This License Agreement is a legal agreement between iSubscribed, Inc., dba Intrusta (“Licensor”) and you (either an individual or an entity) (“Licensee”) regarding a license from Licensor to use the Licensed Software CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE LICENSED SOFTWARE IN ANY MANNER, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT DO NOT INSTALL THE LICENSED SOFTWARE, PLEASE DESTROY OR DELETE ALL COPIES IN YOUR POSSESSION.
1.1 “Documentation” means the most current version of any documentation, in all forms, that formally describes the use, function, or technical details of the Licensed Software (e.g., reference manuals, user manuals, on-line help files, and training manuals) provided to Licensee for use with the Licensed Software in accordance with this Agreement.
1.2 “Error” means a failure of the Licensed Software to perform substantially in accordance with the applicable material technical and functional specifications set forth in the Documentation, which failure is reproducible by Licensoron an unmodified copy of the most current Release of the Licensed Software (excluding faults in the Documentation itself).
1.3 “Licensed Software” means the most current executable object code Release of the software applications identified in an Order Form.
1.4 “Order Form” means the web page on which the Licensee submits an order electronically and purchases the right to use the Licensed Software that is licensed to Licensee, the Scope Limitations applicable to the license of the Licensed Software, the Support Services to be provided, and the related fees to be paid by Licensee. An Order Form is not effective until Licensee has properly paid all amounts including any taxes by credit card.
1.5 “Release” means a Maintenance Release or a Major Release that is provided to Licensee as part of the Support Services in accordance with the Order Form.
(a) “Maintenance Release” means a version of the Licensed Software that incorporates Error corrections or provides minor functional or performance improvements. Maintenance Releases do not include Major Releases.
(b) “Major Release” means a version of the Licensed Software that provides substantial functional or performance improvementsLicensorwill determine in its sole discretion whether a modification to the Licensed Software is a Major Release or a Maintenance Release.
1.6 “Scope Limitations” means the limitations on the scope of the licenses granted to Licensee under this Agreement that are specified in the applicable Order Form.
1.7 “Support Services” means the support provided by Intrusta, as defined by Intrusta.
1.8 “Unauthorized Use” means any use, possession, knowledge, viewing, inspection, examination, copying, disclosure, or other activity involving any part of the Licensed Software that is not expressly authorized under the this Agreement or otherwise in writing by Licensor.
2.1 License to the Licensed Software. Subject to the terms and conditions of this Agreement, Licensorgrants to Licensee a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the term of this Agreement to: (a) reproduce, without modification, executable object code copies of the Licensed Software; (b) install copies of the Licensed Software on computer servers operated by or for Licensee; and (c) internally use installed copies of the Licensed Software as described in the Scope Limitations. Each of the rights granted in this Section2.1is subject to the Scope Limitations and contingent upon Licensee’s compliance with the Scope Limitations.
2.2 License to the Documentation. Subject to the terms and conditions of this Agreement, Licensorgrants to Licensee a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Licensed Software in accordance with this Agreement.
2.3 Reservation of Rights. The Licensed Software is licensed, not sold, by Licensor to Licensee, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Licensed Software. Licensee will not have any rights in or to the Licensed Software except as expressly granted in this Agreement. Licensor reserves to itself all rights to the Licensed Software not expressly granted to Licensee in accordance with this Agreement. Licensorretains all copyright, patent, and other intellectual property rights in and to the Licensed Software. Licensee acknowledges that the Licensed Software, all copies of the Licensed Software, any derivative works, compilations, and collective works of the Licensed Software, and any know-how and trade secrets related to the Licensed Software are the sole and exclusive property of Licensor and contain Licensor’s confidential and proprietary materials.
3. DEPLOYMENT AND SUPPORT SERVICES
3.1 Deployment Services. Licensee is solely responsible for the deployment of the Licensed Software for operation, including installation, configuration, integration, and testing, unless Licensee has contracted to haveLicensorperform such deployment services in accordance with the terms of Licensor’s Professional Services Agreement.
3.2 Support Services. For so long as Licensee is current with its payment of the Support Fees specified in an Order Form, Licensor will provide Licensee with Support Services during the term of this Agreement.
4. LICENSEE OBLIGATIONS
4.1 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Licensee will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Licensed Software; (b) rent, lease, or sublicense the Licensed Software; (c) use the Licensed Software on a service bureau or application service provider basis; (d) provide, divulge, disclose, or make available to, or permit the use of the Licensed Software by any third party; nor (e) circumvent or disable any technological features or measures in the Licensed Software.
4.2 Proprietary Rights Notices. Licensee will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Licensed Software. In addition, when reproducing any part of the Licensed Software in accordance with this Agreement, Licensee must include all copyright and other proprietary rights notices as are currently contained on each part of the Licensed Software.
4.3 Compliance with Laws. Licensee will maintain high standards of professionalism and will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Licensed Software, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Licensoror the Licensed Software. Licensee will regularly and continuously inform Licensor of any requirements of laws, statutes, ordinances, rules, and regulations of any and all governmental authorities that directly or indirectly affect Licensee’s use of the Licensed Software.
4.4 Government Restricted Rights. If the Licensed Software is licensed for use by the United States or for use in the performance of a United States government prime contract or subcontract, Licensee agrees that the Licensed Software is delivered as: (i) "commercial computer software" as defined in DFARS 252.227-7013, Rights in Technical Data - Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial ComputerSoftware Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (ii) as a "commercial item" as defined in FAR 2.101; or (iii) as "restricted computer software" as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Licensed Software by the Department of Defense shall be subject to the terms and conditions set forth in the accompanying license agreement as provided in DFARS 227.7202 (Oct 1998). All other use, duplication and disclosure of the Licensed Software and Documentation by the United States shall be subject to the terms and conditions set forth in the accompanying license agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data -- General Alternative III (Jun 1987). Contractor/licensor is iSubscribed, Inc., at 185 Dartmouth Street, 7thFloor, Boston, Massachusetts 02116.
4.5 Export. The Licensed Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re‑export, or import the Licensed Software.
4.6 No Warranties. Licensee will not make or publish any representations, warranties, or guarantees on behalf of Licensorconcerning the Licensed Software without Licensor’s specific prior written approval.
4.7 Protection against Unauthorized Use. Licensee acknowledges that the Licensed Software and Documentation furnished to Licensee by Licensorinvolve valuable proprietary rights of Licensor. Licensee will take appropriate steps and precautions for the protection of the Licensed Software. Without limiting the generality of the foregoing, Licensee will use its best efforts to prevent any Unauthorized Use and immediately notify Licensor in writing of any Unauthorized Use that comes to Licensee’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Licensed Software directly or indirectly through Licensee or any its sublicensee or any of their employees, agents, representatives, or contractors, Licensee will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Licensed Software in the possession or control of the person or entity engaging in such Unauthorized Use. Licensee will provide to Licensor such cooperation and assistance related to any such Unauthorized Use as Licensor may reasonably request.
4.8 Reference. Subject to Section 11regarding confidentiality, Licensee will: (a) make one or more representatives reasonably available for reference inquiries from potential Licensor licensees, partners, and investors; (b) permit Licensor to create and publish a case study describing in general terms the nature of Licensee’s use of the Licensed Software; (c) permit Licensor to issue and publish a press release containing a quotation from a representative of Licensee announcing that Licensee has licensed the Licensed Software and the general context of the intended use; and (d) allow the name and logo of Licensee to be posted on Licensor’s web site and in marketing and advertising materials subject to compliance with Licensee’s brand guidelines or other specifications regarding logo usage.
5. FEES AND PAYMENT
5.1 Fees and Payment Terms
(a) Licensee will pay Licensorthe License Fees, Support Fees, and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified when purchased.
5.2 Taxes. Other than federal and state net income taxes imposed on Licensorby the United States, Licensee will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. If a tax is imposed on Licensor by a jurisdiction outside the United States, Licensee will not be obligated to bear that tax if: (a) the tax is allowable as a credit against the United States federal income taxes of Licensor; (b) Licensee reduces such tax to the extent possible, giving effect to the applicable Income Tax Convention between the United States and other jurisdictions; and (c) Licensee furnishes Licensor with such evidence as the United States taxing authorities may require to claim the credit. Licensee will pay any additional taxes as are necessary to ensure that the net amounts received by Licensor after all such taxes are paid are equal to the amounts which Licensor would have been entitled to in accordance with this Agreement as if the taxes did not exist.
6. TERM AND TERMINATION
6.1 Term. This Agreement will commence upon the Effective Date specified in an Order Form until terminated in accordance with this Agreement.
6.2 Notice of Material Breach or Default. If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may give the defaulting party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, and the action required to cure the material breach or default) and of the non-defaulting party’s intention to terminate the Agreement pursuant to Section 6.3if the material breach or default is not cured within 30 days after the defaulting party’s receipt of such notice (or such later date as may be specified in such notice). Without limiting the foregoing, any failure by Licensee to timely pay to Licensorany amounts owing under this Agreement will constitute a material breach of this Agreement.
6.3 Notice of Termination. If the defaulting party fails to cure a material breach or default specified in any notice under Section 6.2within 30 days after receipt of such notice (or such later date as may be specified in such notice), then the non-defaulting party may terminate this Agreement by giving the defaulting party written notice of termination. If Licensee fails to timely pay any Support Fees, Licensormay, without limitation to any of its other rights or remedies, suspend performance of Support Services until it receives all amounts due.
6.4 Post-Termination Obligations. If this Agreement or any licenses in this Agreement are terminated for any reason, (a) Licensee will pay to Licensorany fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Licensee will destroy all copies of the Licensed Software within five days of such termination, and immediately thereafter, if requested by Licensor, provide Licensor with a written certification signed by an authorized Licensee representative certifying that all copies of such Licensed Software have been destroyed and all use of such Licensed Software has been discontinued.
7.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Performance Warranty
(a) Licensor warrants to Licensee that the Licensed Software will perform without Errors during the 30-day period following delivery of the Licensed Software to Licensee (“Warranty Period”).
(b) If any portion of the Licensed Software fails to conform to the warranty in Section 7.2(a), Licensee’s exclusive remedy, and Licensor’s entire liability in contract, tort, or otherwise, will be to use commercially reasonable efforts to provide a correction or workaround for any Error that is (a) reported to Licensor during the Warranty Period and (b) reproducible by Licensor on an unmodified copy of the most current Release of the Licensed Software. If after repeated efforts, Licensor is unable to provide a correction or workaround for a reported Error, then Licensee’s exclusive remedy, and Licensor’s entire liability in contract, tort, or otherwise, will be to refund to Licensee the license fees paid by Licensee for the Licensed Software upon Licensee’s return of the original and all copies of the Licensed Software in its possession, together with its certification that it has ceased all use, reproduction, and distribution of the Licensed Software.
(c) The warranty and remedies set forth in Sections 7.2(a)and 7.2(b)will not apply to the extent that a reported Error is caused in whole or in part by: (i) any defect in any portion of any hardware or equipment; (ii) any modification or enhancement made to the Licensed Software by anyone other Licensor; (iii) any software, hardware, firmware, peripheral, or communications device used in connection with the Licensed Software; (iv) the failure of Licensee to follow the most current instructions promulgated by Licensor with respect to the proper use of the Licensed Software; (v) the negligence of Licensee or any third party; or (vi) Unauthorized Use of the Licensed Software. If Licensor determines that any warranty claim reported by Licensee falls within any of the foregoing exceptions, Licensee will pay Licensor for its services at Licensor’s hourly rates then in effect.
7.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, LICENSOR MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR LICENSEE’S PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE LICENSED SOFTWARE OR AGAINST INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE LICENSED SOFTWAREIS ERROR-FREE OR THAT OPERATION OF THE LICENSED SOFTWAREWILL BE SECURE OR UNINTERRUPTED. LICENSOR EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE LICENSEE’S USE OF THE LICENSED SOFTWARE. LICENSOR DOES NOT WARRANT OR REPRESENT THAT THE LICENSED SOFTWARE SATISFIES THE REQUIREMENTS OF ANY LAW, RULE, OR REGULATION. LICENSEE WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF LICENSOR TO ANY SUBLICENSEE, OR OTHER THIRD PARTY.
8.1 Infringement Defense. Licensor will defend Licensee from any actual or threatened third party claim that the Licensed Software infringes or misappropriates any copyright or trade secret of any third party during the term of this Agreement if: (a) Licensee gives Licensor prompt written notice of the claim; (b) Licensor has full and complete control over the defense and settlement of the claim; (c) Licensee provides assistance in connection with the defense and settlement of the claim as Licensor may reasonably request; and (d) Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
8.2 Infringement Indemnification. Licensor will indemnify Licensee against: (a) all damages, costs, and attorneys’ fees finally awarded against Licensee in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Licensee in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Licensor’s consent after Licensor has accepted defense of such claim); and (c) if any proceeding arising under Section 8.1is settled, all amounts to any third party agreed to by Licensor in settlement of any such claims.
8.3 Mitigation of Infringement Action. If Licensee’s use of the Licensed Software is, or in Licensor’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 8.1, then Licensor will either: (a) procure the continuing right of Licensee to use the Licensed Software; (b) replace or modify the Licensed Software in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Licensor is unable to do either (a) or (b), Licensor will (c) terminate the licenses with respect to the Licensed Software subject to the infringement claim and refund to Licensee an amount equal to the depreciated License Fees paid by Licensee (calculated on a straight line basis over a three-year life).
8.4 Exclusions. Licensor will have no obligation under this Section 8for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of the Licensed Software if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Licensed Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Licensed Software outside of the scope of the license granted to the Licensee; (d) Licensee’s failure to use the latest Releaseof the Licensed Software or to comply with instructions provided by Licensor, if the alleged infringement would not have occurred but for such failure; (e) any modification of the Licensed Software not made by Licensor where such infringement would not have occurred absent such modification; or (f) Unauthorized Use of the Licensed Software. Licensee will reimburse Licensor for any costs or damages that result from these actions.
8.5 Exclusive Remedy. This Section 8states Licensor’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Licensed Software.
9. LICENSEE INDEMNIFICATION
9.1 Defense. Licensee will defend Licensor from any actual or threatened third party claim arising out of or based upon the Licensee’s or a third party’s use of the Licensed Software or the breach by Licensee of any of the provisions of this Agreement if:(a) Licensor gives Licensee prompt written notice of the claim; (b) Licensee has full and complete control over the defense and settlement of the claim; (c) Licensor provides assistance in connection with the defense and settlement of the claim as Licensee may reasonably request; and (d) Licensor complies with any settlement or court order made in connection with the claim.
9.2 Indemnification. Licensee will indemnify Licensor against: (a) all damages, costs, and attorneys’ fees finally awarded against Licensor in any proceeding under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Licensor in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Licensee’s consent after Licensee has accepted defense of such claim); and (c) if any proceeding arising under Section 9.1is settled, Licensee will pay any amounts to any third party agreed to by Licensee in settlement of any such claims.
9.3 Exclusions. Licensee will have no obligation under this Section 9to the extent that Licensor is obligated under Section 8.1to defend Licensee against such third party claim. Licensor will reimburse Licensee for any costs or damages that result from any such actions.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF LICENSOR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL LICENSOR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LICENSOR TO LICENSEE AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.1 Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party. “Confidential Information” will only include items covered by this definition and that are disclosed or embodied in materials delivered in tangible form (including diskette, CD, email, and other means of electronic delivery) and clearly marked as proprietary or confidential or, if disclosed orally, are summarized in writing, clearly marked as proprietary or confidential, and provided to the receiving party within 30 days following each such disclosure.
11.2 Restricted Use and Nondisclosure. During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 11; and (c) protect the other party’s Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
11.3 Required Disclosure. If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
11.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
11.5 Existing Obligations. The obligations in this Section 11are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.
12.1 Relationship. Licensor will be and act as an independent contractor (and not as the agent or representative of Licensee) in the performance of this Agreement. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting Licensor’s performance of any services for any third party or the provision of products to any third party. Licensee must not represent to anyone that Licensee is an agent of Licensor or is otherwise authorized to bind or commit Licensor in any way without Licensor’s prior authorization.
12.2 Assignability. Licensee may not assign its right, duties, or obligations under this Agreement without Licensor’s prior written consent. If consent is given, this Agreement will bind Licensee’s successors and assigns. Any attempt by Licensee to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
12.3 Subcontractors. Licensor may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Licensor remains responsible for all of its obligations under this Agreement.
12.4 Nonsolicitation. During the term of this Agreement and for a period of one year thereafter, Licensee will not, directly or indirectly, employ or solicit the employment or services of a Licensor employee or independent contractor without the prior written consent of Licensor.
12.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Order Form and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
12.6 Force Majeure. Licensor will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Licensor’s reasonable control, so long as Licensor uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
12.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Massachusetts, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Massachusetts, in connection with any action arising out of or in connection with this Agreement.
12.8 Commencing Legal Action. An action for breach of this Agreement or any other action otherwise arising out of this Agreement must be commenced within one year from the date the right, claim, demand, or cause of action first occurs or be barred forever.
12.9 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Licensee under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
12.11 Interpretation. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
12.12 Entire Agreement. This Agreement, including all exhibits and Order Forms, is the final and complete expression of the agreement between these parties regarding the licensing of the Licensed Software. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Licensed Software that Licensor may provide. No employee, agent, or other representative of Licensor has any authority to bind Licensor with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Licensor will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Licensee in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Licensor specifically agrees to such provision in writing and signed by an authorized agent of Licensor.