- Grant of License. Subject to the following terms and conditions and upon payment of invoice, Nobscot grants Subscriber a non-exclusive, non-transferable limited license (the "License") to (a) access one or more of Nobscot's systems (as they may be improved, upgraded or otherwise modified by Nobscot from time to time, the "System") and (b) use those application services ("Services") that are specified in the Schedule notated in their account (the "Schedule"). If Subscriber's employee population exceeds the EE Cap at any time during the Term, Subscriber shall give Nobscot immediate written notice of the employee population and the date it exceeded the EE Cap. Within the next 7 business days, Nobscot will notify Subscriber of any change in annual fees based on a new EE Cap. Within 30 days after such notification, Subscriber will have the option to cancel the License by giving written notice of cancellation to Subscriber. Absent a timely notice of cancellation, the new annual fee and new EE Cap shall become effective as of the date Subscriber's employee population exceeded the EE Cap, and Subscriber shall pay the increased annual fee for the balance of the then-current Term. No refunds will be made by Nobscot for cancellations for any reason.
- Term of License. The term of the License (the "Term") shall commence on the earlier of (a) the thirtieth (30th) day after the Effective Date (the 30th day, the "Subscription Date") or (b) the date that Subscriber's account on the System is activated and enabled (whichever is earlier, the "Start Date"). The Term shall continue until the one-year anniversary of the Subscription Date, subject to renewal or termination as provided in this Agreement.
- Payment of Fees. Subscriber shall pay Nobscot all fees specified on the invoice or in the Schedule (collectively, "Fees"). Notwithstanding anything to the contrary, Nobscot shall not be required to provide Subscriber with access to the System or any Services at any time that a payment owed by Subscriber to Nobscot is past due. TIME IS OF THE ESSENCE OF THIS SECTION 3. All late payments may be subject to interest from the due date until paid in full at the rate of one and one half percent (1.5%) per month or at the highest rate allowed by law, whichever is less.
- Access to Nobscot Website. The License includes a non-exclusive, non-transferable right to provide a hypertext link to Nobscot's website (the "Site") from Subscriber's website in order to provide Subscriber's employees with access to forms and other documents on the Site.
- Subscriber's Account and Data. Subscriber's right to use the Site is not transferable; accordingly, any password, account identifier or right given to Subscriber under this Agreement is not transferable except for use by authorized affiliates of Subscriber as approved in advance by Nobscot. Subscriber shall be fully responsible for maintaining the confidentiality of its passwords and account identifiers, shall immediately notify Nobscot of any unauthorized use of Subscriber's account and shall be fully responsible for all acts or omissions by Subscriber or any Users with respect to the Site, including the content of transmissions through the Site using Subscriber's account. All data input by Users on the Site (collectively, "Subscriber Data") shall be property of Subscriber.
- Nobscot Property. Subscriber acknowledges that the Site and all of its content (other than Subscriber Data), organization, graphics and design, all software used in the Site or in providing access to the System or any of the Services and all related documentation (collectively, "Nobscot Property") are the property of Nobscot and are protected pursuant to applicable copyrights, trademarks or other intellectual property or proprietary rights laws. Subscriber's right to use Nobscot Property shall be limited to only those rights specifically set forth in this Agreement. Nobscot retains all, and Subscriber does not acquire any, ownership rights to any Nobscot Property. Unauthorized use of any copyrights, marks or other property of Nobscot is strictly prohibited. At no time shall Subscriber copy, translate, modify, adapt, decompile, disassemble, reverse engineer or attempt to gain access to or use any of Nobscot's program code or any related documentation.
- Certain Limitations on Use. Subscriber may access the System and use the Services only during the Term, only in and for Subscriber's own internal business operations and only in accordance with all applicable federal, state, local or foreign laws and regulations. At no time shall Subscriber do any of the following without Nobscot's prior written consent:
Subscriber shall execute any further agreements or other documents and perform any acts which Nobscot may reasonably request to effectuate or to assure or confirm performance of this Agreement. In case of any breach of this Agreement by Subscriber, Nobscot may suspend Subscriber's or the User's use of the Site for such period as required for Nobscot to prevent or terminate the incident or address the risk of recurrence.
a) permit any third party to access the System, any content of the Site that is not publicly available (including by viewing any screen shots, images or other recordings of any kind), any related documentation or use any Services, directly or indirectly, whether on a time-sharing, remote job entry or service bureau arrangement or for any other reason;
b) attempt to gain access to any other services, systems or networks owned, maintained or operated by Nobscot or any of its affiliates;
c) transmit to the Site any virus, trojan horse, worm, time bomb, cancelbot or any other harmful or deleterious code;
d) interfere with, disrupt the integrity or performance of or attempt to gain unauthorized access to the Site, Site servers, other accounts, computer systems or networks connected to the Site;
e) interfere with anyone else's use or enjoyment of the Site or of any services from Nobscot or its affiliates;
f) make the Site available to anyone other than Users or sell, resell, rent or lease the use of the Site; or
g) use the Site or any Services for any activity that is unlawful or in violation of the rights of any third party (whether relating to labor or employment practices, discrimination, infringement, defamation, privacy or otherwise).
- Confidential Information. Each party shall maintain and implement reasonable security measures consistent with prevailing industry standards and all applicable law to protect the secrecy of, and shall avoid unauthorized disclosure or use of, the other party's "Confidential Information" (as defined below). In the event a party allows or suffers any unauthorized access (whether by physical, electronic or any other means) to or unauthorized use of the other's Confidential Information, such party shall give prompt written notice thereof to the other party and shall use diligent efforts to remedy the situation and prevent any continuation or recurrence thereof.
a) "Confidential Information" of a given party means all data or information in any form that is marked or otherwise identified as proprietary or confidential of the given party or that reasonably should be known by the other party to be proprietary or confidential to the given party. The parties specifically agree that Subscriber's Confidential Information shall include all Subscriber Data and all confidential data or information regarding Subscriber's employment practices, employee turnover, exit interview ratings, comments of employees and former employees and the like, and all compilations, reports or analyses of the foregoing, insofar as such data, information, compilation, report or analysis identifies Subscriber. The parties specifically acknowledge that Nobscot's Confidential Information includes all trade secrets pertaining to the System or any Services, including pricing information and program features.
b) Each party shall be permitted to use the other's Confidential Information only for purposes of carrying out its duties under this Agreement. Each party shall be permitted to disclose the other's Confidential Information only to its own employees and contractors to the extent they need to know such Confidential Information for purposes of carrying out such party's duties under this Agreement, provided that each such employee or contractor (i) has been informed of, and has agreed to comply with, the restrictions in this Agreement with respect to such Confidential Information and (ii) does not engage or participate in any business that competes with such other party's business.
c) Notwithstanding the foregoing, a given party's "Confidential Information" shall not include any data or information that the other party can prove (i) became available to the public without any breach hereof or wrongful conduct by such other party; (ii) was known to or obtained by such other party without any breach hereof or other wrongful conduct and without any obligation of confidentiality before receiving such data or information from the given party; or (iii) was independently developed by such other party without any breach hereof or other wrongful conduct and without any reference to or use of the given party's Confidential Information.
d) Notwithstanding the foregoing, this Agreement shall not prohibit a party from disclosing the other's Confidential Information to the extent required by applicable law or legal process (including a properly issued subpoena or discovery request), provided that the party required to make such disclosure has, unless prohibited by applicable law or legal process, given the other party written notice of such required disclosure and a reasonable opportunity to challenge such requirement or pursue assurances of confidential treatment of the information so disclosed.
e) Notwithstanding the foregoing, Nobscot shall be permitted to use Subscriber's Confidential Information for purposes of preparing studies, surveys or reports (such as industry analyses, regional surveys and the like) and to publish or otherwise disclose any such study, survey or report, provided that the study, survey or report does not enable the reader to discern Subscriber's Confidential Information (including by identifying with Subscriber any Confidential Information specifically attributable to Subscriber).
f) Nobscot shall not harvest or otherwise collect social security numbers, credit card numbers, bank account numbers, personal health information or any similar private information of any Users.
- License Renewal. On each one-year anniversary of the Subscription Date, the Term shall automatically renew for an additional one-year period (each, a "Renewal Period"), unless either party has given the other written notice of non-renewal at least thirty (30) days prior to the end of the Term. The annual fees for each Renewal Period shall be the same as the annual fees in effect at the end of the prior period, unless Nobscot has given Subscriber written notice of a fee increase at least sixty (60) days before the Renewal Period, in which case the fee increase shall be effective upon renewal and thereafter. Absent a timely notice of non-renewal, the Term shall be extended for the Renewal Period, and the annual fees for the Renewal Period shall be due and payable on or before the first day thereof.
- Termination for Cause. Either party may terminate the Term upon written notice to the other party:
a) if such other party materially breaches this Agreement and such breach either (i) remains uncured for more than thirty (30) days following written notice specifying the breach or (ii) was a knowing or intentional breach of Section 6, 7 or 8; or
b) upon the voluntary institution of proceedings by such other party under any federal, state or foreign bankruptcy or insolvency law, the appointment of any bankruptcy trustee or receiver over the assets of such other party, such other party's making an assignment for the benefit of its creditors or the involuntary institution of proceedings against such other party under any federal, state or foreign bankruptcy or insolvency law, which proceedings are not dismissed within ninety (90) days after their institution.
- Termination to Prevent Unfair Competition. During the Term:
a) Nobscot shall not allow a competitor of Subscriber to acquire majority ownership or control of Nobscot (whether as a result of a stock purchase, merger, consolidation or otherwise) without giving prompt written notice thereof to Subscriber, and Subscriber shall have the right to terminate the Term by giving written notice of termination to Nobscot within ten (10) days after receipt of such notice.
b) Neither Subscriber nor any of its affiliates shall undertake to develop, market, license to others, sell or otherwise deal in any software product or service that is competitive with or substitutable for the System or that has substantially similar features without giving prompt written notice thereof to Nobscot, and Nobscot shall have the right to terminate the Term by giving written notice of termination to Subscriber within ten (10) days after receipt of such notice.
- Effect of Termination. Upon the termination of the Term for any reason, all rights granted to Subscriber hereunder will cease, and Subscriber shall cease all use of the Services. Within ten days after termination, Subscriber may retrieve archived Subscriber Data or may request, in writing accompanied by a $250.00 processing fee, that Nobscot deliver a copy of the archived Subscriber Data. After said ten business days, any or all Subscriber Data may be deleted, except to the extent Subscriber and Nobscot enter into a data hosting agreement providing otherwise. Termination of the Term shall not affect any obligation arising during the Term (such as the obligation to pay Fees) or under any provision of this Agreement that is not limited to the Term. The parties specifically acknowledge that Sections 6, 7, 8, 12 - 16 and 18 - 29 will survive the termination of the Term for any reason whatsoever.
a) Nobscot shall indemnify, defend and hold harmless Subscriber from and against any and all claims, demands, costs, expenses and liabilities of any kind (including reasonable attorneys' fees and costs) incurred by Subscriber to an unrelated third party based upon any third-party claim (whether based on contract, tort or otherwise) that Nobscot, by act or omission, has violated applicable law or any third party's rights in connection with Nobscot's grant of the License or provision of access to the System or Services (including by infringement, misappropriation or other violation of a third party's intellectual property rights).
b) Subscriber shall indemnify, defend, and hold harmless Nobscot from and against any and all claims, demands, costs, expenses and liabilities of any kind (including reasonable attorneys' fees and costs) incurred by Nobscot to an unrelated third party based upon any third-party claim (whether based on contract, tort or otherwise) that Subscriber or any User, by act or omission, has violated applicable law or any third party's rights in connection with Subscriber's or any User's access to or use of the System or Services.
c) In the event of a third-party claim which, if proven, would give rise to a right of indemnification hereunder 13, the party that would have a right to indemnification shall give the other party prompt written notice of such third-party claim. The party that would be required to provide indemnification shall have the right, exercisable by written notice to the other party, to select counsel to defend both parties hereto and to control the defense, negotiation and settlement of such third-party claim on behalf of both parties hereto, and the party seeking indemnification shall enter into such waivers of existing or potential conflicts and joint defense agreement as the selected counsel may require. If a party assumes control of the defense of a third-party claim as aforesaid, the other party shall have a right to monitor and participate in such defense with counsel of its own choice and at its own cost and expense, without a right of indemnification for such costs and expenses. Notwithstanding the foregoing, a party shall not be required to allow the other party to select its counsel or control the defense of a third-party claim insofar as such claim is for an equitable remedy or alleges facts that, if proven, would constitute the basis for criminal prosecution.
- Limited Warranty.
a) Nobscot warrants that it has the right to enter into this Agreement and provide access to the System and the Services as required by this Agreement. Nobscot warrants that the System will perform substantially in accordance with the feature descriptions in Nobscot's user guide.
b) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 14(a), THE SITE, THE SYSTEM AND ALL SERVICES, INCLUDING ALL DATA OR INFORMATION FROM NOBSCOT, ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND NOBSCOT HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, GUARANTIES OR OTHER ASSURANCES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY LAW, CUSTOM OR USAGE OF TRADE, COURSE OF PERFORMANCE, COURSE OF DEALING, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OR ADEQUACY OF ANY INFORMATION OR RESULTS, QUALITY, RELIABILITY, OR ABSENCE OF ERRORS OR DEFECTS OF ANY KIND.
c) The Site, the System and the Services, and the data or information from Nobscot, may be subject to delays or limitations (such as those inherent in the use of the Internet or electronic communications) and may contain bugs, errors, defects or other problems. Nobscot shall not be responsible for any delay or damage resulting from any delay, limitation or other problem.
d) No data, information or advice, whether oral or written, obtained from Nobscot or through the Site shall create any warranty, representation, guaranty or assurance not expressly stated in this Agreement. Nobscot has not authorized, and Subscriber represents and warrants that it is not and shall not be relying on, any warranty, representation, guaranty or assurance of any kind from Nobscot, other than as expressly set forth in this Agreement.
- Limited Remedies and Recourse.
a) Subscriber's exclusive remedy, and Nobscot's entire liability, for any breach of warranty shall be, at Nobscot's option, either correction of the condition that caused such breach of warranty or termination of this Agreement.
b) EXCEPT FOR A BREACH OF SECTION 6, 7 OR 8, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST BUSINESS, LOST PROFITS OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This Section 15(b) shall not limit a party's recovery under Section 13.
c) Except as provided in Section 13, NOBSCOT'S MAXIMUM TOTAL LIABILITY TO SUBSCRIBER UNDER ALL CIRCUMSTANCES WILL BE LIMITED TO THE TOTAL FEES PAID BY SUBSCRIBER TO NOBSCOT WITHIN THE TWELVE (12) MONTHS PRECEDING SUBSCRIBER'S LOSS.
d) Any cause of action that Subscriber may have with respect to the Site, the System or any Services, including any data or information from Nobscot, must be brought by a proper suit, action or other proceeding in accordance with this Agreement within one (1) year after the cause of action arose or be forever waived and barred.
e) EACH OF THE LIMITATIONS IN SECTIONS 14 AND 15 IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. NOBSCOT WOULD NOT PROVIDE ACCESS TO THE SYSTEM OR ANY SERVICES WITHOUT SUCH LIMITATIONS.
- Third-Party Websites. The Site may contain links to other websites. Nobscot is not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by Nobscot. Inclusion of any linked website on the Site does not imply approval or endorsement of the linked website by Nobscot. SUBSCRIBER OR ANY USER THAT ACCESSES ANY THIRD-PARTY WEBSITE DOES SO AT HIS, HER OR ITS OWN RISK AND WITHOUT ANY WARRANTY, REPRESENTATION, GUARANTY OR OTHER ASSURANCE OF ANY KIND BY NOBSCOT (WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY LAW, CUSTOM OR USAGE OF TRADE, COURSE OF PERFORMANCE, COURSE OF DEALING, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OR ADEQUACY OF ANY INFORMATION OR RESULTS, QUALITY, RELIABILITY, OR ABSENCE OF ERRORS OR DEFECTS OF ANY KIND, TITLE OR NONINFRINGEMENT), ALL OF WHICH ARE HEREBY DISCLAIMED. UNDER NO CIRCUMSTANCES WILL NOBSCOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY TRANSACTION THAT SUBSCRIBER OR ANY USER MAY ENTER INTO WITH A THIRD PARTY OR FOR ANY DATA OR INFORMATION PROVIDED BY ANY THIRD PARTY.
- Promotional Materials. Throughout the Term, Subscriber authorizes Nobscot to list Subscriber's name, trademarks and service marks on Nobscot's websites, advertising materials and lists of customers for the purpose of promoting Nobscot's services and identifying Subscriber as a customer of Nobscot. Subscriber may terminate the rights granted under this Section 17 at any time upon written notice to Nobscot.
- Notices and Other Communications. Any notice, consent, demand or other communication pursuant to this Agreement shall be made in writing and shall be deemed to have been duly given if sent to a party: (a) by email (and shall be deemed given, received and effective upon such party's confirmation of receipt); (b) by telefax, telecopier or similar transmission (and shall be deemed given, received and effective upon electronic confirmation of successful transmission); (c) by Federal Express or other reputable courier service with guaranteed two business day delivery, charges prepaid (and shall be deemed given, received and effective two (2) business days after delivery to such courier); or (d) by U.S. certified or registered mail, return receipt requested and postage prepaid (and shall be deemed given and effective five (5) business days after being deposited in a post office or other depository under the care or custody of the U.S. Postal Service). Any such notice, consent, demand or other communication shall be sent either: (i) if to Nobscot, to 4840C Wailapa Road, Kilauea, HI 96754, Attention: President, or (ii) if to Subscriber, to the contact person and address thereof set forth on the Schedule; provided, however, each party may change its contact person or address thereof for purposes of this Agreement by giving ten (10) days' prior written notice of such change. Each Member agrees to accept service of process at its address for notice hereunder by U.S. certified or registered mail, return receipt requested and postage prepaid, with respect to any suit, action or other proceeding.
- Governing Law. This Agreement, its interpretation, performance and enforcement and the respective rights, obligations and remedies of the parties and all claims, disputes or controversies between the parties (whether under or relating to this Agreement, including the facts and circumstances relating to the negotiation, execution, delivery or performance of this Agreement or the disclosure of information in connection with entering into this Agreement, or any other relationship or matter between the parties) shall be governed and construed by and in accordance with the laws of the State of Delaware (the "State"), without giving effect to any choice of law or conflict of law provision or rule (whether of the State or any other jurisdiction) that would result in the application of the laws of any other state.
- Consent to Jurisdiction and Venue. For purposes of enforcing this Agreement or any other claim, dispute or controversy between the parties, each party hereby (a) irrevocably submits to the personal jurisdiction of any state court of competent jurisdiction located in the State and appropriate courts of appeal with respect thereto, and each party hereby waives its right to contest the jurisdiction or venue of any such court, whether on the grounds of inconvenience or otherwise, and (b) irrevocably, unconditionally, knowingly, intelligently and voluntarily waives all rights it may have to bring any suit, action or other proceeding against the other party or any of its heirs, representatives, successors or assigns in any court outside the State, except for the limited purpose of enforcing the judgment obtained from a federal or state court in the State.
- Waiver of Jury Trial. IRREVOCABLY AND UNCONDITIONALLY, EACH PARTY HEREBY KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES ALL RIGHTS IT MAY HAVE TO TRIAL BY JURY IN ANY SUIT, ACTION OR OTHER PROCEEDING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE BETWEEN THE PARTIES (WHETHER OR NOT RELATING TO THIS AGREEMENT).
- Prevailing Party. If a party brings a suit, action or other proceeding on account of a breach or threatened breach of this Agreement by the other party and prevails in proving that such breach or threatened breach has occurred, the party bringing such proceeding shall be entitled to recover all reasonable attorneys' fees and costs incurred in connection with such proceeding from the party that committed such breach or threatened breach.
- Entire Agreement. This Agreement, including the Schedule which is hereby incorporated by reference into this Agreement, constitutes the complete and exclusive agreement and understanding of the parties with respect to the subject matter hereof. All prior or contemporaneous proposals, understandings and other agreements (whether oral and written, express or implied), if any, between the parties are hereby superseded and extinguished; except, however, if the parties entered into a prior written license or subscription agreement, all rights, liabilities and obligations thereunder intended to survive the termination thereof are expressly preserved.
- Amendment, Modification; Waiver. No provision of this Agreement may be amended or modified, in whole or in part, except by written consent of both parties. No provision of this Agreement may be waived except by a written instrument duly executed by the waiving party. No custom, usage of trade, course of performance, course of dealing, oral statement or actions in reliance on any of the foregoing shall constitute or effect an amendment, modification or waiver of any provision of this Agreement, shall excuse a departure from any provisions of this Agreement or shall affect a party's right to enforce strict compliance with the terms and conditions of this Agreement. Except as otherwise expressly provided herein, no forbearance or leniency or other delay or failure of any party to enforce at any one or more times, or for any periods of time, any or all provisions this Agreement shall be construed as a waiver of any such provisions or shall diminish or affect the right of such party thereafter to enforce the same or any other provision absolutely in accordance with its terms.
- Severability. To the fullest extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law; however, if any provision of this Agreement shall be determined by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such determination shall not affect the remaining provisions of this Agreement, which shall continue in full force and effect, and the parties expressly agree that the court making such determination shall have the power to, and the parties hereby request such court to, modify such provision to the minimum extent necessary to render such provision legal, valid, binding and enforceable to fullest extent permitted by applicable law, or, if necessary, delete such provision.
- Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assigns. Subscriber shall not assign, sublicense, delegate or otherwise transfer (by operation of law or otherwise) this Agreement, the License or any of rights or obligations under this Agreement, without Nobscot's prior written consent; except, however, Subscriber may assign and transfer all rights under this Agreement to any purchaser or acquirer of all or substantially all of Subscriber's assets (whether by merger, consolidation or otherwise). Except as otherwise expressly provided in this Agreement, there are no intended third-party beneficiaries of this Agreement and no provision of this Agreement is intended to, nor shall it, create or provide any rights to or in favor of any third party. No assignment or other transfer shall relieve the assignor or transferor of any liability or obligation hereunder. Any attempted or purported assignment, sublicense, delegation or other transfer in violation of this Agreement shall be void.
- Construction. All references in this Agreement to a "Section" shall refer to such section of this Agreement. The captions of Sections in this Agreement are for the convenience of reference only; they form no part of this Agreement and shall not limit or otherwise affect the interpretation of any Section. The words "hereby," "herein," "hereof," "hereto" and "hereunder" mean by, in, of, to and under this Agreement and refer to this Agreement as a whole, not merely to the particular Section where such word is used. The term "or" shall be construed to be inclusive and have the meaning of "and/or". All references to "writing" (and correlative words, such as "written") include printing, typing, hand writing, electronic mailing and other means of reproducing words in a tangible visible form. The word "including" (and correlative word, such as "include" and "includes") shall mean including without limitation. Unless a clear contrary intention is evident from the context, all references herein to the singular form of a word (including terms defined herein) shall include the plural form, and vice versa, and all references herein to any gender includes each other gender. All references to a person or entity shall include its permitted successors and assigns. No provision of this Agreement shall be interpreted or construed against a party based on the role of such party or its counsel in the drafting thereof.
- Determining Days. In computing the number of days for purposes hereof, all days shall be counted, including Saturdays, Sundays and legal holidays in the State (unless only business days are specified); provided, however, that if the final day of any time period falls on a day that is not a business day, the final day shall be deemed to be the following business day. A "business day" means a day that is not a Saturday, Sunday or a day on which banks in the State are authorized or obligated by law or executive order to close.
- Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which as so executed and delivered shall be an original and all of which together shall constitute one and the same instrument. This Agreement shall be deemed executed and delivered by a party when the signature of its duly authorized officer to this Agreement has been delivered by facsimile or electronic transmission (including a pdf document sent by e-mail). A facsimile or electronic signature shall be treated in all respects as having the same force and effect as an original signature.