits attached hereto, represents the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, understandings, documents, negotiations, and/or discussions (whether oral or written) between the parties.  The attached Exhibits are hereby incorporated in, and made a part of, this Agreement as if set forth in full herein.
2. Amendments.  This Agreement and the attached Exhibits may be amended, modified, superseded or cancelled and any of the terms, covenants or conditions hereof may be waived only by an instrument in writing signed by an authorized representative of each of the parties hereto or, in the case of a waiver, by or on behalf of the party waiving compliance.
3. No Waivers.  No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
4. No Third Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein shall give or be construed to give to any person, other than the parties hereto and such assigns, any legal or equitable rights hereunder.
5. Assignment.  Neither this Agreement nor any of the rights and obligations of the parties hereunder may be assigned by either of the parties hereto without the prior written consent of the other party (which consent shall not be unreasonably withheld), provided, however, that either party may assign this Agreement to an affiliate or to a successor in interest that purchases all or substantially all of such party’s stock, interests or assets.  Notwithstanding the foregoing, each party shall remain liable for all of their respective obligations under this Agreement.  Subject to the first sentence of this Section 23(e), this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and no other person shall have any right, obligation or benefit hereunder.  Any attempted assignment or transfer in violation of this Section 23(e) shall be void.
6. Severability.  The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof.   If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction.
7. Counterparts.  This Agreement may be executed in several counterparts, each of which shall have the force and effect of an original for all purposes, but all of which shall constitute one and the same agreement.  This Agreement, and any modifications relating thereto, may be executed and delivered by facsimile or electronic mail.  Any such facsimile or electronic mail transmission shall constitute conclusive proof of such agreement.
8. Conflicting Documents.  In the event of any conflict between the terms of this Agreement and any purchase order, confirmation, Statement of Work or any other document, the terms of this Agreement shall govern and control.  Any additional terms provided under any such purchase order, confirmation or any other document generated by the Customer in connection with this Agreement shall be void and have no effect. Notwithstanding the foregoing, a Bill of Materials or Statement of work may control over this Agreement if, and only if, such Bill of Materials or Statement of Work are signed by both parties, specifically references this Agreement in the context of determining primacy, and states that an identified provision or clause in such Bill of Materials or Statement of Work controls over this Agreement.