Acctivate Software Terms of Service
LICENSE; TERM; USE OF THE PRODUCTS
1.1. License and Term. Company grants to Customer, for the Contract Term specified, a non-exclusive, non-transferrable (except as otherwise permitted herein), revocable, limited right to use the Products, subject to the terms and conditions set forth in the Sales Agreement (“Agreement”). Customer acknowledges that the Agreement grants a license for its own use, including its affiliates (an entity in which Customer has a 50%+ controlling interest in) and Customer shall not have the right to produce or use the Products or programs, services and/or technology contained in any component of the Products for others. Customer shall not sell, assign, or pledge its license or any other provisions or rights under the Agreement without Company’s prior written consent. Any attempt to reverse engineer the Product or use any portion or component of the Products for others, or to copy or otherwise make available the data, programs, code, documentation, or any other part of the Products for use by others, or to sell, assign, or pledge its license shall terminate the license.
1.2. Renewal. Upon expiration of the initial term specified in Section 1.1, the Agreement automatically renews annually for an additional twelve (12) month term unless either party gives the other written notice of cancelation at least 120 days prior to the expiration of the then current term.
1.3. Entity Restriction. Only the Customer and its legal affiliates may use or receive the benefit of the Products. Affiliates is defined as a legal entity that is more than 50% owned by the Licensee and/or its parent company.
1.4. Customer Restrictions. Customer shall not:
1.4.1 Produce or use any Product or component contained within the Products for others;
1.4.2 Sell, assign, or pledge its license or any other provisions or rights under the Agreement;
1.4.3 Copy, reproduce or otherwise create derivative works or adaptations of the Products.
1.4.4 Alter, modify or make changes to the Products, either independently of the Company or in conjunction with a third party;
1.4.5 Reverse engineer any Product or component of the Products;
1.4.6 Use the Products in a Products provider capacity, distribute or resell the Products to third parties for a fee, or in either case, as part of another Products or product;
1.4.7 Remove or modify any proprietary marking or restrictive legends in the Products;
1.4.8 Use any automatic device or program or manual process to monitor, frame, copy, or reproduce any component of the Products;
1.4.9 Access the Products to build a competitive product or Products, or copy any feature, function, or graphics of any component of the Products; OR
1.4.10 Copy or otherwise make available any component of the Products, including but not limited to, the programs, or documentation, for use by others.
FEES AND PAYMENT TERMS
2.1. License Fees. The License granted by the Agreement and Customer’s right to use the Products shall require the payment of fees as identified in the Payment Schedule of the Agreement, and any corresponding Schedule(s) attached to the Agreement as agreed upon and executed by Customer and Company. From time to time, Company shall have the right to change its fees, rates, or terms of payment. Any increase in the number of licensed users or additional software modules may result in an adjustment to the License fee.
2.2. Professional Services Fees. The Customer shall pay Company the billing rates for any other professional services as defined under the Agreement. Company’s fees for professional services shall include all reasonable expenses associated with travel, accommodation, and meals.
2.3. Payment Terms. Customer shall remit all fees due to Company according to the Payment Schedule or within thirty (30) days of receipt of an invoice.
2.4. Late Payment Terms. Upon prior written notice, any amounts not paid within thirty (30) days after the invoice due date will incur a charge equal to the lesser of (i) 1.5% per month or (ii) the maximum amount permitted by law. The charge will accrue from the due date on a daily basis until payment of all outstanding amounts is made in full. In addition, should Customer fail to make payment in accordance with the provisions set forth herein, Customer’s use of the Products shall be subject to the provisions set forth in Article 6.
2.5. Service Commitment. Customer agrees to incur obligation for use of the Products for the Contract Term of the Agreement, (the “Service Commitment Period”):
2.5.1. Termination of Service. Once the agreement is executed, charges shall apply for any early cancellation prior to the end of the Term of the Agreement (“Termination Charges”). Termination Charges shall be equal to 100% of the charges, including any unpaid fees and fees covering the remainder of the term of all orders that would have been incurred through the Service Commitment Period. It is agreed that Company’s damages in the event of cancellation of the Agreement prior to the expiration of the Term will be difficult to ascertain. The terms of this Article are intended, therefore, to establish liquidated damages in the event of early cancellation and are not intended, nor shall be construed as, a penalty.
2.5.2. Additional Service(s). By subsequent or additional order, Customer may elect to add to or otherwise increase the scope, extent, amount or level of services that may be provided as part of the licensed Products pursuant to the Agreement. In such event, Customer shall be liable to Company, for the Term of the Agreement, for such use of the Products as may be amended by assent of the parties. Subsequent election by Customer to relinquish, surrender or renounce use of such increased scope, extent, amount, or level of services provided under the Agreement shall not impact Customer’s liability to compensate Company for the Service Commitment Period for the highest extent, amount, or level of services which Customer has purchased.
TECHNICAL SUPPORT
3.1. Subject to the terms of the Agreement, payment of the Fees set forth herein shall enable Customer to have access to Technical Support for the initial Contract Term of the Agreement, and for each renewal year upon payment of the required fees to use the Products.
3.2. Company shall have adequate technical personnel available at a minimum from 8:00 a.m. to 5:00 p.m. Central Time, Monday through Friday, excluding major holidays, to provide assistance to Customer’s personnel in the operation of the Products.
USE OF THE PRODUCTS
4.1. Acceptable Use. The Products provided to Customer consists of software, technology, products and/or services that are provided on a non-exclusive, non-transferable (except as otherwise provided herein) basis, and for Customer’s internal business use only. Customer’s right to use the Products is conditional upon the following terms and conditions.
4.2. Malicious Code. Any application, material, data, software, or product placed on Company’s Products by or through Customer (“Customer Content”) shall be free of any and all malicious code, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the Products or its operation.
4.3. Compliance. Customer is solely responsible for all Customer Content. Customer is responsible for making sure that any and all Customer Content complies with the provisions of the Agreement. Customer acknowledges that Company may utilize methods to verify and support use by Customer. Such methods may include, but are not limited to, utilization of technological features of the Products that prevent unauthorized use and provide deployment verification.
4.4. Required Customer Action to Ensure Compliance with Acceptable Use. If Customer becomes aware that any Customer Content violates the provisions of the Agreement, Customer will immediately suspend use of and remove the offending Customer Content. Should Customer fail to take action in conformity with the provisions of this Article, Company may specifically request that Customer comply with the provisions of this Article. In such event, should Customer fail to comply with Company’s request within twenty-four (24) hours, then Company, at its sole discretion, may disable the Customer Content, until such Customer Content is removed. In such event, the failure of Customer to comply with the provisions of this Article shall additionally constitute a material breach of the Agreement.
4.5. Emergent Security Issues. In the event of: (a) Customer’s use of the Products in violation of the acceptable use provisions of the Agreement; or (b) access to the Products by unauthorized parties, Company may automatically suspend access to Customer Content, which suspension shall occur to the minimum extent required and of the minimum duration required to address, prevent or terminate the Emergency Security Issue. In the event that Company suspends a Customer or Customer Application, for any reason without prior notice, at Customer’s request, Company will specify the reason for the suspension as soon as is practicable.
TERMINATION AND SUSPENSION OF PRODUCTS USE
5.1. Either party shall have the right to terminate the Agreement, including any Technical Support, in the event:
5.1.1. Of a material breach by the other party if such breach is not cured within 30 days of receipt of written notice;
5.1.2. In the event the other party: (1) terminates or suspends its business; (2) becomes subject to any bankruptcy or insolvency proceedings under federal or state statute or (3) becomes insolvent or subject to direct control by a trustee, receiver, or similar authority.
5.2. Rights and Obligations Upon Termination. Upon termination, all rights of the Customer to use the Products shall cease immediately, Customer shall return all Company products, information, materials, and data and remove the Products from Customer’s system(s). Customer shall have the right to make full copies and backups of their data during the 90-day period following termination. Following a ninety (90) day period after termination, Company may delete any Customer Content. Termination shall not relieve Customer from its obligations under the Agreement, including without limitation, payment of any sums due hereunder and confidentiality. Termination of the license shall be in addition to and not in lieu of any other remedies including equitable remedies available to Company.
5.3. Regulatory Considerations. The Parties acknowledge that the respective rights and obligations of each Party as set forth in the Agreement are based on existing law and the regulatory environment as it exists on the date of execution of the Agreement. In the event of any effective legislative, regulatory or judicial order, rule, regulation, arbitration or dispute resolution or other legal action affecting the provisions of the Agreement which become effective after the date of execution of the Agreement, Company may, by providing written notice to the other Party, require that the affected provisions of the Agreement be renegotiated in good faith. In such event, the Agreement shall be amended accordingly to reflect the terms and conditions of such Amendment. In the event of such notice, the parties shall use commercially reasonable efforts to take actions and/or amend the Agreement to promptly and adequately address and account for such rules, laws or regulations. If such actions do not adequately address and account for such rules, laws or regulations and/or the parties do not mutually agree on terms and conditions of an amendment to the Agreement that addresses and accounts for such rules, laws or regulations, then either party may terminate the Agreement upon written notice to other party.
5.4. Termination for Unlawful Use of the Service. Customer agrees to use the Service only for lawful purposes. In the event that Customer’s use of the Service violates any law, ordinance, regulation, rule or the provisions set forth in the Agreement, in addition to the other rights and remedies set forth in the Agreement, Company shall have the right to immediately terminate the Agreement.
5.5. Surviving Terms. THE RIGHTS AND OBLIGATIONS CONTAINED IN SECTIONS 2, 7-9 AND 11-14 SHALL SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT.
PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY
6.1. The technology provided by Company as part of the Products is proprietary to Company, and all rights, title and interests in the Products, including all associated intellectual property rights, remain with Company. Except as defined herein, No grant of rights or license to any Company intellectual property may be assumed or implied by the Agreement. Company expressly reserves all rights not granted herein.
6.2. Other than Third-Party, open source and/or publicly available off the shelf components, all of the computer software programs and modules, updates, enhancements, improvements, and related documentation and materials are valuable trade secrets of Company and all right, title and interest in and to the Products, including any intellectual property, whether or not patentable or susceptible to copyright, trademark or trade dress protection, to computer programs, updates, enhancements, or improvements and any trade secrets contained therein, whether or not developed for Customer or derived from modifying Company’s proprietary software in contravention of the Agreement, are and shall remain the sole and exclusive property of Company. Customer has no claim of ownership or any interest in the Products other than its nonexclusive right to use the Products, and Customer shall execute any documentation necessary to assign any and all rights, title and/or interest, including but not limited to patent, trade secret, trademark, trade dress and/or copyright, to Company. Customer acknowledges that Company has the sole and exclusive right to distribute and license the Products to any third party.
6.3. All programs and documentation or other information relating to the Products are and continue to be confidential and proprietary information of Company and all documentation, files, media, and programs shall be so designated. Customer shall take reasonable precaution not to reveal and to protect Company’s proprietary property to include, without limitation, limiting access to the Products and associated components and documentation or other information relating to the Products to Customer’s employees who need to have access and are subject to obligations of confidentiality at least as stringent as those imposed on Customer under their Agreement, and preventing access by any third party that provides manufacturing execution systems similar to Company, including, but not limited to, any third party software vendor, program developer and/or independent contractor engaged by or on behalf of Customer for any purpose. Customer shall be liable for any acts in contravention of the terms of the Agreement taken by any person or entity to whom access is granted by Customer to any component of the Products or associated documentation.
6.4. Disclosure by Customer. In the event Customer should become aware of any occasion of third party access to Company’s Products, Customer shall notify Company of same within ten (10) days of such knowledge, providing Company with information as to the nature and scope of any such third party access, including information regarding all dates of access, areas accessed, any and all modifications made to Company’s Products, and the identity of any such third party.
MUTUAL CONFIDENTIALITY
7.1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Company Confidential Information includes all components of the Products, and Confidential Information of each party includes the terms of the Agreement and all orders, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party.
7.2. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use or access to the Confidential Information of the Disclosing Party. Receiving Party may disclose Confidential Information if required by law, but will attempt to provide Disclosing Party advance notice.
7.3. Protection of Confidential Information. The Receiving Party must use the same degree of care that it uses to protect its Confidential Information (in no event less than reasonable care) to not disclose or use any Confidential Information of the Disclosing Party for any purpose (other than within the scope of the Agreement or for the benefit of the Disclosing Party). The Receiving Party must limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those in the Agreement. Customer shall, in no event, make any disclosure of Company’s Confidential Information in contravention of Article 7.3.
WARRANTY, REMEDY AND LIMITATION OF DAMAGES/LIABILITY
8.1. Company warrants that, during the term of the Agreement: (a) each program module of the Products, including each enhancement, update or modification, will substantially conform to all specifications and descriptions set for in the Agreement for the term of the Agreement; and (b) all Services will be performed in good and workmanlike manner by skilled and qualified staff. In the event of a breach of the foregoing warranty, Company’s obligation under this warranty shall be to remedy such non-conformance consistent with regular business practices at no additional charge to Customer. In the event that Company is unable to correct any non-conformance with the warranties provided herein within 30 days after notice from Customer, then Customer may terminate the Agreement and Company will refund a prorated portion of the pre-paid fees for the non-conforming Services or Products. The warranty shall be extended, upon Customer’s payment for annual renewal of Technical Support under the Agreement.
8.2. CUSTOMER AGREES THAT COMPANY IS NOT LIABLE FOR OR RESPONSIBLE TO SUPPORT ANY DIRECTLY CONTRACTED THIRD-PARTY OWNED TECHNOLOGY, SERVICE, SOFTWARE, APPLICATION, PROGRAM OR PROCESS THAT CUSTOMER UTILIZES IN CONJUNCTION WITH THE SERVICE. ANY TERMS, CONDITIONS, REPRESENTATIONS AND/OR WARRANTIES ASSOCIATED WITH SUCH USE, ARE SOLELY BETWEEN CUSTOMER AND SUCH THIRD-PARTY SERVICES PROVIDER. COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH REGARD TO ANY SUCH THIRD-PARTY TECHNOLOGY OR SERVICE, EVEN IF SUCH PROVIDER IS CERTIFIED BY COMPANY AND COMPANY SHALL NOT BE RESPONSIBLE TO CUSTOMER IN ANY MANNER FOR ANY SUCH THIRD-PARTY TECHNOLOGY OR SERVICES. COMPANY DOES NOT, UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, PROVIDE MAINTENANCE OR SUPPORT FOR THIRD PARTY TECHNOLOGY OR SERVICES.
8.3. THE ABOVE ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY COMPANY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. COMPANY MAKES AND LICENSEE RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDED ARE ALL WARRANTIES FOR MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR A PARTY’S A) BREACH OF CONFIDENTIALITY; B) GROSS NEGLIGENCE, UNLAWFUL DISCLOSURE OF INTELLECTUAL PROPERTY OR WILLFUL MISCONDUCT; OR, C) INDEMNIFICATION OBLIGATIONS UNDER SECTION 12.1, NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA, PRODUCTS OR SERVICES OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LAW, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES IN ADVANCE OR IF THE LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. EXCEPT FOR A PARTY’S A) BREACH OF CONFIDENTIALITY; B) GROSS NEGLIGENCE, UNLAWFUL DISCLOSURE OF INTELLECTUAL PROPERTY OR WILLFUL MISCONDUCT; OR, C) INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.1, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S LIABLITY EXCEED THE AMOUNTS PAID OR DUE UNDER THE AGREEMENT BY CUSTOMER TO COMPANY FOR THE PRODUCT LICENSED UNDER THE AGREEMENT. COMPANY PROVIDES ALL THIRD PARTY PRODUCTS UNDER THE AGREEMENT ON AN “AS IS” BASIS.
THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ANY AND ALL LIABILITIES OR OBLIGATIONS OF COMPANY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE AND CONFORMANCE OF THE SOFTWARE AND SERVICES INCLUDING DOCUMENTATION, ANY SUPPORT AND MAINTENANCE, AND ANY OTHER SERVICES.
VOID OF WARRANTY IN THE EVENT OF MODIFICATION
9.1. CUSTOMER AGREES THAT ANY WARRANTIES SET FORTH HEREIN SHALL BE VOIDED TO THE EXTENT THAT THE CUSTOMER MAKES ANY MODIFICATION OR CHANGE TO ANY COMPONENT OF THE PRODUCTS OR DEVIATES FROM THE OPERATING INSTRUCTIONS WITHOUT THE EXPRESS WRITTEN CONSENT OF Company. THE WARRANTY SET FORTH HEREIN SHALL EXTEND SOLELY TO THE LICENSED PRODUCTS, SOFTWARE, TECHNOLOGY, SERVICE(S) AND/OR OTHER PRODUCT(S) AS THEY SHALL BE PROVIDED TO CUSTOMER BY COMPANY. IN THE EVENT THAT COMPANY’S SOFTWARE, SERVICE OR PRODUCT IS ALTERED, MERGED, MODIFIED, ADAPTED, TRANSLATED OR DAMAGED, OR SHOULD COMPANY’S SOFTWARE, PRODUCT OR SERVICE BE MODIFIED IN ANY WAY WITHOUT PRIOR WRITTEN APPROVAL OF COMPANY, ALL WARRANTIES WILL BE VOID.
DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD PARTIES
10.1. At times, actions or inactions of third parties unrelated to the delivery of Company’s Products can and may impair or disrupt customer’s connections to the internet (or portions thereof). Company cannot guarantee that such events will not occur. Accordingly, Company disclaims any and all liability resulting from or related to such events.
INDEMNIFICATION
11.1. Customer shall defend Company from and against any and all third-party claims arising directly or indirectly out of (i) Customer’s violation of law or (ii) the provision of products or services by Customer in the course of the business of Customer, and shall indemnify Company against all damages and costs (including reasonable attorneys’ fees) finally awarded against Company, its officers, directors, employees or agents Liability of Customer under this Section shall apply only to the extent that Company (a) once Company shall have received actual knowledge of such claim, promptly notifies Customer in writing of the claim, action or proceeding, (b) gives Customer full authority, information and assistance to defend such claim, action or proceeding, and (c) gives Customer sole control of the defense and settlement of such claim, action or proceeding and all negotiations relating thereto, provided any settlement shall be without liability to Company. Subject to the preceding conditions (a) through (c), Company, at Company’s expense, shall have the right to participate in the defense or settlement of such claim. Customer shall have no liability to Company for any costs incurred or settlement entered into without the prior written consent of Customer, which consent shall not be unreasonably withheld.
11.2. Company shall defend or, at its option, settle, any claim, action or proceeding brought against Customer alleging that the Products infringes any patent, copyright, or trade secret, and shall indemnify and defend Customer against all damages and costs finally awarded against Customer in any such action or proceeding which arises or results from any such claim. Liability of Company under this Section shall apply only to the extent that Customer (a) once Customer shall have received actual knowledge of such claim, promptly notifies Company in writing of the claim, action or proceeding, (b) gives Company full authority, information, and assistance to defend such claim, action or proceeding, and (c) gives Company sole control of the defense and settlement of such claim, action or proceeding and all negotiations relating thereto. Subject to the preceding conditions (a) through (c), Customer, at Customer’s expense, shall have the right to participate in the defense or settlement of such claim. Company shall have no liability to Customer for any costs incurred or settlement entered into without the prior written consent of Company, which consent shall not be unreasonably withheld. Company shall have no liability to Customer hereunder with respect to any claim based upon (a) the combination of the Products with other products or services not furnished by Company (b) any third party (including open source) software incorporated in or provided with the Products; or (c) any addition or modification to the Products by any person or entity other than Company.
11.3. If, as a result of a claim of infringement of any patent, copyright, license or other proprietary right, Customer or Company is enjoined from using the Products, or if Company believes that the Products is likely to become subject of a claim of infringement, Company at its option and expense, shall procure the right for Customer to continue to use the Products component(s), replace the Products component(s), modify same so as to make it non- infringing, or discontinue the license granted herein on one month’s written notice and refund to Customer the remaining portion of the annual License Fees paid for the balance of the year in which notice is given.
11.4. The defense and indemnity obligations by Company herein do not extend to any claim related to, or arising out of, or based on: (a) any violation of any use restrictions, confidentiality or proprietary rights provisions in the Agreement; (b) the use of Company’s technology in an unauthorized manner or any modifications thereof by Customer; or (c) any products or services developed in conformance with Customer-provided specifications, designs or instructions. This Section constitutes the Company’s entire liability and the Customer’s sole and exclusive remedy for intellectual property rights claims arising out of or related to the Services.
11.5. THE PROVISIONS IN THIS SECTION 1 SET FORTH THE ENTIRE LIABILITY OF Company AND LICENSEE/CUSTOMER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADEMARK OR TRADE SECRET INFRINGEMENT BY THE PRODUCTS, ANY PART THEREOF OR THE USE THEREOF, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND INDEMNITIES WITH RESPECT THERETO.
ADDITIONAL PROVISIONS
12.1. Customer Information. Customer agrees to provide Company with true, accurate and complete information in connection with its Order including, without limitation, Customer’s legal name, address, telephone number, email address and billing information (“Order Information”). Customer agrees, throughout the Term of the Agreement, to maintain and promptly update Customer’s Order Information and any other information reasonably required by Company in connection with Customer’s use of the Products.
12.2. Taxes, Tariffs and Regulatory Surcharges. Any and all tariffs and any applicable European, Canadian, national, federal, State/Provincial and/or local tax or fees which may be levied or imposed on a buyer of the Products contemplated by the Agreement shall be the sole obligation of, and will be paid by, Customer, including, but not limited to, all ad valorem, sales, property, franchise, gross receipts, use or other taxes, however designated, including penalties and interest thereon, which relate to any and all charges arising under the Agreement or in connection with the Customer’s use of Products.
12.3. No Assignment. Neither Party may assign the Agreement without the prior written consent of the other Party, provided, however, that either Party may assign, upon written notice to the other Party, its rights and obligations under the Agreement: (a) to its subsidiary, parent or affiliate; (b) pursuant to any sale or transaction effectuating the transfer of all or substantially all of the Party’s assets,; or (c) pursuant to any financing, merger or reorganization; provided that, in the case of all such permitted assignments, the assignee assumes, in writing, and is capable of performing all of the obligations set forth in the Agreement. With the exception of a permitted assignment as specified above, no benefit or duty under the Agreement shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void. Any attempt by Customer to sell, assign or pledge its license or the Agreement in contravention of the terms of this Article shall terminate the license and the Agreement.
12.4. Independent Contractor. The Parties’ relationship under the Agreement is that of independent contractors. Neither Party is the agent nor legal representative of the other Party by virtue of the Agreement and neither Party by virtue of the agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party. The Agreement does not create a franchise, license, partnership, or joint venture between the Parties. The Agreement is not intended to be an exclusive agreement for any services and Customer Agrees that Company may market, license or provide the Service to other entities and/or individual customers.
12.5. Compliance with Laws. Each Party will perform its obligations under the Agreement without violating any applicable federal, state or local law, rule, regulation, order or judicial or administrative law decision. The Parties acknowledge that components of the Products may be subject to export and re-export restrictions under United States and Canadian export control laws and thus may only be exported or re-exported in compliance with such laws. The Convention on Contracts for the International Sale of Goods does not apply.
12.6. Governing Law, Forum, Venue and Jurisdiction. The Agreement shall be construed and enforced in accordance with the laws of the State of Delaware without regard to its conflicts of law or choice of law principles and any action or proceeding based on the Agreement or arising out of its performance shall be brought exclusively in a federal court in the District of Delaware or in the Delaware Superior Court in the County of Providence and no other venue or jurisdiction. The Parties each hereby irrevocably consent to the jurisdiction of such courts. The Company shall be entitled to recover its reasonable attorney’s fees and costs from Customer in connection with litigation to enforce Customer’s obligations under Sections 1.4, 2, 4, 5, 6, 7, and 8 of the Agreement, including but not limited to the collection of any past due amounts due under the Agreement.
12.7. Statute of Limitations. Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to the Agreement and/or Customer’s use of the Service must be filed within one (1) year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred.
12.8. Attorneys’ Fees. The prevailing party agrees to pay all costs of collection, including reasonable attorney’s fees, plus court costs, in the event that a party must commence any legal action in order to enforce any provision of the Agreement, including in the event of Customer non-payment. The foregoing includes, without limitation, attorneys’ fees and costs of investigation incurred in appellate and remand proceedings, or costs incurred in establishing the right to indemnification.
12.9. Force Majeure. In no event will a Party have any claim or right against the other Party for any failure of performance in accordance with the Agreement due to causes beyond its reasonable control (“Force Majeure Event”), including, without limitation, an act of God, fire, flood, pandemic, or other natural catastrophe, laws, orders, rules, regulations, directions or actions of governmental authorities, national emergency, riot, act of terrorism or war, or labor dispute. A Force Majeure Event may also include cable dig-up or cut by a third party so long as neither Party was negligent in any manner, directly or indirectly, regarding such cable dig-up or cut.
12.10. Survivability. The Parties’ rights and obligations that by their nature would extend beyond the termination or expiration of the Agreement, including, without limitation, indemnification, confidentiality, and limitation of liability provisions, shall survive such termination or expiration.
12.11. Course of Dealing and Performance. The terms of the agreement shall not be altered due to custom or usage or due to the Parties’ course of dealing or course of performance under the agreement.
12.12. Severability. In the event that any one or more of the provisions of the Agreement or any other agreement, document or writing given pursuant to or in connection with the Agreement shall for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of the Agreement, the validity, legality and enforceability of which remaining provisions shall in no way be affected or impaired thereby, and the Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
12.13. No Waiver. The failure of either Party to give notice of default or to enforce or insist upon compliance with any of the terms or conditions of the Agreement will not be considered the waiver of any other term or condition of the Agreement. The waiver of a breach of any provision of the Agreement will not be considered a waiver of the same or any other provision.
12.14. Publicity. Neither Party may make any public statement regarding the relationship contemplated by the Agreement without the other Party’s prior written consent.
12.15. Writing Required. No subsequent agreement or modification to the Agreement will be effective or binding unless it is made in writing and executed by authorized representatives of the Parties. No employee, contractor, agent, or representative of Company is authorized to alter the terms and conditions of the Agreement without a formal written document specifically referring to the Agreement (and any specific provision being altered) duly signed by Company.
12.16. Counterparts. The Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
12.17. Integrated Document. The Agreement contains and represents the entire understanding and Agreement between Company and Customer with respect to the Service and supersedes all prior or current agreements, understandings, negotiations, and discussions, whether oral or written, between Company and Customer, related to this matter. Customer acknowledges and agrees that its entire right relating to Company’s Service is as set forth in the agreement and hereby waives all other rights that it may have by implication of law or otherwise. In the event of a conflict between an order or requested work and the Agreement, the Agreement shall govern. Notwithstanding what is provided in any purchase order form by Customer, any additional, different or conflicting term is rejected by Company and does not apply.
12.18. Authority to Enter Agreement. Each Party represents that it has full power and authority to enter into the Agreement.
12.19. Equitable Relief. The parties acknowledge that any breach by it of any confidentiality provision or use restrictions in this Agreement will cause irreparable damage to the other party or its third-party licensors and that remedy at law will be inadequate. Therefore, in addition to any remedies, the non-breaching party will be entitled to seek injunctive relief for any actual or threatened breach of any confidentiality or use restriction.
12.20. Notices. Unless otherwise provided in the Agreement, notices under the Agreement must be in writing and delivered by certified mail, return receipt requested, to the addresses that appear below. Notice will be deemed effective on the date of receipt or refusal thereof by the receiving/refusing Party.