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Claim, including the employment of counsel which shall be
<br />reasonably satisfactory to the Indemnified Party, and payment of
<br />all reasonably incurred expenses. Notwithstanding the foregoing,
<br />the Indemnified Party has the right to employ separate counsel to
<br />provide input to the defense, at the Indemnified Party's own cost.
<br />The Indemnifying Party shall reimburse the Indemnified Party
<br />upon demand for any payments made or loss suffered by it at any
<br />time after the date of tender, based upon the judgment of any
<br />court of competent jurisdiction or pursuant to a bona fide
<br />compromise or settlement of Indemnified Claims. The
<br />Indemnifying Parry shall not settle any Indemnified Claim or
<br />Additional Indemnified Claim under this section on the
<br />Indemnified Party's behalf without first obtaining the
<br />Indemnified Party's written permission, which permission shall
<br />not be unreasonably withheld, and the Indemnifying Party shall
<br />indemnify and hold the Indemnified Parry harmless from and
<br />against any costs, damages and fees reasonably incurred by the
<br />Indemnified Party, including fees of attorneys and other
<br />professionals, that are attributable to such Indemnified Claims.
<br />The Indemnifying Party shall not be responsible for any
<br />indemnification obligations arising hereunder pursuant to the
<br />terms and conditions of any settlement of an Indemnified Claim
<br />by the Indemnified Party unless such settlement was approved
<br />by the Indemnifying Party, which approval shall not be
<br />unreasonably withheld.
<br />ii. GENERAL
<br />11.1 Entire Agreement. This Agreement, including all
<br />attachments and referenced schedules, constitutes the complete
<br />and exclusive statement of the agreement between TAN and
<br />Customer with respect to the subject matter hereof. It supersedes
<br />and replaces all oral or written RFPs, proposals, prior
<br />agreements, and other prior communications between the parties
<br />concerning the subject matter of this Agreement. This
<br />Agreement may not be modified or altered except by written
<br />instntment duly executed by both parties, except that TAN may
<br />fill future purchase or other orders for further goods or services
<br />available under this Agreement and, if TAN does so, the
<br />provisions of this Agreement will contain the only commercial
<br />terms applicable to such transaction despite such purchase or
<br />other order stating otherwise. Any Addendum attached hereto
<br />shall form an integral part ofthis Agreement and, in the event of
<br />any inconsistency between these General Terms and any
<br />Addendum, the provisions of the Addendum shall prevail.
<br />11.2 Force Msjeure. Dates or times by which either party is
<br />required to perform under this Agreement, excepting the
<br />payment of any fees or charges due hereunder, will be postponed
<br />automatically to the extent that any party is prevented fiom
<br />meeting them by causes beyond its reasonable control, provided
<br />such party promptly notifies the other thereof and makes
<br />reasonable efforts to perform.
<br />11.3 Notices. All notices and requests in connection with this
<br />Agreement will be given to the respective parties in writing and
<br />will be deemed given as of the first business day of the notified
<br />party following the day the notice is faxed or sent via overnight
<br />courier, providing a hard copy aclmowledgment of such
<br />successful faxed notice transmission or evidence of such
<br />couriering, as applicable, is retained. Notice may also be
<br />deposited m the mails, postage pre-paid, certified or registered,
<br />rettun receipt requested, and addressed to the parties as indicated
<br />on the face of this Agreement or such other address of which the
<br />party gives notice in accordance herewith, and receipt of any
<br />such notice will be deemed to be effective as of the third
<br />business day following such deposit.
<br />11.4 Governing Law. This Agreement and performance
<br />hereunder will be governed by the laws of the jurisdiction in
<br />which the Customer is located as indicated on the face of this
<br />Agreement, except that (i) in the case of Louisiana, the laws of
<br />California will apply, and (ii) in the case of Qubbec, the laws of
<br />Ontario will apply.
<br />11.5 Attorney Fees. In any action or suit [o enforce any right or
<br />remedy under this Agreement or to interpret any provision of this
<br />Agreement, the prevailing party shall be entitled to recover its
<br />costs, including reasonable attorneys' fees.
<br />11.6 Non-Assignability. Neither party may assign its rights or
<br />obligations arising out of this Agreement without the other
<br />party's prior written consent, except that TAN may assign this
<br />Agreement in connection with any sale or security interest
<br />involving all or substantially all of its assets or any other
<br />transaction in which more than fifty percent of its voting
<br />securities are transferred.
<br />11.7 Term and Survival. The term of this Agreement shall
<br />commence on the Effective Date set out on the cover page hereof
<br />and shall continue as set forth in Sections 18.1 or 25.1, as
<br />applicable, or until terminated in accordance with Section 7.
<br />Sections l.l, 5, 7.3, 9.2, 9.3, ]0, 11, 29.1, and 29.2 of this
<br />Agreement, along with all unpaid payment obligations, will
<br />survive termination and expiration of this Agreement.
<br />11.8 No Authority to Biod. Neither party shall incur any
<br />obligations for or in the name of the other parry, or have the
<br />authority to bind or obligate the other party. Neither party shall
<br />make, issue or authorize any statements (whether or oral or
<br />written) in conttavention of the foregoing.
<br />11.9 Counterparts. This Agreement may be executed in
<br />separate counterparts and delivered by facsimile or such other
<br />electronic means as are available to the Parties. Such
<br />counterparts taken together shall constitute one and the same
<br />original document.
<br />11.10 Severability. If any provision of this Agreement is
<br />held by a court of competent jurisdiction to be invalid,
<br />unenforceable, or void, the remainder of this Agreement and
<br />such provisions shall remain in full force and effect.
<br />11.11 Cooperative Procurement. Upon consent by
<br />Active, this Agreement may be used for permitted cooperative
<br />procurement by any public or municipal body, entity, agency
<br />or institution. If so authorized, and in order to forego a related
<br />entity ItFP or similar competitive bidding process, the
<br />Agreement may be extended to such other entlties indicated
<br />above for the procurement of similar products and/or services
<br />provided to Customer herein and at free in accordance with
<br />the Agreement unless separately negotiated between such
<br />other entities and Active. Further related entities participating
<br />in a cooperative procurement process shall place their own
<br />orders directly with Active and will fully and independently
<br />administer then use of the Agreement to include such
<br />contractual as those entities and Active deem appropriate
<br />without direct administration from the original Customer.
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