The contract into which these general terms and conditions (these “GTC”) are incorporated by reference is referred to in these GTC as the “Subject Contract”. Capitalized terms used and not otherwise defined in these GTC are used in these GTC as defined in the main body of the Subject Contract.
“Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person.
“Authorized Users” means Licensee’s or, with respect to any specified Licensed Property, such Licensed Property’s directors, officers, and employees that Licensee or such Licensed Property, as the case may be, reasonably determines require access to the Software in order for Licensee or such Licensed Property, as the case may be, to exercise and exploit fully its rights under the Subject Contract.
“Business Day” means any day that is not a Saturday, a Sunday, or another day that applicable Law requires or authorizes banks in Santa Monica, California to be closed.
“Claim” means any cause of action, request, assertion, accusation, allegation, demand, petition, complaint, or other claim of any kind, whether arising under any Law (including but not limited to constitutional, criminal, administrative, contract, and tort law), Governmental Order, Contract, or otherwise, and whether direct or indirect, accrued or fixed, absolute or contingent, determined or determinable, matured or unmatured, known or unknown, foreseen or unforeseen, suspected or unsuspected, or anticipated or unanticipated.
“Confidential Information” means, with respect to any specified Disclosing Party, all information of any kind or in any form (whether communicated orally or in writing, or by electronic or magnetic media, visual observation, or other means) relating to such Disclosing Party or any of its Affiliates or any Person with whom such Disclosing Party or any of its Affiliates has or has had any contractual or business relationship, including all information consisting of or relating to such Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing, all information with respect to which such Disclosing Party has contractual or other confidentiality obligations, and all information that a reasonable business person would assume to be of a confidential or proprietary nature, in each case whether or not marked, designated, or otherwise identified as “confidential” or “proprietary”, except:
Without limiting the generality of the foregoing, the Software and the Customer Feedback comprise Confidential Information of Licensor, the Licensee Data comprise Confidential Information of Licensee, and the existence and terms and conditions of the Subject Contract and any other business relationship or negotiations to which the Parties are jointly party comprise Confidential Information of each Party.
“Contract” means any contract, agreement, lease, consensual obligation, promise, commitment, undertaking, or other understanding or arrangement of any kind that is or purports to be legally binding.
“Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such specified Person.
“Control” (including, with correlative meaning, “Controlling,” “Controlled by”, and “under common Control with”) means, with respect to any specified Person, to possess, directly or indirectly, the power to direct or cause the direction of the management and policies of such specified Person, whether through ownership of voting securities, by Contract, or otherwise.
“Controlled Technology” means any software, documentation, technology, or data, or any products that include or use any of the foregoing, the export, re-export, or release of which to certain jurisdictions or countries is prohibited or requires an export license or other approval of any Governmental Authority, under any applicable Law, including the United States Export Administration Act and its associated regulations.
“Custom Software” means all software that Licensor or any of its Affiliates or any of their respective Representatives, or any other Person acting in the name or on behalf of any such Person, creates or has created under the Subject Contract or in connection with the Services.
“Customer Feedback” means all suggestions, comments, or other feedback of any kind that Licensee or any of its Affiliates or any of their respective Representatives, or any other Person acting in the name or on behalf of any such Person, communicates to Licensor with respect to the Software or the Services, including ideas for improvements or enhancements to, or additional features or functionality for, the Software or the Services.
“Designated Proceeding” means any Proceeding based upon, resulting from, arising out of, or relating to the Subject Contract, including any Proceeding for the recognition or enforcement of any judgment resulting from any such Proceeding.
“Designated Courts” means the courts of the State of Delaware sitting in the city of Wilmington and county of New Castle and the United States District Court for the District of Delaware, and any appellate court therefrom.
“Designated Sites” means, with respect to Licensee or any specified Licensed Property, as the case may be, the sites specified therefor on Schedule B (“Designated Sites”).
“Development Agreement” means a Subject Contract designated an “Development Agreement” or by words of like import the purpose of which is to permit the Licensee thereunder to use Trueface Vision in connection with the development, but not production, of Licensee’s own products and services to determine whether the Software and the Services satisfy such Licensee’s requirements and conditions for entering into a full, long-term production license agreement.
“Development Services” means any development, operations, or maintenance services or the like that the Section of the main body of the Subject Contract entitled “Development Services” contemplates and that Licensor or any of its Affiliates or any of their respective Representatives provides to or for the benefit of Licensee or any Licensed Property under the Subject Contract, including any statement of work for development, operations, or maintenance services or the like entered into under or in connection with the Subject Contract.
“Disclosing Party” means the Party (including its Affiliates and their respective Representatives) that furnishes, discloses, or makes available such Party’s own Confidential Information to the other Party or any of its Affiliates or any of their respective Representatives under or in connection with the Subject Contract.
“Documentation” means all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents, or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, or technical or other components, features, or requirements, of the Licensed Software, to the extent Licensor makes such materials generally available from time to time to licensees of the Licensed Software, or of the Custom Software.
“Entity” means any company (including public or private limited liability company), corporation, partnership, joint venture, estate, trust, firm, society, association, unincorporated organization, or other entity or legal person of any kind, including any Governmental Authority.
“Entity” means any company (including public or private limited liability company), corporation, partnership, joint venture, estate, trust, firm, society, association, unincorporated organization, or other entity or legal person of any kind, including any Governmental Authority.
“Evaluation Agreement” means a Subject Contract designated an “Evaluation Agreement” or by words of like import the purpose of which is to permit the Licensee thereunder to evaluate Trueface Vision to determine whether the Software and the Services satisfy such Licensee’s requirements and conditions for entering into a Development Agreement or full, long-term production license agreement.
“Event of Default” means, with respect to any specified Party:
“Excluded Claims” means, collectively, all Claims based upon, resulting from, arising out of, or relating to any loss, inaccuracy, or corruption of data or any error in, or interruption of use of, the Services or the Software, including any false positives or negative result given in connection with any Verification.
“Excluded Damages” means, with respect to any specified Party or any of its Affiliates or any of their respective Representatives, all Losses any such Person may incur in connection with any matter based upon, resulting from, arising out of, or relating to the Subject Contract, the Services, or the Software, under any contract, warranty, negligence, strict liability, or other theory of any kind, which Losses constitute:
“Governmental Authority” means any body exercising, or entitled or purporting to exercise, any legislative, executive, judicial, administrative, military, police, regulatory, or taxing authority or power of any kind.
“Governmental Order” means any assessment, award, capital or other directive, cease and desist order, consent agreement, consent order, decree, determination, injunction, interpretation, judgment, ruling, stipulation, subpoena, verdict, writ, or other decision or order of any kind issued or entered by or with any Governmental Authority, arbitrator, mediator, or arbitration or mediation panel.
“Intellectual Property Rights” means 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 Law, and all similar or equivalent rights and forms of protection, in any part of the world.
“Law” means any constitution, law, code, act, statute, treaty, ordinance, rule, regulation, or other requirement or rule of law (including common law) adopted, enacted, implemented, issued, promulgated, or otherwise put into effect by any Governmental Authority or the eligible voters of any jurisdiction. Any reference in the Subject Contract to any Law means such Law as amended, modified, codified, replaced, or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder. Any reference in the Subject Contract to any section or other provision of any Law means that provision of such Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement, or reenactment of such section or other provision.
“Liability” means any debt (whether indebtedness for borrowed money or other), liability, or obligation of any kind, whether direct or indirect, accrued or fixed, absolute or contingent, determined or determinable, matured or unmatured, known or unknown, foreseen or unforeseen, suspected or unsuspected, or anticipated or unanticipated, including any debt, liability, or obligation arising under any Law, Proceeding, Governmental Order, or Contract.
“Licensed Properties” means the properties, if any, that Licensee owns or controls that are listed on Schedule A (“Licensed Properties”) to the main body of the Subject Contract.
“Licensed Property Term” means, with respect to any specified Licensed Property as at any specified date of determination, the Initial Term and each Renewal Term for such Licensed Property.
“Licensed Software” means the object code, production version (and any development versions Licensor makes generally available from time to time to its licensees) of Trueface Vision (including Trueface Vision Box, Trueface Vision SDKs, and Trueface Vision Edge) as of the date of the Subject Contract, together with all Maintenance Releases made after the date of the Subject Contract. Notwithstanding the immediately preceding sentence, if the Subject Contract is an Evaluation Agreement or a Development Agreement, the Licensed Software will include only Licensor’s current development version of Trueface Vision on the Effective Date, and related developer SDKs and self-hosted RESTful APIs.
“Licensee Data” means all proprietary data that Licensee owns, controls, or has the right to use and share with Licensor and which Licensee provides or makes available to Licensor under the Subject Contract or in connection with the Services.
“Loss” means any Liability, expense, damages (whether actual, incidental, indirect, consequential, special, punitive, or other), harm, trespass, injury, tort, wrong, judgment, fine, penalty (whether civil, criminal, or other), execution, assessment, interest, Tax, amount paid or payable in settlement, or other loss of any kind, whether direct or indirect, accrued or fixed, absolute or contingent, determined or determinable, matured or unmatured, known or unknown, foreseen or unforeseen, suspected or unsuspected, or anticipated or unanticipated.
“Maintenance Release” means all updates, upgrades, releases, or other adaptations or modifications of Trueface Vision that Licensor makes generally available from time to time to Trueface Vision licensees, 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 Trueface Vision.
“Open-Source Component” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction, or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
“Open-Source License” means, with respect to any specified Open-Source Component, the open source license agreement that governs or purports to govern access to and use of such Open-Source Component.
“Operating Environment” means Licensee’s or, with respect to any specified Licensed Property, such Licensed Property’s computer systems at the Designated Sites on which the Software is installed and operated.
“Organizational Document” means, with respect to any specified Person, any charter, certificate of incorporation, articles of association or organization, bylaws, or partnership, joint venture, or operating agreement, or like document governing under applicable Law the incorporation, organization, formation, or governance of such Person.
“Parties” means, together, Licensor and Licensee.
“Permitted Use” means, with respect to Licensee or any specified Licensed Property, as the case may be, any Authorized User’s use of the Software and the Services solely for Licensee’s or such Licensed Property’s, as the case may be, benefit strictly in accordance with applicable Law and the terms and conditions of the Subject Contract. If the Subject Contract is a Development Agreement, Permitted Use is further restricted to use of the Software and the Services in connection with development, but not production, of Licensee’s own products and services solely for purposes of determining whether the Software and the Services satisfy Licensee’s requirements and conditions for entering into a full, long-term production license agreement. If the Subject Contract is an Evaluation Agreement, Permitted Use is further restricted to use of the Software and the Services solely for purposes of determining whether the Software and the Services satisfy Licensee’s requirements and conditions for entering into a Development Agreement or full, long-term production license agreement.
“Person” means any natural person or Entity, and any syndicate or group consisting of two or more of the foregoing acting in concert.
“Proceeding” means any threatened, pending, or completed action, suit, litigation, arbitration, mediation, alternative dispute resolution mechanism, inquiry, audit, investigation, hearing, or other proceeding of any kind, whether civil, criminal, judicial, administrative, arbitrative, or investigative, and whether formal or informal, by or before or otherwise involving any Governmental Authority, arbitrator, mediator, or arbitration or mediation panel, including any appeal of any Governmental Order.
“Receiving Party” means the Party (including its Affiliates and their respective Representatives) that receives, obtains, or accesses the other Party’s Confidential Information under or in connection with the Subject Contract.
“Representative” means, with respect to any specified Person, any partner, manager, director, officer, executive, employee, consultant, advisor, accountant, financial advisor, legal counsel, or agent of, or other Person empowered to act for, or in the name or on behalf of, such specified Person.
“Services” means, collectively, all services of any kind that Licensor or any of its Affiliates or any of their respective Representatives provides to or for the benefit of Licensee or any Licensed Property under the Subject Contract or related to the Software, including all Development Services, Support Services, and Training Services.
“Software” means, collectively, the Licensed Software, the Custom Software, and the Documentation.
“Source Code” means, with respect to any specified software, the human readable source code of such software in the programming language in which such software was written, together with all related flow charts, code, and technical documentation, including a description of the procedure for generating object code.
“Support Services” means any support services that the Section of the main body of the Subject Contract entitled “Support Services” contemplates and that Licensor or any of its Affiliates or any of their respective Representatives provides to or for the benefit of Licensee or any Licensed Property under the Subject Contract, including any statement of work for support services entered into under or in connection with the Subject Contract.
“Tax” means any tax, duty, fee, impost, levy, assessment, tariff, or other charge of any kind (together with any interest, penalty, fine, addition-to-tax, or other Loss relating thereto or to the nonpayment thereof, or incurred or imposed in connection with any determination, dispute, or settlement thereof) imposed, assessed, or collected by or under the authority of any Governmental Authority or other taxing authority or payable under any tax-sharing agreement or any other Contract.
“Term” means, collectively, with respect to Licensee or any specified Licensed Property, the Initial Term and all Renewal Terms for Licensee or such specified Licensed Property, as the case may be.
“Training Services” means any training services that the Section of the main body of the Subject Contract entitled “Training Services” contemplates and that Licensor or any of its Affiliates or any of their respective Representatives provides to or for the benefit of Licensee or any Licensed Property under the Subject Contract, including any statement of work for training services entered into under or in connection with the Subject Contract.
“Verification” means the occurrence of any of the following using the Software or any other system
or software of which the Software or any portion thereof is a part:
Licensee and each Licensed Property may:
Licensee may not and will not, and Licensee may not and will not cause, assist, or permit any Licensed Property to:
Licensee hereby grants Licensor a limited, non-exclusive, royalty-free, fully paid up, worldwide license during the Term to copy, display, modify, create derivative works of, and otherwise use the Licensee Data to provide the Services and otherwise to assist Licensee to use the Software. Licensee hereby grants Licensor a limited, non-exclusive, royalty-free, fully paid up, worldwide, perpetual license to copy, display, modify, create derivative works of, and otherwise use the Licensee Data in connection with Licensor’s own internal operations and functions, including for purposes of improving Licensor’s products and services. Licensee hereby grants Licensor an exclusive, royalty-free, fully paid up, transferable, sublicensable, worldwide, perpetual license to copy, display, modify, create derivative works of, and otherwise use the Customer Feedback for whatever purposes and in whatever ways Licensor may determine in its sole discretion, including to develop, manufacture, market, promote, sell, offer for sale, import, export, rent, provide, or lease products or services of any kind that practice or embody, or are configured for use in practicing the Customer Feedback or any portion thereof, and to cause, permit, or license others to do so.
Licensor may terminate the Subject Contract in its entirety or with respect to any specified Licensed Property at any time with immediate effect by written notice to Licensee if an Event of Default has occurred with respect to Licensee or such specified Licensed Property. Licensee may terminate the Subject Contract at any time with immediate effect by written notice to Licensor if an Event of Default has occurred with respect to Licensor. If the Subject Contract is an Evaluation Agreement, either party may terminate the Subject Contract for any reason or no reason with seven days’ prior written notice thereof. All provisions of the Subject Contract that, by their nature, should survive termination of the Subject Contact, including accrued rights to payment and provisions relating to ownership of Intellectual Property Rights, indemnification and other remedies, confidentiality obligations, warranty disclaimers, damages waivers, and limitations of liability, will survive termination of the Subject Contract.
Upon the expiration or termination of the Subject Contract, Licensee will immediately cease using the Software.
Upon the expiration or termination of the Subject Contract, each Party will, except to the extent and only so long as reasonably necessary to exercise any of its surviving rights or to perform any of its surviving obligations under the Subject Contract, return all documents and other tangible materials, and permanently erase from its computer systems all information, containing, reflecting, incorporating, or based on the other Party’s Confidential Information. Each Party will from time to time, at the request of any other Party, certify in writing that it is in compliance with this Section 4.3 of these GTC.
Notwithstanding anything to the contrary that the Subject Contract may contain, Licensee’s and each Licensed Property’s use of any Open-Source Component incorporated in the Software will be governed by, and subject in all respects to, the terms and conditions of the applicable Open-Source License. Schedule OS (“Open-Source Components and Licenses”) to these GTC lists the Open-Source Components incorporated in the Licensed Software as of the date of the Subject Contract and the Open-Source License applicable thereto. Licensor may in its sole discretion update Schedule OS from time to time accurately to reflect the Open-Source Components then incorporated in the Software and the Open-Source License
applicable thereto.
Licensor will deliver the Licensed Software and related Documentation (via links to electronic repositories therefor or in some other electronic form) to Licensee within ten Business Days after the Effective Date. Licensor will deliver the Licensed Software and related Documentation to each Licensed Property within ten Business Days after the start of such Licensed Property’s Licensed Property Term.
As between Licensor, on the one hand, and Licensee or any Licensed Property or any of their respective Affiliates or any such Person’s Representatives, on the other, Licensor owns or will own, and hereby reserves and will retain all right, title, and interest (including all Intellectual Property Rights of any kind)
in, to, and under:
Licensor does not grant to Licensee or any Licensed Property or any other Person any right or license to any of the foregoing except as otherwise expressly provided in the Subject Contract or any statement of work entered into under the Subject Contract. Neither Licensee nor any Licensed Property nor any other Person will acquire any Intellectual Property Rights of any kind in, to, or under the Software or the Services under or in connection with the Subject Contract.
Licensor will send Licensee invoices for all fees, expenses, and other amounts that Licensee owes Licensor under the Subject Contract has not paid in full in advance. Each such invoice will be due and payable upon receipt. Any such invoice that is not paid in full within ten Business Days of Licensee’s receipt thereof will incur a finance charge of 1.5 percent per month on the unpaid balance.
Licensee will be responsible for, and will promptly pay or reimburse Licensor for, all taxes payable with respect to Licensee’s or any Licensed Property’s license or use of the Software or the Services, other than United States taxes based on Licensor’s net income.
The Receiving Party will, and will cause its Affiliates and their respective Representatives to, hold all Confidential Information of the Disclosing Party in strict confidence and safeguard all Confidential Information of the Disclosing Party against unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own similarly sensitive information and in no event less than a reasonable degree of care. The Receiving Party will not disclose to any of its Affiliates or their respective Representatives any Confidential Information of the Disclosing Party, except solely to the extent the Receiving Party reasonably determines is necessary to exercise its rights or perform of its obligations under the Subject Contract, strictly in accordance with the terms and conditions thereof, and then only if any such Affiliate or Representative is bound to the Receiving Party by written confidentiality and restricted use obligations at least as protective of the Confidential Information of the Disclosing Party as the terms and conditions set forth in this Section 10 of these GTC and after the Receiving Party informs any such Affiliate or Representative of the confidential nature of such Confidential Information of the Disclosing Party. The Receiving Party will not use any Confidential Information of the Disclosing Party, except solely to the extent the Receiving Party reasonably determines is necessary in order to exercise its rights or perform of its obligations under the Subject Contract, strictly in accordance with the terms and conditions thereof. Except as otherwise expressly provided above, the Receiving Party will not copy, photocopy, reproduce, use, publish, disseminate, misuse, misappropriate, sell, assign, or otherwise transfer or disclose to any person any Confidential Information of the Disclosing Party. The Receiving Party will notify the Disclosing Party promptly, and in any event within one business day, after the Receiving Party is requested pursuant to, or becomes compelled by, any applicable law or governmental order to disclose any Confidential Information. The Disclosing Party may in its sole discretion directly or indirectly seek a protective order or other appropriate remedy with respect to such disclosure order. If the Disclosing Party is unable to obtain or chooses not to seek such a protective order or other remedy, the Receiving Party will furnish only that portion of the Confidential Information that such Person is advised in writing by counsel that such Person is legally required to disclose in order to comply with a valid and effective governmental order. The Receiving Party will cooperate with the Disclosing Party in its efforts to obtain reliable assurance that confidential treatment will be accorded any such disclosed Confidential Information. The Receiving Party will not reverse engineer, disassemble, or decompile any prototype, software, or other tangible object that embodies any Confidential Information of the Disclosing Party. The Receiving Party will be responsible for, and will indemnify the Disclosing Party with respect to, any use or disclosure of any Confidential Information of the Disclosing Party in violation of the Subject Contract, whether by the Receiving Party or any of its Affiliates or any of their respective Representatives.
During the Term and the two-year period following the expiration or termination of the Subject Contract, regardless of the reason for expiration or termination thereof, neither Party will, whether on such Party's behalf or on behalf of any other Person, and whether or not for compensation:
Notwithstanding subparagraph (c) of this section, a Party or any of its Affiliates may hire as an employee or engage as an independent contractor any individual who during the term was an employee of the other Party or any of its Affiliates if such individual contacts the hiring or engaging Person on his or her own initiative and without any direct or indirect solicitation or encouragement by or on behalf of the hiring or engaging Person. Furthermore, subparagraph (c) of this section does not apply to solicitation or recruitment efforts directed at the general public or made through public advertisement of employment opportunities.
The Software or the Services or some portions thereof may constitute Controlled Technology. Licensee will not remove, export, release, or make accessible from the United States the Software or the Services or anything related thereto, or any direct product thereof, in violation of any applicable Laws, including any regulations of the United States Department of Commerce or the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign Governmental Authority
with jurisdiction over Controlled Technology.
Unless the Subject Contract is an Evaluation Agreement or a Development Agreement, in which case this Section 13 does not apply, Licensee hereby grants Licensor the right during the Term publicly to refer to Licensee and each Licensed Property, orally or in writing, as a Licensor licensee and to publish Licensee’s and each Licensed Property’s name or logo or both on Licensor’s website or in its promotional materials.
Licensee will use the Services and the Software only in accordance with Licensor’s published policies and procedures then in effect and all applicable Laws, including all applicable export control, data security, and privacy Laws.
Licensee hereby acknowledges that the Software is under active development and, accordingly, may require frequent updates, may not be uninterrupted or error free, and may not perform as intended or expected. Licensor does not warrant that the Software or the Services will be uninterrupted or error free. Licensor does not make any warranty as to the results Licensee or any Licensed Property may obtain from its use of the Software or the Services. Except as the Subject Contract otherwise expressly provides, Licensor will provide Licensee and the Licensed Properties the Software and the Services “as is” and “as available”. EACH PARTY HEREBY DISCLAIMS TO THE FULLEST EXTENT APPLICABLE LAW PERMITS ALL OTHER EXPRESS WARRANTIES OF ANY KIND. EACH PARTY ALSO HEREBY DISCLAIMS TO THE FULLEST EXTENT APPLICABLE LAW PERMITS ALL IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
Notwithstanding anything to the contrary that the Subject Contract may contain or be deemed to contain, except as otherwise expressly provided in this Section 16 of these GTC:
The exclusions and limitations of liability provided for in this Section 16 of these GTC will be effective, whether or not any Party or any other Person was expressly informed, or is otherwise aware, of the possibility of such damages. The exclusions and limitations of liability provided for in this Section 16 of these GTC do not apply, however, to:
Licensee will indemnify Licensor and its Affiliates and their respective Representatives with respect to, and hold each such Person harmless from and against, all Losses (including those arising in connection with third-party claims) any such Person may incur in connection with any matter based upon, resulting from, arising out of, or relating to Licensee’s or any Licensed Property’s breach of the Subject Contract or, except to the extent attributable to Licensor’s gross negligence or intentional misconduct, use of the Software or the Services. Licensor will indemnify Licensee and its Affiliates and their respective Representatives with respect to, and hold each such Person harmless from and against, all Losses (including those arising in connection with third-party claims) any such Person may incur in connection with any matter based upon, resulting from, arising out of, or relating to Licensor’s breach of the Subject Contract.
The Subject Contract constitutes the final, entire, and exclusive agreement between the Parties with respect to the subject matter of the Subject Contract. The Subject Contract supersedes all prior or contemporaneous written or oral communications, negotiations, agreements, and understandings between the Parties, with respect to the subject matter of the Subject Contract; as well as all courses of conduct, dealing, and performance between the Parties with respect to the subject matter of the Subject Contract, and all usages of trade. No Party will, and each Party hereby waives, to the fullest extent that applicable Law permits, any right it may have to, use any such prior or contemporaneous written or oral communications, negotiations, agreements, or understandings, courses of conduct, dealing, or performance, or usages of trade, to supplement, construe, or explain any term of the Subject Contract.
Each Party’s rights and remedies under the Subject Contract are cumulative and not alternative or exclusive. Each Party’s rights and remedies under the Subject Contract are in addition to all, and do not to limit, diminish, or abrogate in any respect whatsoever any, other rights and remedies that such Party has or may have under any applicable Law, Governmental Order, Organizational Document, or other Contract. Any Party may exercise such Party’s rights and remedies under the Subject Contract from time to time and as often and in such order as such Party may deem necessary, appropriate, or desirable. Any Party’s exercise, or beginning to exercise, any of such Party’s rights or remedies, whether under the Subject Contract or under any applicable Law, Governmental Order, Organizational Document, or other Contract, will not constitute a waiver of such Party’s or any other Party’s right to exercise concurrently or thereafter any of such Person’s other rights or remedies. Any Party’s failure to exercise, or delay in exercising, any of such Party’s rights or remedies, whether under the Subject Contract or under any applicable Law, Governmental Order, Organizational Document, or other Contract, will not constitute a waiver of such Party’s or any other Party’s right to exercise such right or remedy, or any of such Persons’ other rights or remedies.
If any Party fails to discharge any of its obligations under or in connection with the Subject Contract strictly in accordance with the terms of the Subject Contract, each other Party would incur irreparable damage for which such Party’s remedies at law would be inadequate. No Party will, and each Party hereby unconditionally and irrevocably waives to the fullest extent that applicable Law permits, any right it may have to, plead or make any claim or defense that any other Party’s remedies at law are adequate or that any other Party’s injuries are not irreparable. If any Party does not, or threatens not to, discharge any of its obligations under or in connection with the Subject Contract strictly in accordance with the terms of the Subject Contract, each other Party may, without posting any bond or other security or showing any actual money damages and in addition to any remedies available to such other Party under any applicable Law, Governmental Order, Organizational Document, or other Contract, obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction, or any other equitable remedy that may then be available to such other Party.
Except any amendment of Schedule B (“Licensed Properties”) of the main body of the Subject Contract that Licensee makes and delivers to Licensor for the purpose and with the effect of adding any of Licensee’s properties as Licensed Properties under the Subject Contract, no amendment of the Subject Contract will be enforceable unless such amendment is in writing, expressly refers to the Subject Contract, and is signed by each Party. No waiver of any term of, or breach of, or misrepresentation under or in connection with, the Subject Contract will be enforceable unless such waiver is in writing, expressly refers to the Subject Contract, and is signed by the Party to be bound by such waiver. No waiver of any term of or breach of or misrepresentation under or in connection with the Subject Contract will constitute a waiver of any other term of or any subsequent breach of or misrepresentation under or in connection with the Subject Contract, whether or not similar in nature, or a subsequent waiver of the same term of or breach of or misrepresentation under or in connection with the Subject Contract. No failure to exercise or delay in exercising any right under or in connection with the Subject Contract, including any failure to insist in any instant or instances upon strict, complete, or timely discharge by any other Party of any obligation under or in connection with the Subject Contract, will constitute a waiver of any such right, or preclude any exercise of or otherwise impair any such right. No single or partial exercise or beginning of exercise of any right under or in connection with the Subject Contract, and no course of dealing between any Parties, will preclude any other or further exercise of such right, or otherwise impair such right.
If any Governmental Authority of competent jurisdiction declares any provision of the Subject Contract illegal, invalid, or otherwise unenforceable, in whole or in part, by reason of any applicable Law or public policy, and such declaration becomes final and non-appealable (in each case, the “Invalidated Provision”), then such Invalidated Provision will remain in full force and effect to the fullest extent that applicable Law permits, and all other provisions of the Subject Contract will remain in full force and effect in their entirety. Each Party will negotiate in good faith to replace as soon as practicable any such Invalidated Provision with a provision that is legal, valid, and enforceable, and that will achieve to the greatest extent possible the same business purposes, and the same allocation of economic and legal benefits and burdens, as such Invalidated Provision would have, had it been legal, valid, and enforceable.
The Subject Contract will be binding upon, inure to the benefit of, and be enforceable by, only the Parties and their respective heirs, administrators, legal representatives, executors, successors, and permitted assigns. Nothing in the Subject Contract, whether express or implied, is intended to or will confer upon any other Person any right of any kind.
No Party may assign its rights or delegate its obligations under or in connection with the Subject Contract. Any attempted assignment or delegation in violation of this Section 24 of these GTC will be void. Notwithstanding the immediately preceding two sentences, either Party may assign the Subject Contract to the acquirer of all or substantially all of its assets, or to any successor in interest pursuant to any merger, consolidation, or other business combination to which such Party is a party.
The Subject Contract will be governed exclusively by, and construed and enforced exclusively in
accordance with, the laws of the State of Delaware.
Each Party hereby unconditionally and irrevocably submits for it and its property, to the fullest extent that applicable Law permits, to the exclusive jurisdiction of the Designated Courts over all Designated Proceedings. No Party will, and each Party hereby waives, to the fullest extent that applicable law permits, any right such Party may have to, plead or make any objection to the venue of any Designated Court. No Party will, and each Party hereby waives, to the fullest extent that applicable law permits, any right such Party may have to, plead or make any claim that any Designated Proceeding brought in any Designated Court has been brought in an improper or otherwise inconvenient forum. No Party will, and each Party hereby waives, to the fullest extent that applicable law permits, any right it may have to, plead or make any claim that any Designated Court lacks personal jurisdiction over such Party. Any final Governmental Order in any Designated Proceeding will be conclusive as to all Parties. Each Party may enforce any final Governmental Order in any Designated Proceeding in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.
Each Party hereby unconditionally and irrevocably consents, to the fullest extent that applicable Law permits, to service on such Party anywhere in the world of any summons and complaint or other process in connection with any Designated Proceeding in the same manner (other than by email) provided in Section 30 (“Notices”) of these GTC for delivery of notices. Any such service will be deemed to be complete on the date such process is so mailed or delivered and to have the same force and effect as personal service within Delaware. Nothing in the Subject Contract will preclude any Party from serving process in any Designated Proceeding in any other manner that applicable Law permits.
Each Party hereby unconditionally and irrevocably waives, to the fullest extent applicable Law permits, all rights it may have to trial by jury in any Designated Proceeding.
If any Party obtains a final and binding judgment against any other Party in any Designated Proceeding, the judgment debtor will, in addition to payment of any damages required by such judgment, promptly and in any event within ten Business Days reimburse the judgment creditor for all reasonable out-of- pocket costs and expenses (including reasonable fees and disbursements of counsel, accountants, experts, and consultants) incurred by or on behalf of the judgment creditor in connection with such Designated Proceeding.
Each Party will give or make any notice, request, approval, claim, demand, or other communication that it gives or makes under or in connection with the Subject Contract in writing and by delivery in person or by reputable overnight business courier service, electronic mail, or registered or certified mail (postage prepaid, return receipt requested) to the addressee at its street address or electronic mail address set forth in Schedule C (“Addresses for Notices”) of the main body of the Subject Contract (or to such other street address or electronic mail address as such Party may after the date of the Subject Contract specify for such purpose by notice given in accordance with this paragraph). If any Party gives or makes any notice, request, approval, claim, demand, or other communication under or in connection with the Subject Contract by electronic mail, such Party will promptly send a confirmation copy by reputable overnight business courier service.
The Parties may sign the Subject Contract in any number of separate counterparts. Each counterpart of the Subject Contract when signed will be deemed to be an original. All counterparts of the Subject Contract taken together will constitute one and the same agreement with the same effect as if each Party had signed the same instrument. Any signed counterpart of the Subject Contract delivered by electronic mail or other form of electronic transmission will constitute an original signed counterpart of the Subject Contract with the same effect as delivery of a manually signed counterpart of the Subject Contract.
Each Party hereby unconditionally and irrevocably waives, to the fullest extent that applicable Law permits, any rule of interpretation or construction or any presumption or burden of proof requiring that the Subject Contract, including any attachment to the Subject Contract, be interpreted or construed against the drafting Party. If any Party claims in connection with any Designated Proceeding that any language in the Subject Contract is ambiguous, redundant, vague or overly general, or inconsistent or in conflict with any other language in the Subject Contract or any Contract, instrument, or other document delivered under or in connection with the Subject Contract, such Party will be deemed equally responsible for such ambiguity, redundancy, vagueness, over generality, inconsistency, or conflict.
The Parties have prepared and negotiated the Subject Contract in English. The meaning, interpretation, and construction of the Subject Contract will be determined for all purposes based upon the English text of the Subject Contract. Any version of the Subject Contract prepared in any language other than English is for accommodation only and is not binding upon any Party. Any Party giving or making any notice, approval, request, claim, demand, or other communication under the Subject Contract or relating to the Services will give or make such notice, approval, request, claim, demand, or other communication in English.
Each Party intends for the language and terms in the Subject Contract to be accorded their plain meanings as understood within the corporate bar in the State of Delaware and the software development industry in the State of California. Without limiting the generality of the immediately preceding sentence, the term “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term.
The descriptive headings contained in the Subject Contract of the sections of, and attachments to, the Subject Contract are for convenience of reference only. Such descriptive headings do not constitute a part of the Subject Contract. Such descriptive headings do not define, limit, expand, or otherwise affect in any way the meaning of any term of the Subject Contract.
Unless otherwise indicated, references in the Subject Contract to sections and to exhibits, schedules, and other attachments are references to sections of, and exhibits, schedules, and other attachments to, the Subject Contract.
Each exhibit, schedule, and other attachment to the Subject Contract is incorporated in the main body of the Subject Contract by reference to the same extent and with the same effect as if set forth in its entirety in the main body of the Subject Contract. Any reference to the Subject Contract or to any other agreement, instrument, or other document of any kind refers also to each exhibit, schedule, and other attachment to
such agreement, instrument, or other document.
Any provision of the Subject Contract that prohibits any Party from taking any action also prohibits such Party (or any other Person acting in the name, on behalf, or for the benefit of such Party) from taking such action indirectly through any of its Affiliates or any of their respective Representatives, and such Party will not cause, assist, or permit any of its Affiliates or any of their respective Representatives to take any such action.
The Subject Contract will become effective when each Party has received counterparts of the Subject Contract signed by each other Party. The date of the Subject Contract is the latest date stated opposite the signature of any Party on the signature pages to the Subject Contract.
If there exists any conflict between any provision of these GTC and any provision contained in the main body of the Subject Contract, the provision contained in the main body of the Subject Contract will govern to the extent necessary to resolve such conflict.