END USER LICENSE AGREEMENT & ONLINE TERMS OF SERVICE
This End User License Agreement & Online Terms of Service, including the applicable Order (defined below) which is hereby incorporated by reference, constitutes a binding agreement between AmpliSine Labs, LLC (“AmpliSine”) and Customer (defined below) (collectively, the “Agreement”).
AMPLISINE PROVIDES THE SOFTWARE, SERVICES AND DOCUMENTATION TO CUSTOMER AND ITS AUTHORIZED USERS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER AND EACH OF ITS AUTHORIZED USERS ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, CHECKING THE “ACCEPT” BOX ON THE ORDER FORM, OR OTHER MEANS PROVIDED FOR ACCEPTANCE YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, AMPLISINE WILL NOT AND DOES NOT LICENSE OR OTHERWISE PROVIDE THE SOFTWARE, SERVICES OR DOCUMENTATION TO CUSTOMER OR ITS AUTHORIZED USERS AND YOU MAY NOT ACCESS OR USE THE SOFTWARE, SERVICES OR DOCUMENTATION FOR ANY PURPOSE.
From time to time, AmpliSine may modify the Software or Services by adding or removing features and functionalities without prior notice to Customer or its Authorized Users. Except as expressly provided in the Order, AmpliSine also may revise this Agreement from time to time in AmpliSine’s sole discretion, subject to applicable law. All future access and use of the Software or Services by Customer and its Authorized Users will be subject to the version of this Agreement in effect at the time of such access or use. If AmpliSine revises this Agreement, AmpliSine will post the revised version on its website. Customer will be free to decide whether or not to accept the revised version of this Agreement, but accepting the revised Agreement will be required for Customer and its Authorized Users to continue accessing or using the Software or Services. IF CUSTOMER DOES NOT AGREE TO THE REVISED VERSION OF THIS AGREEMENT, CUSTOMER’S SOLE RECOURSE WILL BE TO TERMINATE ALL ACCESS OR USE OF THE SOFTWARE OR SERVICES BY CUSTOMER AND ITS AUTHORIZED USERS.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means the individual persons authorized to use the Software and Services in accordance with the applicable Order.
“Documentation” means user manuals, technical manuals and any other materials provided by AmpliSine, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software or Services.
“Fees” means the fees, including all taxes thereon, paid or required to be paid by Customer under this Agreement.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Customer” the person or entity identified as such on the applicable Order.
“Order” means the written or electronic order, submitted on behalf of Customer and accepted by AmpliSine, that identifies the applicable Software or Services and associated Fees, billing and payment terms.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Software” means the software programs for which Customer is granted a license, as identified in the applicable Order.
“Services” the online services and information made available by AmpliSine to Authorized Users, as identified in the applicable Order.
“Third Party” means any Person other than Customer or AmpliSine.
2. Use of Software and Services.
(a) Subject to and conditioned upon Customer’s payment of the Fees and strict compliance by Customer and each its Authorized Users with all terms and conditions set forth in this Agreement, AmpliSine hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement and the applicable Order. This limited license grants Customer the right, exercisable solely by and through Customer’s Authorized Users, to use the Software and related Documentation solely for Customer’s internal business purpose.
(b) Subject to and conditioned upon Customer’s payment of the Fees and strict compliance by Customer and each its Authorized Users with all terms and conditions set forth in this Agreement, AmpliSine hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right during the Term to access and use, solely by and through its Authorized Users, the Services, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement and the applicable Order. This limited right grants Customer the right, exercisable solely by and through Customer’s Authorized Users, to access and use the Services and related Documentation solely for Customer’s internal business purposes.
3. Use Restrictions. Customer shall not, and shall ensure that its Authorized Users shall not to, directly or indirectly:
(a) use (including make any copies of) the Software, Services or Documentation beyond the scope of the limited rights set forth in Section 2;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Customer, other than Authorized Users with access to or use of the Software, Services or Documentation;
(c) copy the Software, Services or Documentation, in whole or in part, or modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software, Services or Documentation or any part thereof;
(d) combine the Software, Services or Documentation or any part thereof with, or incorporate the Software, Services or Documentation or any part thereof in, any other software, services or other works;
(e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or Services or any part thereof;
(f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software, Services or Documentation, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, Services or Documentation, or any features or functionality of the Software, Services or Documentation, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
(h) use the Software, Services or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including: (1) power generation systems; (2) aircraft navigation or communication systems, air traffic control systems or any other transport management systems; (3) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and (4) military or aerospace applications, weapons systems or environments;
(i) use the Software, Services or Documentation in violation of any law, regulation or rule;
(j) use the Software, Services or Documentation for purposes of competitive analysis, the development of a competing software product or service or any other purpose that is to AmpliSine’s commercial disadvantage.
(k) participate in any action that, in the sole and absolute opinion of AmpliSine, results or may result in fraud or otherwise interfere in any way with use of the Software, Services or Documentation;
(l) use or exploit any errors in design, features which have not been documented, or “bugs” to gain access in any way that is not generally known and intentionally made available by AmpliSine, and you will promptly report to AmpliSine your discovery of any such errors, features or bugs.
(m) attempt to harvest any account information, pricing or any confidential or proprietary business information from the Service for any purpose;
(n) collect or store personal information about any other individual on the Service, or otherwise stalk, repeatedly contact or harass another user;
(o) impersonate any other person, adopt a false identity, or misrepresent a relationship with any person or entity, including misrepresenting a relationship with AmpliSine, or attempt to deceive or defraud another;
(p) manipulate the Service so as to hide your identity or participation in the Service (by using another person’s identity, changing headers, or otherwise modifying any other possible identifier); or
(q) post or upload any content that contains any viruses, cancel bots, Trojan horses, harmful code, or other computer programs or code designed to interrupt the Service, or the proper functioning of any software, hardware or equipment or materials used in connection with the Service;
4. Responsibility for Use. Customer is responsible and liable for all uses of the Software, Services or Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software, Services or Documentation by its Authorized Users or by any other Person to whom Customer or an Authorized User may provide access to or use of the Software, Services or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5. Compliance Measures.
(a) The Software, Services or Documentation may contain technological copy protection or other security features designed to prevent or disable unauthorized use of the Software, Services or Documentation, including features to protect against any use of the Software, Services or Documentation that is prohibited under Section 3. Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
(b) During the Term, AmpliSine may, in AmpliSine’s sole discretion, audit Customer’s use of the Software, Services or Documentation to ensure Customer’s compliance with this Agreement. AmpliSine also may, in its sole discretion, audit Customer’s systems within 24 months after the end of the Term to ensure Customer has ceased use of the Software, Services or Documentation and removed the all copies from such systems as required hereunder. The Customer shall fully cooperate with AmpliSine’s personnel conducting such audits and provide all access requested by AmpliSine to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information.
(c) If any of the measures taken or implemented under this Section 5 determines that the Customer’s use of the Software, Services or Documentation exceeds or exceeded the use permitted by this Agreement then:
(i) Customer shall, within 15 days following the date of AmpliSine’s written notification thereof, pay to AmpliSine the retroactive Fees for such excess use and, unless AmpliSine terminates this Agreement pursuant to Section 5(c)(iii), prepay any future Fees to bring Customer’s use into compliance with this Agreement. In determining the Fees payable pursuant to the foregoing, (x) unless Customer can demonstrate otherwise by documentary evidence, all excess use shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by AmpliSine hereunder, and continued uninterrupted thereafter, and (y) the rates for such Fees shall be determined without regard to any discount to which Customer may have been entitled prior to the commencement (or deemed commencement) of such excess use.
(ii) If the use exceeds or exceeded the use permitted by this Agreement by more than 10%, Customer shall also pay to AmpliSine, within 15 days following the date of AmpliSine’s written request therefor, AmpliSine’s costs incurred in conducting the audit.
(iii) If the use exceeds or exceeded the use permitted by this Agreement by more than 25%, AmpliSine shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Customer.
AmpliSine’s remedies set forth in this Section 5(c) are cumulative and are in addition to, and not in lieu of, all other remedies AmpliSine may have at law or in equity, whether under this Agreement or otherwise.
6. Maintenance and Support.
(a) Subject to Section 6(c), the license granted hereunder entitles Customer to the basic software maintenance and support services for the Software described from time to time on AmpliSine’s website located at www.amplisine.com or www.sitepro.com for 90 days following the date set forth on the applicable Order; and thereafter, solely if Customer purchases additional support services.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as AmpliSine makes generally available free of charge to other customers of the Software then entitled to maintenance and support services. AmpliSine may develop and provide Updates in its sole discretion, and Customer agrees that AmpliSine has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Customer acknowledges that AmpliSine may provide some or all Updates via download from a website designated by AmpliSine and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. AmpliSine has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that AmpliSine may issue as a separate or new product, and AmpliSine may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.
(c) AmpliSine reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Customer’s registration of the copy of Software for which support is requested. AmpliSine has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if Customer is in breach under this Agreement; or (iv) for any Software that has been modified other than by AmpliSine, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by AmpliSine in writing.
7. Collection and Use of Information.
(a) Customer and each of its Authorized Users acknowledges that AmpliSine may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software, Services or Documentation, including, but not limited to, information and about any devices or equipment on or through which the Software, Services or Documentation are accessed or used. Without limiting the generality of the foregoing, Customer acknowledges that Software and Services contain or may contain in future versions automated reporting routines that will automatically identify and analyze certain aspects of use and performance, as well as the operator and operating environment, and among other things, transmit electronic reports to AmpliSine. AmpliSine will provide Customer, on request, with a description of these routines in the Software and Customer agrees not to disrupt or interfere with them without prior written authorization by AmpliSine. AmpliSine will be entitled to inspect the installation and configuration of the Software from time to time on reasonable notice
(b) Customer agrees that AmpliSine may use such information for any purpose, including, but not limited to, improving the performance of the Software or Services or developing Updates, verifying Customer’s compliance with the terms of this Agreement and enforcing AmpliSine’s rights, including AmpliSine’s Intellectual Property Rights.
8. Intellectual Property Rights.
(a) Customer acknowledges and agrees that the Software, Services and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software, Services or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the rights granted, and subject to all terms, conditions and restrictions, under this Agreement. AmpliSine and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, Services and Documentation and all Intellectual Property Rights arising out of or relating to the Software, Services and Documentation, except for the limited rights expressly granted to the Customer in this Agreement. Customer shall safeguard all Software, Services and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Customer shall promptly notify AmpliSine if Customer becomes aware of any infringement of AmpliSine’s Intellectual Property Rights and fully cooperate with AmpliSine in any legal action taken by AmpliSine to enforce its Intellectual Property Rights.
(b) AmpliSine shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Software, Services or Documentation infringes any Third Party Intellectual Property Rights and shall pay any final judgment awarded or settlements entered into; provided that Customer gives prompt written notice to AmpliSine of any such claim, action or allegation of infringement and gives AmpliSine the authority to proceed as contemplated herein. AmpliSine will have the exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of AmpliSine . Customer shall give such assistance and information as AmpliSine may reasonably require to settle or oppose such claims. In the event any such infringement, claim, action, or allegation is brought or threatened, AmpliSine may, at its sole option and expense: (i) procure for Customer the right to continue use of the infringing portion; (ii) modify or replace the infringing portion thereof in a manner that is non-infringing; or (iii) if neither of the foregoing is commercially practicable, AmpliSine shall refund a prorated portion of the prepaid Fees, if any, paid with respect to such infringing portion. In the event that such refund is made, Customer shall immediately cease using the infringing portion and will remove the same from its system and so certify to AmpliSine. By paying a refund in the manner herein contemplated AmpliSine will be released from any further obligation whatsoever to Customer in connection with the infringing portion. The foregoing obligations shall not apply to the extent the infringement arises as a result of modifications made by any person other than AmpliSine or AmpliSine’s authorized representative. THE REMEDIES SET FORTH IN THIS SECTION 8(B) ARE CUSTOMER’S SOLE REMEDIES AND AMPLISINE’S SOLE LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
9. Payment. All Fees are payable in advance in the manner set forth in the Order and are non-refundable, except as may be expressly set forth in the applicable Order. Any renewal hereunder shall not be effective until the Fees for such renewal have been paid in full.
10. Term and Termination.
(a) This Agreement and the rights and licenses granted by AmpliSine hereunder shall remain in effect for the term set forth on the Order or until earlier terminated as set forth herein (the “Term”).
(b) Customer may terminate this Agreement by ceasing to use the Software, Services and Documentation and destroying any and all copies thereof.
(c) AmpliSine may terminate this Agreement, effective upon written notice to Customer, if Customer, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 15 days after AmpliSine provides written notice thereof.
(d) AmpliSine may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
(e) Upon expiration or earlier termination of this Agreement, the rights and licenses granted by AmpliSine hereunder shall also terminate, and Customer shall cease using the Software, Services and Documentation and shall destroy any and all copies thereof. No expiration or termination shall 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 each case except as set forth in Section 11(c) or Section 8(b).
11. Limited Warranties, Exclusive Remedy and Disclaimer.
(a) Solely with respect to Software and Services for which AmpliSine receives payment of all applicable Fees, AmpliSine warrants that, for a period of 90 days following the effective date set forth on the applicable Order, the Software and Services will perform in substantial accordance with the Documentation. THE FOREGOING WARRANTIES DO NOT APPLY, AND AMPLISINE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranties set forth in Section 11(a) will not apply and will become null and void if Customer breaches any provision of this Agreement, or if Customer, any Authorized User or any other Person provided access to the Software or Services by Customer or any Authorized User, whether or not in violation of this Agreement: (i) accesses or uses the Software or Services on or in connection with any hardware or software not specified in the Documentation or expressly authorized by AmpliSine in writing; or (ii) modifies, misuses or abuses the Software or Services (or any device, equipment or media on which it is provided), including any misuse, damage or abnormal physical or electrical stress, or any extraordinary, abnormal or other use not specified in the Documentation or expressly authorized by AmpliSine in writing.
(c) If, during the period specified in Section 11(a), any Software or Services covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 11(b), AmpliSine will, subject to Customer’s promptly notifying AmpliSine in writing of such failure, at its sole option, either: (i) repair or replace the Software or Services, provided that Customer provides AmpliSine with all information AmpliSine requests to resolve the reported failure, including sufficient information to enable AmpliSine to recreate such failure; or (ii) refund the Fees paid for such Software or Services, subject to Customer’s ceasing all use of the Software or Services and, if requested by AmpliSine, returning to AmpliSine all copies thereof. If AmpliSine repairs or replaces the Software or Services, the warranty will continue to run from the initial date specified on the Order, and not from Customer’s receipt of the repair or replacement. THE REMEDIES SET FORTH IN THIS SECTION 11(C) ARE CUSTOMER’S SOLE REMEDIES AND AMPLISINE’S SOLE LIABILITY UNDER THIS AGREEMENT.
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), THE SOFTWARE, SERVICES AND DOCUMENTATION ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AMPLISINE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY AND ALL OF THE SOFTWARE, SERVICES AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, AMPLISINE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT ANY OF THE SOFTWARE, SERVICES OR DOCUMENTATION WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. No employee, agent, representative or affiliate of AmpliSine has authority to bind AmpliSine to any oral representations or warranty concerning the Software. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL AMPLISINE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, SERVICES OR DOCUMENTATION, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF GOODS, SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AMPLISINE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL AMPLISINE’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO AMPLISINE PURSUANT TO THIS AGREEMENT FOR (i) THE SOFTWARE OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 12(a) AND SECTION 12(b) SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
13. Export Regulation. The Software, Services or Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Customer shall not, directly or indirectly, export, re-export or release the Software, Services or Documentation to, or make the Software, Services or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The 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), prior to exporting, re-exporting, releasing or otherwise making the Software, Services or Documentation available outside the US.
14. US Government Rights. The Software, Services or Documentation may constitute commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software, Services or Documentation as are granted to all other end users under license, 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 licensees and their contractors.
(a) This Agreement is governed by and construed in accordance with the internal laws of the State of Texas 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 Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Texas in each case located in the County of Lubbock, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
(b) AmpliSine will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Customer equipment, loss and destruction of property or any other circumstances or causes beyond AmpliSine’s reasonable control.
(c) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order (or to such other address as may be designated by a party from time to time in accordance with this Section 15(c)).
(d) If the applicable Order is subject to an existing master agreement, subscription agreement or other written agreement between AmpliSine and Customer (a “Master Agreement”), then in the event of a conflict between any provision of the Master Agreement and any provision of this Agreement, such conflicting provision of the Master Agreement will control. This Agreement, the applicable Order and the Master Agreement, if any, together with all schedules and exhibits attached or referred to herein or therein and all other documents that are incorporated by reference herein or therein, constitutes the sole and entire agreement between Customer and AmpliSine with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. No provisions, terms or conditions of any business form that Customer may use in connection with the transactions contemplated hereby will have any effect on the rights, duties or obligations of the parties under, or other otherwise modify, this Agreement, the applicable Order or the Master Agreement, if any, regardless of any failure of AmpliSine to object to such provisions, terms or conditions.
(e) Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without AmpliSine’s prior written consent, which consent AmpliSine may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which AmpliSine’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 15(e) is void. AmpliSine may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(g) No waiver by AmpliSine of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by AmpliSine. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(h) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: to sctions and exhibits refer to the sections of, and exhibits attached to, this Agreement; to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Each Order and all schedules and exhibits attached or referred to herein or therein and all other documents that are incorporated by reference herein or therein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(j) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.