This Software as a Service Agreement (this “Agreement”) is by and between TEACHINGHOW2S, LLC, a Florida limited liability company located at 4600 140th Avenue N., Suite 180, Clearwater, Florida 33762 (“Company”) and you (“Licensee”). Company and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Company provides access to the Services (defined below) to certain third parties; and
WHEREAS, Licensee desires to access the Services, and Company desires to provide Licensee access to the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- “Aggregated Statistics” means data and information related to Licensee’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Services under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
- “Business Day” means a day other than a Saturday, Sunday or public holiday in Florida when banks in Florida are open for business.
- “Company IP” means the Services, the Documentation, and any and all intellectual property provided to Licensee or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics, Feedback, and any information, data, or other content derived from Company’s monitoring of Licensee’s access to or use of the Services, but does not include Licensee Data.
- “Documentation” means Company’s user manuals, handbooks, and guides relating to the Services provided by Company to Licensee either electronically or in hard copy form.
- “Effective Date” means the date on which you click to “ACCEPT” the terms and conditions of this Agreement, at the end of this Agreement.
- “EULA” means that certain End User License Agreement which governs use of the Services by each Authorized User.
- “Feedback” has the meaning ascribed thereto in Section 7(c).
- “Fees” has the meaning ascribed thereto in Section 5.
- “Losses” has the meaning ascribed thereto in Section 9.
- “Normal Business Hours” means between the hours of 8:00 a.m. and 6:00 p.m. Eastern Time on any Business Day.
- “Notice” has the meaning ascribed thereto in Section 12(b).
- “Purchase Order” means any purchase order submitted by Licensee to Company for use of the Services.
- “Service Suspension” has the meaning ascribed thereto in Section 2(e).
- “Services” means the online software application and content otherwise known as the HOW2 Application.
- “Subscription Form” means the form which is accompanied by and incorporates this Agreement and sets forth the Licensee’s demographic information (such as Licensee’s name, address for purposes of notice, and other general information), the Fees, the Term, the number of User Subscriptions and any additional support services, if any.
- “Term” has the meaning ascribed thereto in Section 11.
- “Third-Party Claims” has the meaning ascribed thereto in Section 9.
- “Third-Party Materials” has the meaning ascribed thereto in Section 3(b).
- “User Contributions” means, collectively, any information to be published or displayed on public areas of the Services, or transmitted to other users of the Services or third parties, including but not limited to messages, text, recordings, photographs, and other content or media.
- “User Subscription” means the subscription to access and use the Services purchased by Licensee for use by an Authorized User.
- “Virus” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Licensee or any Authorized User from accessing or using the Services as intended by this Agreement. Virus does not include any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Company or its designee to disable Licensee or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Company or its designee.
Access and Use.
- Provision of Access. Subject to and conditioned on Licensee’s payment of Fees and compliance with all other terms and conditions of this Agreement, Company hereby grants Licensee a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and in accordance with the number of User Subscriptions set forth in the Subscription Form. Such use is limited to Licensee’s internal use. Company shall provide to Licensee the necessary passwords and network links or connections to allow Licensee to access the Services. Licensee may, at the discretion of Company, purchase additional User Subscriptions in excess of the number set out in the Subscription Form, subject to additional Fees. In the event Licensee desires to purchase additional User Subscriptions, Licensee shall submit a written request to Company and Company will evaluate Licensee’s request and respond to Licensee approving or denying such request. In the event Company approves Licensee’s request for additional User Subscriptions, Company will confirm such via email, which shall set out any Fees associated with the additional User Subscriptions.
- Documentation License. Subject to the terms and conditions contained in this Agreement, Company hereby grants to Licensee a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Licensee’s internal business purposes in connection with its use of the Services.
- Use Restrictions. Licensee shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Licensee shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation or use the Services to provide services to third parties; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) download any any content or information available on or through the Services unless such content or information is identified as being available for download; or (vi) use the Services or Documentation in any manner or for any purpose that (A) infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, (B) that violates any applicable law, (C) input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any Virus, or (D) is harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or otherwise causes damage or injury to any person or property. Licensee may train Authorized Users by projecting the Services to a group of Authorized Users for purposes of participating in the training; provided, however, that such projections are not captured or recorded by any other media.
- Reservation of Rights. Company reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Licensee’s and any Authorized User’s access to any portion or all of the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Company IP; (B) Licensee’s or any Authorized User’s use of the Company IP disrupts or poses a security risk to the Company IP or to any other customer or vendor of Company; (C) Licensee, or any Authorized User, is using the Company IP for fraudulent or illegal activities; (D) subject to applicable law, Licensee has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Company’s provision of the Services to Licensee or any Authorized User is prohibited by applicable law; or (F) Licensee fails to provide any necessary Licensee Data required in order to use the Services or perform its duties and responsibilities under this Agreement (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Licensee to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Licensee and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User may incur as a result of a Service Suspension. Notwithstanding anything in this Agreement to the contrary, Company may at any time and for any reason or no reason at all, suspend access or use of the Services of any individual Authorized User.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may monitor Licensee’s use of the Services and collect and compile Aggregated Statistics. As between Company and Licensee, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Licensee acknowledges that Company may compile Aggregated Statistics based on Licensee Data input into the Services. Licensee agrees that Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Licensee or Licensee’s confidential information.
- Authorized Users. Licensee shall use all reasonable efforts to prevent access or use of the Service by any unauthorized users and in the event of such unauthorized use agrees to promptly notify Company of same. With respect to any Authorized Users, Licensee represents and warrants that: (i) the number of Authorized Users will not exceed the number of User Subscriptions purchased by Licensee; (ii) no User Subscription will be used by more than one Authorized User unless such User Subscription has been reassigned in its entirety to another Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services; (iii) each Authorized User shall keep a secure password for such Authorized User’s use of the Services (which Company reserves the right to require the Authorised User to change intermittently upon notice); (iv) Licensee will maintain a written, updated list of current Authorized Users and provide such list to Company within five (5) Business Days of Company’s request for same; and (v) Licensee will permit Company or Company’s designated auditor to audit the Services in order to establish the name and password of each Authorized User and determine compliance with this Agreement, provided that such audit shall be conducted no more frequently than once per quarter with reasonable prior written notice to Licensee and at such a time and manner as to not substantially interfere with Licensee’s normal conduct of business.
- General. Licensee is responsible and liable for: (i) obtaining and maintaining all necessary licenses, consents, and permissions necessary for the Company, its contractors, and agents, to perform their obligations under this Agreement; (ii) for all uses of the Services and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including but not limited to all acts and omissions of Authorized Users; (iii) using reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and causing Authorized Users to comply with such provisions and read, accept, and comply with the EULA; (iv) using the Services in compliance all applicable laws and regulations with respect to activities under this Agreement; (v) ensuring that Licensee’s network and systems (A) comply with the specifications of the Services; and (B) are reasonably capable of protecting against unauthorized or unlawful use, loss, destruction of, or damage to Licensee Data and Licensee agrees to take reasonable measures to protect against same (taking into account the current state of technological development, the costs of implementing such measures, and the significance of the data to be protected); (vi) procuring, maintaining and securing Licensee’s network connections and telecommunications links and any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Licensee’s network connections or telecommunications links; (vii) promptly notifying Company upon Licensee becoming aware of use of the Services by any unauthorized user; and (viii) taking reasonable measures to immediately disable the access credentials of an unauthorized user. For the avoidance of doubt, any act or omission by an Authorized User that would constitute a breach of this Agreement or the EULA if taken by Licensee will be deemed a breach of this Agreement by Licensee.
Service Levels and Support.
- Service Levels. Subject to the terms and conditions of this Agreement, unless otherwise specifically stated in a Subscription Form, Company shall use commercially reasonable efforts to make the Services available twenty-four (24) hours per day, seven (7) days per week, except for:
- regularly scheduled maintenance during the timeframe of 6:00 p.m. to 2:00 a.m. Eastern Time; and
- unscheduled maintenance performed outside Normal Business Hours, provided that the Company will make reasonable efforts to provide notice to Licensee at least six (6) hours in advance.
- Support. Except as set forth in Section 4(c) Agreement does not entitle Licensee to any support for the Services, however, Company provides the following support services and may provide additional support from time to time in its sole discretion:
- Access during Normal Business Hours to the helpdesk, which can be reached at email@example.com.
- Informational tips and other Documentation on how to use the Services
- Web hosting;
- Technical support;
- Administrative support.
- Additional support services may be requested at additional cost to Licensee and as set forth in the Subscription Form, including:
- Bespoke support;
- Monthly support webinars for Authorized Users;
- Additional on- or off-site support;
- Induction; and
- Implementation planning.
Fees and Payment.
- Fees. Licensee shall pay Company the fees as set forth in the Subscription Form (“Fees”) without offset or deduction. Licensee shall make all payments hereunder in US dollars within thirty (30) days of the date of any invoice submitted to Licensee. Company reserves the right, in its sole discretion, to increase the Fees upon commencement of any Renewal Term; provided, however, that Company shall provide Licensee with written notice of such Fee increase at least thirty (30) days prior to the end of the then current Term. If Licensee fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Licensee shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments, including attorneys’ fees, court costs, and collection agency fees; and (ii) Company may, with or without notice to Licensee, suspend Licensee’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
- Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Company’s income.
- Auditing Rights and Required Records. Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of three years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Company may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Licensee has underpaid Company with respect to any amounts due and payable during the Term, Licensee shall promptly pay the amounts necessary to rectify such underpayment. Licensee shall pay for the costs of the audit if the audit determines that Licensee’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of three years after the termination or expiration of this Agreement.
Intellectual Property Ownership; Feedback.
- Company IP. Licensee acknowledges that, as between Licensee and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. Licensee further acknowledges that except as provided herein, this Agreement does not grant Licensee any rights to, under or in any Company IP.
- Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Company on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
- COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR GUARANTEES REGARDING UPTIME OR AVAILABILITY OF THE SERVICES EXCEPT AS SET FORTH HEREIN OR IN THE SUBSCRIPTION FORM. THE SERVICES ARE DESIGNED FOR THE PURPOSE OF ASSISTING THE TRAINING OF EDUCATORS; THE CONTENT AND INFORMATION IS DESIGNED TO BE USED IN CONJUNCTION WITH OTHER SOURCES OF LEARNING, IT IS NOT TO BE TAKEN AS A DEFINITIVE GUIDE ON TEACHING TECHNIQUES. LICENSEE ASSUMES THE SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES. THE FOREGOING WARRANTY DOES NOT APPLY, AND COMPANY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE COMPANY IP IS PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Company Indemnification.
- Company shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Licensee promptly notifies Company in writing of such Third-Party Claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such Third-Party Claim.
- If a Third Party-Claim is made or appears possible, Licensee agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
- This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (B) modifications to the Services not made by Company; (C) Licensee Data; or (D) Third-Party Materials.
- Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party Claim that the Licensee Data, or any use of the Licensee Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Licensee’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; or (iii) modifications to the Services not made by Company, provided that Licensee may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION 9 SETS FORTH LICENSEE’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability.
IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR THE AVOIDANCE OF DOUBT, COMPANY IS IN NO WAY RESPONSIBLE OR LIABLE FOR ANY LOSSES OF OR DAMAGES TO LICENSEE DATA RESULTING FROM THE NEGLIGENCE OF LICENSEE OR ANY THIRD PARTY OR LICENSEE’S FAILURE TO PROCURE, MAINTAIN OR SECURE ITS NETWORK, NETWORK CONNECTIONS, AND TELECOMMUNICATIONS LINKS.
Term and Termination.
- Term. The term of this Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement’s express provisions, will continue in effect for the duration of the period identified on the Subscription Form (the “Initial Term”). Within thirty (30) days of the expiration of the Initial Term, the term of the Agreement may be renewed upon the mutual written agreement of the Parties for an additional period of equal length to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”).
- Termination. In addition to any other express termination right set forth in this Agreement:
- Termination by Company. Company may terminate this Agreement: (A) at any time upon thirty (30) days’ written notice to Licensee; (B) effective upon written notice to Licensee, if Licensee: (I) fails to pay any amount when due hereunder pursuant to Section 5(a) and such failure continues more than fourteen (14) days; (II) breaches any of its obligations under Section 2(c); (III) breaches any of its obligations under the Agreement other than those under Section 2(c) or Section 5(a) and such breach is not cured or is incapable of cure within seven (7) days after Company provides Licensee written notice of such breach; (IV) breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or (V) (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Termination by Licensee. Licensee may terminate this Agreement at any time upon at least thirty (30) days’ written notice to Company, effective upon the Company’s receipt of such notice of termination.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Licensee shall immediately discontinue use of the Company IP and Licensee shall delete, destroy, or return all copies of the Company IP and certify in writing to the Company that the Company IP has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Licensee to any refund. Upon termination of the Agreement, Company will delete or destroy any Licensee Data in accordance with the terms of Section 7(b), subject to applicable law.
- Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
- Entire Agreement; Conflict. This Agreement, together with the Subscription Form, the Purchase Order and any other documents incorporated herein by reference, including all related schedules and exhibits, if any, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Subscription Form, the Purchase Order and any other documents incorporated herein by reference, including all related schedules and exhibits, if any, the following order of precedence governs: (i) first, the Subscription Form; (ii) second, this Agreement, excluding any schedules or exhibits; (iii) third, the schedules and exhibits to this Agreement; (iv) fourth, the Purchase Order, and (v) any other documents incorporated herein by reference. For the sake of clarity, any schedules or exhibits attached to this Agreement as of the Effective Date are hereby incorporated by reference into this Agreement.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and, for purposes of notice to Company, addressed to the addresses set forth on the first page of this Agreement or sent to Company at firstname.lastname@example.org, and for purposes of Licensee, to the address provided in the Subscription Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
- Force Majeure. In no event shall Company be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, failure of a utility service or transport or telecommunications network, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, pandemics, epidemics, or passage of law or any action taken by a governmental or public authority, including quarantines, lockdowns, or imposing an embargo, provided that Licensee is notified of the existence of such an event and the expected duration of such failure or delay.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the state courts of the State of Florida, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Company may freely assign or transfer its rights or delegate its duties or obligations under this Agreement. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Export Regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Licensee Data outside the US.
- US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
- Rights and Remedies; Equitable Relief. Except as expressly provided hereunder, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations hereunder, including without limitation in the case of Licensee, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- No Third Party Beneficiaries. This Agreement is made solely and specifically among and for the benefit of the parties hereto and their successors and assigns, and no other persons, unless express provisions is made herein to the contrary, is to have any rights, interests, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.
- Independent Contractors. The relationship of the parties hereto is that of independent contractors. Nothing herein contained will be deemed to create an employment, agency, joint venture, or partnership relationship between the parties hereto or any of their agents or employees, or any other legal arrangement that would impose liability upon one party for the act or failure to act of the other party. Neither party will have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever.
- Headings; Interpretation. The article, title and Section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. Unless the context of this Agreement otherwise clearly requires, (i) references to the plural include the singular, and references to the singular include the plural, (ii) references to one gender include the other gender, (iii) the words “include”, “includes” and “including” do not limit the preceding terms or words and shall be deemed to be followed by the words “without limitation”, (iv) the terms “hereof”, “herein”, “hereunder”, “hereto” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, (v) the terms “day” and “days” mean and refer to calendar day(s), (vi) the terms “year” and “years” mean and refer to calendar year(s) and (vii) all amounts expressed in this Agreement and all payments required by this Agreement are in United States dollars. Unless otherwise set forth herein, references in this Agreement to (A) any document, instrument or agreement (including this Agreement) (I) includes and incorporates all exhibits, schedules and other attachments thereto, (II) includes all documents, instruments or agreements issued or executed in replacement thereof and (III) means such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified or supplemented from time to time in accordance with its terms and in effect at any given time, and (B) a particular law means such law as amended, modified, supplemented or succeeded, from time to time and in effect at any given time. All Article, Section, Exhibit and Schedule references herein are to Articles, Sections, Exhibits and Schedules of this Agreement, unless otherwise specified. All Parties have participated substantially in the negotiation and drafting of this Agreement and agree that no ambiguity herein should be construed against the Party drafting the Agreement.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.