Effective Date: January 1, 2021
This Terms of Use Agreement (“Agreement”)
constitutes a legally binding agreement made between the party identified as
the “Customer” on the Sales Agreement, whether personally or on behalf of an entity
(“Customer” “you” or “your”), and PanelVue, LLC (the “Provider”).
This Agreement governs your use of our services through our our
Panel Vue Builder mobile application (the “App”), and our website,
www.panelvue.com (the “Site,” and collectively with the App the “Services”),
provided by the Company. Your use of the Services is conditioned on your
acceptance without modification of the following terms, conditions, and notices
contained in this Agreement. From time to time herein, Customer and Provider may
be referred to individually as a “Party” or collectively as the “Parties.”
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS
CAREFULLY BEFORE USING THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND
CONDITIONS, DO NOT USE THE SERVICES.
(b)
“Authorized User” means Customer's
employees, consultants, contractors, and agents (i) who are
authorized by Customer to access and use the Services under the rights granted
to Customer pursuant to this Agreement and (ii) for whom access to the Services
has been purchased hereunder.
(e)
“Provider IP”
means the Services, the Documentation, and any and all intellectual property provided to Customer or any
Authorized User in connection with the foregoing. For the avoidance of doubt,
Provider IP includes Aggregated Statistics and any information, data, or other
content derived from Provider's monitoring of Customer's access to or use of
the Services, but does not include Customer Data.
(f)
“Sales Agreement” means the agreement entered into by Provider and Customer for the Services set
forth herein.
(g)
“Services” means the Panel Vue and Panel Vue Builder mobile
applications and the information and features found on www.panelvue.com, as further described in the Sales Agreement.
(h)
“Third-Party Products” means any products
that are not owned or controlled by Provider but may be offered for Customer’s use through the
Services.
(a)
Provision of
Access. Subject to and conditioned on Customer's payment of Fees and
compliance with the terms and conditions of this Agreement, Provider hereby
grants Customer a non-exclusive, non-transferable (except in compliance with
Section 12(g)) right to access
and use the Services during the Term, solely for use by Authorized Users in
accordance with the terms and conditions herein. Such use is limited to
Customer's internal use. Provider shall provide to Customer the necessary
passwords and network links or connections to allow Customer to access the
Services. The total number of Authorized Users will not exceed the number set
forth in the Sales Agreement,
except as expressly agreed to in writing by the Parties and subject to any
appropriate adjustment of the Fees payable hereunder.
(b)
Documentation
License. Subject to the terms and conditions contained in
this Agreement, Provider hereby grants to Customer a non-exclusive,
non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use
the Documentation during the Term solely for Customer's internal business
purposes in connection with its use of the Services.
(c)
Use
Restrictions. Customer shall not use the Services for any purposes
beyond the scope of the access granted in this Agreement. Customer shall not at
any time, directly or indirectly, and shall not permit any Authorized Users to:
(i) copy, modify, or create derivative works of the
Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell,
license, sublicense, assign, distribute, publish, transfer, or otherwise make
available the Services or Documentation; (iii) reverse engineer, disassemble,
decompile, decode, adapt, or otherwise attempt to derive or gain access to any
software component of the Services, in whole or in part; (iv) remove any
proprietary notices from the Services or Documentation; or (v) use the Services
or Documentation in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any intellectual property right or other
right of any person, or that violates any applicable law.
(d)
Reservation of
Rights. Provider reserves all rights not expressly granted to Customer in
this Agreement. Except for the limited rights and licenses expressly granted
under this Agreement, nothing in this Agreement grants, by implication, waiver,
estoppel, or otherwise, to Customer or any third party any intellectual
property rights or other right, title, or interest in or to the Provider IP.
(e)
Suspension. Notwithstanding
anything to the contrary in this Agreement, Provider may temporarily suspend
Customer's and any Authorized User's access to any portion or all of the
Services if: (i) Provider reasonably determines that
(A) there is a threat or attack on any of the Provider IP; (B) Customer's or
any Authorized User's use of the Provider IP disrupts or poses a security risk
to the Provider IP or to any other customer or vendor of Provider; (C)
Customer, or any Authorized User, is using the Provider IP for fraudulent or
illegal activities; (D) subject to applicable law, Customer has ceased to
continue its business in the ordinary course, made an assignment for the
benefit of creditors or similar disposition of its assets, or become the
subject of any bankruptcy, reorganization, liquidation, dissolution, or similar
proceeding; or (E) Provider's provision of the Services to Customer or any Authorized
User is prohibited by applicable law; (ii) any vendor of Provider has suspended
or terminated Provider's access to or use of any third-party services or
products required to enable Customer to access the Services; or (iii) in
accordance with Section 5(a)(iii) (any such
suspension described in subclause (i), (ii), or
(iii), a “Service Suspension”).
Provider shall use commercially reasonable efforts to provide written notice of
any Service Suspension to Customer and to provide updates regarding resumption
of access to the Services following any Service Suspension. Provider shall use
commercially reasonable efforts to resume providing access to the Services as soon
as reasonably possible after the event giving rise to the Service Suspension is
cured. Provider will have no liability for any damage, liabilities, losses
(including any loss of data or profits), or any other consequences that
Customer or any Authorized User may incur as a result of
a Service Suspension.
(f)
Aggregated Statistics. Notwithstanding
anything to the contrary in this Agreement, Provider may monitor Customer's use
of the Services and collect and compile Aggregated Statistics. As between
Provider and Customer, all right, title, and interest in Aggregated Statistics,
and all intellectual property rights therein, belong to and are retained solely
by Provider. Customer acknowledges that Provider may compile Aggregated
Statistics based on Customer Data input into the Services. Customer agrees that
Provider may (i) make Aggregated Statistics publicly available in
compliance with applicable law, and (ii) use Aggregated Statistics to the
extent and in the manner permitted under applicable law;
provided that such Aggregated Statistics do not identify Customer or Customer's
Confidential Information.
(a)
General. Customer is
responsible and liable for all uses of the Services and Documentation resulting
from access provided by Customer, directly or indirectly, whether such access
or use is permitted by or in violation of this Agreement. Without limiting the
generality of the foregoing, Customer is responsible for all acts and omissions
of Authorized Users, and any act or omission by an Authorized User that would
constitute a breach of this Agreement if taken by Customer will be deemed a
breach of this Agreement by Customer. Customer shall use reasonable efforts to
make all Authorized Users aware of this Agreement's provisions as applicable to
such Authorized User's use of the Services, and shall
cause Authorized Users to comply with such provisions. Customer acknowledges and agrees that Provider
is not responsible for Customer Data, including its accuracy, completeness,
timeliness, validity, copyright compliance, legality, decency, quality, or any
other aspect thereof. Provider does not assume and will not have any liability
or responsibility to Customer, any Authorized User or any other person or
entity for any Customer Data. Customer Data, including any panel diagrams,
information, drawings, facts, opinions, or advice, is/are provided solely as a convenience
to Customer and its Authorized Users, and any access and use is entirely at
Customer’s own risk. Customer
acknowledges and understands that the Services are not a substitute for the
judgment of a building manager, building engineer, electrician or other knowledgable professional.
Provider disclaims any and all liability (in
accordance with Sections 8 and 10 below) related to any Customer Data or other
information, facts, opinions or advice provided by Customer, any Authorized
User or any third party while using the Services.
(b)
Third-Party
Products. Provider may from time to time make Third-Party
Products available to Customer through or in connection with the Services. For
purposes of this Agreement, such Third-Party Products are subject to their own
terms and conditions. If Customer does not agree to abide by the applicable
terms for any such Third-Party Products, then Customer should not install or
use such Third-Party Products.
4.
Service Levels and Modification.
(a)
Service Levels. Subject to the
terms and conditions of this Agreement, Provider shall use commercially
reasonable efforts to make the Services available in accordance with the
service levels set out in the Sales Agreement.
(b)
Modification
or Suspension of Services. Provider may
suspend or discontinue any part of the Services, or it may introduce new
features or impose limits on certain features or restrict access to parts or all of the Services. Provider will provide Customer with
reasonable notice of any change of any modification nor scheduled suspension of
Services and, in the event of any modification or scheduled Suspension of
Services, Customer shall have the opportunity to terminate this Agreement.
Continued use of the Services following such notice constitutes Customer’s
agreement to such modified Fees.
(a)
Fees. Customer shall
pay Provider the fees (“Fees”) as
set forth in the Sales Agreement without
offset or deduction. Customer shall make all payments hereunder in US dollars as
set forth in Sales Agreement. Some parts of the Service are billed on a
subscription basis (each, a “Billing Cycle”). At the end of each Billing
Cycle, the subscription will automatically renew under the exact same
conditions unless otherwise terminated in accordance with this Agreement. A
valid payment method, including credit card, is required to process the payment
for the Fees. Customer shall provide Provider with accurate and complete
billing information including full name, address, state, zip code, telephone
number, and a valid payment method information. By submitting such payment
information, Customer automatically authorizes Provider to charge all Fees
incurred to such payment method. Should automatic billing fail to occur for any
reason, Provider will issue an electronic invoice indicating for manual payment
with payment terms set forth on such invoice. If Customer fails to make any
payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at
the rate of 1.0% per month calculated daily and compounded monthly or, if
lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse
Provider for all reasonable costs incurred by Provider in collecting any late
payments or interest, including attorneys' fees, court costs, and collection
agency fees; and (iii) if such failure continues for fifteen (15) days or more,
Provider may, at Provider’s sole option, (A) suspend Customer's and its
Authorized Users' access to any portion or all of the Services until such
amounts are paid in full; or (B) terminate this Agreemant
and the Sales Agreement.
(b)
Taxes. All Fees and
other amounts payable by Customer under this Agreement are exclusive of taxes
and similar assessments. Customer is responsible for all sales, use, and excise
taxes, and any other similar taxes, duties, and charges of any kind imposed by
any federal, state, or local governmental or regulatory authority on any
amounts payable by Customer hereunder, other than any taxes imposed on
Provider's income.
(c)
Fee
Adjustments. Provider, in its sole discretion and at any
time from time to time, may modify the Fees for the Service. Any Fee change
will become effective at the end of the then-current Billing Cycle. Provider
will provide Customer with reasonable notice of any change in Fees and, in the
event of any change of Fees, Customer shall have the opportunity to terminate
this Agreement. Payment of any modified Fee constitutes Customer’s agreement to
such modified Fees.
(d)
Promotional
Credits/Free Trials. From time to
time and in Provider’s sole discretion, Provider may offer promotional credits
or a free trial of the Services.
Promotional credits or free trial periods, if any, may expire, are
non-transferrable and have no monetary value.
Provider reserve the right to issue or
discontinue promotional credits and/or free trial periods at any time in its
sole discretion.
6.
Confidential Information. From time to time
during the Term, either Party may disclose or make available to the other Party
information about its business affairs, products, confidential intellectual
property, trade secrets, third-party confidential information, and other
sensitive or proprietary information, whether orally or in written, electronic,
or other form or media/in written or electronic form or media to the extent
marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Without
limiting the foregoing, all Provider IP and Documentation along with any and
all other information, data, documents, materials, works, and other content,
devices, methods, processes, hardware, software, and other technologies and
inventions, including any deliverables, technical or functional descriptions,
requirements, plans, or reports, provided by Provider in connection with the
Services or otherwise comprise or relate to the Services are hereby designed as
Confidential Information of Provider. In addition, and the terms and existence
of this Agreement are the Confidential Information of Provider. Confidential
Information does not include information that, at the time of disclosure is:
(a) in the public domain; (b) known to the receiving Party at the time of
disclosure; (c) rightfully obtained by the receiving Party on a
non-confidential basis from a third party; or (d) independently developed by
the receiving Party. The receiving Party shall not disclose the disclosing Party's
Confidential Information to any person or entity, except to the receiving
Party's employees who have a need to know the Confidential Information for the
receiving Party to exercise its rights or perform its obligations hereunder.
Notwithstanding the foregoing, each Party may disclose Confidential Information
to the limited extent required (i) in order to comply
with the order of a court or other governmental body, or as otherwise necessary
to comply with applicable law, provided that the Party making the disclosure
pursuant to the order shall first have given written notice to the other Party
and made a reasonable effort to obtain a protective order; or (ii) to establish
a Party's rights under this Agreement, including to make required court
filings. On the expiration or termination of the Agreement, the receiving Party
shall promptly return to the disclosing Party all copies, whether in written,
electronic, or other form or media, of the disclosing Party's Confidential
Information, or destroy all such copies and certify in writing to the
disclosing Party that such Confidential Information has been destroyed. Each
Party's obligations of non-disclosure with regard to
Confidential Information are effective as of the Effective Date and will continue
indefinitely from the date first disclosed to the receiving Party.
7.
Intellectual Property Ownership; Feedback.
(a)
Provider IP. Customer
acknowledges that, as between Customer and Provider, Provider owns all right,
title, and interest, including all intellectual property rights, in and to the
Provider IP and, with respect to Third-Party Products, the applicable
third-party providers own all right, title, and interest, including all
intellectual property rights, in and to the Third-Party Products.
(b)
Customer Data. Customer
acknowledges that, by sharing, posting or uploading Customer Data on or through
the Services, Customer represents and warrants that: (i)
the Customer has the right to use such Customer Data and the right to grant
Provider the rights and licenses as provided in this Agreement, and (ii) that
the sharing, posting or uploading of Customer Data on or through the Services
does not violate the privacy rights, publicity rights, copyrights, contract
rights or any other rights of any person or entity. Provider reserves the right
to terminate Customer’s account if it is found to have violated either of these
representations and warranties. Provider shall further have the right, but not
the obligation, to monitor and edit all Customer Data provided by Customer. Provider acknowledges that, as between
Provider and Customer, Customer owns all right, title, and interest, including
all intellectual property rights, in and to the Customer Data. Provided that
Customer has fulfilled all obligations set forth in this Agreement and the
Sales Agreement, Provider shall return all Customer Data to Customer
Customer
at the end of the Term; provided, however, that Provider shall be entitled to
retain a copy of all Customer Data. Customer hereby grants to Provider a
non-exclusive, royalty-free, worldwide license to reproduce, distribute, and
otherwise use and display the Customer Data and perform all acts with respect
to the Customer Data for any use in Provider’s sole discretion, and a
non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to
reproduce, distribute, modify, and otherwise use and display Customer Data
incorporated within the Aggregated Statistics in Provider’s sole discretion. Notwithstanding the foregoing, Provider may allow Customer
an option within the Panel Vue Builder mobile application to restrict
Provider’s use, reproduction and distribution of
Customer Data, other than Customer Data incorporated into Aggregated Statistics
or Customer Data that is not otherwise identify Customer, provided that
Provider shall still be entitled to retain a copy of such Customer Data.
(c)
Feedback. If Customer or
any of its employees or contractors sends or transmits any communications or
materials to Provider by mail, email, telephone, or otherwise, suggesting or
recommending changes to the Provider IP, including without limitation, new
features or functionality relating thereto, or any comments, questions,
suggestions, or the like (“Feedback”),
Provider is free to use such Feedback irrespective of any other obligation or
limitation between the Parties governing such Feedback. Customer hereby assigns
to Provider on Customer's behalf, and on behalf of its employees, contractors
and/or agents, all right, title, and interest in, and Provider is free to use,
without any attribution or compensation to any party, any ideas, know-how,
concepts, techniques, or other intellectual property rights contained in the
Feedback, for any purpose whatsoever, although Provider is not required to use
any Feedback.
8.
Warranty
Disclaimer. THE PROVIDER IP IS
PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT
THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET
CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION,
ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM,
OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR
ERROR FREE.
(iii)
This Section 9(a) will not apply to
the extent that the alleged infringement arises from: (A) use of the Services
in combination with data, software, hardware, equipment, or technology not
provided by Provider or authorized by Provider in writing; (B) modifications to
the Services not made by Provider; (C) Customer Data; or (D) Third-Party
Products.
(b)
Customer
Indemnification. Customer shall indemnify, hold harmless, and, at
Provider's option, defend Provider from and against any Losses resulting from
any Third-Party Claim that the Customer Data, or any use of the Customer Data
in accordance with this Agreement, infringes or misappropriates such third
party's intellectual property rights and any Third-Party Claims based on
Customer's or any Authorized User's (i) negligence or
willful misconduct; (ii) use of the Services in a manner not authorized by this
Agreement; (iii) use of the Services in combination with data, software,
hardware, equipment, or technology not provided by Provider or authorized by
Provider in writing; or (iv) modifications to the Services not made by
Provider, provided that Customer may not settle any Third-Party Claim against
Provider unless Provider consents to such settlement, and further provided that
Provider will have the right, at its option, to defend itself against any such
Third-Party Claim or to participate in the defense thereof by counsel of its
own choice.
(c)
Sole Remedy. THIS SECTION 9 SETS FORTH
CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY
ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE,
MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY
THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED AN AMOUNT THAT IS EQUAL TO THREE (3) MONTHS OF FEES
AS SET FORTH IN THE SALES AGREEMENT.
10.
Limitations of Liability. IN NO EVENT WILL
PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL
OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED
COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS;
(c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS,
INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM
SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS
OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR
SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL
OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, AND OTHERWISE EXCEED ONE (1) YEAR OF FEES AS SET FORTH IN THE SALES AGREEMENT.
(a)
Term. The term of this
Agreement and the Sales Agreement shall be the period set forth in the Sales
Agreement, unless terminated earlier pursuant to the terms of this Agreement
(the “Initial Term”). This Agreement and the Sales Agreement will automatically
renew for additional successive terms equal to the Initial Term unless
earlier terminated pursuant to this Agreement's express provisions or either
Party gives the other Party written notice of non-renewal at least thirty (30)
days prior to the expiration of the then-current term (each a “Renewal Term” and together with the
Initial Term, the “Term”).
(b)
Termination. In addition to
any other express termination right set forth in this Agreement:
(c)
Effect of
Expiration or Termination. Upon expiration or earlier termination of this
Agreement, Customer shall immediately discontinue use of the Provider IP and,
without limiting Customer's obligations under Section 6, Customer shall
delete, destroy, or return all copies of the Provider IP and certify in writing
to the Provider that the Provider IP has been deleted or destroyed. No
expiration or termination will affect Customer's obligation to pay all Fees
that may have become due before such expiration or termination or entitle
Customer to any refund. In
addition, in the event that customer terminates this
Agreement for any reason other than as set forth in Section 11(b)(ii) (a “Customer
Cancellation”), Customer shall pay to Provider an amount equal to
Provider’s actual costs incurred prior to the Customer Cancellation (the “Actual
Costs”) plus fifty percent (50%) of the amount equal to one (1) year of
Fees as set forth in the Sales Agreement (the “Liquidated Damages”). The
Parties intend that the Liquidated Damages constitute compensation, and not a
penalty. The Parties acknowledge and agree that the harm caused by a Customer
Cancellation would be impossible or very difficult to accurately estimate as of
the date of order, and that the Liquidated Damages are a reasonable estimate of
the anticipated or actual harm that might arise from a Customer Cancellation. Customer’s
payment of the Actual Costs and the Liquidated Damages are the Buyer’s sole
liability and entire obligation and Provider’s exclusive remedy for any Customer
Cancellation.
(d)
Survival. This Section
11(d) and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any
termination or expiration of this Agreement. No other
provisions of this Agreement survive the expiration or earlier termination of
this Agreement.
(a)
Entire
Agreement. This Agreement, together with the Sale Agreement,
any other documents incorporated herein by reference and all related Exhibits,
constitutes the sole and entire agreement of the Parties with respect to the
subject matter of this Agreement and supersedes all prior and contemporaneous
understandings, agreements, and representations and warranties, both written
and oral, with respect to such subject matter. In the event of any
inconsistency between the statements made in the body of this Agreement, the
related Exhibits, and any other documents incorporated herein by reference, the
following order of precedence governs: (i) first, the
Sales Agreement; (ii) Second, this Agreement, excluding its Exhibits; (iii) third,
the Exhibits to this Agreement as of the Effective Date; and (iv) fourth, any
other documents incorporated herein by reference.
(b)
Notices. All notices,
requests, consents, claims, demands, waivers, and other communications
hereunder (each, a “Notice”) must be
in writing and addressed to the Parties at the addresses set forth on the Sales
Agreement (or to such other address that may be designated by the Party giving
Notice from time to time in accordance with this Section). All Notices must be
delivered by personal delivery, nationally recognized overnight courier (with
all fees pre-paid), facsimile or email (with confirmation of transmission), or
certified or registered mail (in each case, return receipt requested, postage
pre-paid). Except as otherwise provided in this Agreement, a Notice is
effective only: (i) upon receipt by the receiving
Party; and (ii) if the Party giving the Notice has complied with the
requirements of this Section.
(c)
Force Majeure. In no event shall
Provider be liable to Customer, or be deemed to have breached this Agreement,
for any failure or delay in performing its obligations under this Agreement if
and to the extent such failure or delay is caused by any circumstances beyond
Provider's reasonable control, including but not limited to acts of God, flood,
fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest,
strikes, labor stoppages or slowdowns or other industrial disturbances, or
passage of law or any action taken by a governmental or public authority,
including imposing an embargo, quarantine, or shelter-in-place order.
(d)
Amendment and
Modification; Waiver. Provider
reserves the right, in its
sole discretion, to modify or replace this Agreement at any time.
Provider shall provide at least 30 days’ notice of any material modificiations to this Agreement. What constitutes a
material modificiation will be determined in
Provider’s sole discretion. By
continuing to access or use the Services after any modification of this
Agreement becomes effective, Customer Agrees to be bound by the modified terms.
If Customer does not agree to the new terms, Customer should discontinue using
the Services. No waiver by any Party of
any of the provisions hereof will be effective unless explicitly set forth in
writing and signed by the Party so waiving. Except as otherwise set forth in
this Agreement, (i) no failure to exercise, or delay
in exercising, any rights, remedy, power, or privilege arising from this
Agreement will operate or be construed as a waiver thereof, and (ii) no single
or partial exercise of any right, remedy, power, or privilege hereunder will
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power, or privilege.
(e)
Severability. If any provision
of this Agreement is invalid, illegal, or unenforceable in any jurisdiction,
such invalidity, illegality, or unenforceability will not affect any other term
or provision of this Agreement or invalidate or render unenforceable such term
or provision in any other jurisdiction. Upon such determination that any term
or other provision is invalid, illegal, or unenforceable, the Parties shall
negotiate in good faith to modify this Agreement so as to effect
their original intent as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
(f)
Governing Law;
Submission to Jurisdiction. This Agreement is governed by and construed in accordance
with the internal laws of the State of Ohio without giving effect to any choice
or conflict of law provision or rule that would require or permit the
application of the laws of any jurisdiction other than those of the State of
Ohio. Any legal suit, action, or proceeding arising out of or related to this
Agreement or the licenses granted hereunder shall be instituted exclusively in
the federal courts of the United States or the courts of the State of Ohio in
each case located in the city of Cincinnati and County of Hamilton, and each
Party irrevocably submits to the exclusive jurisdiction of such courts in any
such suit, action, or proceeding.
(g)
Assignment. Customer may not
assign any of its rights or delegate any of its obligations hereunder, in each
case whether voluntarily, involuntarily, by operation of law or otherwise,
without the prior written consent of Provider. Any purported assignment or
delegation in violation of this Section will be null and void. No assignment or
delegation will relieve the assigning or delegating Party of any of its
obligations hereunder. This Agreement is binding upon and inures to the benefit
of the Parties and their respective permitted successors and assigns.
(h)
Export Regulation. Customer shall
comply with all applicable federal laws, regulations, and rules, and complete
all required undertakings (including obtaining any necessary export license or
other governmental approval), that prohibit or restrict the export or re-export
of the Services or any Customer Data outside the US.
(i)
US Government
Rights. Each of the Documentation and the software components that constitute
the Services is a "commercial item" as that term is defined at 48
C.F.R. § 2.101, consisting of "commercial computer software" and
"commercial computer software documentation" as such terms are used
in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US
Government or any contractor therefor, Customer only receives those rights with
respect to the Services and Documentation as are granted to all other end
users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. §
227.7204, with respect to the Department of Defense and their contractors, or
(b) 48 C.F.R. § 12.212, with respect to all other US Government users and their
contractors.
(j)
Equitable
Relief. Each Party acknowledges and agrees that a breach or threatened breach
by such Party of any of its obligations under Section 6 or, in the case of
Customer, Section 2(c), would cause the
other Party irreparable harm for which monetary damages would not be an adequate
remedy and agrees that, in the event of such breach or threatened breach, the
other Party will be entitled to equitable relief, including a restraining
order, an injunction, specific performance, and any other relief that may be
available from any court, without any requirement to post a bond or other
security, or to prove actual damages or that monetary damages are not an
adequate remedy. Such remedies are not exclusive and are in addition to all
other remedies that may be available at law, in equity, or otherwise.
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