EDSuite Service Agreement

This EDSuite Service Agreement (this “Service Agreement”) is for use of Encore’s EDSuite Services, Add-On Services, and Support Services and is by and between Encore Communications, LLC, a Texas limited liability company (“Encore”), having an address of P.O. Box 3812, Longview, Texas 75606, and the business entity executing an Order Form referencing and incorporating this Service Agreement (“Client”).  The Agreement is effective as of the Effective Date.  Encore and Client may be referred to herein, individually, as a “Party” and, collectively, as the “Parties.” 

1. Definitions.  As used in the Agreement: 

1.1 “Add-On Services” means the Services, other than the EDSuite Services and the Support Services, to be provided by Encore to Client, as indicated in the Order Form. The Add-On Services are more fully described in the applicable Service Descriptions. 

1.2 “Aggregated Statistics” means data and information related to Client’s use of the EDSuite Services that is used by Encore in an aggregate and anonymized manner, including, without limitation, to compile statistical and performance information related to the provision and operation of the EDSuite Services. 

1.3 “Agreement” means, collectively, this Service Agreement, the Order Form, the Statements of Work, the Service Descriptions, and any other documents incorporated by reference herein or therein. 

1.4 “Client Content” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is provided to Encore by or on behalf of Client. 

1.5 “Client Intellectual Property” means Client’s Confidential Information, Client Content, and any other intellectual property owned or licensed by Client that is provided to Encore by or on behalf of Client, but does not include Encore Intellectual Property. 

1.6 “Deliverable” means any deliverable provided by Encore to Client in connection with the provision of the Services. 

1.7 “Documentation” means Encore’s user manuals, handbooks, and guides relating to the EDSuite Services provided by Encore to Client either electronically or in hard copy form. 

1.8 “Economic Development Organization” means an organization whose primary purpose is to support the economic development of a community or region. 

1.9 “EDSuite Platform” means Encore’s proprietary online platform that allows Encore to create high-performance, easily maintainable website instances for Economic Development Organizations. 

1.10 “EDSuite Services” means Encore’s EDSuite website-as-a-service offering, which is more fully described in the applicable Service Descriptions.  There are three (3) tiers of EDSuite Services: EDSuite, EDSuite Signature, and EDSuite Custom.  The tier of EDSuite Services chosen by Client is indicated in the Order Form, and such tier shall be the EDSuite Services for the purposes of the Agreement. 

1.11 “Effective Date” means the Effective Date specified in the Order Form. 

1.12 “Encore Intellectual Property” means Encore’s Confidential Information, the Services, the Deliverables, the Documentation, and any other intellectual property owned or licensed by Encore that is provided to Client by Encore, but does not include Client Intellectual Property. 

1.13 “Order Form” means the order form executed by Encore and Client, which references and incorporates by reference this Service Agreement and which specifies the Services ordered by Client. 

1.14 “Public Sector Addendum” means the Public Sector Addendum located at [URL], as the same may be updated by Encore from time to time. 

1.15 “Public Sector Client” means any United States state or local government or any entity, authority agency, or body exercising executive, legislative, judicial, regulatory, or administrative functions of any such government. 

1.16 “Service Descriptions” means the descriptions of the Services located at [URL], as the same may be updated by Encore from time to time. 

1.17 “Services” means, collectively, the EDSuite Services, the Support Services, and the Add-On Services ordered by Client in the Order Form. 

1.18 “SLA” means the Service Level Agreement located at [URL], as the same may be updated by Encore from time to time. 

1.19 “Statement of Work” means a statement of work attached to the Order Form regarding (a) the provision of EDSuite Services at the EDSuite Custom tier or (b) the provision of Add-On Services by Encore to Client. 

1.20 “Support Services” means the support services to be provided by Encore to Client.  The support services plan chosen by Client is indicated in the Order Form and shall constitute the Support Services for the purposes of the Agreement. 

1.21 “Website” means the Client website created utilizing the EDSuite Services, which will be located at the URL described in the Order Form. 

2. Services. 

2.1 EDSuite Services. 

2.1.1 Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of the Agreement (including, without limitation, if applicable, any Statement of Work relating to EDSuite Custom), Encore hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 12.7) right to access and use the EDSuite Services during the EDSuite Term, in accordance with the terms and conditions herein. Such use is limited to Client’s internal use related to the Website. Encore shall provide to Client the necessary passwords and network links or connections to allow Client to access the EDSuite Services. 

2.1.2 Documentation License. Subject to the terms and conditions contained in the Agreement, Encore hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.7) license to use the Documentation during the EDSuite Term solely for Client's internal business purposes in connection with its use of the EDSuite Services. 

2.1.3 Use Restrictions. Client shall not use the EDSuite Services for any purposes beyond the scope of the access granted in the Agreement. Client shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the EDSuite Services or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the EDSuite Services or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the EDSuite Services, in whole or in part; (d) remove any proprietary notices from the EDSuite Services or Documentation; or (e) use the EDSuite Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any individual or entity or that violates any applicable law. 

2.1.4 Reservation of Rights. Encore reserves all rights not expressly granted to Client in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Encore Intellectual Property. 

2.1.5 Suspension. Notwithstanding anything to the contrary in the Agreement, Encore may temporarily suspend Client's access to any portion or all of the EDSuite Services if: (a) Encore reasonably determines that (i) there is a threat or attack on any of the Encore Intellectual Property; (ii) Client's use of the Encore Intellectual Property disrupts or poses a security risk to the Encore Intellectual Property or to any other customer or vendor of Encore; (iii) Client is using the Encore Intellectual Property for fraudulent or illegal activities; (iv) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Encore's provision of the EDSuite Services to Client is prohibited by applicable law; (b) any vendor of Encore has suspended or terminated Encore’s access to or use of any third-party services or products required to enable Client to access the EDSuite Services; or (c) in accordance with Section 4.1(c) (any such suspension described in clause (a), (b), or (c), a “Service Suspension”). Encore shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the EDSuite Services following any Service Suspension. Encore shall use commercially reasonable efforts to resume providing access to the EDSuite Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Encore will have no liability for any damage, liabilities, losses (including, without limitation, any loss of data or profits), or any other consequences that Client may incur as a result of a Service Suspension. 

2.1.6 Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, Encore may monitor Client’s use of the EDSuite Services and collect and compile Aggregated Statistics. As between Encore and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Encore. Client acknowledges that Encore may compile Aggregated Statistics based on Client Content. Client agrees that Encore may (a) make Aggregated Statistics publicly available in compliance with applicable law and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided, however, that such Aggregated Statistics do not identify Client or Client's Confidential Information. 

2.2 Support Services; Service Levels. 

2.2.1 Support Services. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of the Agreement, during the Support Term, Encore will provide Client with the Support Services. 

2.2.2 Service Levels. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of the Agreement, during the EDSuite Term, Encore will provide Client with the service levels set forth in the SLA. 

2.3 Add-On Services. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of the Agreement, including, without limitation, the applicable Statement of Work, during the Add-On Term, Encore will provide Client with the Add-On Services. 

3. Term; Termination; Survival. 

3.1 Term. 

3.1.1 Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date in the first Order Form and continues until the expiration or termination of all Order Forms. 

3.1.2 EDSuite Term. The initial term of the EDSuite Services begins on the Effective Date of the applicable Order Form and, unless terminated earlier pursuant to the Agreement’s express provisions, will continue in effect for 36 months from such date (the “Initial EDSuite Term”).  The EDSuite Services will automatically renew for additional successive 12 month terms unless earlier terminated pursuant to the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each, a “Renewal EDSuite Term”). Together, the Initial EDSuite Term and all Renewal EDSuite Terms constitute the “EDSuite Term.” 

3.1.3 Support Term. The initial term of the Support Services begins on the Effective Date of the applicable Order Form and, unless terminated earlier pursuant to the Agreement’s express provisions, will continue in effect for 12 months from such date (the “Initial Support Term”).  The Support Services will automatically renew for additional successive 12 month terms unless earlier terminated pursuant to the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each, a “Renewal Support Term”). Together, the Initial Support Term and all Renewal Support Terms constitute the “Support Term.” 

3.1.4 Add-On Term. The initial term of the Add-On Services begins on the Effective Date of the applicable Order Form and, unless terminated earlier pursuant to the Agreement’s express provisions, will continue in effect for 12 months from such date (the “Initial Add-On Term”).  The Add-On Services will automatically renew for additional successive 12 month terms unless earlier terminated pursuant to the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each, a “Renewal Add-On Term”). Together, the Initial Add-On Term and all Renewal Add-On Terms constitute the “Add-On Term.” 

3.2 Termination. In addition to any other termination right set forth in the Agreement: 

3.2.1 Encore may terminate the Agreement and all Order Forms, effective on written notice to Client, if Client (a) fails to pay any amount when due hereunder and such failure continues more than 30 days after Encore’s delivery of written notice thereof; or (b) breaches any of its obligations under Section 2.1.3 or Section 8; 

3.2.2 either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party breaches the Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or 

3.2.3 either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 

3.3 Effect of Expiration or Termination. Upon the expiration or earlier termination of the Agreement, Client shall immediately discontinue use of the Encore Intellectual Property, and, without limiting Client’s obligations under Section 8, Client shall delete, destroy, or return all copies of the Encore Intellectual Property and certify in writing to Encore that the Encore Intellectual Property has been deleted, destroyed, or returned.  No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund. Upon expiration or termination of the Agreement, Encore will deactivate the Website, and Client will not receive an export of the Website, the design, the theme files, or the platform codebase.  Client is responsible for retaining copies of any Client Content that Client wishes to preserve before the expiration or termination date. Encore recommends that Client download or archive the Client Content prior to expiration or termination of the Agreement.  Economic development organizations and public agencies with data governance or records retention requirements should ensure that Client Content published on the Website is also maintained in Client’s own records systems.  EDSuite is not an official records repository.  Upon timely request, Encore may assist Client in exporting Client Content prior to expiration or termination for a mutually agreed upon fee. 

3.4 Survival. This Section 3.4 and Sections 1, 4, 7, 8, 9.2, 10, 11, and 12 of this Service Agreement survive any expiration or termination of the Agreement. 

4. Fees and Payment. 

4.1 Fees. Client shall pay Encore the fees (“Fees”) as set forth in the applicable Order Form without offset or deduction. Fees are invoiced on the cadence stated in the applicable Service Description. Client shall make all payments hereunder in U.S. dollars on or before the 30th day following the invoice date. If Client fails to make any payment when due, without limiting Encore’s other rights and remedies: (a) Encore may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Client shall reimburse Encore for all reasonable costs incurred by Encore in collecting any late payments or interest, including, without limitation, attorneys' fees, court costs, and collection agency fees; and (c) if such failure continues for 15 days or more, Encore may suspend Client’s access to or receipt of any portion or all of the Services until such amounts are paid in full. 

4.2 Taxes. All Fees and other amounts payable by Client under the Agreement are exclusive of taxes and similar assessments. Client 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 Client hereunder, other than any taxes imposed on Encore’s income. 

4.3 Expenses. Client will reimburse Encore for reasonable travel and lodging expenses incurred in connection with on-site work. 

4.4 Website Domain Registration. Fees do not include, and Client is responsible for purchasing and maintaining, Client’s website domain registration. Any domain Encore purchases on Client’s behalf remains Encore’s property unless otherwise stated in the applicable Service Description. 

4.5 Fee Increases. Encore will provide at least sixty (60) days’ written notice of any pricing change prior to the renewal term to which it applies. 

5. Client Content; Sensitive Data. 

5.1 Client Content. Client is responsible for ensuring that all Client Content is properly licensed or owned. Encore accepts no responsibility for copyright violations of fonts, images, or other Client Content uploaded to the Website or otherwise provided by Client. 

5.2 Sensitive Data. Encore provides marketing and communications services and generally does not require access to sensitive or regulated information to perform its services. Client shall not transmit Sensitive Data to Encore without prior written notice and written authorization from Encore. “Sensitive Data” includes personally identifiable information (PII), proprietary business information, intellectual property, or other sensitive information not intended for public disclosure. If Encore authorizes the transmission of Sensitive Data, Client shall ensure such data is transmitted using appropriate security controls, including, without limitation, encryption consistent with industry standards and limited to the minimum necessary for the approved purpose. Client remains responsible for compliance with all applicable data protection laws and for any Sensitive Data transmitted in violation of this section. Encore reserves the right to refuse, return, or securely delete any unauthorized Sensitive Data received and will notify Client of such action. 

6. Client Responsibilities. 

6.1 Client Participation. Client will actively participate in the timely execution of all work under the applicable Service Description. Encore's ability to perform on schedule depends on Client's cooperation and timely provision of accurate information, access, and materials. Client will supply all necessary content, credentials, brand assets, copy, imagery, and approvals on the schedule agreed at intake, in accurate, production-ready digital formats. Client delays in providing materials, feedback, or approvals will extend timelines accordingly. Significant editing, formatting, or rewriting of Client-provided materials beyond the scope of the applicable Service Description may be billed at standard hourly rates. 

6.2 Client Contact. Client will designate one primary contact authorized to provide consolidated feedback, identify deficiencies, and approve deliverables on Client's behalf and to serve as the official source for direction and decisions. 

6.3 Client Feedback. Client will provide all feedback in a single, consolidated markup in the format Encore requests. Feedback must be specific, actionable, and complete. Non-consolidated, late, or out-of-scope feedback may extend schedules and incur additional charges at standard hourly rates. Unless otherwise stated in the applicable Service Description, each Deliverable includes one initial draft/design and two (2) rounds of revisions. Additional rounds are billed at $150/hour. A “revision” is a change or refinement to an existing Deliverable that aligns with the approved concept and scope. Requests that substantially change direction, strategy, or previously approved work are treated as a new Deliverable. 

6.4 Approval of Deliverables. Client will review and approve Deliverables within five (5) business days. If Client's feedback or approval is delayed beyond five (5) business days, Encore may: adjust delivery schedules; apply a delay fee of $100/day beginning on the sixth day; and/or proceed based on Encore's professional judgment and treat the Deliverable as approved for purposes of continuing work. Unless written notice of deficiencies is provided within five (5) business days of delivery (or of project completion, as applicable), Deliverables are deemed accepted. Encore will correct verified deficiencies reported within the review window at no additional cost. 

6.5 Pausing Projects. Projects or items paused for more than thirty (30) days may be closed, invoiced for work completed, and rescheduled as new work when reactivated. Reactivation may require updated scheduling and may incur additional restart or onboarding fees. 

6.6 DNS-Level Access. Client shall provide Encore with DNS-level admin access. 

7. Ownership. 

7.1 Deliverables. All Deliverables are the exclusive property of Encore, subject to third-party licensing terms, unless the applicable Statement of Work expressly designates specific Deliverables as the property of Client. For any Deliverables so designated, Encore assigns all right, title, and interest in those Deliverables to Client, effective upon Encore's receipt of full payment for them. Encore waives, to the extent permitted by law, any moral rights in Deliverables assigned to Client under this subsection. If Client fails to pay in full for a designated Deliverable, no assignment or license of any kind arises under the Agreement with respect to that Deliverable, and Client shall have no right to use, host, publish, or display it. 

7.2 Work Product. Regardless of who owns the Deliverables under Section 7.1, all Work Product is the exclusive property of Encore, unless the Statement of Work expressly designates specific Work Product as the property of Client. Where Encore owns the Work Product, Client assigns any right, title, or interest it may have in Work Product to Encore. “Work Product” means materials created in the course of producing the Deliverables but not delivered as part of them, including, but not limited to, raw video footage, RAW photographic files, creative concepts, design source files, project files, and editing timelines. 

7.3 Encore Intellectual Property. All Encore Intellectual Property remains Encore’s exclusive property whether or not incorporated into a Deliverable. 

7.4 License Grants. For Deliverables owned by Encore under Section 7.1, Encore grants Client a non-exclusive, non-transferable, royalty-free license, irrevocable during the Term, to use, reproduce, and display those Deliverables for Client's business purposes, including use by Client's constituents, members, or the general public where such use is consistent with the Deliverable’s intended purpose. For Deliverables assigned to Client under Section 7.1 that incorporate Encore Intellectual Property, Encore grants Client a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license, irrevocable during the Term, to use that Encore Intellectual Property solely as embedded in the Deliverable, on the same terms as to end-user access. Neither license extends to Work Product. 

7.5 Client Intellectual Property. All Client Intellectual Property remains Client’s exclusive property. 

7.6 Further Assurances. Each Party will execute any additional documents reasonably necessary to perfect the assignments and licenses in this Section 7. 

7.7 Domain Names. All domain names Encore purchases in connection with the Website remain Encore’s exclusive property. 

8. Confidentiality. 

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any individual or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations under the Agreement. The receiving Party shall not use the disclosing Party’s Confidential Information, except as necessary to exercise its rights or perform its obligations under the Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under the Agreement, including, without limitation, to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure and non-use will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 

9. Limited Warranty; Disclaimer. 

9.1 Limited Warranty.  Encore warrants that the Services will conform in all material respects to the SLA when accessed and used in accordance with the Service Descriptions. Encore does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the SLA. The remedies set forth in the SLA are Client’s sole remedies and Encore’s sole liability under the limited warranty set forth in this Section 9.1. 

9.2 Disclaimer.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” AND ENCORE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ENCORE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, ENCORE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DELIVERABLES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. 

10. Indemnification. 

10.1 Encore Indemnification.  Encore shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, and costs (including, without limitation, reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with the Agreement, infringes or misappropriates such third party's U.S. patents, copyrights, or trade secrets, provided that Client promptly notifies Encore in writing of such Third-Party Claim, cooperates with Encore, and allows Encore sole authority to control the defense and settlement of such Third-Party Claim.  If a Third Party-Claim is made or appears possible, Client agrees to permit Encore, at Encore’s sole discretion, to (a) modify or replace the Services, or any component or part thereof, to make it non-infringing, or (b) obtain the right for Client to continue use. If Encore determines that neither alternative is reasonably available, Encore may terminate the Agreement and all Order Forms, in their entirety or with respect to the affected component or part, effective immediately on written notice to Client. 

10.2 Client Indemnification.  To the maximum extent permitted by law, Client shall indemnify, hold harmless, and, at Encore’s option, defend Encore from and against any Losses resulting from any Third-Party Claim that the Client Content, or any use of the Client Content in accordance with the Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Client’s (a) negligence or willful misconduct; (b) use of the Services in a manner not authorized by the Agreement; (c) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Encore or authorized by Encore in writing; or (d) modifications to the Services not made by Encore, provided that Client may not settle any Third-Party Claim against Encore unless Encore consents to such settlement, and further provided that Encore will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 

10.3 Sole Remedy.  SECTION 10.1 SETS FORTH CLIENT’S SOLE REMEDIES AND ENCORE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 

11. Limitations of Liability. 

11.1 Limitation on Total Liability.  EXCEPT IN THE CASE OF ENCORE’S INDEMNIFICATION OBLIGATIONS IN THIS SERVICE AGREEMENT AND FOR DAMAGES CAUSED BY ENCORE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL ENCORE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ENCORE UNDER THE AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

11.2 Exclusion of Certain Damages.  IN NO EVENT WILL ENCORE BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ENCORE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. 

12. Miscellaneous. 

12.1 Entire Agreement.  The Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Service Agreement and the Order Form, the following order of precedence governs: (a) first, the Order Form; and (b) second, the body of this Service Agreement. 

12.2 Notices.  All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the preamble of this Service Agreement, in the case of Encore, or set forth in the Order Form, in the case of Client (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in the Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section. 

12.3 Force Majeure.  In no event shall Encore be liable to Client, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Encore’s reasonable control, including, but not limited to, acts of God, flood, fire, earthquake, pandemic, epidemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including, without limitation, imposing an embargo. 

12.4 Amendments and Modifications; Waiver.  No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 

12.5 Severability.  If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 

12.6 Governing Law; Submission to Jurisdiction.  The Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to the Agreement or the rights granted hereunder will be instituted exclusively in the state district courts in Gregg County, Texas or the federal district court in the Eastern District of Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 

12.7 Assignment.  Encore may assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Client.  Client may not assign any of its rights or delegate any of its obligations under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Encore, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. The Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 

12.8 Export Regulations.  Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including, without limitation, obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Content outside the US. 

12.9 Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 or, in the case of Client, Section 2.1.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 

12.10 Counterparts.  The Order Form may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. 

12.11 Public Sector Addendum. If Client is a Public Sector Client, then the Public Sector Addendum shall apply and is incorporated herein by reference.