IMPORTANT - READ CAREFULLY. THIS SOFTWARE AND SERVICES LICENSE AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN YOU (“CUSTOMER” OR “YOU”) AND TRANSMUTEDOTCOM, INC., d/b/a COVERFLOW (“COVERFLOW”), AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO ANY COVERFLOW PRODUCTS OR SERVICES YOU DOWNLOAD OR ACCESS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD NOT PROCEED WITH SETTING UP YOUR ACCESS TO COVERFLOW. IN ADDITION, DO NOT CLICK ANY BUTTON TO SET UP ACCESS TO COVERFLOW ON ANY PAGE RUN BY OR ON BEHALF OF COVERFLOW UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU CONTINUE TO SET UP ACCESS FOR COVERFLOW, YOU WILL BE GRANTED ACCESS TO THE SERVICES, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).
All references in this Agreement to the “sale” or “purchase” (or other similar terms) of any Services shall mean the sale or purchase of a license to such Services.
Certain Definitions
“Applicable Privacy Laws” means, in relation to any personal information that is processed in the provision of the Services, any applicable law, regulation or legislation protecting individual privacy, including without limitation, where applicable, the California Consumer Privacy Act, and the EU Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the “GDPR”).
“Authorized User” means any individual (including Customer’s employees, agents, contractors, suppliers of services, and customers, in each case to the extent that Customer’s license includes, and Customer pays for, such individual) who is authorized to access the Services or Documentation and exercise the rights licensed by Customer. Each Authorized User must use a unique identity to access and use the Services unless otherwise licensed, and may access the services only to the extent licensed by Customer.
“Cloud Infrastructure” means the computing, storage, networking, and other hardware and software infrastructure used in providing the Services.
“Confidential Information” means the Services (in the case of Coverflow) and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information, plus any other information or data which a party discloses in tangible form and conspicuously marks as “confidential,” “proprietary” or with other words generally understood to communicate the confidential nature of the information. Despite the foregoing, Confidential Information shall not include any information which: (a) is already lawfully in the receiving party’s possession without obligation of confidentiality; (b) is or becomes generally available to the public through no fault of the receiving party; or (c) is independently developed by the receiving party without any use of the other party’s Confidential Information.
“Delivery” means the availability of the Services and/or Documentation by the Licensor to the Customer via electronic or other means, without regard to when Customer actually uses such Services and/or Documentation.
“Customer Data” means non-public information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer (or on Customer’s behalf) on the Cloud Infrastructure by or through the Service.
“Documentation” means the instruction manuals, user guides, and other information to be made available from time to time by the Licensor in either printed or electronic form to the Customer.
“Implementation Services” means any professional services provided by Coverflow pursuant to this Agreement and any applicable Order, including but not limited to implementation, configuration, and customization.
“Intellectual Property Rights” means all inventions, know-how, patents (including originals, divisionals, continuations, continuations-in-part, extensions, utility models and re-issues), patent applications, copyrights (including all related rights and registrations and applications therefor), trade secrets, trademarks, internet domain names, moral rights, and all other proprietary and intellectual property rights.
“Order” means any document agreed to between the parties which sets forth the Services licensed by the Customer and any relevant pricing. Multiple Orders may be agreed to under this Agreement.
“Output” means any generative AI output (including files, texts, or events; but excluding the Services or any part or derived work thereof) that is created or emitted by Customer’s use of the Service.
“Service(s)” means the product(s) and related services licensed by Customer pursuant to this Agreement as identified in an applicable Order, including any Implementation Services to the extent applicable.
“Support” means the technical support services set forth in at www.coverflow.com.
“Update” means such enhancements, modifications, or additions to the Services as may be made available from time to time by the Licensor to Customer.
“Use” shall mean the legal use by Customer of the Services and Documentation in accordance with the terms and condition of this Agreement.
General Terms and Conditions
Orders; Delivery
1.1 Orders. During the Term of this Agreement, and subject to Customer’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Customer may license Services by the parties agreeing to Orders that reference this Agreement.
1.2 Delivery. All Services and Documentation licensed by Customer pursuant to this Agreement will be delivered electronically to Customer by giving Customer access to such Services and Documentation. Order renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Order.
1.3 Implementation Services. Coverflow will use commercially reasonable efforts to provide Customer any Implementation Services described in an applicable Order, and Customer shall pay Coverflow the fees for such Implementation Services in accordance with the terms of this Agreement and the applicable Order.
Ownership of Intellectual Property; License Grant; Restrictions.
2.1 Ownership of Pre-Existing Intellectual Property. Except to the extent licenses are expressly granted hereunder, each party respectively retains all right, title and interest in and to all Intellectual Property Rights in and to such party’s respective products and services.
2.2 Ownership by Licensor. In addition to the rights provided for in Section 2.1, the Services and Documentation contain proprietary and confidential information of Coverflow and its licensors. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Licensor’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Customer of any such parts of the website, Services or Documentation, except as expressly authorized by this Agreement, is prohibited. Coverflow shall own all right, title and interest, including all Intellectual Property Rights, in and to any intellectual property created by Coverflow in the course of providing the Services or Support under this Agreement, and to all suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Customer relating to the Services, which are hereby assigned to Coverflow.
2.3 Ownership by Customer. In addition to the rights provided for in Section 2.1, except to the extent licenses are expressly granted hereunder, Customer retains Intellectual Property Rights in and to: (i) the Customer Data and (ii) the Output.
2.4 License Grant by Coverflow. Subject to and in consideration of Customer’s compliance with the terms and conditions of this Agreement, Licensor hereby grants to the Customer a royalty free, limited, non-exclusive, non-sublicensable, non-transferable license:
(a) during the Pilot Term, solely for internal use in a test environment to determine the usability, desirability, functionality, and compatibility of Services with Customer’s applications and operations environment, and not for production or commercial use, to (i) access and use the Services (for the number of Authorized Users designated on an applicable Order, if applicable) via the Internet address provided to Customer by Licensor and (ii) Use the Documentation supplied by Coverflow to enable such licensed rights; and
(b) during the term of any applicable term specified in an Order after the Pilot Term, to (i) access and Use the Services (for the number of Authorized Users designated on an applicable Order, if applicable) via the Internet address provided to Customer by Licensor; and (ii) Use the Documentation supplied by Coverflow to enable such licensed rights.
2.5 License Restrictions. Customer agrees that it (and its Authorized Users) will not without express written permission of Licensor or as otherwise expressly authorized under this Agreement: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Services; (b) make the Services or Documentation or Services available to, or use the Services or Documentation for the benefit of, anyone other than Customer; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Services or Documentation, or include any Services or Documentation in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Services or Documentation in a way that circumvents a contractual usage limit; (e) reproduce the Services or Documentation or any part, feature, function or user interface thereof; (f) access or use the Services Documentation in order to build a competitive product or service; (g) use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Services; (h) access the Services for, or upload to the Cloud Infrastructure, anything unlawful, misleading, malicious or discriminatory; (i) upload or transmit to the Cloud Infrastructure any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure, or (j) use Services in a way that causes a denial of service for other users or interferes with or unduly burdens performance.
2.6 Further Customer Obligations. Customer shall provide accurate, current and complete information required to enable its Authorized Users on the Cloud Infrastructure, and to maintain the accuracy of such information during the Use of the Services. Customer shall require Authorized Users to maintain proper password security, and for maintaining the confidentiality of Customer’s account. Without limiting any other responsibilities Customer has under this Agreement, Customer is responsible for the actions of it Authorized Users, of anybody accessing the Cloud Infrastructure using the credentials of any Authorized User, and of any other individuals to Customer has given access to the Services.
2.7 License Grant by Customer. Customer hereby grants to Coverflow a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty free license to use, copy, and modify the Customer Data as reasonably required to operate and provide the Services.
2.8 Use of Anonymized Data. Despite anything to the contrary, Coverflow shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Coverflow will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Coverflow offerings, and (ii) disclose such data (solely in aggregate or other de-identified form from which neither Customer nor any Authorized User may be identified) in connection with its business.
2.9 Interaction with Third-Party Applications and Platforms. Customer may connect, install or enable content or applications and software products that interoperate with the Services and are provided by a third-party or Customer, and not Coverflow (“Non-Coverflow Products”). Any acquisition and use by Customer or its Authorized Users of such Non-Coverflow Products is solely the responsibility of Customer and the applicable provider. Coverflow does not warrant or offer support for Non-Coverflow Products. To the extent Customer authorizes the access or transmission of Customer Data through a Non-Coverflow Product, Coverflow will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
Fees; Payments.
3.1 Accrual of Payment Rights. Coverflow’s right to payment for the Services purchased by Customer shall accrue on the date the Services are Delivered to Customer. Except as otherwise expressly provided for in this Agreement, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.
3.2 Invoicing and Payment. Coverflow will invoice Customer in accordance with the relevant Order. Payments are due within 30 days of Customer’s receipt of an undisputed invoice. Any invoice which is unpaid when due may be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. If Customer’s account is referred to a collection agent due to non-payment, Coverflow shall be entitled to reimbursement for reasonable costs associated with the collection of any past-due balance.
3.3 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Services or Documentation purchased or licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Customer, or Customer will present an exemption certificate acceptable to the taxing authorities. Customer will not be liable for taxes imposed on the Licensor based on the Licensor’s income.
Warranties; Disclaimers.
4.1 Warranties by Coverflow. Subject to each of the other provisions hereof, Licensor warrants, solely to Customer, that during any paid Order term (the “Warranty Period”), the Services, when use according to the Documentation, will be capable of functioning substantially in accordance with the Documentation. Despite any of the foregoing, during any Pilot Term the Service is provided “as is”, with no warranties (express, implied or otherwise).
4.2 Warranty Limitations. The warranty provided in Section 4.1 will not apply if: (i) Customer fails to notify Licensor in writing during the Warranty Period of any such breach; or (ii) Customer fails to implement all Updates to the Services made available at no charge to Customer during the Warranty Period.
4.3 Remedies. If Licensor breaches the warranty set forth in Section 4.1, Customer’s sole and exclusive remedy, and Licensor’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Licensor, Licensor will, at its expense, either: (i) repair or replace the defective Services to enable it to perform substantially in accordance with the Documentation; or (ii) if the Services as a whole do not function substantially in accordance with the Documentation, terminate this Agreement and refund to Customer the fees prepaid by Customer to Licensor for the defective Services for any period after the effective date of such termination.
4.4 Warranties by Customer. Customer represents and warrants that it has all rights that are necessary to grant to Coverflow the rights granted under this Agreement, that neither Customer Data, nor the inclusion of Customer Data in the Services, will infringe, misappropriate or violate a third party’s Intellectual Property Rights or Applicable Privacy Law, and that no action by Customer pursuant to this Agreement will cause Coverflow to have any liability to any third party related to an agreement between Customer and such third party.
4.5 Personal Information. Each party agrees to comply with Applicable Privacy Laws. Unless otherwise agreed to in writing, Customer shall not provide to Coverflow any information, content and data provided by or on behalf of Customer and made available or otherwise distributed through use of the Service that includes any health, payment card or other sensitive personal information.
4.6 ALL OTHER WARRANTIES ARE DISCLAIMED BY BOTH PARTIES. EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES (INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT). LICENSOR DOES NOT WARRANT THAT THE SERVICES OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH SERVICES OR DOCUMENTATION WILL SUCCEED IN RESOLVING ANY PROBLEM.
Indemnification.
5.1 Indemnification of Customer by Coverflow. Subject to each of the other provisions hereof, and except for any claims based on any use of the Services during any Pilot Term (for which Licensor provides no indemnification of any kind) Coverflow shall (i) defend or (at its option) settle, any claim brought against Customer by a third party alleging that at the time of Delivery the Service infringes the copyright, trademark, or US patent of such third party (a “Claim”) and (ii) indemnify Customer against damages and costs finally awarded against and payable by Customer in any such Claim.
5.2 Exceptions. Coverflow shall have no liability to Customer under this Section:
(a) to the extent any Claim is based on or arises from any Service or any portion or component thereof, that is: (A) not provided directly to Customer by Coverflow; (B) modified by a party other than Coverflow and not at Coverflow’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (C) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;
(b) to the extent Customer continues allegedly infringing activity after: (1) being notified thereof; and (2) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or
(c) from any breach of the Customer’s obligations under this Agreement.
5.3 Indemnification of Coverflow by Customer. Customer will (i) defend or (at its option) settle, any claim brought against Coverflow by a third party and (ii) indemnify Coverflow from and against any losses, liabilities, damages, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or relating to a breach of Customer’s warranty in Section 4.4.
5.4 Limitations. Despite any of the foregoing, each party’s obligations under Section 5 shall be valid only if the party requesting indemnification:
(a) gives notice to the indemnifying party of any Claim promptly upon becoming aware of the same;
(b) gives the indemnifying party the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and
(c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.
5.5. In the event of any alleged Intellectual Property infringement, Coverflow shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Customer to continue using the Service and Documentation; (b) make such alterations, modifications, or adjustments to the Service so that it becomes non-infringing without incurring a material diminution in performance or function; or (c) replace the Service with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.
Limitation of Liability.
6.1 Limitation on Indirect Damages. EXCEPT FOR A BREACH OF SECTION 7, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Certain Damages Are Always Prohibited. DESPITE ANYTHING IN SECTION 6.1 OR OTHERWISE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR (i) ANY PUNITIVE DAMAGES, (ii) EXCEPT WITH RESPECT TO CLAIMS BASED UPON CUSTOMER’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, ANY LOSS OF PROFITS, LOST BUSINESS, OR LOST REVENUE, OR (iii) THE USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, AND NO MATTER HOW SUCH DAMAGES ARE CHARACTERIZED, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Maximum Liability. WITH RESPECT TO THE PILOT TERM, IN NO EVENT SHALL LICENSOR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO LICENSOR UNDER THIS AGREEMENT FOR THE PILOT TERM. WITH RESPECT TO THE INITIAL TERM AND ANY RENEWAL TERM, EXCEPT IN THE CASES OF (i) BREACH OF SECTION 7 OF THIS AGREEMENT (“CONFIDENTIALITY”) OR (ii) BREACH OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID (OR IN THE CASE OF CUSTOMER’S LIABILTY, PAID PLUS OWED BUT UNPAID) BY CUSTOMER TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER. IN THE CASE OF BREACH OF SECTION 7 OF THIS AGREEMENT (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THREE TIMES (3X) THE AMOUNTS ACTUALLY PAID (OR IN THE CASE OF CUSTOMER’S LIABILTY, PAID PLUS OWED BUT UNPAID) BY CUSTOMER TO LICENSOR UNDER THIS AGREEMENT.
6.4. No Liability for Reliance on Proposals. Despite any provision in this Agreement to the contrary, Customer acknowledges and agrees that any proposals, comparisons, templates, recommendations, or similar materials (“Proposals”) provided or generated by Coverflow, whether manually or through automated means, are for informational purposes only and do not constitute legal, commercial, or financial advice. Coverflow shall have no responsibility or liability for any agreements, commitments, or other legal or commercial arrangements entered into by Customer with any third party based on or arising from such Proposals. Customer assumes full responsibility for evaluating the appropriateness, accuracy, and legal sufficiency of any Proposal before using it in any contractual or business context. Coverflow shall not be liable for any damages, losses, liabilities, or claims arising out of or relating to any such third-party contracts, including without limitation claims for breach of contract, misrepresentation, or negligence.
Confidentiality.
7.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement.
7.2 Required Disclosures. If any Confidential Information of the other party is required to be disclosed by the receiving party as a matter of law, the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.
7.3 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).
7.4 Destruction of Information. Upon expiration or termination of this Agreement for any reason, the receiving party will destroy (or at the request of the disclosing party, return) all copies of all Confidential Information of the disclosing party in its possession or under its control.
Term and Termination.
8.1 Pilot Term; Roll to Standard Subscription. Any Pilot Term of this Agreement or any Order shall commence on the Effective Date and, unless earlier terminated as provided for herein, run for the period set forth in the Order (the “Pilot Term”). Unless Customer notifies Licensor in writing no later than 10 calendar days before the end of the Pilot Term, this Agreement shall automatically roll into the Initial Term (as defined below).
8.2 Term of Agreement. The “Initial Term” of this Agreement shall begin on the Effective Date, and shall continue in force for an initial term of one year after the end of the Pilot Term unless validly terminated earlier. Thereafter, this Agreement shall automatically renew for additional one-year periods unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.
8.3 Term of Orders. Orders issued under this Agreement shall begin and end as specified in each such Order. Unless otherwise specified in an Order (and (except with respect to any Pilot Term), Orders shall automatically renew at Licensor’s then-current standard fees for additional periods as set forth on the applicable Order unless either party notifies the other in writing of its intent not to renew at least thirty days prior to the end of the then-current term.
8.4 Termination. This Agreement and any Service Order may be terminated by either party upon notice if the other party breaches any material term or condition of this Agreement and fails to remedy the breach within thirty days after being given notice thereof. This Agreement, and any license granted thereby, may be suspended or terminated by Licensor upon its reasonable determination that Customer’s use of the Services poses a threat to the secure or reliable provision of Services to other customers, or to the Cloud Infrastructure, or to the data contained therein. In addition, Customer may terminate this Agreement at any time and for any reason during the Pilot Term by giving written notice to Licensor.
8.5 Effect of Termination. Upon termination of this Agreement, Licensor’s obligation to provide the Services will immediately cease, any and all licenses granted by Licensor hereunder will immediately terminate, and all unpaid fees and other amounts due from Customer for Services previously provided by Licensor will immediately become due and payable. Despite the foregoing, upon any termination or expiration of this Agreement, the terms of this Agreement will continue to apply to any Order with a term that extends beyond the date of expiration or termination of the Agreement.
8.6 Survival. Sections 2.1-2.3, 2.5, 2.6, 2.8, 3-7, 8.5, 8.6, 9 and 11, all associated definitions, and all accrued rights to payment shall survive any expiration or termination of this Agreement.
Export Regulations
The Services are subject to U.S. export controls, including the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Customer shall not transfer, export or re-export, directly or indirectly, the Services in violation of any export law or regulation.
Privacy
In addition to any other provisions of this Agreement, each party agrees to abide by all applicable laws and regulations in connection with providing and using the Services, including, without limitation, all Applicable Privacy Laws.
Miscellaneous
11.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions.
11.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, or sent by email if receipt is electronically confirmed.
11.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
11.4 Assignment; Sublicensing; Successors. Customer shall not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of Licensor, which consent shall not be unreasonably withheld in the case of the merger, acquisition or sale of all or substantially all of the assets of Customer. Subject to the foregoing, This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto
11.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in courts located in the city and county of San Francisco, CA USA.
11.6 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
11.7 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
11.8 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
Publicity
Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. At the request of either party from time to time, the parties shall work together in good faith to issue at least one mutually agreed upon press release regarding the parties’ relationship. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.
THIS AGREEMENT, INCLUDING ALL EXHIBITS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF PURCHASE ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO CUSTOMER PURCHASE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.
