These standard terms and conditions (the “Terms and Conditions”) shall apply to any purchase or procurement of certain products or services by the legal entity identified as Licensee under the applicable Order Form with Licensor procuring Licensed Software, SaaS and/or Support Services (defined below) (“Licensee”) from the legal entity selling such Service and identified as ‘Licensor’ under the applicable Order Form with Licensee (“Licensor”). These Terms and Conditions consists of the attached Order Form executed by these parties (including any attachments to such Order Form), and any related agreements previously executed by these parties concerning the specific subject-matter of the Order Form. Unless otherwise specifically agreed upon in writing by Licensor and Licensee, these Terms and Conditions shall apply to any Licensed Software, SaaS and/or Support Services provided to Licensee by any affiliate or subsidiary of Licensor. In the event of a conflict between the provisions of these Terms and Conditions, the Order Form, an attachment to the Order Form, or any related agreements previously executed between these parties the following order of precedence shall apply: (a) the Order Form; (b) these Terms and Conditions; (c) an attachment to the Order Form; (d) any related agreements previously executed between these parties. Unless otherwise specifically set forth in the Order Form, upon any conflict with the terms of any Licensee terms and conditions, including, without limitation, pricing, the terms of the Order Form shall control.
ARTICLE 1 DEFINITIONS.
The following terms will have the meanings set forth in this Article 1 when used in these Terms and Conditions.
1.1 “Aggregated Data” means data, which is based on or derived from Licensee Data and which has
been
aggregated
and de-identified in a manner that does not designate or identify Licensee or its Authorized Users as the source
of
the data.
1.2 “Authorized Users” means those employees, consultants, or agents of Licensee, or certain
other
third parties
to
the extent expressly identified in the Order Form, who will be authorized by Licensee to have access to and/or
use
the Services on behalf of Licensee as set forth in the Order Form, and are subject to the terms of these Terms
and
Conditions. Licensee shall be liable for any Authorized User’s violation of these Terms and Conditions.
1.3 “Confidential Information” is defined in Article 6 below.
1.4 “Intellectual Property Rights” means any and all registered and unregistered rights
granted,
applied for or
otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret,
database
protection or other intellectual property rights laws, and all similar or equivalent rights or forms of
protection
in
any
part of the world.
1.5 “Licensed Software” means software that Licensor provides for Licensee’s use. For the
avoidance
of
doubt,
Licensed Software does not include SaaS, though Licensed Software may interface with SaaS.
1.6 “Licensee Data” means information, in any form, format, or media, accessed or otherwise
processed by
Licensor
in connection with performance of the Services, including, without limitation all Personal Data and Confidential
Information, whether such information is that of Licensee or any Authorized User.
1.7 “Personal Data” means information which, alone or in combination with other personal
information, can be used
to distinguish or trace a specific individual. Personal Data includes individual names, social security numbers,
telephone numbers, home addresses, driver’s license numbers, account numbers, email addresses, and vehicle
registration numbers.
1.8 “SaaS” means a software-as-a-service where Licensor hosts (directly or indirectly) for
Licensee’s
use. For
the
avoidance of doubt, SaaS does not include Licensed Software.
1.9 “Services” shall mean Licensed Software, SaaS, and Support Services collectively, as
applicable.
1.10 “Specifications” refers to such technical and functional specifications for Licensed
Software
and/or
SaaS as
are
included or referenced in the Order Form.
1.11 “Support Services” refers to maintenance support for the Licensed Software and/or SaaS.
1.12 “Order Form” means an addendum addressing acquisition of a specific set of Services
executed
by
authorized
representatives of each party. References the Order Form include any attachments to the Order Form, except
where these Terms and Conditions specifically addresses attachments separately.
ARTICLE 2 SERVICES AND FEES.
2.1 Description of Services. Licensee will order Services from
Licensor
as
documented in the Order Form.
2.2 Fees. Licensee shall pay Licensor the fees and charges
(“
Fees”) set
forth
in, and in accordance with, the Order
Form. Fees are non-cancelable and non-refundable.
2.3 Payment Term. Any payment not received from Licensor by the
payment
due
date within will accrue simple interest
at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate
permitted
by law, whichever is lower, from the date such payment was due until the date paid. In addition, without
limiting
its
other rights or liabilities, if any undisputed amount is owing by Licensee, Licensor may (a) terminate
the Order
Form;
(b) accelerate Licensee’s unpaid fee obligations under the Order Form; or (c) suspend the applicable
Services until
all undisputed overdue amounts are paid in full. Notwithstanding the foregoing, payment subject to a
good faith
dispute pursuant to Article 2.4 will not accrue late charges.
2.4 Disputed Payments. Licensee may dispute part or the entirety of
an
invoice
by: (a) providing written notice to
Licensor of such dispute within ten (10) days of invoice receipt; (b) providing a reasonably
detailed description of
the dispute, at least sufficient to allow Licensor to analyze the dispute, as part of the written
notice; (c) only
submitting such dispute in good faith; (d) paying all undisputed amounts when due; and (e) paying
all disputed
amounts promptly after resolution of such dispute.
2.5 Taxes. All Fees are exclusive of any sales or use taxes, value
added tax,
goods or services tax, or any and all
similar taxes or legally imposed fees, duties or contributions based on such amounts payable,
all of which shall be
the sole responsibility of Licensee whether due now or subsequently imposed by any jurisdiction.
Licensee is not
responsible for any taxes based upon the net income of Licensor or its employees unless agreed
to elsewhere in
these Terms and Conditions or the Order Form.
2.6 Withholding Tax. Any taxes that are required to be withheld
from
the
Services provided under these Terms and
Conditions shall be withheld.
ARTICLE 3 INTELLECTUAL PROPERTY.
3.1 Reservation of Rights. Licensee hereby recognizes that Licensor
retains
all Intellectual Property Rights in the
Services, including without limitation, all corrections, modifications and other derivative works to the
Services
developed by Licensee. All Intellectual Property Rights in any work arising from or created, produced or
developed
by Licensor, whether alone or jointly with others, under or in the course of these Terms and Conditions, will
immediately upon creation or performance vest absolutely in and will be and remain the property of Licensor, and
Licensee will not acquire any right, title or interest in and to the same.
3.2 Licensee Rights. Licensee is and will remain the exclusive
owner of
all
right, title and interest in and to Licensee
Confidential Information, including, without limitation, any Intellectual Property Rights relating thereto.
Licensor
shall
not acquire any rights in Licensee Confidential Information except for those limited rights expressly
specified in
these Terms and Conditions, including, without limitation, the right to access Authorized User accounts and
Licensee Confidential Information to deliver Services, respond to technical problems, and to otherwise
perform its
obligations under these Terms and Conditions. For certainty, nothing in these Terms and Conditions will be
deemed
to grant to Licensor any ownership interests in any of Licensee’s Intellectual Property Rights.
3.3 Licensee Input. Licensor will have a royalty-free, worldwide,
transferable, sublicensable, irrevocable, perpetual,
license to use or incorporate into the Services any suggestions, enhancements, requests, recommendations
or
other feedback provided by Licensee.
3.4 Marks. Except as otherwise set forth in these Terms and
Conditions,
nothing contained herein shall grant to either
party any right, title or interest in the other party’s marks.
3.5 Aggregated Data. Licensee hereby grants to Licensor a
perpetual,
irrevocable, worldwide, royalty-free,
sublicensable, non-exclusive license to create, process, reproduce, store, display, modify,
translate, create
derivative works from, make available and otherwise use Aggregated Data in connection with
developing, providing,
maintaining, supporting or improving Licensor’s current and future products and services, as
they may be provided
to Licensee or other customers of Licensor, or for any other lawful purpose.
ARTICLE 4 USE RIGHTS.
Licensor hereby grants to Licensee a non-exclusive, non-transferable license use the Licensed Software and/or SaaS for its internal business purposes during the term of the Order Form. Licensee shall not sell, lease, assign, sublicense or otherwise transfer or disclose the Licensed Software and/or SaaS in whole or in part, to any third party. Licensee shall not copy the Licensed Software and/or SaaS in whole or in part, except as reasonably necessary for archival back-up purposes and for Licensee's internal modification and use of the Licensed Software and/or SaaS as permitted under these Terms and Conditions. All copies of the Licensed Software and/or SaaS must contain all proprietary marks, legends and copyright notices that appear on the original copies delivered to Licensee by Licensor. In connection with the limited license granted under the Order Form, Licensor may from time to time provide updates, upgrades, new releases, replacements, modifications and/or patches or fixes to the Licensed Software and/or SaaS, in its discretion, deems necessary or appropriate, on the condition that such changes do not materially decrease the functionality or features of the Licensed Software and/or SaaS, or violate any SLA (defined below). Any such update, upgrade, release, replacement, modification, patch or fix to the Licensed Software and/or SaaS will be considered part of the Licensed Software and/or SaaS and subject to the terms of these Terms and Conditions (unless these Terms and Conditions is superseded by a further agreement accompanying such update, upgrade, release, replacement, modification, patch or fix to the Licensed Software and/or SaaS).
ARTICLE 5 SUPPORT SERVICES.
If set forth in the Order Form, Licensor shall provide Licensee with Support Services in accordance with an applicable service level agreement (“SLA”), incorporated as an exhibit to the Order Form. If Licensor fails to provide the Services in accordance with the applicable SLA, the SLA outlines potential remedies for the Licensee. Licensor shall have no obligation to provide such Support Services if there is a material defect in the Licensed Software or SaaS caused by malfunction of non-Licensor hardware or software, by modification of the Licensed Software and/or SaaS not made by Licensor, by operator error, or by use of the Licensed Software and/or SaaS that is not in accordance with any Licensor documentation. Licensor shall have no obligation to provide Support Services to any non-Authorized User. THE TERMS OF THE SLA SETS FORTH LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR BREACH OF THE WARRANTY SET FORTH IN THIS ARTICLE 5.
ARTICLE 6 CONFIDENTIALITY.
6.1 Definition. For purposes of these Terms and Conditions,
“Confidential
Information” refers to the following items one
party to these Terms and Conditions discloses (the “Discloser”) to the other party (the
“Recipient”) under these
Terms and Conditions: (a) the terms and conditions of these Terms and Conditions and the Order Form; (b)
information relating to a party’s business, customers, financial condition, or operations; (c) a party’s
information
technology systems, documents and intellectual property; (d) any other information, whether in a tangible medium
or oral and marked or clearly identified by a party as confidential or proprietary at the time of disclosure;
and
(e)
any
other nonpublic, sensitive information, including Personal Data.
6.2 Exceptions. Confidential Information does not include
information
that:
(a) is known to the Recipient prior to its
first
receipt of such information from the Discloser; (b) is or becomes generally known to the public other than
as a
result
of an unauthorized disclosure by Recipient; (c) is independently developed by the Recipient without access
to or
use of the Confidential Information; or (d) is approved for release by the Discloser.
6.3 Nondisclosure. Recipient will not use Confidential Information
for
any
purpose other than pursuant to these Terms
and Conditions. Recipient: (a) will not disclose Confidential Information to any third party, except
employees,
contractors and service providers of Recipient who reasonably needs access for such purpose and is
subject to a
nondisclosure agreement with Recipient with terms no less restrictive than those of these Terms and
Conditions;
and (b) will not disclose Confidential Information to any other third party without Discloser’s prior
written
consent.
Without limiting the generality of the foregoing, Recipient will protect Confidential Information with
the same
degree
of care it uses to protect its own confidential information of similar nature and importance, but with
no less than
reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of
Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may
disclose
Confidential
Information as required by applicable law or by proper legal or governmental authority. Recipient will
give
Discloser
prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any
effort to
seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
6.4 Retention of Rights. These Terms and Conditions does not
transfer
ownership of Confidential Information or grant
a license thereto. Discloser will retain all right, title, and interest in and to all Confidential
Information.
6.5 Return of Confidential Information. Upon termination of these Terms and Conditions, Recipient
will return all
copies
of Confidential Information to Discloser or certify, in writing, the destruction thereof.
6.6 Data Security. In addition to, the foregoing confidentiality obligations, Licensor agrees that
it will maintain
appropriate technical and organizational measures intended to comply with industry standard
practices and all
applicable laws and regulations, including without limitation all applicable laws and regulations
relating to
privacy,
security, and with respect to the use, processing, handling, security, storage, and disclosure of
Personal Data
under
these Terms and Conditions. In addition, Licensor shall provide its Services in accordance with
generally recognized
information security practices, guidelines, or requirements. Upon reasonable written request by
Licensee, Licensor
shall make available to Licensee its most recent Customer Data Security Statement and/or its Privacy
Policies.
6.7 Security Incident. In the event of unauthorized disclosure of
Personal
Data in Licensor’s possession resulting from
a security incident, Licensor shall, after Licensor first becomes aware of such occurrence: (a)
promptly notify
Licensee of the incident; and (b) reasonably cooperate with Licensee to investigate the
incident.
ARTICLE 7 REPRESENTATIONS & WARRANTIES.
7.1 Right to Contract & Disclose. Each party represents and
warrants
that (a)
it has the legal power to enter into these
Terms and Conditions; (b) it has all requisite corporate power and authority to execute, deliver and perform its
obligations hereunder; and (c) it is not a party to any agreement with a third party, the performance of which
is
reasonably likely to affect adversely its ability or the ability of the other party to perform fully its
respective
obligations
hereunder.
7.2 Compliance with Laws. Each party’s business and performance
under
these
Terms and Conditions is and will be in
compliance with all applicable international, federal, state, and local laws and government rules and
regulations.
7.3 Licensed Software Warranties. Licensor warrants that the
Licensed
Software
shall perform substantially in
accordance with the technical specifications and general industry standards for sixty (60) days
following delivery
(the “Warranty Period”). If Licensee believes there has been a breach of warranty it
must notify
Licensor in writing
within the Warranty Period describing the issue in sufficient detail. In the event of breach of the
warranty in this
Article 7.3, Licensee’s sole remedy shall be, at Licensor’s discretion: (a) Licensor shall repair the
Licensed
Software;
(b) replace the Licensed Software with software of substantially similar functionality; or (c) terminate
the Order
Form
and refund Licensee applicable Fees paid to Licensor by Licensee for the Licensed Software not in
compliance with
this warranty.
7.4 SaaS Warranties. Licensor warrants that: (a) it has a right to
grant a
license to use the SaaS in accordance with
the
terms of these Terms and Conditions; (b) the SaaS will be delivered in a workmanlike manner in
accordance with
industry standards; and (c) the SaaS will perform substantially in accordance with the technical
specifications
during
the term of the Order Form. If Licensee believes there has been a breach of warranty it must notify
Licensor in
writing within the term of the Order Form describing the issue in sufficient detail. In the event of
breach of the
warranty in this Article 7.4, Licensee’s sole remedy shall be, at Licensor’s discretion: (i)
Licensor shall repair
the
SaaS; (ii) replace the SaaS with software of substantially similar functionality; or (iii) terminate
the Order Form
and
refund Licensee applicable Fees paid to Licensor by Licensee for the SaaS not in compliance with
this warranty.
7.5 Disclaimer. EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED
HEREIN,
ALL SAAS
AND LICENSED
SOFTWARE ARE PROVIDED “AS-IS,” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A
PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR MAKES NO
REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY,
SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SAAS OR LICENSED
SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY
Page 5 of 14
SAAS OR LICENSED SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE
SAAS OR LICENSED SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE,
SOFTWARE, SYSTEM, OR DATA; (C) THE SAAS OR LICENSED SOFTWARE S (OR ANY PRODUCTS,
SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE
SAAS OR LICENSED SOFTWARE) WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS); (D) ANY
STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR
CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) SAAS OR LICENSED SOFTWARE
(OR ANY SERVER(S) THAT MAKE THE SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS.
ARTICLE 8 INDEMNIFICATION.
8.1 Licensee Indemnification. Licensee shall defend, indemnify and
hold
Licensor and its
affiliates, trustees, officers,
employees, agents and volunteers, harmless from any and all liabilities, claims, damages, obligations, actions,
lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in
connection with third party claims, demands, suits or proceedings made or brought against Licensor based on: (a)
Licensee’s use of the Services in violation of any local, state, federal or foreign law applicable to Licensee’s
use
of
the Services or in a way that damages a third party; or (b) any Licensee Confidential Information infringing
Intellectual Property Rights of any third party.
8.2 Licensor Indemnification. Licensor will defend, at its expense,
any
action
brought against Licensee to the extent
that it is based on a third party claim that the use of the Services directly infringes any U.S. copyright
or
misappropriates any trade secret recognized under U.S. law, and Licensor will indemnify Licensee from any
costs,
damages and fees finally awarded against Licensee in such action which are attributable to such claim.
Licensee
agrees to notify Licensor promptly in writing of any claim, to permit Licensor to defend, compromise or
settle the
claim and to provide all available information and reasonable assistance regarding such claim.
Should any Services become, or in Licensor’s opinion be likely to become, the subject of a claim for
infringement,
Licensor may: (a) procure for Licensee, at no cost to Licensee, the right to continue to use the Services;
(b)
replace
or modify the Services at no cost to Licensee, to make such non-infringing, provided that the replacement or
modified Services provides substantially similar function and performance; or (c) if neither (a) or (b) are
practical,
terminate the right to use such Services.
Licensor shall have no liability for any claim based upon: (i) the combination, operation or use of any
Services
with
equipment, devices or software not supplied or specified by Licensor; (ii) the alteration or modification of
any
Services that was not made by Licensor; or (iii) the failure by Licensee to use a supported version of the
Services
after it has been made available to Licensee. This Article 8.2 states the entire liability of Licensor with
respect
to
infringement of any third party Intellectual Property Rights by the Services and Licensor shall have no
additional
liability with respect to any alleged or proven infringement.
Licensee shall promptly notify Licensor in writing upon its discovery of any unauthorized use or
infringement of the
Services, Confidential Information, or Licensor’s Intellectual Property Rights with respect thereto.
Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any
infringing
third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate
and
provide full information and reasonable assistance to Licensor and its counsel in connection with any such
action
or proceeding.
ARTICLE 9 LIMITATION OF LIABILITY.
EXCEPT FOR (A) THIRD PARTY CLAIMS COVERED BY THE INDEMNIFICATION OBLIGATIONS, OR (B) NONPAYMENT OF FEES DUE AND PAYABLE BY LICENSEE UNDER THESE TERMS AND CONDITIONS, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE LICENSEE TO LICENSOR UNDER THE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE Page 6 of 14 POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ARTICLE 10 TERM AND TERMINATION.
10.1 Term. The terms and conditions of these Terms and Conditions
will
continue in full force and effect to the extent
necessary to give effect to the Order Form.
10.2 Renewal of Order Form. Unless otherwise set forth in the Order
Form, the
Order Form shall automatically renew
for a term of the same length as the Order Form’s initial term, unless either party provides written notice
of
intent
not to renew no later than one hundred twenty (120) days prior to the expiration of the Order Form’s then
current
term. In the event that the Order Form is automatically renewed as set forth in this Article 10.2, unless
otherwise
set forth therein, Licensor may increase Fees no more than once per annum.
10.3 Termination for Breach. In the event of any material breach,
the
non-breaching party may terminate the Order Form
by giving thirty (30) days prior written notice to the other party; provided, however, the Order Form
shall not
terminate
if the other party has cured the breach prior to the expiration of such thirty (30) day period.
10.4 Termination for Insolvency. Either party may terminate the
Order
Form for
cause by providing written notice,
without
opportunity to cure, in the event that: (a) the other party fails to function as a going concern;
(b) a receiver,
trustee,
or other custodian for the other party or its assets is appointed, applied for, or consented to; (c)
the other party
becomes insolvent or unable to pay its debts as they mature in the ordinary course; (d) the other
party makes an
assignment for the benefit of creditors; (e) the other party is liquidated or dissolved; or (f) any
proceedings are
commenced by or against the other party under any bankruptcy, insolvency, or debtor’s relief law and
not dismissed
within sixty (60) days.
10.5 Effect of Termination. Upon termination of the Order Form,
Licensee shall
return to Licensor all copies of the
Services, Confidential Information, documentation and all other tangible materials related to
the Services,
including
without limitation, all modifications and derivative works thereof. Unless otherwise set forth
in the Order Form,
upon
Licensor’s termination due to a material breach by Licensee, (a) Licensee shall pay Licensor all
Fees due through
the end of the Order Form’s term; (b) all rights granted with respect to the Services will
immediately terminate;
and
(c) Licensee will delete or transfer to Licensor any Licensor Confidential Information, as
provided hereunder. Upon
termination, where Licensor is the breaching party, Licensor will (i) refund any unearned Fees
paid by Licensee
prior to the effective date of termination; and (ii) delete or transfer to Licensee any Licensee
Confidential
Information,
as provided hereunder.
10.6 Survival. Articles concerning the parties’ rights and
obligations
that by
the content of the section operate after
termination or that are necessary to enforce any right will survive termination the Order
Form.
ARTICLE 11 GENERAL TERMS.
11.1 Force Majeure. Neither party shall be deemed in breach of
these
Terms and
Conditions to the extent that
performance of their obligations (other than Licensee’s payment obligations) or attempts to cure any breach are
delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable.
Force Majeure events shall include: acts of God, fire, natural disaster, outbreak, epidemic, public health
emergency,
accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable
control of such party, provided that such party gives the other party written notice thereof promptly and, in
any
event,
within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such
Force
Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force
Majeure.
11.2 Equitable Remedies. Nothing herein shall prohibit either party
from
seeking a temporary restraining order,
preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid
irreparable
damage; and nothing herein shall prevent Licensor from bringing and pursuing legal action to specifically
remedy
any breach or threatened breach of any obligation hereunder by Licensee involving Licensor’s Intellectual
Property
Rights or Confidential Information.
11.3 Non-Solicitation. Licensee shall not hire, employ, or contract
for
services, attempt to hire, employ or contract
for
services, directly or indirectly through a third party, any current employee of Licensor without prior
written
consent,
for a minimum time period of twelve (12) months after termination or expiration of these Terms and
Conditions.
Licensee may hire, employ or contract for services any previously employed employee or agent of Licensor
so long
as said employee or agent has been separated from such relationship for at least twelve (12) months from
the date
of such employees’ separation. Notwithstanding the foregoing, Licensee shall be permitted to hire,
employ or
contract for services an employee as a result of a general advertisement for employment.
11.4 Waiver. Neither party will be deemed to have waived any of its
rights
under these Terms and Conditions by lapse
of time or by any statement or representation other than by an authorized representative in an
explicit written
waiver.
No waiver of a breach of these Terms and Conditions will constitute a waiver of any other breach of
these Terms
and Conditions.
11.5 Notices. Notices shall be addressed to that party at its
address
as set
out in the Order Form (or to other such
address as notified to the other party in writing in accordance with these Terms and
Conditions). Wherever one
party is required or permitted to give notice to the other pursuant to these Terms and
Conditions, such notice shall
be deemed given when delivered in hand, when mailed by registered or certified mail, return
receipt requested,
postage prepaid, or when sent by a third party courier service where receipt is verified by the
receiving party’s
acknowledgment.
11.6 Interpretation. These Terms and Conditions will be construed
as a
whole
according to the fair meaning of its
language and, regardless of who is responsible for its original drafting, will not be
construed for or against
either
party.
11.7 Severability. If a court of competent jurisdiction rules that
a
provision
of these Terms and Conditions is
unenforceable, such provision will be deemed modified to the extent necessary to make it
enforceable, and the
remaining provisions of these Terms and Conditions will continue in full force and
effect.
11.8 Independent Contractors. Nothing contained herein or done in
pursuance of
these Terms and Conditions shall
constitute either party the agent, partner or joint venture of the other for any
purpose or in any sense whatsoever.
11.9 No Third Party Beneficiaries. There are no third-party
beneficiaries to
these Terms and Conditions.
11.10 Section Titles. Section titles or references used in these
Terms
and
Conditions shall be without substantive
meaning
or content of any kind and are not a part of the agreements among the
Parties evidenced hereby.
11.11 Governing Law and Venue. These Terms and Conditions and all
matters
arising out of or relating to these Terms
and Conditions shall be governed by and construed in accordance with the
laws of the State of Delaware, except
for its conflict of law provisions, which shall not apply. The parties
agree that the United Nations Convention on
Contracts for the International Sale of Goods and the Uniform Computer
Information Transactions Act are
specifically excluded from application to these Terms and Conditions.
All such disputes will be brought and decided
in a court of law in the State of Delaware.
11.12 Assignment. Licensee shall not assign its rights or
delegate
its
obligations under these Terms and Conditions
without the prior written consent of Licensor except that Licensee
may assign any right or obligation set forth in
these Terms and Conditions to a successor entity in the event of a
merger, consolidation or sale of Licensee’s
business or all or substantially all of Licensee's stock or assets,
provided the assignee agrees in writing to
assume
all of Licensee’s obligations and obligations under these Terms and
Conditions. Any attempted assignment in
violation hereof shall be void and of no force or effect. Licensor
may assign its rights and delegate its duties
hereunder at any time without the consent of Licensee.
11.13 Entire Agreement; Modification. These Terms and
Conditions
together with
the Order Form constitutes the complete
agreement between the parties and supersedes all prior,
conflicting agreements or representations, written or oral,
concerning the subject matter of these Terms and Conditions and
such additional documents. These Terms and
Conditions and/or the Order Form may not be modified or amended
except in writing signed by both parties.
11.14 Export Controls. Each party agrees that it will
individually
obtain any
export licenses that may be required under
applicable laws prior to any export or re-export of goods or
information provided under these Terms and Conditions.
11.15 Counterparts. The Order Form may be executed
in two (2) or
more
counterparts, each of which will be considered
an original, but all of which together will constitute
one and the same instrument.
11.16 Electronic Signatures. Signature pages may
be signed manually
or
electronically, and may be transmitted by
facsimile or another secure mode of transmission.
Electronic signatures and electronically transmitted
signatures
shall have the same legal effect as an original.
[Professional Services Terms and Conditions Begin on the Following Page]
PROFESSIONAL SERVICES TERMS AND CONDITIONS
These standard terms and conditions (the “Terms and Conditions”) shall apply to any purchase or procurement of certain product or services by the legal entity identified as Licensee under the applicable Order Form with Licensor procuring Professional Services (defined below) (“Licensee”) from the legal entity selling such Services and identified as ‘Licensor’ under the applicable Order Form with Licensee (“Licensor”). These Terms and Conditions consists of the attached Order Form executed by these parties (including any attachments to such Order Form), and any related agreements previously executed by these parties concerning the specific subject-matter of the Order Form. Unless otherwise specifically agreed upon in writing by Licensor and Licensee, these Terms and Conditions shall apply to any Professional Services provided to Licensee by any affiliate or subsidiary of Licensor. In the event of a conflict between the provisions of these Terms and Conditions, the Order Form, an attachment to the Order Form, or any related agreements previously executed between these parties the following order of precedence shall apply: (a) the Order Form; (b) these Terms and Conditions; (c) an attachment to the Order Form; (d) any related agreements previously executed between these parties. Unless otherwise specifically set forth in the Order Form, upon any conflict with the terms of any Licensee terms and conditions, including, without limitation, pricing, the terms of the Order Forms shall control.
ARTICLE 1 DEFINITIONS.
The following terms will have the meanings set forth in this Article 1 when used in these Terms and Conditions.
1.1 “Confidential Information” is defined in Article 4 below.
1.2 “Deliverable” means deliverables to be created, developed and delivered by Licensor pursuant to the
Order
Form.
1.3 “Intellectual Property Rights” means any and all registered and unregistered rights
granted,
applied for or
otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret,
database
protection or other intellectual property rights laws, and all similar or equivalent rights or forms of
protection
in
any
part of the world.
1.4 “Professional Services” or “Services” means implementation, training, configuration,
migration,
consulting
and/or professional services provided by Licensor to Licensee pursuant to the Order Form.
1.5 “Order Form” means an addendum addressing acquisition of a specific set of Services
executed by
authorized
representatives of each party. References the Order Form include any attachments to the Order Form, except
where these Terms and Conditions specifically addresses attachments separately.
ARTICLE 2 SERVICES AND FEES.
2.1 Description of Services. All Professional Services to be
performed
and
Deliverables to be developed by Licensor
shall be described in the Order Form.
2.2 Licensee Obligations. Licensee acknowledges and agrees that
performance of
Professional Services is heavily
dependent upon information and responses to be provided by Licensee. Accordingly, in addition to any
specific
responsibilities set out in the Order Form, Licensee shall: (a) provide the appropriate and necessary
resources, and
timely and accurate information and documentation, as reasonably required by Licensor, to allow Licensor to
perform the Professional Services and develop the Deliverables; (b) carry out reviews and respond to
requests for
approval and information on a timely basis; (c) ensure that Licensor has available to them personnel
familiar with
Licensee’s requirements and with the expertise necessary to permit Licensor to undertake and complete the
Professional Services; and (d) Licensee shall make available to Licensor all equipment, material,
information, data,
network access and/or facilities that Licensor may reasonably require to carry out its obligations under the
Order
Form. Licensee acknowledges that any delay on its part in the performance of its obligations may have an
impact
on Licensor’s performance of its activities under the Order Form and Licensor shall not be liable for any
delay to
the extent caused by Licensee’s failure to fulfill any of its material requirements under the Agreement or
any Order
Form.
2.3 Project Manager. Licensee will designate a “Project Manager”,
if
applicable under the Order Form, as the primary
point of contact for Licensee for matter relating to the provision of the Professional Services and
development of
the Deliverables.
2.4 Fees. Licensee shall pay Licensor the fees and charges
(“Fees”) set
forth
in, and in accordance with, the Order
Form. Fees are non-cancelable and non-refundable.
2.5 Payment Term. Any payment not received from Licensor by the
payment
due
date within will accrue simple interest
at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the
maximum rate permitted
by law, whichever is lower, from the date such payment was due until the date paid. In addition,
without limiting
its
other rights or liabilities, if any undisputed amount is owing by Licensee, Licensor may (a)
terminate the Order
Form;
(b) accelerate Licensee’s unpaid fee obligations under the Order Form; or (c) suspend the
applicable Services until
all undisputed overdue amounts are paid in full. Notwithstanding the foregoing, payment subject
to a good faith
dispute pursuant to Article 2.6 will not accrue late charges.
2.6 Disputed Payments. Licensee may dispute part or the entirety of
an
invoice
by: (a) providing written notice to
Licensor of such dispute within ten (10) days of invoice receipt; (b) providing a reasonably
detailed description of
the dispute, at least sufficient to allow Licensor to analyze the dispute, as part of the
written notice; (c) only
submitting such dispute in good faith; (d) paying all undisputed amounts when due; and (e)
paying all disputed
amounts promptly after resolution of such dispute.
2.7 Travel Expenses. Subject to Licensor’s Travel and Expense
Policy,
Licensee
will reimburse Licensor for
documented travel costs, including cancellation fees, and expenses incurred by Licensor
employees and
contractors involved in the provision of the Professional Services. Licensor’s Travel
and Expense Policy is
available
to Licensee upon request.
2.8 Taxes. All Fees are exclusive of any sales or use taxes, value
added tax,
goods or services tax, or any and all
similar taxes or legally imposed fees, duties or contributions based on such amounts
payable, all of which shall be
the sole responsibility of Licensee whether due now or subsequently imposed by any
jurisdiction. Licensee is not
responsible for any taxes based upon the net income of Licensor or its employees
unless agreed to elsewhere in
these Terms and Conditions or the Order Form.
2.9 Withholding Tax. Any taxes that are required to be withheld
from
the
Services provided under these Terms and
Conditions shall be withheld.
ARTICLE 3 INTELLECTUAL PROPERTY.
3.1 Reservation of Rights. Licensee hereby recognizes that Licensor
retains
all Intellectual Property Rights in the
Services, including without limitation, all corrections, modifications and other derivative works to the
Services
developed by Licensee. All Intellectual Property Rights in any work arising from or created, produced or
developed
by Licensor, whether alone or jointly with others, under or in the course of these Terms and Conditions, will
immediately upon creation or performance vest absolutely in and will be and remain the property of Licensor, and
Licensee will not acquire any right, title or interest in and to the same. Notwithstanding the foregoing, the
parties
acknowledge they may agree to modify the ownership of Deliverables prepared or created by Licensor in the course
of performing Professional Services under the Order Form in said document, and in the event of a conflict
between
such terms and these Terms and Conditions, the terms of the Order Form shall apply.
3.2 Licensee Rights. Licensee is and will remain the exclusive
owner of
all
right, title and interest in and to Licensee
Confidential Information, including, without limitation, any Intellectual Property Rights relating thereto.
Licensor
shall
not acquire any rights in Licensee Confidential Information except for those limited rights expressly
specified in
these Terms and Conditions. For certainty, nothing in these Terms and Conditions will be deemed to grant to
Licensor any ownership interests in any of Licensee’s Intellectual Property Rights.
3.3 Licensee Input. Licensor will have a royalty-free, worldwide,
transferable, sublicensable, irrevocable, perpetual,
license to use or incorporate into the Services any suggestions, enhancements, requests, recommendations
or
other feedback provided by Licensee.
3.4 Marks. Except as otherwise set forth in these Terms and
Conditions,
nothing contained herein shall grant to either
party any right, title or interest in the other party’s marks.
ARTICLE 4 CONFIDENTIALITY.
4.1 Definition. For purposes of these Terms and Conditions,
“Confidential
Information” refers to the following items one
party to these Terms and Conditions discloses (the “Discloser”) to the other party (the
“Recipient”) under
these
Terms and Conditions: (a) the terms and conditions of these Terms and Conditions and the Order Form; (b)
information relating to a party’s business, customers, financial condition, or operations; (c) a party’s
information
technology systems, documents and intellectual property; (d) any other information, whether in a tangible medium
or oral and marked or clearly identified by a party as confidential or proprietary at the time of disclosure;
and
(e)
any
other nonpublic, sensitive information.
4.2 Exceptions. Confidential Information does not include
information
that:
(a) is known to the Recipient prior to its
first
receipt of such information from the Discloser; (b) is or becomes generally known to the public other than
as a
result
of an unauthorized disclosure by Recipient; (c) is independently developed by the Recipient without access
to or
use of the Confidential Information; or (d) is approved for release by the Discloser.
4.3 Nondisclosure. Recipient will not use Confidential Information
for
any
purpose other than pursuant to these Terms
and Conditions. Recipient: (a) will not disclose Confidential Information to any third party, except
employees,
contractors and service providers of Recipient who reasonably needs access for such purpose and is
subject to a
nondisclosure agreement with Recipient with terms no less restrictive than those of these Terms and
Conditions;
and (b) will not disclose Confidential Information to any other third party without Discloser’s prior
written
consent.
Without limiting the generality of the foregoing, Recipient will protect Confidential Information with
the same
degree
of care it uses to protect its own confidential information of similar nature and importance, but with
no less than
reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of
Confidential
Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose
Confidential
Information as required by applicable law or by proper legal or governmental authority. Recipient will
give
Discloser
prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any
effort to
seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
4.4 Retention of Rights. These Terms and Conditions does not
transfer
ownership of Confidential Information or grant
a license thereto. Discloser will retain all right, title, and interest in and to all Confidential
Information.
4.5 Return of Confidential Information. Upon termination of these
Terms
and
Conditions, Recipient will return all copies
of Confidential Information to Discloser or certify, in writing, the destruction thereof.
ARTICLE 5 REPRESENTATIONS & WARRANTIES.
5.1 Right to Contract & Disclose. Each party represents and
warrants
that (a)
it has the legal power to enter into these
Terms and Conditions; (b) it has all requisite corporate power and authority to execute, deliver and perform its
obligations hereunder; and (c) it is not a party to any agreement with a third party, the performance of which
is
reasonably likely to affect adversely its ability or the ability of the other party to perform fully its
respective
obligations
hereunder.
5.2 Compliance with Laws. Each party’s business and performance
under
these
Terms and Conditions is and will be in
compliance with all applicable international, federal, state, and local laws and government rules and
regulations.
5.3 Licensor Warranty. Licensor shall perform Professional Services
and
Deliverables in a reasonable, professional
and workmanlike manner in keeping with industry standards and practices. Licensor shall be entitled, in
its sole
discretion, to determine the method and means for performing the Professional Services and Deliverables.
If during
the term of Order Form, Licensor receives written notice from Licensee of a defect with the performance
of the
Professional Services and/or Deliverables, Licensor will promptly re-perform the relevant Professional
Services
and/or Deliverables for no additional fee.
5.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE 5,
NEITHER
PARTY MAKES ANY
WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 6 INDEMNIFICATION.
6.1 Licensee Indemnification. Licensee shall defend, indemnify and
hold
Licensor and its affiliates, trustees, officers,
employees, agents and volunteers, harmless from any and all liabilities, claims, damages, obligations, actions,
lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in
connection with third party claims, demands, suits or proceedings made or brought against Licensor based on: (a)
Licensee’s use of the Services in violation of any local, state, federal or foreign law applicable to Licensee’s
use
of
the Services or in a way that damages a third party; or (b) any Licensee Confidential Information infringing
Intellectual Property Rights of any third party.
6.2 Licensor Indemnification. Licensor will defend, at its expense,
any
action
brought against Licensee to the extent
that it is based on a third party claim that the use of the Services directly infringes any U.S. copyright
or
misappropriates any trade secret recognized under U.S. law, and Licensor will indemnify Licensee from any
costs,
damages and fees finally awarded against Licensee in such action which are attributable to such claim.
Licensee
agrees to notify Licensor promptly in writing of any claim, to permit Licensor to defend, compromise or
settle the
claim and to provide all available information and reasonable assistance regarding such claim.
Should any Services become, or in Licensor’s opinion be likely to become, the subject of a claim for
infringement,
Licensor may: (a) procure for Licensee, at no cost to Licensee, the right to continue to use the Services;
(b)
replace
or modify the Services at no cost to Licensee, to make such non-infringing, provided that the replacement or
modified Services provides substantially similar function and performance; or (c) if neither (a) or (b) are
practical,
terminate the right to use such Services.
Licensor shall have no liability for any claim based upon: (i) the combination, operation or use of any
Services
with
equipment, devices or software not supplied or specified by Licensor; (ii) the alteration or modification of
any
Services that was not made by Licensor; or (iii) the failure by Licensee to use a supported version of the
Services
after it has been made available to Licensee. This Article 6.2 states the entire liability of Licensor with
respect
to
infringement of any third party Intellectual Property Rights by the Services and Licensor shall have no
additional
liability with respect to any alleged or proven infringement.
Licensee shall promptly notify Licensor in writing upon its discovery of any unauthorized use or
infringement of the
Services, Confidential Information, or Licensor’s Intellectual Property Rights with respect thereto.
Licensor shall have the sole and exclusive right to bring an infringement action or proceeding against any
infringing
third party, and, in the event that Licensor brings such an action or proceeding, Licensee shall cooperate
and
provide full information and reasonable assistance to Licensor and its counsel in connection with any such
action
or proceeding.
ARTICLE 7 LIMITATION OF LIABILITY.
EXCEPT FOR (A) THIRD PARTY CLAIMS COVERED BY THE INDEMNIFICATION OBLIGATIONS, OR (B) NONPAYMENT OF FEES DUE AND PAYABLE BY LICENSEE UNDER THESE TERMS AND CONDITIONS, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE BY THE LICENSEE TO LICENSOR UNDER THE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ARTICLE 8 TERM AND TERMINATION.
8.1 Term. The terms and conditions of these Terms and Conditions
will
continue
in full force and effect to the extent
necessary to give effect to the active Order Form.
8.2 Renewal of Order Form. Unless otherwise set forth in the Order
Form, the
Order Form shall automatically renew
for a term of the same length as the Order Form’s initial term, unless either party provides written notice
of
intent
not to renew no later than one hundred twenty (120) days prior to the expiration of the Order Form’s then
current
term. In the event that the Order Form is automatically renewed as set forth in this Article 8.2, unless
otherwise
set
forth therein, Licensor may increase Fees no more than once per annum.
8.3 Termination for Breach. In the event of any material breach,
the
non-breaching party may terminate the Order Form
by giving thirty (30) days prior written notice to the other party; provided, however, the Order Form
shall not
terminate
if the other party has cured the breach prior to the expiration of such thirty (30) day period.
8.4 Termination for Insolvency. Either party may terminate the
Order
Form for
cause by providing written notice, without
opportunity to cure, in the event that: (a) the other party fails to function as a going concern;
(b) a receiver,
trustee,
or other custodian for the other party or its assets is appointed, applied for, or consented to; (c)
the other party
becomes insolvent or unable to pay its debts as they mature in the ordinary course; (d) the other
party makes an
assignment for the benefit of creditors; (e) the other party is liquidated or dissolved; or (f) any
proceedings are
commenced by or against the other party under any bankruptcy, insolvency, or debtor’s relief law and
not dismissed
within sixty (60) days.
8.5 Effect of Termination. Upon termination of the Order Form,
Licensee
shall
return to Licensor all copies of the
Services, Confidential Information, documentation and all other tangible materials related to
the Services,
including
without limitation, all modifications and derivative works thereof. Unless otherwise set forth
in the Order Form,
upon
Licensor’s termination due to a material breach by Licensee, (a) Licensee shall pay Licensor all
Fees due through
the end of the Order Form’s term; (b) all rights granted with respect to the Services will
immediately terminate;
and
(c) Licensee will delete or transfer to Licensor any Licensor Confidential Information, as
provided hereunder. Upon
termination, where Licensor is the breaching party, Licensor will (i) refund any unearned Fees
paid by Licensee
prior to the effective date of termination; and (ii) delete or transfer to Licensee any Licensee
Confidential
Information,
as provided hereunder.
8.6 Survival. Articles concerning the parties’ rights and
obligations
that by
the content of the section operate after
termination or that are necessary to enforce any right will survive termination the Order
Form.
ARTICLE 9 GENERAL TERMS.
9.1 Force Majeure. Neither party shall be deemed in breach of these
Terms and
Conditions to the extent that
performance of their obligations (other than Licensee’s payment obligations) or attempts to cure any breach are
delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable.
Force Majeure events shall include: acts of God, fire, natural disaster, outbreak, epidemic, public health
emergency,
accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable
control of such party, provided that such party gives the other party written notice thereof promptly and, in
any
event,
within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such
Force
Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force
Majeure.
9.2 Equitable Remedies. Nothing herein shall prohibit either party
from
seeking a temporary restraining order,
preliminary injunction, or other provisional relief if, in its judgment, such action is necessary to avoid
irreparable
damage; and nothing herein shall prevent Licensor from bringing and pursuing legal action to specifically
remedy
any breach or threatened breach of any obligation hereunder by Licensee involving Licensor’s Intellectual
Property
Rights or Confidential Information.
9.3 Non-Solicitation. Licensee shall not hire, employ, or contract
for
services, attempt to hire, employ or contract for
services, directly or indirectly through a third party, any current employee of Licensor without prior
written
consent,
for a minimum time period of twelve (12) months after termination or expiration of these Terms and
Conditions.
Licensee may hire, employ or contract for services any previously employed employee or agent of Licensor
so long
as said employee or agent has been separated from such relationship for at least twelve (12) months from
the date
of such employees’ separation. Notwithstanding the foregoing, Licensee shall be permitted to hire,
employ or
contract for services an employee as a result of a general advertisement for employment.
9.4 Waiver. Neither party will be deemed to have waived any of its
rights
under these Terms and Conditions by lapse
of time or by any statement or representation other than by an authorized representative in an
explicit written
waiver.
No waiver of a breach of these Terms and Conditions will constitute a waiver of any other breach of
these Terms
and Conditions.
9.5 Notices. Notices shall be addressed to that party at its
address as
set
out in the Order Form (or to other such
address as notified to the other party in writing in accordance with these Terms and
Conditions). Wherever one
party is required or permitted to give notice to the other pursuant to these Terms and
Conditions, such notice shall
be deemed given when delivered in hand, when mailed by registered or certified mail, return
receipt requested,
postage prepaid, or when sent by a third party courier service where receipt is verified by the
receiving party’s
acknowledgment.
9.6 Interpretation. These Terms and Conditions will be construed as
a
whole
according to the fair meaning of its
language and, regardless of who is responsible for its original drafting, will not be
construed for or against
either
party.
9.7 Severability. If a court of competent jurisdiction rules that a
provision
of these Terms and Conditions is
unenforceable, such provision will be deemed modified to the extent necessary to make it
enforceable, and the
remaining provisions of these Terms and Conditions will continue in full force and
effect.
9.8 Independent Contractors. Nothing contained herein or done in
pursuance of
these Terms and Conditions shall
constitute either party the agent, partner or joint venture of the other for any
purpose or in any sense whatsoever.
9.9 No Third Party Beneficiaries. There are no third-party
beneficiaries to
these Terms and Conditions.
9.10 Section Titles. Section titles or references used in these
Terms
and
Conditions shall be without substantive
meaning
or content of any kind and are not a part of the agreements among the
Parties evidenced hereby.
9.11 Governing Law and Venue. These Terms and Conditions and all
matters
arising out of or relating to these Terms
and Conditions shall be governed by and construed in accordance with the
laws of the State of Delaware, except
for its conflict of law provisions, which shall not apply. The parties
agree that the United Nations Convention on
Contracts for the International Sale of Goods and the Uniform Computer
Information Transactions Act are
specifically excluded from application to these Terms and Conditions.
All such disputes will be brought and decided
in a court of law in the State of Delaware.
9.12 Assignment. Licensee shall not assign its rights or
delegate
its
obligations under these Terms and Conditions
without the prior written consent of Licensor except that Licensee
may assign any right or obligation set forth in
these Terms and Conditions to a successor entity in the event of a
merger, consolidation or sale of Licensee’s
business or all or substantially all of Licensee's stock or assets,
provided the assignee agrees in writing to
assume
all of Licensee’s obligations and obligations under these Terms and
Conditions. Any attempted assignment in
violation hereof shall be void and of no force or effect. Licensor
may assign its rights and delegate its duties
hereunder at any time without the consent of Licensee.
9.13 Entire Agreement; Modification. These Terms and
Conditions
together with
the Order Form constitutes the complete
agreement between the parties and supersedes all prior,
conflicting agreements or representations, written or oral,
concerning the subject matter of these Terms and Conditions and
such additional documents. These Terms and
Conditions and/or the Order Form may not be modified or amended
except in writing signed by both parties.
9.14 Export Controls. Each party agrees that it will
individually
obtain any
export licenses that may be required under
applicable laws prior to any export or re-export of goods or
information provided under these Terms and Conditions.
9.15 Counterparts. The Order Form may be executed in
two (2) or
more
counterparts, each of which will be considered
an original, but all of which together will constitute
one and the same instrument.
9.16 Electronic Signatures. Signature pages may
be signed manually
or
electronically, and may be transmitted by
facsimile or another secure mode of transmission.
Electronic signatures and electronically transmitted
signatures
shall have the same legal effect as an original.