End User License Agreement
THIS END USER LICENSE AGREEMENT (THE "AGREEMENT") GOVERNS THE USE OF THE PRODUCTS OF AUTONOMOUS PIVOT, INC. (THE “COMPANY”).
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES AND YOU (“CUSTOMER” OR “YOU”) FOR THE LICENSE AND USE OF THE PRODUCTS.
BY CLICKING ON THE BUTTON MARKED “I AGREE” OR OTHERWISE ACCESSING THE PRODUCTS OR USING THE PRODUCTS IN ANY OTHER MANNER, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT ACCESS THE PRODUCTS OR USE THE PRODUCTS IN ANY MANNER.
IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THIS AGREEMENT.
1.1. “Company Materials” means the Products, Output Data and/or Statistical Data.
1.2. “Distributor” means the individual or legal entity authorized by Company to market, promote and distribute the Software to Customer.
1.3. “Embedded Software” means Software that is embedded within the Hardware.
1.4. “Feedback” means information or content concerning enhancements, changes or additions to the Software requested, desired or suggested by Customer.
1.5. “Fees” means the license fees and other applicable fees set forth at https://www.autonomouspivot.com/plans-pricing, or as otherwise mutually agreed upon in writing between the parties (including, without limitation, via email).
1.6. “Fields” mean the agricultural fields, crops, soil, land or other property or assets in respect of which Customer uses the Products.
1.7. “Hardware” means the equipment and/or devices provided by Company to Customer during the Term of the Agreement.
1.8. “Intellectual Property Rights” means all rights, titles and interests evidenced by or embodied in (i) all inventions (regardless of patentability), all patents and patent applications; (ii) all trademarks, trade dress, trade names and service names, whether registered or not; (iii) all copyrightable works, author’s moral rights, performance rights and database rights; (iv) all trade secrets; (v) all mask works and integrated circuit designs; (vi) all utility designs and industrial designs; and (vii) all other intangible proprietary right and other similar proprietary, in whatever form or medium, in any jurisdiction worldwide.
1.9. “Irrigation Systems” means Customer’s pivot irrigation system and other related systems and hardware used in the Fields that are directly or indirectly connected with or to the Products.
1.10. “Marks” means trademarks, trade names, and logos, whether registered or not.
1.11. “Output Data” means any reports and other data that is created or derived by Company, or is the output of the Products, resulting from Customer’s use of the Products in connection with its Irrigation Systems and Fields and/or the Products’ functions and processes carried out thereon, including, without limitation, any Aerial Imagery (as defied below).
1.12. “Products” mean Company’s proprietary artificial intelligence-driven platform for agricultural irrigation, fertigation and chemigation , consisting of the Hardware, Software, and documentation provided by Company.
1.13. “Service” means the maintenance and support services set forth in subsections 10.3-10.4.
1.14. “Service Period” means, with respect to Customer’s eligibility to receive the Service, the (a) initial period agreed upon in writing by the parties starting from the commencement of the Term (the “Initial Period”), and (b) any successive renewal periods thereafter for which Customer subscribes to for the then-applicable subscription Fees. Unless otherwise agreed upon in writing between the parties, the Initial Period shall continue until the 1st of October of the applicable calendar year of the date of Customer’s acceptance of this Agreement.
1.15. “Software” means the Company’s software programs provided as part of the Company’s Products and the Embedded Software, including any updates, modifications, revisions, copies, documentation and design data that are licensed under this Agreement.
1.16. “Statistical Data” means any data generated through the access to, or use or monitoring of the Products by or on behalf of Customer or any User, including any end user profile, visit, session, impression, clickthrough or click stream data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing.
1.17. “Term” means the duration of this Agreement, as specified in subsection 9.1.
1.18. “User” means any Customer employee or such other authorized individual using or accessing the Products for or on behalf of Customer.
Subject to Customer’s compliance with all of its obligations under the Agreement, including, without limitation, Customer’s timely completion and submission of the Field Information Form (as defined below), Company, Distributor or other authorized third party, shall perform the initial integration, deployment, installation and configuration of the Products, at Customer’s site or premises in accordance with the deployment scheme mutually agreed upon in writing between the parties (collectively, the “Installation”).
Subject to the terms of this Agreement, including, Customer’s payment of the applicable Fees, Company hereby grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable license, to use the Products during the Term, for Customer’s internal business purposes only.
4.1. Customer agrees to furnish Company with such information and data reasonably requested by Company from time to time in respect of Customer’s Fields and Irrigation Systems, including, without limitation, by completing such forms and questionnaires in respect of Customer’s Fields and Irrigation Systems reasonably requested by Company prior to performance of the Installation (the “Field Information Form”). Customer acknowledges and agrees that Company’s and/or its Distributor’s or other authorized third party’s ability to successfully perform the Installation in a timely manner is contingent upon its receipt from Customer of the completed Field Information Form and such other information reasonably requested by Company.
4.2. Customer acknowledges that the use, operation and performance of the Products rely on the availability, proper configuration, and operability of Customer’s Irrigation Systems. Customer acknowledges and agrees that Customer is solely responsible for the proper management and configuration of any Irrigation Systems and its own cost and expense.
4.3. Customer shall ensure that all Users fully comply with the substantive terms of this Agreement relating to the Products. Customer shall be liable to Company for all acts and omissions of Users in connection with the Products, as though Customer itself had performed those acts or omissions.
5. Output Data.
5.1. Customer assumes sole and exclusive responsibility: (i) for all acts or omissions, that Customer or others on its behalf engage in, in response to any Output Data; (ii) for reviewing, analyzing, and interpreting any Output Data and determining what actions are appropriate in light thereof; and (iii) for carrying out such actions as Customer deems appropriate as a result of the Output Data. Company assumes no responsibility or liability, regarding Customer’s reliance upon, or use of, the Output Data, Customer’s actions or omissions in connection with the Output Data, or any consequences resulting therefrom.
5.2. Output Data may include aerial imagery of Customer’s Fields (“Aerial Imagery”). Customer hereby expressly authorizes Company and/or its authorized third-party service providers (“Service Providers”) to collect Aerial Imagery of Customer’s Fields (“Imagery Services”). Customer agrees to notify all persons associated with Customer not to be onsite at the Fields while Company and/or its Service Providers are performing the Imagery Services. Customer hereby releases Company and/or its Service Providers from and against any injury that may occur as a result of any person associated with Customer being onsite while the Imagery Services are being performed, except to the extent that such injury is due to the gross negligence or willful misconduct of Company or its Service Providers. Customer acknowledges and agrees that the performance of the Imagery Services may be subject to additional terms and conditions of applicable Service Providers.
6.1. Each party agrees that all business, technical and financial information that is designated as “confidential” or “proprietary,” or that is disclosed in a manner that a reasonable person would understand the confidential nature of the information being disclosed by the disclosing party and any information related to the Company Materials is confidential (“Confidential Information”). All information provided by Company to Customer pursuant to the Agreement, which includes, without limitation, information (tangible or intangible) regarding Company’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information is considered Company’s Confidential Information and is proprietary to Company.
6.2. Without limiting the foregoing, the terms and conditions of this Agreement, any product requirements, and any other documentation, onboarding processes or other materials provided by Company to Customer under this Agreement shall be deemed Company’s Confidential Information. Except as expressly allowed herein, the receiving party will hold in confidence and not use or disclose (except in connection with the performance of such party’s obligations under the Agreement) any Confidential Information of the disclosing party. Customer may use Company’s Confidential Information only as necessary in exercising its rights granted in this Agreement. Customer may not disclose any Confidential Information to any third party without Company’s prior written consent. Customer agrees to protect the Confidential Information from unauthorized use, access, or disclosure in the same manner that it would use to protect its own confidential and proprietary information of a similar nature and in no event with less than a reasonable degree of care.
6.3. The receiving party shall not be obligated under this Section with respect to information that the receiving party can document through writing or testimony that such information: (i) is or has become readily publicly available through no fault of the receiving party or its employees or agents; (ii) is received from a third party lawfully in possession of such information, and the receiving party has no knowledge of any disclosure restrictions on such third party to disclose such information; (iii) is disclosed to a third party by the disclosing party without restriction on disclosure; (iv) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (v) was independently developed by employees or consultants of the receiving party without reliance on such information. The receiving party may make disclosures required by law or court order, provided that the receiving party notifies the disclosing party of the issuance of such order and allows the disclosing party to participate in the proceeding.
7.1. In consideration of the rights granted to Customer under this Agreement, Customer will pay all applicable Fees, in accordance with the levels, schemes, amounts and payment terms set forth in this Agreement or as otherwise separately conveyed to Customer in writing by Company or the Distributor. If Customer has concluded the transaction directly with Company, then Customer shall remit all such Fees to Company. If Customer has concluded the transaction with the Distributor, then Customer shall remit all such Fees to the Distributor. All Fees are quoted in U.S. Dollars, unless otherwise agreed upon in writing between Customer and Company or the Distributor (as applicable).
7.2. The applicable Fees are due on the first business day of the Term, unless otherwise agreed upon in writing between Customer and Company or the Distributor (as applicable). If Customer has requested to subscribe to the Service, then the applicable subscription Fees are due on the first business day of each Service Period, unless otherwise agreed upon in writing between Customer and Company or the Distributor (as applicable).
7.3. Customer will remit payment of Fees by wire transfer according to the wire details conveyed to Customer or by any other means of payment Company or the Distributor (as applicable) determines from time to time.
7.4. All Fees payable pursuant to this Agreement are exclusive of taxes or other governmental charges, wire fees, or transaction charges. Customer is responsible for the payment of all such applicable taxes or charges and will remit grossed-up payments, to include all such taxes, fees and transaction charges. In the event that Company or the Distributor (as applicable) is legally obligated to collect or deduct taxes, they are entitled to fully invoice Customer for the corresponding tax. As soon as possible following a request by Company or the Distributor (as applicable), Customer will provide the taxation documentation necessary for processing the Fees.
7.5. All Fees paid by Customer are non-refundable. Customer is responsible for paying all applicable Fees, whether or not it has actively used the Products or the Service.
7.6. Without derogating from any other rights and remedies available to Company or the Distributor (as applicable) under the applicable law, Fees overdue for more than thirty (30) days will accrue interest at the rate of one-half of one percent (0.5%) per month or part thereof, or the highest rate permitted by applicable law, whichever is lower, and such amounts will be billed to Customer by Company or Distributor (as applicable). Customer agrees to reimburse Company or the Distributor (as applicable) for all legal costs and attorney fees Company or the Distributor (as applicable) incurs in the course of collecting overdue Fees.
7.7. Failure to settle any overdue fee within sixty (60) calendar days of its original due date will constitute a material breach of the Agreement. If Customer fails to settle overdue subscription Fees within sixty (60) calendar days of their original due date, Company may suspend the provision of the Products and/or Service to Customer until Customer settles the overdue Fees.
7.8. Customer may not withhold or set-off any payment from any Fees due to Company or the Distributor (as applicable).
8.1. Customer may not use, or have others use, or provide to third parties, the Company Materials or any part thereof including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Products or any part thereof.
8.2. Customer may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Company Materials.
8.3. Customer may not use the Company Materials in order to develop, or create, or permit others to develop or create, a similar or competitive product, software, or service.
8.4. Customer may not access or use the Company Materials for any purpose other than Customer’s internal business purposes.
8.5. Customer may not remove or obscure any proprietary notices from the Company Materials.
8.6. Customer may not perform or attempt to perform any of the following: (i) breaching the security of the Products, or identifying any security vulnerabilities thereof; (ii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Products; (iii) working around or circumventing any technical limitations in the Products; or (iv) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Products.
8.7. CUSTOMER MAY NOT USE THE COMPANY MATERIALS FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
8.8. Hardware Restrictions.
8.8.1. Notwithstanding Customer’s possession or physical control of the Hardware, the exclusive ownership of all Hardware, is and shall remain at all times with Company. Customer may not sell, dispose of, rent, or transfer any Hardware or otherwise grant any rights therein to any third party.
8.8.2. Upon the termination or expiration of the Agreement, Customer shall ship the Hardware back to Company or the Distributor (as applicable).
8.8.3. The risk of physical damage to or loss of the Hardware shifts to Customer upon the Hardware being handed over to Customer’s possession. Customer must maintain the Hardware at its premises, in a location adequately protected against unauthorized access, break-in, theft, physical hazards and harmful environmental conditions. Customer shall use and handle the Hardware carefully and strictly in accordance with the instructions conveyed by Company or the Distributor. Customer may not handle the Hardware in any manner which is not expressly permitted by Company or the Distributor, including dismantling it, tampering with it, or conducting any repair, alteration, adaptation, addition thereto or derogation therefrom.
8.8.4. Customer hereby expressly waives any right of lien, or similar withholding rights, in or to the Hardware.
9. Term and Termination.
9.1. This Agreement commences on the date of Customer’s acceptance of this Agreement and shall continue for the Service Period (whether the initial period or any subsequent renewal periods) (the “Term”), unless terminated earlier in accordance with the provisions below.
9.2. Company may terminate this Agreement and/or any license granted under this Agreement immediately upon written notice if Customer: (a) exceeds the scope of the license granted hereunder otherwise fails to comply with the licensing or confidentiality provisions of this Agreement, or (b) becomes insolvent, files a bankruptcy petition, institutes proceedings for liquidation or winding up or enters into an agreement to assign its assets for the benefit of creditors. For any other material breach of any provision of this Agreement, Company may terminate this Agreement and/or any license granted under this Agreement upon thirty (30) days’ written notice if Customer fails to cure the breach within the thirty (30) day notice period. Termination of this Agreement or any license granted hereunder will not affect Customer’s obligation to pay for Products shipped or licenses granted prior to the termination, which amounts shall be payable immediately upon the date of termination.
9.3. Upon termination of this Agreement for any reason whatsoever, Customer must: (a) cease any and all use of the Products and cause all other Users of Customer to cease any and all use of the Products; and (b) permanently remove the Hardware from Customer’s Irrigation Systems and uninstall any Software from all computers and other devices in its possession or control.
9.4. Upon termination of this Agreement for any reason whatsoever, , Company shall cease providing the Service to Customer.
9.5. Termination of this Agreement by Company will be, in addition to, and not in lieu of, any equitable or other remedies available to Company.
9.6. Any provision of this Agreement, that by its nature ought to survive the termination of this Agreement, including sections 5, 6, and 8-16, will so survive and continue to bind in full force and effect following such termination.
10. Software Quality; Support and Maintenance Service.
10.1. Company will make commercially reasonable efforts to have the Products operate properly. However, Company does not guarantee that the Products will operate in an uninterrupted or error-free manner, or that they will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to, hardware failures, software failures and communication failures. If Company receives notice of any failure or malfunction, or if Company identifies them by itself, Company will endeavor to regain the Product’s full functionality as soon as practicable, pursuant to the provisions of this section. However, such incidents will not be considered a breach of this Agreement.
10.2. Customer acknowledges that Company may, upon coordination with Customer, suspend the operation of the Products, for periodic maintenance purposes.
10.3. During the Service Period, subject to the terms and conditions of this Agreement, Company, either directly or with the assistance of the Distributor or other authorized third party, will provide Customer technical support for questions, problems and inquiries regarding the Products.
10.4. During the Service Period, subject to the terms and conditions of this Agreement, Company either directly or with the assistance of the Distributor or other authorized third party, may provide Customer with such updates to the Software (which may add to, improve or enhance features and capabilities of the then-current version of the Software). Company, in its discretion, will determine the frequency and scope of such updates.
11. Intellectual Property.
11.1. The Company Materials are a proprietary product of Company or its licensors, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability.
11.2. All rights, title and interest, including copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Company Materials and any part thereof, including computer code, graphic design, layout and the user interfaces of the Software, and all derivatives, improvements and variations thereof, whether or not based on or resulting from Feedback, and all Hardware designs, features, and functionalities are and will remain at all times, exclusively owned by, or licensed, to Company. Other than the limited use rights expressly granted herein, no other right, title, interest or license in or to any of the Company Material, are granted, sold, transferred, assigned or shared with Customer.
11.3. Customer grants Company permission to use Customer’s Marks on Company’s website and in its marketing materials and marketing communications, to indicate that Customer is or was Company’s customer.
11.4. Customer will not be entitled to any remuneration from Company for Company’s use of the Feedback, Output Data and/or Statistical Data.
12. Limited Hardware Warranty.
12.1. Subject to the terms and conditions hereof, Company shall provide a Limited Warranty (as defined below) for the Hardware during a period commencing on the date of shipment of the applicable Hardware product from the Company’s facility and ending on the earlier of: (i) the expiration of the Service Period; and (ii) the maximum warranty period offered by the Hardware manufacturer (the “Warranty Period”), in each case unless a longer period is required under applicable law. For the avoidance of doubt, the aforesaid Warranty Period shall apply only in the event that Customer is current on its payments under this Agreement.
12.2. Company warrants that during the Warranty Period and subject to normal use by Customer, the Hardware shall be free from defects in material and workmanship and shall perform, in all material respects, in accordance with Company’s documentation describing the use, features and operations of the Hardware (the “Limited Warranty”). Customer acknowledges and agrees that in any event triggering the Limited Warranty hereunder: (i) Customer is required to notify the Company or the Distributor of any such issue promptly after occurrence thereof; and (ii) may be implemented by the Company through credit, replacement (whether with new or refurbished products) or repair of the malfunctioned Product subject to the Limited Warranty hereunder.
12.3. Limitation on Warranties. This Limited Warranty and Customer’s remedies hereunder are solely for the benefit of Customer and shall not be extended to any other person. Customer shall be solely responsible for the selection, use, efficiency and suitability of the Hardware. This Limited Warranty shall not apply to any Hardware in the event that Company determines, after reasonable testing and examination, that the alleged defect or nonconformity does not exist or, that the Hardware:
12.3.1. has been used with accessories or other hardware other than the accessories or hardware provided by or approved by Company;
12.3.2. has been damaged by improper operation, maintenance, misuse, accident, neglect, fire, accident, lightning, power failures or other peril, failure to continually provide a suitable operating environment, or from any other cause beyond Company’s reasonable control;
12.3.3. has been used in a manner not in accordance with the instructions supplied by Company;
12.3.4. has been subject to the opening of any sealed components without Company’s prior written approval;
12.3.5. has been altered without written authorization of Company to do so; or
12.3.6. has been repaired or otherwise altered by anyone not under the control of, or not having the written authorization of Company to do such repair or alteration.
12.4. This Limited Warranty covers the Hardware only and does not cover any Software and/or service.
12.5. THE LIMITED WARRANTY PROVIDED HEREIN CONSTITUTES COMPANY’S SOLE AND EXCLUSIVE LIABILITY FOR DEFECTIVE OR NONCONFORMING HARDWARE UNDER WARRANTY AND SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE OR NONCONFORMING HARDWARE UNDER WARRANTY. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF COMPANY FOR DAMAGES.
13. Disclaimer Of Warranty.
EXCEPT FOR THE LIMITED WARRANTY, THE COMPANY MATERIALS, IMAGERY SERVICES AND THE SERVICE ARE PROVIDED TO CUSTOMER “AS IS”. COMPANY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE COMPANY MATERIALS, IMAGERY SERVICES AND THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, OR COMPLETENESS OR CORRECTNESS OF THE OUTPUT DATA. WITHOUT LIMITING THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT THE COMPANY MATERIALS, IMAGERY SERVICES OR THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR FULFILL ITS NEEDS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE OR PERFORMANCE OF THE COMPANY MATERIALS, IMAGERY SERVICES, OR THE SERVICE, WHETHER MADE BY COMPANY’S EMPLOYEES OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY COMPANY FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF COMPANY WHATSOEVER.
14. Limitation Of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES, INCLUDING THEIR EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, THE COMPANY MATERIALS, THE IMAGERY SERVICES OR THE SERVICE, INCLUDING ANY USE OF, OR THE INABILITY TO USE THE COMPANY MATERIALS; ANY THIRD PARTY HARMFUL ACTS ADVERSELY IMPACTING THE CUSTOMER’S IT OR IRRIGATION SYSTEMS; ANY DAMAGE TO OR LOSS OF DATA; ANY RELIANCE UPON THE OUTPUT DATA; ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE OUTPUT DATA, OR INABILITY TO PROPERLY RECOVER DATA; OR ANY OTHER FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SOFTWARE.
THE TOTAL AND AGGREGATED LIABILITY OF COMPANY AND ITS AFFILIATES, INCLUDING THEIR EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, TO CUSTOMER FOR ANY AND ALL DAMAGES WHATSOEVER ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, THE COMPANY MATERIALS OR THE SERVICE, SHALL BE LIMITED TO THE FEES THAT CUSTOMER ACTUALLY PAID TO COMPANY OR THE DISTRIBUTOR (AS APPLICABLE) DURING THE 12 MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE DAMAGE.
NOTWITHSTANDING THE FOREGOING, COMPANY’S SOLE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY CLAIMS REGARDING THE PRODUCT’S PERFORMANCE, AVAILABILITY, ERRORS OR MALFUNCTIONS DURING THE SERVICE PERIOD, IS THE PERFORMANCE OF COMPANY’S SUPPORT AND MAINTENANCE OBLIGATIONS PURSUANT TO SECTIONS 10.3 AND 10.4 HERETO.
Customer shall indemnify and hold harmless Company and anyone acting on Company’s behalf, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, allegation or demand arising from or in connection with: (a) Customer’s breach of this Agreement; or (b) Customer’s use of the Product, or Customer’s violation or infringement of any other person's rights committed by using the Product – in either case, provided that the complaint, claim, allegation or demand would have been avoided but for the use Customer made of the Product.
16. Governing Law and Venue.
This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to its principles of conflicts of laws. The parties agree that any dispute between them in any way arising out of or pertaining to this Agreement shall be exclusively brought in the applicable courts located in New York County, New York.
Customer may not assign the Agreement without Company’s prior written consent, which shall not be unreasonably withheld. Any purported assignment without Company’s prior written consent is void. Company may assign and delegate this Agreement in its entirety, including all right, duties, liabilities, performance and obligations herein, upon notice to Customer and without obtaining Customer’s specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of Company’s equity or assets. By virtue of such assignment, the assignee assumes Company’s stead, including all right, duties, liabilities, performance and obligations, and Company shall be irrevocably released from the same.
Company may subcontract or delegate the performance of its obligations under the Agreement, the exercise of its rights under the Agreement, or the provision of the Service (or any part thereof), to any third party of its choosing provided, including its Affiliates, provided however, that Company remains liable to Customer for the performance of its obligations under the Agreement. Customer acknowledges and agrees that the technical means by which Company supplies the Software or the Service is at Company’s sole discretion.
19. Changes to this Agreement.
Company may from time to time make changes to this Agreement. Company will notify Customer of any change to this Agreement through the Products. Customer’s continued use of the Products after being informed of the changes to this Agreement indicates your consent to the amended Agreement.
20. Complete Terms and Severability.
This Agreement constitutes the entire and complete agreement between Customer and Company concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect.
21. No waiver.
Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of this Agreement. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
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