LAST
UPDATED: DECEMBER 20, 2023
LOGIC
DRIVER EVALUATION LICENSE
END
USER LICENSE AGREEMENT
This END USER LICENSE AGREEMENT
(the "Agreement") is made and entered into as of the date of
download of the Licensed Product (as hereinafter defined) (the “Effective
Date”), by and between Recursoft LLC, an Arizona limited liability company
(the "Licensor"), and the individual or company downloading
the Licensed Product (as hereinafter defined) (the "Licensee").
Licensee and Licensor may be referred to in this Agreement collectively as
"Parties" or individually as a "Party".
RECTIALS
A. Licensor holds all right, title and
interest in certain proprietary software and related documentation, the
Licensed Product (as hereinafter defined); and
B. Licensee wishes to license the Licensed
Product (as hereinafter defined), and Licensor wishes to grant such license to
Licensee pursuant to the terms and conditions set forth in the Agreement.
C. Licensee understands that downloading the
Licensed Product (as hereinafter defined) constitutes your electronic signature
on this agreement and your consent to execute this Agreement electronically.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and in further
consideration of the mutual promises set forth herein, Licensor and Licensee
agree as follows:
SECTION 1: DEFINITIONS
Whenever
used in this Agreement, the capitalized terms quoted below will have the
meaning ascribed to them in this Section.
1.01 "Agreement" means this End User
License Agreement.
1.02 "Confidential Information" has the
meaning set forth in Section 8 of this Agreement.
1.03 "Copy" or "Copies" means
the Licensed Product (including the components thereof), any Releases, Error
Correction, or Enhancement pertaining thereto, and any reproductions of the
Licensed Product or any Release, Error Correction, or Enhancement pertaining
thereto.
1.04 “Development Builds” has the meaning set
forth in Section 3 of this Agreement.
1.05 “Engine Updates” has the meaning set forth in
Section 3 of this Agreement.
1.06 "Enhancement" means a modification
of the Licensed Software by Licensor which provides (a) a capability not
defined in the Product Specifications or (b) an improvement in the efficiency
of the Licensed Software. Licensor may designate an Enhancement as
"Major" or "Minor" depending on (a) Licensor's commercially
reasonable assessment of the Enhancement's value and (b) whether the
Enhancement adds a functional extension to the preexisting Licensed Software.
An Enhancement may entail a modification to the Product Specifications and/or
the Source Code.
1.07 "Error" means a failure of the
Licensed Software to substantially conform to the Product Specifications for
supported engines. Provided, however, any nonconformity resulting from
Licensee's improper use of the Licensed Software, combining or merging the
Licensed Software with software not approved by Licensor for use with the
Licensed Software, or modification of the Licensed Software which has not been
performed by Licensor (other than a change or modification properly made by
Licensee pursuant to instructions contained in the Source Code for the Licensed
Software) shall not be considered an Error.
1.08 "Error Correction" means a
modification of the Licensed Software by Licensor, as it relates to supported
engines, which corrects Errors discovered in the Licensed Software and enables
the Licensed Software to conform to the Product Specifications.
1.09 “Evaluation License” has the meaning set
forth in Section 2 of this Agreement.
1.10 "Intellectual Property Rights"
means all proprietary information, patents, patent applications, trademarks,
trade names, service marks, certification marks, collective marks, designs,
processes, inventions, licenses, copyrights, know-how and trade secrets of
either Party, including, but not limited to, such rights relating to the
origin, design, manufacture, programming, operations, function, configuration,
or service of the Licensed Product.
1.11 "Licensed Documentation" means all
technical, repair, marketing and user documentation for the License Software
and any succeeding changes thereto, including, without limitation, all
specifications as set forth in Licensor's product manuals; installation,
maintenance, operating and customer manuals, instructions and diagnostics;
system administrative materials; patch notes; configuration guides; marketing
and sales brochures and literature; and product guides.
1.12 "Licensed Product" means
collectively the Licensed Software and Licensed Documentation.
1.13 "Licensed Software" means Logic Driver, an
Unreal Engine plugin, all Error Corrections,
Enhancements, and Releases thereof supplied by Licensor during the term of this
Agreement, and all permitted copies of the foregoing.
1.14 “Major Enhancement” means a version of the
Licensed Software which contains new features or substantially improved
functions from those contained in the Original.
1.15 "Operators" means the employees, or
agents under the control and direction, of Licensee, who are permitted access
to or use of the Licensed Product.
1.16 "Original" means the first edition
of the Licensed Product delivered by Licensor to Licensee pursuant to this
Agreement.
1.17 "Product Specifications" means the
performance functions of the Licensed Software, as specifically set forth in
the Licensed Documentation.
1.18 "Release" or "Releases"
means the edition(s) of the Licensed Software subsequent to the Original
Licensed Product. A Release may include Licensed Documentation provided by
Licensor for Error Correction or Enhancement.
1.19 "Source Code" means the plain text
readable computer programming code, associated procedural code, and supporting
documentation for the Original Licensed Software and any Releases, Error
Corrections, or Enhancements pertaining thereto.
SECTION 2: LICENSE
2.01 Grant of
License, Evaluation
Purposes
(a)
The license grant under this section 2.01 is issued solely for the
purpose of evaluation of the Licensed Product (an “Evaluation License”).
(b)
Licensor grants to Licensee and Licensee accepts a nonexclusive
and nontransferable license to use, perform, and modify the Licensed Product solely
for experimental, testing, and/or evaluation purposes.
(c)
The Licensed Software, under an Evaluation License, cannot be used
in any way that would qualify as commercial use.
(d)
If Licensee wishes to use the Licensed Software for commercial
purposes, Licensee must purchase a commercial license prior to taking any
action that would qualify as a commercial use of Licensed Software.
(e)
Licensor shall have no support obligations of any type, to a
Licensee who has been granted an Evaluation License, including no obligation to
fix Errors/bugs.
(f)
On a concurrent basis an unlimited number
of Operators can use the Licensed Software at any one time and in the manner
described in this Agreement during the term of this Agreement.
(g)
Licensee may not:
(i)
engage
in any activity that violates any applicable law or regulation;
(ii)
rent or sublicense the Licensed Product; or
(iii)
permit use of the Licensed Product by a person who is not an
Operator;
(iv)
make commercial use of any project
developed using an Evaluation License;
(h)
Licensor reserves all ownership and other rights in the Licensed
Product and, except for the rights granted in this Agreement, does not convey
any other interest in the Licensed Product to Licensee.
2.02 Ownership
Licensor retains title to
the Licensed Software (both as recorded on the original media and on any
subsequent media), the Licensed Documentation, and any Copies thereof in any
form. This Agreement is a license to use, and not a contract of sale for, the
Licensed Product. All Intellectual Property Rights in and to the Licensed
Product are retained by Licensor. Licensee shall not use either the name of
Licensor or the name of the Licensed Product licensed under this Agreement for
any commercial purpose or in any advertising, promotional or public statement
without the prior, written consent of Licensor.
2.03 Non-Compatible
Licenses
Licensee may not combine,
distribute, or otherwise use the Licensed Software with any code or other
content which is covered by a license that would directly or indirectly require
that all or part of the Licensed Software be governed under any terms other
than those of this Agreement (the “Non-Compatible License”).
SECTION 3: SUPPORT; MAINTENANCE
3.01 Technical Support
During the term of this Agreement, Licensor does not have any
support obligations with respect to the Licensed Product used under an Evaluation
License.
While Licensor has no obligations under this Agreement to provide
support services to Licensee of an Evaluation License, Licensor may, in its
sole discretion, agree to provide such services to Licensee. In the event that
Licensor opts to provide support services to Licensee, such services will be
provided at rate or fee mutually agreed to by the Parties.
3.02 Software Maintenance
(a) Error
Correction and Enhancement Releases
(i)
During the term of this Agreement, Licensor does not have any obligation
to provide Error Correction Releases, Minor Enhancement Releases, or Major
Enhancement Releases, for the Licensed Software.
(ii)
Any Error Correction and Enhancement
Releases provided are the property of Licensor. Error Correction and
Enhancement Releases are licensed to Licensee subject to the terms and
conditions of this Agreement and, upon release, become a part of the Licensed
Software and the Licensed Product, as the case may be.
(iii)
Licensee shall be responsible for the
installation of all Error Correction or Enhancement Releases.
(i)
Licensee
acknowledges that Licensor has no control over changes made by Epic Games to
Unreal Engine (the “Engine Updates”).
(ii)
Licensee
acknowledges that Engine Updates may render all or specific features of the
Licensed Software incompatible with Unreal Engine.
3.03 Licensed Software Installation
Licensee acknowledges that
Licensee is solely responsible for the following:
(a)
installation of the Licensed Software;
(b)
ensuring the correct version of the Licensed Software is
distributed to their employees that will be working with the Licensed Software.
(c)
Using source control and creating backups for all work related to
the Licensed Software. Licensee agrees that Licensor shall not be liable for
any data loss related to the Licensed Software, even if the data loss is caused
by an Error.
3.04 Development Builds
Licensee acknowledges that
Licensor has no support obligations for development builds of the Licensed
Software (the “Development Builds”).
Licensee acknowledges that use of Development Builds may be higher risk
than using official releases of the Licensed Software and that Licensor shall
not be liable for any data loss or other issues caused by Licensee’s use of
Development Builds.
SECTION 4: REPRESENTATIONS
AND WARRANTIES
4.01 Representations and Warranties of Licensor
Licensor hereby represents and warrants
to Licensee that (i) Licensor has the power and authority to enter into and
perform the obligations according to the terms of this Agreement and to grant
all rights contemplated by this Agreement; (ii) Licensor has no restrictions
that would impair its ability to perform its obligations under the Agreement
and has not and will not enter into any agreement that would prevent it from
performing or would violate any of obligations hereunder; (iii) Licensor is the
author and creator of the Licensed Product or has obtained and currently holds
valid and sufficient rights, including the rights under all patents,
trademarks, trade names, inventions, copyrights, know-how, trade secrets, and
other third party proprietary rights, to license the rights granted to Licensee
herein; (iv) the Licensed Product does not and shall not infringe upon,
violate, or constitute misappropriation of any copyright, trademark, trade
secret, right of publicity, right of privacy, moral rights, or any other
proprietary rights of any third party, and no third party patent rights,
trademark rights, or other intellectual property rights that would be infringed
by any act contemplated by this Agreement; (v) no claims, allegations, or
notifications from any third party, or any entity from which Licensor has
obtained rights, have been made that the Licensed Product violates or infringes
any copyright, trade secret, patent, trademark, or any other intellectual
property right of any third party; (vi) the Licensed Product and the
distribution thereof shall comply with all applicable federal, state, and local
laws and regulations; (vii) the Licensed Software does not contain any viruses
or other computer programming routines or defects that are intended to damage,
detrimentally interfere with or expropriate any system, data, or information; (viii)
the Licensed Product shall be free and clear of all liens, encumbrances, and
claims or demands of third parties and in all material respects, free from
defects, errors, and malfunctions; (ix) the Licensed Software and the delivery
thereof will be free from any error(s) or defect(s) relating to date data
(including leap year calculations), will not generate any invalid and/or
incorrect date-related and will not impair the performance, output or accuracy
of Licensee's service or products, and (x) Licensor has the facilities,
experience and expertise necessary to perform all of the services provided for
in this Agreement, and shall perform the services in accordance with the
highest professional and industry standards and this Agreement, in timely manner
using qualified personnel.
4.02
Representation
and Warranties of Licensee. Suitability of Licensed Product
Licensee hereby represents and warrants
to Licensor that (i) Licensee has the full right and power to enter into and
perform the obligations according to the terms of this Agreement; and (ii)
Licensee currently has no restrictions that would impair its ability to perform
its obligations under the agreement.
Licensee shall notify Licensor of any
material defect Licensee believes exists in the Licensed Product, and Licensee
shall provide to Licensor all information known or reasonably available to
Licensee regarding the alleged defect.
With respect to all computer programs
and data and hardware not provided by Licensor and to be used or reproduced
during Licensee's use of the Licensed Software, Licensee represents that it has
all necessary rights to use or reproduce the computer programs and that no use
of the Licensed Software in connection therewith shall be made that causes an
infringement of the right of any third party.
SECTION 5: WARRANTY
5.01 Limited Warranty
(a)
EXCEPT AS SET OUT IN THIS AGREEMENT, LICENSOR MAKES NO OTHER
WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED SOFTWARE OR ITS
PERFORMANCE OR WITH RESPECT TO THE LICENSED DOCUMENTATION. ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
(b) Licensor will not have any warranty
obligations with respect to any problems resulting from: (a) improper
installation of the Licensed Software by Licensee or installation by Licensee
of the Licensed Software on improper hardware; (b) modification of the Licensed
Software not undertaken or performed by Licensor; (c) malfunctions in any
computer hardware or software or systems files not provided by Licensor; (d)
accident of Licensee; (e) neglect of Licensee; (f) modifications of Unreal
Engine by Licensee; or (g) misuse of the Licensed Software by Licensee.
5.02 Exclusion of Alternative Remedies; Damages
UNDER NO CIRCUMSTANCES AND
UNDER NO LEGAL THEORY SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY
OTHER PERSON FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE,
COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL
DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE LICENSED
SOFTWARE (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN). IN NO EVENT WILL LICENSOR
BE LIABLE FOR ANY DAMAGES EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR
LICENSOR WAS GROSSLY NEGLIGENT. IN NO EVENT SHALL LICENSOR'S LIABILITY EXCEED
THE LICENSE FEES PAID BY LICENSOR FOR THE LICENSED PRODUCT.
SECTION 6: INDEMNITY
6.01 Mutual Indemnification
Each Party
(the “Indemnifying Party”) will indemnify, defend, and hold the other party,
its respective shareholders, officers, directors, administrators, managers,
personnel, successors and assigns (each, an "Indemnified Party")
harmless from and against any and all damages (whether ordinary, direct,
indirect, incidental, special, consequential, or exemplary), judgments,
liabilities, fines, penalties, losses, claims, actions, demands, lawsuits,
costs, and expenses including, without limitation, reasonable attorneys' fees,
that arise out of or relate to (a) the negligence, willful misconduct or fraud
of the Indemnifying Party; (b) the breach of the Indemnifying Party’s
confidentiality obligations; (c) the breach of the Indemnifying Party’s
representations or warranty obligations under this Agreement; (d) the failure
by the Indemnifying Party to comply with applicable laws, rules and
regulations; and (e) any payments, compensation, damages, or other amounts,
however characterized or determined, to a third party which the Indemnified
Party has reimbursed or may be obligated to pay as a result of any of the
foregoing or any other breach of this Agreement by the Indemnifying Party. The
Indemnifying Party’s liability under this Section shall be reduced
proportionally to the extent that any act or omission of the other party, or
its employees or agents contributed to such liability. For purposes of this
Section, the acts or omissions of a Party’s employees, consultants,
subcontractors, agents and representatives shall be deemed the acts or
omissions of that Party.
6.02 Indemnity of Right of Use
Licensor shall defend or settle, at its
own expense, any claim made against Licensee that the Licensed Product, in
whole or in part, infringes any United States patent, published patent
application, copyright, trade secret, or other proprietary right, and Licensor
shall indemnify and hold harmless Licensee against any final judgment,
including an award of attorneys' fees, that may be awarded by a court against
Licensee as a result of the foregoing; provided, however, Licensee shall (a)
give Licensor notice of such claim within thirty (30) days of the date Licensee
first knows or should know of the claim and (b) provide Licensor with
reasonable cooperation and all information in Licensee's possession related to
said claim. Licensor shall have sole control of the defense of such claims and
all related settlement negotiations. Reasonable out of pocket expenses incurred
by Licensee in providing assistance to Licensor in defense of such a claim
shall be reimbursed by Licensor.
6.03
Remedy
for Claimed Infringement
If a claim is made that the Licensed
Product, or any portion thereof, infringes any United States patent, copyright,
trade secret, or other proprietary right, Licensor shall terminate this
Agreement; provided, however, that the liability of Licensor pursuant to this
clause shall be subject to the limitations set forth in this Agreement, and
Licensor shall have no liability for any claim of infringement based on use of
a superseded or altered Release of the Licensed Product if the infringement
would have been avoided by the use of the most current, unaltered Release of
the Licensed Product.
6.04
Limitation
of Licensor’s Infringement Indemnity
Licensor shall have no liability to
Licensee or any assignee, transferee, or sublicensee of Licensee for any claim
of infringement that is based upon (i) any combination of the Licensed Software
with software not supplied by or authorized by Licensor if such claim would
have been avoided but for such combination, or (ii) any modifications to the
Licensed Software (other than Releases provided by Licensor or otherwise
approved by Licensor).
If any claim is made by a third party in
respect to which indemnity may be sought by Licensee pursuant to the provisions
of this Section 6, Licensee shall promptly notify Licensor in writing,
specifying the nature of the third-party actions and the total monetary amount
or other relief sought therein. Licensee shall reasonably cooperate with
Licensor at Licensor's expense in such action. Licensor shall undertake to
conduct all the proceedings and negotiations in connection therewith, assuming
full responsibility for the defense, and shall also undertake all other
required steps or proceedings to settle or defend any such action, including
the employment of counsel which shall be reasonably satisfactory to Licensee,
and the payment of all expenses. Licensee shall have the right to employ its
own expense separate counsel and participate in the defense. Licensor shall
obtain Licensee's prior written consent to any settlement of an indemnified
claim, and such consent shall not be unreasonably withheld.
SECTION 7: TERM AND TERMINATION
7.01 Term
This license will expire
ninety (90) days from the Effective Date, unless terminated earlier in
accordance with the terms of this Agreement.
7.02 Termination
Either Party may terminate
this Agreement and the license granted to Licensee herein at any time for any
reason, with or without notice.
Upon termination or expiration of this
Agreement for any reason: (a) all licenses granted herein shall terminate, (b) Licensee
must cease all use of the Licensed Product, and (c) the Licensee will certify
the destruction of all copies, full or partial, and all other materials
provided by Licensor, including the Licensed Product and any copies thereof.
The provisions of this Agreement which
by their sense and context should survive any termination or expiration of this
Agreement, shall survive termination of this Agreement and shall remain binding
on the Parties.
SECTION 8: CONFIDENTIALITY
8.01 Confidential Information Defined
As used in this Agreement, the term “Confidential
Information” means all information, including, but not limited to, the
trade secrets and know-how of the respective Parties, any information marked
"Confidential" or "Proprietary", and in the case of
Licensor, the Licensed Product; provided, however, Confidential Information
shall not mean any information that:
(a) is known to the receiving Party at the time
of disclosure by the disclosing Party;
(b) is developed independently by the receiving
Party without use of the disclosing Party’s Confidential Information;
(c) is within, or later falls within, the
public domain without breach of this Agreement by the receiving Party;
(d) is publicly disclosed with written approval of the disclosing
Party; or
(e) becomes lawfully known or available to the
receiving Party without restriction from a source having the lawful right to
disclose the information without breach of this Agreement by the receiving
Party.
The receiving Party shall
have the burden of proof as to establishing by competent evidence any of the
exceptions set forth in Section (i) to (v) above.
8.02 Legally
Compelled
In the event the receiving
Party is legally requested or compelled in any form to disclose any of the
disclosing Party’s Confidential Information, the receiving Party, unless
prohibited by applicable law, shall provide the disclosing Party with prompt written
notice of such request, so that the disclosing Party may seek a protective
order or pursue other appropriate remedies to protect the confidentiality of
its information. If such protective order or other remedy is not obtained, the
receiving Party will furnish only that portion of the Confidential Information
which the receiving Party, upon the opinion of its counsel, is legally required
to furnish. The receiving Party will reasonably assist the disclosing Party in
its efforts to obtain a protective order or other remedies to protect or limit
the disclosure of the information subject to the request.
8.03 Strictest Confidence
Each Party acknowledges that
in the performance of this Agreement a Party may receive Confidential
Information from a disclosing Party and that, as between the Parties, such Confidential
Information is the exclusive property of the disclosing Party. The receiving
Party agrees to hold the Confidential Information of the disclosing party in
strict confidence in accordance with the provisions of this Agreement. A
receiving Party: (a) shall not permit its employees or agents to remove any
proprietary or other legends or restrictive notices contained or included in
any Confidential Information provided by the disclosing Party; (b) shall not
permit its employees or agents to copy or modify any Confidential Information
except as specifically authorized in this Agreement; (c) shall not disclose any
Confidential Information to a third party without the prior written consent of
the disclosing Party; (d) shall only use the disclosing Party’s Confidential
information for purposes of performing its obligations under this Agreement,
and shall not otherwise use the information for its own benefit or for the
benefit of any third party; and (e) agrees to keep secure and maintain the
Confidential Information of the disclosing Party in a manner no less protective
than that used to maintain the confidentiality of the receiving Party's own
Confidential Information.
A receiving Party may disclose
Confidential Information to its employees or agents under the control and
direction of the receiving Party only in the normal course of business and on a
need-to-know basis within the scope and purpose of this Agreement. Provided,
however, prior to any disclosure all such agents shall have entered into
written agreements with the receiving Party requiring such agents to treat and
use all such Confidential Information in a manner consistent with the terms and
conditions of this Agreement. Except as expressly set forth herein, no licenses
under any patent, copyright or other intellectual property rights of either
Party are granted.
8.05
Return
of Confidential Information
Upon any termination, cancellation, or
rescission of this Agreement, a receiving Party shall: (i) surrender and deliver
all Confidential Information of the other Party, including all copies thereof;
or (ii) destroy the Confidential Information and all copies thereof and provide
satisfactory evidence of such destruction to the disclosing Party within one
(1) month following termination.
SECTION 9: GENERAL
Each Party acknowledges and agrees that
the failure to perform its duties under this Agreement may cause the other
Party to suffer irreparable injury for which the injured Party may not have an adequate
remedy available at law. Accordingly, the injured Party may seek to obtain
injunctive or other equitable relief to prevent or curtail any breach of this
Agreement, whether such breach is threatened or actual, without posting a bond
or security, in addition to and without prejudice to such other rights and
remedies that may be available under this Agreement or under any applicable
law. Notwithstanding any other term or provision in this Agreement, either
Party may seek injunctive relief in any court of competent jurisdiction.
9.02
Relationship
of the Parties
Nothing herein shall be deemed to
establish a partnership, joint venture, or agency relationship between the
Parties. Neither Party shall have the right to obligate or bind the other Party
in any manner to any third party.
Neither Party shall, directly or
indirectly, by operation of law or otherwise, transfer or assign the Licensed
Product or this Agreement, or transfer, assign or sublicense any rights granted
hereunder, with the exception of an assignment carried
out as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of a Party’s
assets, without having secured the prior written consent of the other
Party, which consent shall not be unreasonably withheld or delayed. Any
attempted assignment in violation of this clause shall be void.
All notices required under or regarding
this Agreement will be in writing and will be considered given if delivered
personally, mailed via registered or certified mail (return receipt requested
and postage prepaid), given by facsimile (confirmed by certification of
receipt), by e-mail if sent from the below mentioned email addresses, or sent
by courier (confirmed by receipt) addressed to the following designated
parties:
If to Licensor: support@recursoft.com
If to Licensee: The email provided by Licensee when downloading the Licensed
Software.
Each Party to this Agreement
acknowledges its obligations to control access to Technical Data (as defined by
the U.S. Department of Commerce, Office of Export Administration) under the
U.S. Export Control Laws and Regulations and agrees to adhere to such U.S.
Export Control Laws and Regulations with regard to any Technical Data received
under this Agreement.
Each Party shall comply with all
applicable state, federal and local laws, executive orders and regulations in
the performance of its obligations under this Agreement.
The headings and captions appearing in
this Agreement have been inserted for the purposes of convenience and ready
reference only and do not purport to and shall not be deemed to define, limit
or extend the scope or intent of the provisions to which they appertain.
Where the context so admits, words and
expressions appearing in the singular in this Agreement may be interpreted in
the plural, and vice versa.
This Agreement constitutes
the entire agreement between the Parties and supersedes all prior agreements
and understandings between them, whether written or oral, between them relating
to the subject matter of this Agreement.
9.10
Modification
or Amendment
No modification to, amendment of, or
other change in this Agreement shall be binding on either Party unless it is in
writing and signed by authorized representatives of both Parties.
No waiver of any provision of this
Agreement shall be effective unless made in writing and signed by the waiving
Party, nor shall any such waiver, if made, constitute a waiver of any
subsequent breach of the same or of any other provision of this Agreement.
Neither Party shall be liable hereunder
for any failure or delay in the performance of its obligations under this
Agreement, except for the payment of money, if such failure or delay is on
account of causes beyond its control, including labor disputes, civil
commotion, war, fires, floods, inclement weather, governmental regulations or
controls, casualty, government authority, pandemics, strikes, or acts of God,
in which event the non-performing Party shall be excused from its obligations
for the period of the delay and for a reasonable time thereafter. Each Party
shall use reasonable efforts to notify the other Party of the occurrence of
such an event within three (3) business days.
If either Party institutes an action to
enforce this Agreement or any of its terms, the prevailing Party shall also be
entitled to recover all of its costs, expenses and reasonable attorneys' fees.
This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original, and all
such counterparts shall constitute but one instrument.
Each Party hereto represents and
warrants that (i) it has obtained all necessary approvals, consents and
authorizations of third parties and governmental authorities, if applicable, to
enter into this Agreement and to perform and carry out its obligations under
this Agreement, (ii) the persons executing this Agreement on its behalf have
express authority to do so, and, in so doing, to bind the Party thereto; (iii)
the execution, delivery, and performance of this Agreement does not violate any
provision of any bylaw, charter, regulation, or any other governing authority
of the Party; and (iv) the execution, delivery and performance of this
Agreement has been duly authorized by all necessary partnership or corporate
action and this Agreement is a valid and binding obligation of such Party,
enforceable in accordance with its terms.
Should any claim or controversy arise
between the Parties under the terms of this Agreement or in furtherance of this
Agreement, such claim or controversy shall be resolved only in the state or
federal courts of Arizona, and said state and federal courts for the State of Arizona, shall be the only appropriate jurisdiction and venue
therefore. Licensee hereby submits to said jurisdiction and venue.
This Agreement shall be construed in
accordance with and governed by the substantive laws of the State of Arizona. The Parties hereby agree that the United Nations
Convention on Contracts for the International Sale of Goods will not apply to
this Agreement.
Licensee agrees not to bring or participate in a
class or representative action, private attorney general action, or collective
arbitration related to the Licensed Software or this Agreement. Licensee also
agrees not to seek to combine any action or arbitration related to the Licensed
Software or this Agreement with any other action or arbitration without the
consent of all Parties to this Agreement and all other actions or arbitrations.
If any provision of this Agreement is
held invalid or unenforceable under any applicable law, such invalidity or
unenforceability will not affect any other provision of this Agreement that can
be given effect without the invalid or unenforceable provision, and this
Agreement shall be construed as if said invalid or unenforceable provision had
not been contained herein.
This Agreement is the result of
negotiation between the Parties and, accordingly, shall not be construed more
strongly for or against either Party regardless of which Party was more
responsible for the preparation of this Agreement or any portion thereof.
The rights and remedies of Licensor and
Licensee under this Agreement shall be cumulative and in addition to all other
rights and remedies available at law and in equity.
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