Software License Agreement of Rehive
This Software License Agreement (the “Agreement”) effective as of the last date on the signature page hereto (the “Effective Date”), is by and between Rehive Inc., a Delaware corporation (“Licensor”), and the undersigned licensee listed on the signature page hereto (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Licensor desires to license the Software to Licensee; and
WHEREAS, Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Activation Date” means the date on which Licensee pays all amounts due and owing under this Agreement for the Initial Term.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Aggregated Statistics” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Agreement” has the meaning set forth in the preamble.
“Authorized User” means each of the individuals authorized to use the Software pursuant to this Agreement.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Confidential Information” has the meaning set forth in Section 7.1.
“Custom URL” has the meaning set forth in Section 2.1(a).
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Services.
“Disclosing Party” has the meaning set forth in Section 7.1.
“Documentation” means Licensor’s end user documentation relating to the Software available at docs.rehive.com that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
“Enterprise Subscription” means a subscription package offered by Licensor with the features described on Exhibit A.
“Effective Date” has the meaning set forth in the preamble.
“Fees” means the license fees payable by Licensee pursuant to Section 6.1 hereof.
“Force Majeure Event” has the meaning set forth in Section 13.10(a).
“Half-Yearly Subscription” means any Starter Subscription, Standard Subscription, Premium Subscription, or Enterprise Subscription with respect to which Licensee pays Fees on a 6-month basis.
“Indemnitee” has the meaning set forth in Section 10.3.
“Indemnitor” has the meaning set forth in Section 10.3.
“Initial Term” has the meaning set forth in Section 12.1.
“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.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensee Indemnitee” has the meaning set forth in Section 10.1.
“Licensor Indemnitee” has the meaning set forth in Section 10.2.
“Licensor IP” means the Software, the Documentation, and any and all intellectual property provided to Licensee or any Authorized User in connection with the foregoing. For the avoidance of doubt, Licensor IP includes Aggregated Statistics and any information, data, or other content derived from Licensor’s monitoring of Licensee’s access to or use of the Services, but does not include Customer Data.
“Lifetime White-Label License” has the meaning set forth in Section 2.2.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Monthly Subscription” means any Starter Subscription, Standard Subscription, Premium Subscription, or Enterprise Subscription with respect to which Licensee pays Fees on a monthly basis.
“Multi-year Enterprise Subscription” means a subscription package offered by Licensor with the features of an Enterprise Subscription as described on Exhibit A and with respect to which Licensee pays Fees on a multi-year basis.
“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the MIT License (MIT), GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
“Open Source License” has the meaning set forth in Section 2.6.
“Payment Failure” has the meaning set forth in Section 12.3(a).
“Payment Processor” has the meaning set forth in Section 6.3.
“Permitted Derivative Works” has the meaning set forth in Section 2.2.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Premium Subscription” means a subscription package offered by Licensor with the features described on Exhibit A.
“Receiving Party” has the meaning set forth in Section 7.1.
“Rehive Applications” means Licensor’s Dashboard, Web Wallet, Mobile Wallet, Merchant SDK, and Merchant Documentation products.
“Rehive Applications Software” means the executable, object code version of each of the Rehive Applications, in the most recent version as of the Effective Date, and any Updates provided to Licensee pursuant to this Agreement.
“Rehive Extensions” means Licensor’s Notifications, Mass Send, Rewards, Products, Conversion, Stellar Testnet, Bitcoin Testnet, Stellar Livenet, and Bitcoin Livenet products.
“Rehive Extensions Software” means the executable, object code version of each of the Rehive Extensions, in the most recent version as of the Effective Date, and any Updates provided to Licensee pursuant to this Agreement.
“Rehive Platform Software” means the executable, object code version of the Rehive Platform, in the most recent version as of the Effective Date, and any Updates provided to Licensee pursuant to this Agreement.
“Renewal Term” has the meaning set forth in Section 12.2.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.
“SaaS License” has the meaning set forth in Section 2.1(a).
“Services” means the software-as-a-service offering with respect to each Subscription Level, as described on Exhibit A.
“Software” means the Rehive Applications Software, Rehive Extensions Software, Rehive Platform Software, Services, and Custom URLs.
“Standard Subscription” means a subscription package offered by Licensor with the features described on Exhibit A.
“Starter Subscription” means a subscription package offered by Licensor with the features described on Exhibit A.
“Subscription Level” means, as applicable, the Starter Subscription, Standard Subscription, Premium Subscription, Enterprise Subscription, or Multi-Year Enterprise Subscription.
“Term” has the meaning set forth in Section 12.2.
“Terms of Service” means Licensor’s terms of service in the version then in effect, which can be viewed at https://www.rehive.com/terms or a successor website address.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
“Updates” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.
“White-Label License” has the meaning set forth in Section 2.1.
“Yearly Subscription” means any Starter Subscription, Standard Subscription, Premium Subscription, or Enterprise Subscription with respect to which Licensee pays Fees on a yearly basis.
Use and Access. Subject to and conditioned on Licensee’s payment of Fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 13.8) right to access and use the Services and related Documentation solely for use by Authorized Users during the Term (the “SaaS License”). The service level provided in connection with the SaaS License shall be determined by the Subscription Level as set forth on Exhibit A.
Custom URLs on Rehive Domains. In connection with certain Subscription Levels and with respect to certain Rehive Applications, Licensor may provide a custom URL on Rehive domains (each, a “Custom URL”) for use by Licensee. Subject to and conditioned on Licensee’s payment of the applicable Fees as set forth on Exhibit A and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to such Licensees a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 13.8) license to access and use during the Term solely for use by Authorized Users any such Custom URLs.
Suspension. Notwithstanding anything to the contrary in this Agreement, Licensor may temporarily suspend Licensee’s and any Authorized User’s access to any portion or all of the Services if: (i) Licensor reasonably determines that (A) there is a threat or attack on any of the Licensor IP; (B) Licensee’s or any Authorized User’s use of the Licensor IP disrupts or poses a security risk to the Licensor IP or to any other customer or vendor of Licensor; (C) Licensee, or any Authorized User, is using the Licensor IP for fraudulent or illegal activities; (D) subject to applicable law, Licensee 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) Licensor’s provision of the Services to Licensee or any Authorized User is prohibited by applicable law; (ii) any vendor of Licensor has suspended or terminated Licensor’s access to or use of any third-party services or products required to enable Licensee or its Authorized Users to access the Services; or (iii) Licensee fails to pay the Fees owed to Licensor in accordance with the terms of Section 6 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Licensor shall use commercially reasonable efforts to provide written notice of any Service Suspension to Licensee and to provide updates regarding resumption of access to the Services following any Service Suspension. Licensor 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. Licensor will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User may incur as a result of a Service Suspension.
White-Label License. With respect solely to Licensees with Premium Subscriptions and Enterprise Subscriptions, and subject to and conditioned on payment of the applicable Fees as set forth on Exhibit A and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to such Licensees and to Authorized Users of such Licensees a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 13.8) license to access, use, copy, modify, adapt, translate, enhance, or prepare derivative works or improvements (each, a “Permitted Derivative Work”) of the Rehive Applications Software and related Documentation during the Term (the “White-Label License”).
Lifetime White-Label License. With respect solely to Licensees with Multi-year Enterprise Subscriptions, and subject to and conditioned on payment of the applicable Fees as set forth on Exhibit A and compliance with all other terms and conditions of this Agreement, Licensor hereby grants to such Licensees and to Authorized Users of such Licensees a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 13.8) license to access, use, copy, modify, adapt, translate, enhance, or prepare Permitted Derivative Works of the Rehive Platform Software, Rehive Extensions Software, Rehive Applications Software, and related Documentation both during and after the Term (the “Lifetime White-Label License”). Pursuant to Section 5, Updates to the Software shall be provided to Licensees with a Lifetime White-Label License solely during the Term.
Derivative Works. Licensor shall be the sole and exclusive owner of all right, title, and interest in and to Permitted Derivative Works created under the White-Label License or Lifetime White-Label License, including all Intellectual Property Rights relating thereto, and any such Permitted Derivative Works are deemed Rehive Applications Software for all purposes under this Agreement. Notwithstanding anything herein to the contrary, Licensee shall not, and shall not permit any other Person to, use the Rehive Applications Software and related Documentation (i) to create derivative works or improvements in which any party other than Licensor or Licensee holds Intellectual Property Rights, (ii) to create derivative works or improvements that are designed to allow users other than Authorized Users of such derivative works to modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any such derivative works; or (iii) to rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Permitted Derivative Works to any third party.
Scope of Licensed Access and Use. The total number of Authorized Users who may use the Software on Licensee’s network or who may remotely access and use the Software from any other device may not exceed the number set forth beside “Active Users” for the applicable Subscription Level on Exhibit A, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. With respect to the Lifetime White-Label License, any Representative of a Licensee shall be an Authorized User, provided that Licensor may request written evidence thereof at any time and may terminate the use or access to the Software of any Person for which Licensee fails to provide such evidence.
Open Source Licenses. The Software includes Open Source Components licensed under the MIT License, Apache License 2.0, the 3-Clause BSD License, and other similar licenses, a copy of each of which can be found at opensource.org/licenses (each, an “Open Source License”). Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the applicable Open Source Licenses.
License Restrictions. Except as expressly permitted by this Agreement, and subject to Section 2.6 with respect to Open Source Components, Licensee shall not, and shall not permit any other Person to:
copy the Software, in whole or in part;
modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party;
reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
bypass or breach any security device or protection used for or contained in the Software or Documentation;
remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation;
use the Software 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;
use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Licensor’s detriment or commercial disadvantage;
use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or
use (i) the Software or Documentation other than for the uses permitted herein or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.
Trial Period. With respect to Starter Subscriptions and Standard Subscriptions only, Licensee shall have fourteen (14) days following the Effective Date (the “Trial Period”) to use the Services and Software provided at the applicable Subscription Level without payment to Licensor of any Fees. Following such Trial Period, this Agreement shall immediately terminate unless Licensee pays the Fees associated with such Subscription Level in accordance with Section 6.
Updates. During the Term, Licensor will provide Licensee with all Updates (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Updates provided by Licensor to Licensee are deemed Software. Licensee will install all Updates as soon as practicable when such Updates are made available.
Fees and Payment.
License Fees. Licensee shall pay Licensor the applicable Fees set forth in Exhibit A and in accordance with the terms of this Section 5, unless otherwise agreed in writing by the Parties. If the Term is renewed for any Renewal Term(s) pursuant to Section 12.2, Licensee shall pay the then-current Fees that Licensee charges for the applicable Subscription Level during any such Renewal Term, unless otherwise agreed in writing by the Parties.
Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee 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 Licensee hereunder, other than any taxes imposed on Licensor's income.
Payment. Licensee shall pay all amounts due and owing under this Agreement for each Renewal Term within fourteen (14) days of the first day of such Renewal Term. Licensee shall make all payments hereunder in US dollars and (i) for Monthly Subscriptions, Half-Yearly Subscriptions, and Yearly Subscriptions, such payments shall be made by credit card, ACH, or wire transfer via Licensor’s authorized third-party payment processor (the “Payment Processor”) to such account as specified by Licensor and (ii) for Multi-year Enterprise Subscriptions, such payments shall be made by wire transfer via the Payment Processor to such account as specified by Licensor. Licensee hereby authorizes Licensor or the Payment Processor to charge the account provided by Licensee for the amounts owed and payable under this Agreement for the then-current Initial Term or Renewal Term, and Licensee represents and warrants that it is authorized to use and have fees charged to such account. Licensee also agrees to comply with the Payment Processor’s service agreement, if any. If Licensor receives notice that Licensee has violated the Payment Processor’s service agreement, Licensor may at its sole discretion take action to comply with such service agreement, including by canceling a payment transaction and/or employing any of the remedies set forth in Section 6.4.
Late Payment. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Licensor:
Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
Licensee shall reimburse Licensor for all reasonable costs incurred by Licensor in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
Licensor may: (i) disable Licensee’s use of the Software (including by means of a disabling code, technology or device); (ii) withhold, suspend, or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 12.3(a) or Section 12.3(b), as applicable.
No Deductions or Setoffs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that: (a) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary” or (b) due to the nature of its subject matter or the circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary. Without limiting the foregoing: (i) the Software and Documentation are the Confidential Information of Licensor; and (ii) the financial terms and existence of this Agreement are the Confidential Information of each of the Parties.
Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
except as may be permitted under the terms and conditions of Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;
safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
ensure its Representatives’ compliance with, and be responsible and liable for, any of its Representatives’ non-compliance with, the terms of this Section 7.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
Intellectual Property Rights.
Intellectual Property Ownership. Licensee acknowledges and agrees that:
the Services, Custom URLs, Software, and Documentation are licensed, not sold, to Licensee by Licensor;
Licensee does not have under or in connection with this Agreement any ownership interest in the Services, Custom URLs, Software, or Documentation, or in any related Intellectual Property Rights, except as expressly provided herein;
Licensor is the sole and exclusive owner of all right, title, and interest in and to the Services, Custom URLs, Software, and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open Source Components and the limited license granted to Licensee under this Agreement; and
to the extent that Licensee has created derivative works or patent improvements based on the Services, Custom URLs, Software, or Documentation and such works or improvements are not Permitted Derivative Works, Licensee hereby unconditionally and irrevocably assigns to Licensor or Licensor’s designee, its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in such derivative works or patent improvements relating to the Services, Software, or Documentation, whether held or acquired by operation of law, contract, assignment or otherwise.
Licensee Cooperation and Notice of Infringement. Licensee shall, during the Term:
take all commercially reasonable measures to safeguard the Services, Software, and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor’s ownership of the Intellectual Property Rights in the Services, Software, and Documentation;
promptly notify Licensor in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Licensor’s Intellectual Property Rights in or relating to the Services, Software, or Documentation; or (ii) any claim that the Services, Software, or Documentation, including any production, use, marketing, sale, or other disposition of the Services, Software, or Documentation, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any Person; and
fully cooperate with and assist Licensor in all reasonable ways in the conduct of any Action by Licensor to prevent or abate any actual or threatened infringement, misappropriation, or violation of Licensor’s rights in, and to attempt to resolve any Actions relating to, the Services, Software, or Documentation, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
Feedback. If Licensee or any of its employees, contractors, or agents sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, Software, or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its employees, contractors, and/or agents, all right, title, and interest in, and Licensor 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 Licensor is not required to use any Feedback.
Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee 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 Licensee, an Authorized User or any third party any Intellectual Property Rights or other right, title, or interest in or to the Services, Software, or Documentation.
Representations and Warranties.
Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that:
it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;
the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Limited Warranty. Subject to the limitations and conditions set forth in Section 9.3 and Section 9.4, Licensor warrants to Licensee that the Services and Software will substantially conform in all material respects to the Documentation, when installed, operated, and used as recommended in the Documentation and in accordance with this Agreement.
Licensee Requirements. The limited warranty set forth in Section 9.2 applies only if Licensee: (a) notifies Licensor in writing of the warranty breach within 10 days of discovering such breach; (b) has promptly installed all Updates to the Software that Licensor previously made available to Licensee; and (c) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing).
Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 9.2 does not apply to problems arising out of or relating to:
Software, or the media on which it is provided, that is modified or damaged by Licensee or its Representatives, any Derivative Works, or any Permitted Derivative Works;
any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for Licensee’s use in the Documentation;
Licensee’s or any third party’s negligence, abuse, misapplication, or misuse of the Services and/or Software, including any use of the Software other than as specified in the Documentation;
Licensee’s failure to promptly install all Updates that Licensor has previously made available to Licensee;
the operation of, or access to, Licensee’s or a third party’s system or network;
any Open Source Components, beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a license fee;
Licensee’s material breach of any provision of this Agreement; or
any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
Remedial Efforts. If Licensor breaches, or is alleged to have breached, the limited warranty set forth in Section 9.2, Licensor may, at its sole option and expense, take any of the following steps to remedy such breach:
amend, supplement, or replace any incomplete or inaccurate Documentation;
repair the Services and/or Software, as applicable; and/or
replace the Services and/or Software with functionally equivalent services or software (which services or software will, on its replacement, constitute Services or Software hereunder, as applicable).
The remedies set forth in this Section 9.5 are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 9.2.
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.2, ALL LICENSED SERVICES, SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS.” LICENSOR 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. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Licensee and Licensee’s officers, directors, employees, agents, successors and permitted assigns (each, a “Licensee Indemnitee”) from and against any and all Losses incurred by the Licensee Indemnitee resulting from any Action by a third party that the Services, Software, or Documentation, or any use of the Services, Software, or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. This Section 10.1 does not apply to the extent that the alleged infringement arises from:
Open Source Components or other Third-Party Materials;
combination, operation, or use of the Services or Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Licensee’s use in the Documentation;
modification of the Software other than by Licensor or its contractor in connection with this Agreement;
use of any version of the Software other than the most current version or failure to timely implement any Update made available to Licensee by Licensor;
use of the Services or Software after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights;
negligence, abuse, misapplication, or misuse of the Services, Software, or Documentation by or on behalf of Licensee, Licensee’s Representatives, or a third party;
use of the Services, Software, or Documentation by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions;
events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or
Third-Party Claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 10.2.
Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “Licensor Indemnitee&apos) from and against any and all Losses incurred by the Licensor Indemnitee resulting from any Action by a third party:
that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
use or combination of the Services or Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation; and
information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Services, Software, or Documentation;
relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement;
relating to gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Services, Software, or Documentation or otherwise in connection with this Agreement; or
relating to use of the Services, Software, or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope. or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor’s instructions.
Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee’s prior written consent. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
Mitigation. If the Services or Software, or any part of the Services or Software, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the Services or Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense:
obtain the right for Licensee to continue to use the Services or Software as contemplated by this Agreement;
modify or replace the Services or Software, in whole or in part, to seek to make the Services or Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement services or software will constitute Services or Software under this Agreement, as applicable; or
if none of the remedies set forth in the above Section 10.4(a) or Section 10.4(b) is reasonably available to Licensor, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Services or Software, effective immediately on written notice to Licensee, in which event:
Licensee shall cease all use of the Services, Software, and Documentation immediately on receipt of Licensee’s notice; and
provided that Licensee fully complies with its post-termination obligations set forth in Section 12.4, Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any Fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.
Sole Remedy. THIS SECTION 10 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES, SOFTWARE, OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability.
EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $25,000, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Term and Termination.
Initial Term. The initial term (the “Initial Term”) (i) with respect to Monthly Subscriptions, commences as of the Activation Date and continues in effect until the corresponding day of the next month (and if there is no such day, the last day of the month), (ii) with respect to Half-Yearly Subscriptions, commences as of the Activation Date and continues in effect for six (6) months, (iii) with respect to Yearly Subscriptions, commences as of the Activation Date and continues in effect for twelve (12) months, and (iv) with respect to Multi-year Enterprise Subscriptions, commences as of the Activation Date and continues in effect for three (3) years from such date, in each case unless terminated earlier pursuant to any of the Agreement’s express.
Renewal Term. With respect to Monthly Subscriptions, this Agreement will automatically renew each month unless earlier terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least ten (10) days prior to the expiration of the then-current Term. With respect to Half-Yearly Subscriptions, this Agreement will automatically renew for 6-month terms unless earlier terminated pursuant to any of the 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. With respect to Yearly Subscriptions and Multi-year Enterprise Subscriptions, this Agreement will automatically renew for 12-month terms unless earlier terminated pursuant to any of the 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, collectively, together with the Initial Term, the “Term”).
Termination. This Agreement may be terminated at any time:
by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement (“Payment Failure”), where such failure continues more than fourteen (14) days after Licensor’s delivery of written notice thereof;
by Licensor, immediately on written notice to Licensee if any two (2) or more Payment Failures occur in any 12-month period;
by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
by Licensor, effective immediately, if the Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property; or
by Licensor, with at least 90 days’ prior written notice to Licensee.
Effect of Termination or Expiration.
On the expiration or earlier termination of this Agreement:
all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and Licensee will (A) immediately cease all use of and other activities with respect to the Software and Documentation; (B) within ten (10) days deliver to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software, the Documentation and the Licensor’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to Licensor in a signed written instrument that it has complied with the requirements of this Section 12.4; and
all amounts payable by Licensee to Licensor of any kind under this Agreement are immediately payable and due no later than fourteen (14) days after the effective date of the expiration or fourteen (14) days after termination of this Agreement.
Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 2.4, Section 3, Section 6, Section 7, Section 8, Section 9.6, Section 10, Section 11, Section 12.4, this Section 12.5, and Section 13.
Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld; provided, however, that Licensor may, without Licensee’s consent, include Licensee's name and other indicia in its lists of Licensor’s current or former customers of Licensor in promotional and marketing materials.
Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement shall have legal effect only if in writing and addressed to a Party at the address or email address set forth on the signature page of this Agreement or to such other address or email address as either Party may from time to time specify. Notices sent in accordance with this Section 13.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) two Business Days after the notice is sent, if sent by facsimile or email (in each case, with confirmation of transmission); and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to this Agreement; (y) 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 (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to 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. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Assignment. Licensee 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 Licensor's prior written consent. No assignment, delegation, or transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.8 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
Export Regulation. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws 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 available outside the US.
No Breach or Default. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Licensor will give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
No Third-Party Beneficiaries. 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 will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, 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; nor will 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.
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. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties 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.
Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware 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 Delaware.
Dispute Resolution. Except as otherwise required by a non-waivable provision of applicable law, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco, California, United States before one arbitrator, who has at least three years of experience as an arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in San Francisco County, California, or if such proceeding cannot be lawfully held in such location, as near thereto as applicable law permits. By agreeing to this binding arbitration provision, the Parties understand that they are waiving certain rights and protections which may otherwise be available if a claim between the Parties were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this Section 13.15, the right to a jury trial, certain rights of appeal, and a right to invoke formal rules of procedure and evidence.
Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Section 2.7, Section 6, Section 7, Section 8, or Section 10 of this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, 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.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Rehive Subscription Levels and Pricing can be found at https://rehive.com/pricing
Last updated August 30, 2021.