PLEASE NOTE THAT THE TERMS OF THIS CLICK-THRU END USER LICENSE AGREEMENT (“EULA”) SHALL GOVERN YOUR USE OF THE SOFTWARE.
IMPORTANT-READ CAREFULLY: IF LICENSEE (WHETHER THROUGH AN EMPLOYEE, CONTRACTOR, OR AGENT) CLICKS TO INDICATE ACCEPTANCE OF THIS EULA, OR DOWNLOADS, INSTALLS AND USES THE SOFTWARE ACCOMPANYING THIS EULA, LICENSEE INDICATES ACCEPTANCE OF THESE TERMS AND CONDITIONS UNLESS LICENSEE HAS A DIFFERENT LICENSE AGREEMENT SIGNED BY BOTH PARTIES THAT EXPRESSLY OVERRIDES THE TERMS OF A CLICK-THROUGH LICENSE.
IMPORTANT-READ CAREFULLY: BY ACCEPTING, DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE.
This EULA, along with all applicable Ordering Documents, govern Licensee’s rights, duties and obligations with respect to the Mobilize Software or any other Company Software licensed to Licensee.
The Parties agree as follows:
“Company” means Growth Acceleration Partners, LLC, a Texas limited liability company.
“Effective Date” shall have the meaning specified in the applicable Ordering Document. If not specified in an Ordering Document, then the Effective Date shall mean the earlier of (i) the date that Licensee clicks to indicate acceptance of this EULA or (ii) the date that Licensee begins using the Mobilize Software.
“End-Users” means the Licensee’s employees or the Licensee’s end-users that the Licensee authorizes to use the Modernized Application and Mobilize Frameworks pursuant to this EULA and the applicable Ordering Document(s).
“Licensee” means the legal entity for whom the person that accepts this EULA is acting on behalf of.
“Mobilize Frameworks” means the Company’s Mobilize product software classes, libraries, and all derivative works, updates and extensions thereto that implement functionality which may be required by the Original Application in the source platform but not provided in a compatible form on the target platform, libraries to support automated testing, API exposure, or other Company intellectual property used in the development, testing, or execution of a Modernized Application, as more specifically identified in the applicable Ordering Document.
"Mobilize Software" means the Company’s “Mobilize Tools” and “Mobilize Frameworks” specified in the applicable Ordering Document(s), which are used to migrate a specific Original Application into a Modernized Application with similar functionality.
“Mobilize Tools” means the Company’s Mobilize product software platform, tools, and updates and extensions thereto, which transform a specific Original Application into a Modernized Application, as more specifically identified in the applicable Ordering Document.
“Modernized Application” means the specific output software resulting from the migration of an Original Application using Mobilize Software and/or services and: (i) includes substantial functionality beyond the Mobilize Software; and (ii) is not a commercial alternative for, or competitive in the marketplace with, the Mobilize Software or any components of the Mobilize Software.
“MSA” means the Master Services Agreement between the Company and Licensee, if one has been executed.
“Ordering Document” means a document that is signed or otherwise accepted by the Licensee pursuant to which Licensee orders a license to use the Mobilize Software. An Ordering Document may take the form of an SOW, a purchase order issued by Licensee or any other document that is signed or otherwise accepted by Licensee, or issued by Licensee and accepted by Company.
“Original Application” means the Licensee’s input software to be modernized, developed and/or otherwise legally owned by Licensee, as described in the applicable Ordering Document(s).
"Scope Limitations" means the limitations on the scope of the licenses granted to Licensee under this EULA and the applicable Ordering Document(s).
“SOW” means any Statement of Work executed by Company and Licensee pursuant to an MSA.
“Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving the Mobilize Software that is not expressly authorized under this EULA or an applicable Ordering Document.
2.1 Use of the Mobilize Software. Subject to the terms and conditions of this EULA and the applicable Ordering Document(s), Company grants to Licensee a limited, worldwide, non-exclusive, non-transferable license to reproduce, install, and use licensed copies of 1) the Mobilize Tools, without right to sublicense, solely for the purpose of migrating, modernizing, or transforming the Licensee’s Original Application(s) with maximum lines of code specified in the applicable Ordering Document(s) into a Modernized Application, and 2) the Mobilize Frameworks, subject to the following conditions and Scope Limitations:
Licensee is granted a Mobilize Framework developer license under the following additional conditions:
2.2 License Key. The Mobilize Tools contains a feature that is used to automatically disable the Mobilize Tools to ensure that Licensee does not use the Mobilize Tools longer than the term of, or beyond the scope of, Licensee’s license to use the Mobilize Tools. Licensee acknowledges that upon the expiration of Licensee’s license to use the Mobilize Tools, and if Company has not issued to Licensee a new license key, the Mobilize Tools may cease to function in some or all respects, and Licensee may lose access to data made with or stored using the Mobilize Tools. Licensee acknowledges that the disabling of the Mobilize Tools is a key feature of the license rights and responsibilities conveyed under this EULA and the applicable Ordering Document(s).
2.3 Fees; Payment Terms. Licensee shall pay all applicable license fees, as set forth in the applicable Ordering Document, including all applicable license fees and maintenance and support fees. Payment terms will be net 30 days for the date of the invoice. Payments not made when due will be subject to a service charge of 1.5% per month, or the maximum charge permitted by law, whichever is less
2.4 Privacy Statement. Company may collect, use and store usage data to help improve its products, and verify and enforce compliance with license terms. This includes but is not limited to software activations, exception information, features used, as well as the serial number of the product and information relating to support or service issues, and file and project names and sizes to validate license compliance. Company may collect such information as Licensee uses the tool or periodically when internet connections are available, or store and retrieve such information in the event of an audit as allowed under this license. Company will not collect or transmit any of Licensee’s Original Application or any of Licensee’s other personal or proprietary information except for the purposes described in this EULA and any applicable Ordering Document(s).
2.5 Reservation of Rights. The Mobilize Software is licensed, not sold, by Company to Licensee, and nothing in this EULA, the MSA or an Ordering Document will be interpreted or construed as a sale or purchase of the Mobilize Software. Licensee will not have any rights in or to the Mobilize Software except as expressly granted in this EULA or any applicable Ordering Document(s). Company reserves to itself all rights to the Mobilize Software expressly granted to Licensee in accordance with this EULA and any applicable Ordering Document(s). Company retains all intellectual property rights in and to the Mobilize Software. Licensee acknowledges that the Mobilize Software, all copies of the Mobilize Software, and any know-how and trade secrets related to the Mobilize Software are the sole and exclusive property of Company and contain Company’s confidential and proprietary materials.
2.6 Ownership. The parties agree that Licensee retains all intellectual property rights to the Original Application and the Modernized Application source code except for the Mobilize Frameworks. Company owns all intellectual property rights to the Mobilize Frameworks, its interfaces, and all extensions, bug fixes, and all derivative works thereto. Licensee hereby irrevocably assigns to Company all right, title, and interest in and to all derivative works of the Mobilize Software created by Licensee.
2.7 Trial License Rights Exclusion. If Licensee is using the Mobilize Software under a Trial License (as specified in an Ordering Document), then the Modernized Application and all derivative works thereof, may not be distributed to end users or deployed into production environments until a full production license is purchased and fully paid for. Trial License generated code is licensed only for evaluation purposes in development and test environments and must be destroyed upon completion of the evaluation or expiration or revocation of the license, whichever comes first.
3 LICENSEE OBLIGATIONS
3.1 General Restrictions. Except as otherwise explicitly provided in this EULA and the applicable Ordering Document(s), or as may be expressly permitted by applicable law, Licensee will not, nor will they permit or authorize third parties to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Mobilize Software; (ii) rent, lease, or sublicense the Mobilize Tools; (iii) use the Mobilize Software on a service bureau or application service provider basis; (iv) provide, divulge, disclose, make available to, or permit the use of the Mobilize Tools by any third-party; or (v) circumvent or disable any technological or security or features or license compliance measures in the Mobilize Software, including, without limitation, to attempt to discern the source code for the Mobilize Software.
3.2 Proprietary Rights Notices. Licensee will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on the Mobilize Software.
3.3 Compliance with Laws. Licensee will use the Mobilize Software in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Company.
3.4 Export. The Mobilize Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Mobilize Software.
3.5 Protection against Unauthorized Use. Licensee acknowledges that the Mobilize Software and any other materials furnished to Licensee by Company involve valuable proprietary rights of Company. Licensee will take appropriate steps and precautions to protect the Mobilize Software. Without limiting the generality of the foregoing, Licensee will use its best efforts to prevent any Unauthorized Use and immediately notify Company in writing of any Unauthorized Use that comes to Licensee’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Mobilize Software directly or indirectly through Licensee or any of its employees, agents, representatives, or contractors, Licensee will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Mobilize Software in the possession or control of the person or entity engaging in such Unauthorized Use. Licensee will provide to the Company such cooperation and assistance related to any such Unauthorized Use as the Company may reasonably request.
3.6 Trademark License. Licensee may use the Company’s product names, logos and trademarks for the purpose of communicating the Company’s copyright, as required above in Section 2.1(d), in the Modernized Application. Licensee agrees to obtain written approval from the Company prior to using any Company product names, logos, and trademarks in any marketing.
4 INTELLECTUAL PROPERTY INFRINGEMENT
4.1 Infringement Defense. Company will defend Licensee from any third-party claim that the Mobilize Software infringes or misappropriates any copyright or trade secret of any third-party during the term of this EULA or any applicable Ordering Document if: (i) Licensee gives the Company with prompt written notice of the claim; (ii) Company has full and complete control over the defense and settlement of the claim; (iii) the Licensee provides assistance in connection with the defense and settlement of the claim as Company may reasonably request; and (iv) the Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
4.2 Infringement Indemnification. Company will indemnify Licensee against (i) all damages, costs, and attorneys’ fees finally awarded in any proceeding under Section 4.1; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Company’s consent after Company has accepted defense of such claim); and (iii) if any proceeding arising under Section 4.1 is settled, all amounts paid to any third-party agreed to by Company in settlement of any such claims.
4.3 Exclusions. Company will have no liability for any infringement to the extent that it arises out of or is based upon (i) the combination, operation, or use of the Mobilize Software with Licensee’s Original Application or Modernized Application if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Mobilize Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Mobilize Software outside of the scope of the license granted to the Licensee; (iv) Licensee’s failure to use the latest release of the Mobilize Software or to comply with instructions provided by Company, if the alleged infringement would not have occurred but for such failure; (v) any modification of the Mobilize Software not made by Company where such infringement would not have occurred absent such modification; or (vi) Unauthorized Use of the Mobilize Software. Licensee will reimburse Company for any costs or damages that result from these actions.
4.4 Exclusive Remedy. This Section 4 states Company’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property right by the Mobilize Software.
5. LICENSEE INDEMNIFICATION
5.1 Defense Licensee will defend Company from any actual or threatened third-party claim arising out of or based upon the Licensee’s use of the Mobilize Software, a third-party’s use of the Mobilize Software, or Licensee's breach of any of the provisions of this EULA. Company will: (i) give Licensee prompt written notice of the claim; (ii) grant Licensee full and complete control over the defense and settlement of the claim; (iii) assist Licensee with the defense and settlement of the claim as Licensee may reasonably request and at Licensee’s expense; and (iv) comply with any settlement or court order made in connection with the claim.
5.2 Indemnification Licensee will indemnify Company against: (i) all damages, costs, and attorneys’ fees finally awarded against the Company in any proceeding under Section 5.1; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Licensee’s consent after Licensee has accepted defense of such claim); and (iii) if any proceeding arising under Section 5.1 is settled, Licensee will pay any amounts to any third-party agreed to by Licensee in settlement of any such claims.
6. DISCLAIMERS AND LIMITATIONS
6.1 Disclaimer. COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO THE MOBILIZE SOFTWARE ANY OTHER MATTER RELATED TO THE MOBILIZE SOFTWARE. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE MOBILIZE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE MOBILIZE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE LICENSEE’S USE OF THE MOBILIZE SOFTWARE. LICENSEE WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE COMPANY TO ANY THIRD-PARTY.
6.2 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS EULA AND THE MOBILIZE SOFTWARE (INCLUDING BUT NOT LIMITED TO WARRANTY OR INFRINGEMENT CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID BY LICENSEE TO COMPANY FOR THE MOBILIZE SOFTWARE LICENSED UNDER THIS EULA WITHIN 12 MONTHS OF THE DATE UPON A CLAIM IS ASSERTED BY LICENSEE AGAINST COMPANY.
6.3 Damages Disclaimer. IN NO EVENT SHALL THE COMPANY BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES, ANY WORK PRODUCT PROVIDED HEREUNDER OR ANY LICENSED GAP TECHNOLOGY LICENSED TO CUSTOMER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM OR RELATED TO, INTERRUPTION OF BUSINESS, LOSS OF PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF SOFTWARE, LOSS OF DATA, COST OF RECREATING DATA, COST OF CAPITAL, COST OF ANY SUBSTITUTE SOFTWARE, OR LOSSES CAUSED BY DELAY.
6.4 Independent Allocations of Risk. EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS EULA BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY THE COMPANY TO LICENSEE AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS EULA, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS EULA HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
7. AUDIT.
During the term of this EULA and for three years thereafter, Licensee will keep current, complete, and accurate records regarding the reproduction, distribution, and use of Mobilize Software. Licensee will provide such information to the Company and certify that it has paid all fees required under this EULA within five business days of any written request, so long as no more than two requests are made each year. Licensee will, after reasonable prior notice from the Company, provide the Company reasonable access to Licensee’s premises, records, and personnel so that Company may audit and confirm that Licensee complies with this EULA. If an audit reveals any reproduction, use, or distribution of the Mobilize Software that is not compliant with this EULA, Licensee will promptly comply with this EULA and purchase additional licenses as necessary to cover the actual discovered usage, plus interest at the rate specified in the applicable Ordering Document. If the audit reveals that the cost of additional licenses to come into compliance cost five percent (5%) or more than the fees specified in the applicable Ordering Document, Licensee will promptly reimburse Company for its reasonable costs of conducting such audit.
8. CONFIDENTIAL INFORMATION.
8.1 Confidential Information. “Confidential Information” means any information disclosed by one Party (“Disclosing Party”) to the other party (“Receiving Party”), whether disclosed orally, in writing, in electronic format or other medium, which is clearly marked or indicated as confidential or proprietary or which should be reasonably determined, by its nature, to be proprietary or confidential. Confidential Information includes, but is not limited to, technical information, data, source code, object code, software, designs, screens, editors, utilities, software tools, flow charts, data structures, models, demos, methods, processes, improvements or documentation, business policies, business practices, business procedures, business plans, strategies, suppliers, trade secrets, fees or financial information of the Disclosing Party. The pricing, terms and conditions of this EULA are the Company’s Confidential Information. Confidential Information also includes any information that the Disclosing Party has obtained in confidence from a third-party who designates it as confidential. It is understood and agreed that the Disclosing Party’s Confidential Information that may from time to time be made available or become known to the Receiving Party is to be treated as confidential, and to be used solely in connection with performance under this EULA.
8.2 Duties Regarding Confidential Information. The Receiving Party will not, without the prior consent of the Disclosing Party, use any portion of the Disclosing Party’s Confidential Information for any purpose other than as contemplated in this EULA and the Receiving Party agrees that:
(a) it will hold the Disclosing Party’s Confidential Information in confidence and will exercise the same care with respect thereto as the Receiving Party exercises with respect to its own proprietary and confidential information (but no less than a reasonable standard of care), and will not, without the Disclosing Party’s prior consent, copy or disclose any portion thereof to any third party except to its employees, officers, independent contractors or legal representatives who have a need to know and who are contractually obligated to preserve the confidentiality of such Confidential Information or as required by law; and
(bi) it will not remove or permit to be removed from the Disclosing Party’s Confidential Information any notice placed thereon by the Disclosing Party indicating the confidential nature of or the proprietary right of the Disclosing Party in such items.
The foregoing shall not prohibit or limit the Receiving Party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) that: (i) is already known to it; (ii) is independently developed by it; (iii) was received by the Receiving Party on a non-confidential basis, prior to receipt from the Disclosing Party from a third party lawfully possessing and lawfully entitled to disclose such information; or (iv) becomes part of the public domain through no breach by the Receiving Party of this EULA.
(c) Government Obligations. If the Receiving Party is required to disclose Confidential Information in order to satisfy a legal requirement of a competent governmental or regulatory authority, the Receiving Party shall promptly advise the Disclosing Party of all facts known to the Receiving Party concerning such action or threatened action or required disclosure. The Receiving Party shall cooperate in all reasonable ways, at the Disclosing Party’s expense, to prevent such action or threatened action, including, without limitation, assigning any cause of action it may have, related to the violation of the foregoing provisions, to the Disclosing Party and the Receiving Party agrees to do all reasonable things and cooperate in all reasonable ways, at the Disclosing Party’s expense, as may be requested by the Disclosing Party to protect the trade secret and proprietary rights of the Disclosing Party in and to the Disclosing Party’s Confidential Information; however the Receiving Party shall not be violation of this Section 8 if it makes the disclosure required to the governmental or regulatory authority after notice is given to the Disclosing Party.
9. TERM AND TERMINATION
9.1 Term. This EULA will terminate upon the termination or expiration of all applicable Ordering Document(s) that specify license terms.
9.2 Termination.
(a) Termination for Breach; Suspension. Either Party may terminate this EULA in the event of a material breach by the other Party, unless such breaching Party diligently commences its efforts to cure such breach, and, except for non-payment, such breach is cured within 30 days of its receipt of written notice from the non-breaching Party, or if such breach is not capable of being cured within such 30-day period, the breaching Party uses commercially reasonable efforts to effect such cure as soon as practicable. Notwithstanding anything to the contrary in this Section 9, if Licensee fails to pay any amount when due, and such failure continues for a period of 10 days after written notice to Licensee, then the Company may, in its sole and absolute discretion, do either of the following upon written notice to Licensee: (i) suspend Licensee’s right to use the Mobilize Software until such time as Licensee pays all amounts due to the Company (including interest on late payments); or (ii) immediately terminate this EULA.
(b) Termination for Bankruptcy. If bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation, or similar proceedings (including without limitation the calling of a meeting of creditors of such party) shall be instituted by or against a party, or against all or any substantial part of its property, under any applicable federal or state law (or any foreign law if Licensee does business or is domiciled outside the United States), and such proceeding is not within 60 days, then the other Party may immediately terminate this EULA. Nothing contained in this EULA shall be deemed to preclude or impair any rights which a Party may have as a creditor in any bankruptcy proceeding.
9.3 Post-Termination Obligations. Upon termination or expiration of this EULA, Licensee will (a) cease all use of the Mobilize Software, (b) return or destroy all copies of the Mobilize Software, and (c) provide Company with a written certification signed by an authorized representative certifying that Licensee has returned or destroyed all copies and discontinued all use of the Mobilize Software.
9.4 Survival. Any provisions of the EULA or any applicable Ordering Document containing license restrictions, including, but not limited to restrictions related to the Mobilize Frameworks source code, as well as any warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms in this EULA or any applicable Ordering Document, shall remain in effect following any termination or expiration of the EULA, along with any other provision of the EULA that, by its nature, is intended to survive.
10. MISCELLANEOUS.
10.1 Specific Performance and Injunctive or Equitable Relief. If there is a breach of Section 8 and the non-breaching Party would suffer irreparable damage and otherwise satisfies the requirements for obtaining injunctive relief, it shall be entitled to an injunction or other equitable relief to prevent breaches of the provisions of this EULA and to enforce specifically the terms and provisions hereof in any court of the United States or any state thereof having jurisdiction.
10.2 Notice. All notices, demands, requests, or other communications that may be or are required to be sent by any party to any other party pursuant to this EULA shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, or transmitted via email (with confirmation or receipt), addressed as follows:
(i) If to Licensee: at the address set forth in the Company’s records.
(ii) If to the Company:
Growth Acceleration Partners, LLC
Each Party may designate by notice in writing a new address to which any communication shall thereafter be so given, served or sent. Each notice, demand, request, or communication that shall be hand delivered, sent, mailed, or e-mailed in the manner described above, or that shall be delivered to a party shall be deemed sufficiently given, served, sent, received or delivered for all purposes at such time as it is delivered to the addressee (with the return receipt or the delivery receipt being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
10.3 Waiver. No delay or failure on the part of any party hereto in exercising any right, power or privilege under this EULA or under any other documents furnished in connection with or pursuant to this EULA shall impair any such right, power or privilege or be construed as a waiver of any default or any acquiescence therein. No single or partial exercise of any such right, power or privilege shall preclude the further exercise of such right, power or privilege, or the exercise of any other right, power or privilege. No waiver shall be valid against any Party hereto unless made in writing and signed by the Party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.
10.4 Partial Invalidity. If any term or provision of this EULA shall be found to be illegal or unenforceable, each such term or provision shall be enforced only to the extent it is not illegal or unenforceable and all other terms and provisions of this EULA shall remain in full force and effect.
10.5 Governing Law; Venue. This EULA will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Travis County, Texas, in connection with any action arising out of or in connection with this EULA. The substantially prevailing Party is entitled to recover its costs and expenses, including attorney’s fees and expenses, from the non-prevailing Party. Notwithstanding the above, the parties may seek injunctive relief or other equitable relief in any court of competent jurisdiction for a breach of Section 8 of this EULA.
10.6 Assignment. LICENSEE SHALL NOT ASSIGN ITS RIGHTS OR OBLIGATIONS UNDER THIS EULA, IN WHOLE OR IN PART, WHETHER BY OPERATION OF LAW OR OTHERWISE, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, AND ANY SUCH ASSIGNMENT CONTRARY TO THE TERMS HEREOF SHALL BE NULL AND VOID AND OF NO FORCE AND EFFECT.
10.7 Publicity. The Company shall have the right to use Licensee as a client reference in its client listing and promotional materials without the prior consent of Licensee.
10.8 Entire Agreement; Amendment. This EULA, together with the Ordering Documents, all of which are incorporated into this EULA by reference, constitutes the entire agreement between the Parties with respect to the transactions contemplated herein, and it supersedes all prior oral or written agreements, commitments or understandings between the parties with respect to the subject matter hereof; provided, that in the event of a conflict between an Ordering Documents and this EULA, the Ordering Document will control, but only with respect to the extent explicitly set forth in the Ordering Documents set forth in such Ordering Documents. No amendment, modification or discharge of this EULA shall be valid or binding unless set forth in writing and duly executed and delivered by the Party against whom enforcement of the amendment, modification, or discharge is sought. Notwithstanding the foregoing, if Licensee issues a purchase order in connection with this EULA, any such purchase order terms that conflict with or purport to amend or modify terms of the this EULA are void and of no force or effect.
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