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Exhibit A
<br />Terms and Conditions
<br />Any capitalized terms not defined in these Terms and Conditions shall have the meaning assigned to it in that certain Letter Agreement
<br />attached hereto by and between Brycer, L.P. and Client (the "Agreement).
<br />Resttiptions,on,Use. Client shall not copy, distribute, create derivative
<br />works of or modify the Solution in any way. Client agrees that: (a) it
<br />shall only permit its officers and employees (collectively, the
<br />"Authorized Users") to use the Solution for the benefit of Client; (b) it
<br />shall use commercially reasonable efforts to prevent the unauthorized
<br />use or disclosure of the Solution; (c) it shall not sell, resell, rent or lease
<br />the Solution; (d) it shall not use the Solution to store or transmit
<br />infringing or otherwise unlawful or tortious material, or to store or
<br />transmit material in violation of third party rights; (e) it shall not
<br />interfere with or disrupt the integrity or performance of the Solution or
<br />third -party data contained therein; (f) it shall not reverse engineer,
<br />translate, disassemble, decompile or otherwise attempt to create any
<br />source code which is derived from the Solution (g) it shall not permit
<br />anyone other than the Authorized Users to view or use the Solution and
<br />any screen shots of the Solution and (h) it shall not disclose the features
<br />of the Solution to anyone other than the Authorized Users. Client is
<br />responsible for all actions taken by the Authorized Users in connection
<br />with the Solution.
<br />2. Proprietary Rights. All right, title and interest in and to the Solution,
<br />the features of the Solution and images of the Solution as well any and
<br />all derivative works or modifications thereof (the "Derivative Works"),
<br />and any accompanying documentation, manuals or other materials
<br />used or supplied under this Agreement or with respect to the Solution
<br />or Derivative Works (the "Documentation"), and any reproductions
<br />works made thereof, remain with Brycer. Client shall not remove any
<br />product identification or notices of such proprietary rights from the
<br />Solution. Client acknowledges and agrees that, except for the limited
<br />use rights established hereunder, Client has no right, title or interest in
<br />the Solution, the Derivative Works or the Documentation.
<br />3. Inde1V rd,,,e,,,nt Contractor. Nothing in the Agreement may be construed
<br />or interpreted as constituting either party hereto as the agent, principal,
<br />employee or joint venturer of the other. Each of Client and Brycer is
<br />an independent contractor. Neither may assume, either directly or
<br />indirectly, any liability of or for the other party. Neither party has the
<br />authority to bind or obligate the other party and neither party may
<br />represent that it has such authority.
<br />party and shall disclose only the information that is required to be
<br />disclosed by law. In the event that Client requests from Brycer any
<br />reports or other information for purposes of complying with federal and
<br />state disclosure laws, Brycer shall provide such information within five
<br />business day following such request. Confidential Information
<br />excludes information: (a) that is or becomes generally available to the
<br />public through no fault of the receiving party; (b) that is rightfully
<br />received by the receiving party from a third party without limitation as
<br />to its use; or (c) that is independently developed by receiving party
<br />without use of any Confidential Information. At the termination of this
<br />Agreement, each party will return the other party all Confidential
<br />Information of the other party. Each party also agrees that it shall not
<br />duplicate, translate, modify, copy, printout, disassemble, decompile or
<br />otherwise tamper with any Confidential Information of the other party
<br />or any firmware, circuit board or software provided therewith.
<br />7. Brycer Warranty. Brycer represents and warrants to Client that Brycer
<br />has all rights necessary in and to any patent, copyright, trademark,
<br />service mark or other intellectual property right used in, or associated
<br />with, the Solution, and that Brycer is duly authorized to enter into this
<br />Agreement and provide the Solution to Client pursuant to this
<br />Agreement.
<br />4. Reseryation,of_Ri7,ts. Brycer reserves the right, in its sole discretion
<br />and with prior notice to Client, to discontinue, add, adapt, or otherwise
<br />modify any design or specification of the Solution and/or Brycer's
<br />policies, procedures, and requirements specified or related hereto. All
<br />rights not expressly granted to Client are reserved to Brycer, including
<br />the right to provide all or any part of the Solution to other parties.
<br />9.
<br />5. Use of Logos. During the term of this Agreement, Brycer shall have
<br />the right to use Client's logos for the sole purpose of providing the
<br />Solution to Client.
<br />6. Confidential Information. Brycer and Client acknowledge and agree
<br />that in providing the Solution, Brycer and Client, as the case may be,
<br />may disclose to the other party certain confidential, proprietary trade
<br />secret information ("Confidential Information"). Confidential
<br />Information may include, but is not limited to, the Solution, computer
<br />programs, flowcharts, diagrams, manuals, schematics, development
<br />tools, specifications, design documents, marketing information,
<br />financial information or business plans. Each party agrees that it will
<br />not, without the express prior written consent of the other party,
<br />disclose any Confidential Information or any part thereof to any third
<br />party. Notwithstanding the foregoing, the parties acknowledge that
<br />Client and Brycer shall be permitted to comply with any all federal and
<br />state laws, including but not limited to the Texas Public Information
<br />Act, concerning disclosure provided that any such required disclosure
<br />will not include any of Brycer's screen shots. The disclosing party
<br />shall provide prior written notice of any required disclosure of the
<br />nondisclosing party's Confidential Information to the nondisclosing
<br />2237531/5/13399.000
<br />Disclaimer. All information entered into Brycer's database is produced
<br />by third party inspectors and their agents. THEREFORE, BRYCER
<br />SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR
<br />WARRANTY AS TO THE ACCURACY OR COMPLETENESS
<br />OF ANY INFORMATION ENTERED INTO BRYCER'S
<br />DATABASE BY EITHER CLIENT OR THIRD PARTY
<br />INSPECTORS. EXCEPT AS SET FORTH IN SECTION 7,
<br />BRYCER MAKES NO OTHER WARRANTY, EXPRESS OR
<br />IMPLIED, WITH RESPECT TO THE SOLUTION OR ANY
<br />OTHER INFORMATION AND ALL OTHER WARRANTIES,
<br />WHETHER EXPRESS OR IMPLIED, ARE HEREBY
<br />DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE
<br />IMPLIED WARRANTIES OF MERCHANTABILITY AND
<br />FITNESS FOR A PARTICULAR PURPOSE. BRYCER'S SOLE
<br />LIABILITY FOR BREACH OF THE REPRESENTATION AND
<br />WARRANTY SET FORTH IN SECTION_ 7, AND CLIENT'S
<br />SOLE REMEDY, SHALL BE THAT BRYCER SHALL
<br />INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM
<br />AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR
<br />DEFENSE ARISING OUT OF BREACH OF THE
<br />REPRESENTATION AND WARRANTY.
<br />LIMITATION ON DAMAGES. BRYCER SHALL ONLY BE
<br />LIABLE TO CLIENT FOR DIRECT DAMAGES PURSUANT
<br />TO THE AGREEMENT. EXCEPT AS OTHERWISE
<br />PROVIDED IN SEC_,, TION 7, IN NO EVENT SHALL BRYCER
<br />BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR
<br />SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES,
<br />INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS
<br />OF PROFITS OR SYSTEM DOWNTIME. CLIENT
<br />ACKNOWLEDGES AND AGREES THAT IN NO CASE SHALL
<br />BRYCER'S LIABILITY FOR ANY LOSS OF DATA OR DATA
<br />INTEGRITY EXCEED THE REPLACEMENT COST OF THE
<br />MEDIA ON WHICH THE DATA WAS STORED.
<br />10. Risks_Inhere'ntto_Internet. Client acknowledges that: (a) the Internet is
<br />a worldwide network of computers, (b) communication on the Internet
<br />may not be secure, (c) the Internet is beyond the control of Brycer, and
<br />(d) Brycer does not own, operate or manage the hrtemet. Client also
<br />acknowledges that there are inherent risks associated with using the
<br />Solution, including but not limited to the risk of breach of security, the
<br />risk of exposure to computer viruses and the risk of interception,
<br />distortion, or loss of communications. Client assumes these risks
<br />knowingly and voluntarily releases Brycer from all liability from all
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