1 DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
1.2 “Affiliate” means a person or entity that directly or indirectly controls, or is controlled by, another person or entity, or is under direct or indirect common control with another person or entity, where control is established when a person or entity owns or controls, directly or indirectly, at least 50 percent (50%) of the voting equity of another entity, or has the power to direct or cause the direction of the management of another person or entity, whether through ownership of voting securities or otherwise.
1.3 “Agreement” means this Software‑As‑A‑Service (“SaaS”) License Agreement and Terms of Service and all appendices, annexes, Order Forms, or exhibits thereto.
1.4 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Services, or any part thereof, pursuant to Customer’s rights under this Agreement, and which authorization includes a confidentiality agreement at least as restrictive as that contained in this Agreement.
1.5 “Company Solution” means the Company SaaS application identified in any Order Form that allows Authorized Users to access certain features and functions through a web or mobile application based interface, and/or climate risk data.
1.6 “Confidential Information” means non-public information, know-how and trade secrets in any form that (a) are the non-public Intellectual Property Rights of a Party, (b) are designated as “confidential” or (c) a reasonable person knows or reasonably should understand to be confidential.
1.7 “Customer Content” means any, content and information provided or submitted by or on behalf of Customer or its Authorized Users for use with the Services.
1.8 “Documentation” means the technical materials provided by Company to Customer in hard copy or electronic form describing the use and operation of the Services.
1.9 “Error” means a reproducible failure of the Services to substantially conform to the Documentation.
1.10 “Feedback” means all ideas, comments, suggestions, enhancement requests, recommendations, use cases, and reports, whether written or oral, furnished by Customer, its Authorized Users, employees, or agents, to Company in connection with its access to and use of any part of the Services, and including all related intellectual property rights.
1.11 “Intellectual Property Rights” means any and all, registered or unregistered, now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) know how and trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. For the avoidance of doubt, climate risk data, source code, and Documentation are Company trade secrets.
1.12 “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Services.
1.13 “Order Form” means an order form that is based on an Order Form template and maybe referenced as an Exhibit to this Agreement, is signed by both parties and references this Agreement, becomes a binding part of this Agreement.
1.14 “Professional Services” means professional services provided by Company to Customer as described in any Order Form.
1.15 “Services” means any services provided by Company to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Company Solution, Licensed Materials, Documentation, and Professional Services.
1.16 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Company as required for use of the Services. The current requirements are described in the Documentation. The Documentation can be found online at https://jupiterintel.com/documentation/.
2 PROVISION OF SERVICES
2.1 Access And Acceptance. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Company will provide Customer with access to the Services. On or as soon as reasonably practicable after the Effective Date Company will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Services. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, or any part thereof, and notify Company promptly of any such unauthorized use known to Customer. Customer will follow and comply with Company’s Acceptable Use Policy, which can be found at https://jupiterintel.com/legal/#acceptable-use, and follow all laws, rules, and regulations that may apply to Customer’s access and use of the Services, or any part thereof. By accessing any part of the Services, Customer agrees to the terms of this Agreement.
2.2 Support Services. Subject to the terms and conditions of this Agreement, Company will exercise commercially reasonable efforts to (a)provide support for the use of the Services to Customer, and (b) keep the Services operational and available to Customer, in each case in accordance with its standard policies and procedures, which can be found at https://jupiterintel.com/legal/#support-policies.
2.3 Hosting. Company will, at its own expense, provide for the hosting of the Services, provided that nothing herein will be construed to require Company to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Services from the Internet.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable (except as permitted under Section 12.7), revocable, worldwide license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Services in accordance with this Agreement and the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s licensed use(s) of the Services or any part of the Services, which copies Customer shall keep track of in a log. Customer may permit any Authorized Users to access and use the features and functions of the Services solely as contemplated by the Documentation and this Agreement. For the avoidance of doubt, the license granted to Customer under this Agreement expressly excludes accessing, using, or relying on in any way the Services, or any part of the Services including the Company Solution, Documentation, Professional Services, or Licensed Materials to use for any unlicensed purpose(s), or make decisions, determinations, or provide opinions that may pertain to emergency management, emergency planning, public safety, physical safety, property endangerment, or the like.
3.2 Restrictions. Customer will not, and will not permit any Authorized User to: (a) allow any third Party to access the Services, except as expressly allowed herein; (b) modify, adapt, alter or translate any part of the Services; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of any part of the Services for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of any part of the Services, except as permitted by law; (e) interfere in any manner with the operation of any part of the Services or the hardware and network used to operate any part of the Services; (f) modify, copy or make derivative works based on any part of the Services; (g) access or use any part of the Services to build a similar or competitive product or service; (h)attempt to access any part of the Services through any unapproved interface;(i) override any security feature or bypass or circumvent any access controls or use limits of any part of the Services, (j) Customer will not provide any personally identifiable information to Company in connection with its use of any part of the Services, (k) use, rely, or base any decisions, determinations, or opinions on the information provided in connection with the access to or use of any part of the Services as that use, reliance, decision making, determination, or opinion may pertain to emergency management, emergency planning, public safety, physical safety, property endangerment, or the like, or (l) otherwise use any part of the Services in any manner that exceeds the scope of uses permitted under Section 3.1 or in a manner inconsistent with applicable law, including privacy laws, the Documentation, or this Agreement. Customer acknowledges and agrees that the Services will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Company or its licensors on any part of the Services or any copies thereof.
3.3 Ownership. All parts of the Services, and all worldwide Intellectual Property Rights in the Services, are the exclusive property of Company and its licensors. All rights, title, and interest in and to the Services not expressly granted to Customer in this Agreement are reserved by Company and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof.
3.4 Open Source Software. Certain items of software may be provided to Customer with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.5 Feedback. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use in any way Company sees fit, including by incorporating Feedback into the Services, or any part thereof. Company will not identify Customer as the source of any such Feedback.
4 FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed or provided by Company under this Agreement, Customer will pay to Company the Fees. Except as otherwise provided in the Order Form, all Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. Company reserves the right to modify the Fees payable hereunder upon written notice to Customer at least sixty (60) days prior to the end of the then-current term. Company will be reimbursed only for expenses that are provided for in an Order Form or that have been approved in advance in writing by Customer, provided Company has furnished such documentation for authorized expenses as Customer may reasonably request. Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Services, or any part thereof, and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the same to Customer. Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.
4.3 Interest. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5 CUSTOMER CONTENT AND RESPONSIBILITIES
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for Company to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Company to use the Customer Content submitted for the purposes set forth in this Agreement. Customer grants Company an irrevocable, non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content as necessary for research and development, and providing and improving the Services, (b) to use the Customer trademarks, service marks, and logos as required to provide the Services, and (c) use the Customer Content in an aggregated and anonymized form: (i) for research and development, and to improve the Services and Company’s related products and services; (ii) to provide analytics and benchmarking services; and (iii) to generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, are the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Company in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; (e) contain any personally identifiable information; and (f) otherwise violate the rights of a third party. Company is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of any part of the Services contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the Services. Customer will abide by all laws, including federal, state and local laws, and in particular privacy laws, in connection with Customer’s use of the Services, and all parts thereof.
5.3 Customer Responsibility For Data And Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the Services. Customer will have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
6 PROFESSIONAL SERVICES. Where the Parties have agreed to Company’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form. The Order Form will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form expressly states that it supersedes specific language in the Agreement.
7 WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. Company represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Company inwriting of a breach within thirty (30) days following performance of defective Services, specifying the breach in reasonable detail, Company will, as Customer’s sole and exclusive remedy for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Company’s option, refund the fees paid by Customer for the Services which gave rise to the breach. Company further warrants to Customer that all parts of the Services will operate within commercially reasonable and industry standard norms, and be substantially free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Services in combination with other products, equipment, software or data not supplied by Company; or (c) any modification of any part of the Services by any person other than Company or its authorized agents. Provided that Customer notifies Company in writing of any breach of the foregoing warranty during the Term, Company will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.2.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED INSECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMERACCEPTS THAT THE SERVICES, INCLUDING THE COMPANY SOLUTION, LICENSED MATERIALS,ANY PROFESSIONAL SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS,” AND COMPANYMAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS,WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUTLIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING,TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY,TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOTWARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICESWILL BE UNINTERRUPTED OR ERROR-FREE.
8 LIMITATION OF LIABILITY
8.1 Types Of Damages. IN NO EVENT WILL EITHER PARTY BELIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIALOR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUTLIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESSINTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TOTHIRD PARTIES ARISING FROM ANY SOURCE OR THEORY OF LAW, INCLUDING CONTRACT,TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF CUSTOMER’S REMEDIES FAIL OFTHEIR ESSENTIAL PURPOSE. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TOAPPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEENBREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount Of Damages. THE MAXIMUM LIABILITY OF EITHERPARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEEDTHE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDINGTHE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILLCOMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTEDTO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHERPARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY ORITS EMPLOYEES OR AGENTS.
8.3 Basis Of The Bargain. The Parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
9.1 Protection Of Confidential Information. The Party receiving Confidential Information, the “Receiving Party,” agrees that it will not use or disclose to any third party any Confidential Information of the Party disclosing Confidential Information, the “Disclosing Party,” except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information, including the Services, and any part thereof, to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will delete or destroy all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence, except that after termination a Party may not use but may maintain a copy of the Receiving Party’s Confidential Information in its backup systems until or unless the backup is accessed for any reason, at which time that Party must comply with its obligations to delete or destroy.
9.2 Exceptions. The confidentiality obligations set forth in Section 9.1 will not apply to any information that (a) became publicly known, before or after disclosure, through no fault of the Receiving Party’s action or inaction; (b) was in Receiving Party’s lawful possession free of any confidentiality duties or obligations at the time it was disclosed to Receiving Party; (c) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information; or (d) is approved for release in writing by the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law, by the order of a court, another government demand, or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9.3 Treatment Of Confidential Information. Subject to the other terms of this Agreement, each Party agrees (a) it will not disclose the other’s Confidential Information to third Parties; and (b) it will use and disclose the other’s Confidential Information only for the purposes of our business relationship with the other Party as agreed in this Agreement.
9.4 Security Precautions. Subject to the other terms of this Agreement, each Party agrees (a) to take reasonable steps to protect the other’s Confidential Information that are at least as protective as those the Party takes to protect its own Confidential Information; (b) to notify the other promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and (c) in the event of unauthorized use or disclosure, to cooperate with the other Party to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.
10.1 By Company. Company will defend at its expense any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services directly infringe the third party’s patents, copyrights, or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Services becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services, or a part of the Services, with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so they become non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the Term (defined in Section 11.1)then in effect, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Company will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the Services not in accordance with this Agreement or the Documentation; (ii) any use of the Services in combination with other products, equipment, software or data not supplied by Company; or (iii) any modification of any part of the Services by any person other than Company or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”).This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
10.2 By Customer. Customer will defend at its expense any suit brought against Company, and will fully pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s unlicensed use of any part of the Services, or any other breach or alleged breach of Sections 5.2. Unless Company agrees in writing otherwise, no such settlement will encumber Company, or admit or assign any fault to Company, its officers, directors, employees, shareholders, contractors or representatives, or any part of its Services. This Section 10.2 states the sole and exclusive remedy of Company and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
10.3 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (b)the indemnifying Party will have sole control of the defense or settlement of any claim or suit; (c) the indemnified Party will cooperate with the indemnifying Party to facilitate a settlement or defense of any claim or suit; and (d) the indemnified Party may employ separate counsel and participate in the defense of a claim at its own expense.
11 TERM AND TERMINATION
11.1 Term. This Agreement will begin on the Effective Date and remain in effect for a period of one (1) year (the “Term”). The Agreement will automatically renew for additional terms of one (1) year unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of the then-current term. For the avoidance of doubt, if pursuant to this Section11.1 a Party terminates the Agreement while an Order Form remains in effect, the terms of the Agreement will apply to the Order Form as if it were not terminated until the Order Form is expired or terminated.
11.2 Termination For Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of the breach. In the event Company breaches the Agreement, and the Agreement is so terminated, Company will refund a pro-rata share of the amounts paid by Customer for the then-current Term. In the event Customer Breaches the Agreement, and the Agreement is so terminated, Customer shall immediately pay Company any outstanding amounts due for the then-current Term, and any amounts already paid to and collected by Company will be retained by Company.
11.3 Effect Of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b)promptly after the effective date of termination or expiration, each Party will comply with the obligations to delete or destroy all Confidential Information of the other Party, as set forth in Section 9; (c) any amounts owed to Company under this Agreement will become immediately due and payable; (d) and except in the case of Termination for Breach by Company, any amounts already paid to and collected by Company will be retained by Company. Sections 1, 3.2, 3.3, 3.4,3.5, 4, 7.2, 8, 9, 10, 11.3, 11.4, and 12 will survive expiration or termination of this Agreement.
11.4 Data Extraction. For twenty (20) days after the end of the Term, as applicable, Company will make Customer Content available to Customer through the Services on a limited basis solely for purposes of Customer retrieving Customer Content, unless Company is instructed by Customer to delete such data before that period expires. After such period, except for data in backup systems, Company will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession.
12.1 Governing Law And Venue. This Agreement and any action related thereto will be conducted in in the English language and governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New Castle County, Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.2 Dispute Resolution. Customer agrees that any dispute, claim or controversy arising out of or relating to the Parties’ negotiations and inducements to enter this Agreement, this Agreement, including the Services, and any part thereof, shall be finally settled by independent arbitration, involving a neutral arbitrator, and administered by the American Arbitration Association (“AAA”). Unless the Parties agree otherwise, the arbitration will be conducted under the AAA’s then current virtual arbitration processes. If the Parties decide to have the arbitration in person, that arbitration shall be conducted in New Castle County, Delaware. Further, as to the arbitration, the Parties will proceed according to the commercial rules of the AAA, and unless an arbiter orders otherwise, share the costs equally. Judgment on an arbitration award may be entered by any court with competent jurisdiction. This Agreement is subject to the operation of the 1958 United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards. NOTE there is no judge or jury in an arbitration proceeding and the decision of the arbitrator shall be final and binding upon both Parties.
12.3 Injunctive Relief. Each Party acknowledges that its breach of this Agreement may cause irreparable damage to the other Party and hereby agrees that the other Party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by an arbiter according to Section12.2.
12.4 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products or Services including all or any part of the Company Solution, Licensed Materials, Professional Services, and Documentation, without first obtaining any required license or other approval from the United States Department of Commerce or any other agency or department of the United States Government as necessary.
12.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.6 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 No Assignment. Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other Party. In such case, within in ten (10) business days of the change of control event, the Party that has experienced a change of control will provide written notice to the other Party. The terms of this Agreement will be binding on successors and permitted assigns.
12.8 Compliance With Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its license or purchase and use of the Services.
12.9 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, epidemic, shortage of materials, fire, earthquake, volcanic eruption, flood, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
12.10 Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
12.11 Notices. All notices required or permitted under this Agreement must be delivered in writingto the other Party. If to Company:
and if to Company, to the address listed on the cover page, or to such other address as either party may specify in writing. A notice will be deemed received if delivered by personal delivery, actual receipt or three (3) days after being deposited with a recognized overnight delivery or courier service, or actual receipt or five (5) days after being deposited with the United States Post Office by certified or registered mail, return receipt requested. On the same day that a party initiates a notice, it will also send a courtesy copy of the notice to the other party by email. Each Party will keep its contact information updated.
12.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. Counterparts may be electronically delivered by pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law.
12.13 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. Company may modify and amend this Agreement from time-to-time. No waiver of any rights under this Agreement or changes to the Agreement will be effective unless in writing and signed by an authorized signatory of the Company.