This Master Software License and Services Agreement (“Agreement”) is made between Vimcal, Inc., a Delaware corporation having its principal place of business at 6798 Lopez Canyon Way, San Diego, CA 92126 (“VIMCAL”), and Customer (defined below), and governs Customer’s use of the Vimcal Assets (each as defined below).
“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (the “Effective Date”) where such person or entity either clicks a box indicating acceptance of this Agreement, executes an Order Form or similar document, or uses a Vimcal Asset. VIMCAL reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Vimcal Asset.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE VIMCAL ASSETS. THE VIMCAL ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.
If Customer and VIMCAL have executed a written agreement governing Customer’s access to and use of the Vimcal Assets, then the terms of such signed agreement will govern and will supersede this Agreement.
PLEASE NOTE THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. SEE SECTION 13 FOR DETAILS.
1. Definitions. The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement or in an Order Form:
a. “Affiliate” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity.
b. “Authorized User” means Customer’s employees, representatives, consultants, contractors, or agents authorized by Customer to access the Vimcal Assets for which applicable fees have been paid.
c. “Beta Features” means any Vimcal Asset features, functionality or services which VIMCAL may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
d. “Confidential Information” means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and, without limitation: (i) with respect to VIMCAL, the Vimcal Assets, Beta Features; and (ii) with respect to Customer, the Customer Data. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
e. “Customer Data” means any data, information, content, or other materials transferred to VIMCAL via the Software or Service, or in connection with VIMCAL’s hosting of the Services, by Customer and/or its Authorized Users including, but not limited, to calendar information and any and all reproductions, visualizations, analyses, automations, scales, and other reports generated by the Software and/or Service based on such information.
f. “Customer Environment” means equipment, systems, mobile devices, and servers owned or managed by Customer and/or its Authorized Users.
g. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software and/or Service, as may be provided or made available by VIMCAL to Customer, whether in written or electronic form, including all modifications, Updates, upgrades thereto and derivative works thereof.
h. “Vimcal Assets” means the Software, Service and Documentation.
i. “Malicious Code” means any harmful, malicious, or hidden code, programs, exploits, procedures, routines, or mechanisms that would: (i) cause the Software or Service to cease functioning; (ii) damage or corrupt any VIMCAL owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Software or Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
j. “Order Form” means each order document executed in writing between the parties for the purchase of a subscription to the Software and/or Service.
k. “Prohibited Content” means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to VIMCAL in its sole, but reasonable, discretion.
l. “Service” means VIMCAL’s proprietary calendar management software solution which includes aspects of the Software and Documentation.
m. “Software” means VIMCAL’S proprietary software program that it develops, licenses, and maintains in connection with the Service, including the Beta Features, and all modifications, Updates, upgrades thereto and derivative works thereof.
n. “Subscription Term” is the length of the subscription period specified in the Order Form, including any renewal periods.
o. “Taxes” means any and all customs, duties, national and local sales, use, or value added taxes, goods and services tax, consumption tax, withholding tax, or similar charges, federal, state or otherwise, including penalties and interest however designated, which are levied or imposed by any governmental entity.
p. “Updates” means any corrections, fixes, patches, workarounds, and minor modifications, for and to the Software denominated by version changes, that VIMCAL provides in connection with this Agreement.
2. Grants of License to the Service & Software; Restrictions
a. License. Subject to the terms of this Agreement and the applicable Order Form, VIMCAL grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Term, solely for Customer’s internal business operations and up to the number of Authorized Users specified on the Order Form, to download, install and use the Software, access the Service and use the Documentation.
b. Service & Software Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Vimcal Assets; (ii) share any VIMCAL issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software; (iv) modify, adapt, or translate the Software or remove or modify any proprietary markings or restrictive legends placed on or within the Vimcal Assets; (v) make copies, store, or archive, any portion of the Vimcal Assets without the prior written permission of VIMCAL, except for Customer Data generated by Customer through the intended functionality as set forth in the Documentation; (vi) use the Vimcal Assets in violation of any applicable law; (vii) introduce, any Malicious Code into the Software or Service; or (viii) exploit the Software or Service in any unauthorized manner including by circumventing any process VIMCAL has put in place to safeguard the Software or Service, or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Software infrastructure (together, (i) through (viii) the “Restrictions”). The foregoing Restrictions do not apply to the extent prohibited by applicable law.
d. Trial Period. Subject to the terms of the Agreement and Order Form, including payment of all Trial Period fees (if any), commencing on the Effective Date Customer will have the right to use the Vimcal Assets for evaluation purposes for the time period set forth on the Order Form (“Trial Period”). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to VIMCAL (“Trial Termination Notice”). If VIMCAL does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Term commences upon the expiration of the Trial Period, and VIMCAL will invoice Customer in accordance with Section 6.
e. Beta Features. Beta Features made available by VIMCAL are provided to Customer for testing purposes only. VIMCAL makes no commitments to provide Beta Features in any future versions of the Vimcal Assets. Customer is not obligated to use Beta Features. VIMCAL may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, VIMCAL does not commit to providing support for Beta Features. For clarity, all Beta Features are provided “AS IS” without warranty of any kind.
f. Marketing & Logo Rights. Customer grants VIMCAL the right to use Customer’s name and logo on VIMCAL’s website for the sole purpose of identifying Customer as a customer.
3. VIMCAL Obligations for the Software & Service
a. Software & Service. VIMCAL will provide the Software and Service in conformance with this Agreement, the Order Form(s) and applicable Documentation. Customer will be responsible for maintaining the Customer Environment.
b. Updates. VIMCAL may Update the Vimcal Assets from time to time during the Subscription Term. VIMCAL will notify Customer of any major Software Updates.
4. Customer Obligations.
a. Internet Connections. Customer will be responsible for obtaining Internet connections and providing all hardware, network assets, and third-party calendar software licenses necessary for Customer to access and use the Vimcal Assets.
b. Updates. Customer will be responsible for implementing Updates for the Software within the Customer Environment. Customer will implement such Updates in a timely fashion. If Customer fails to do so, performance of the Software may be impacted.
c. Usage Data. VIMCAL may collect and analyze data and other information relating to the provision, use and performance of the Software and Service (“Usage Data”), solely for internal purposes to improve and enhance the Software and Service. VIMCAL may disclose insights drawn from Usage Data, but all Usage Data in such disclosure will be anonymized and aggregated, will not identify Customer or Customer’s users, and will not be disclosed in a manner that would permit a third party to determine Customer’s or the identity of any user.
d. Export. The Vimcal Assets are subject to export control laws and regulations. Customer may not access or use the Vimcal Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Vimcal Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
5. Data License & Protections.
a. Data License. In connection with its use of the Software and/or Service, Customer (including its Authorized Users) may transfer Customer Data to VIMCAL. VIMCAL uses Customer Data to provide the Software and Service. Customer grants VIMCAL a limited license during each Subscription Term to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement.
b. Security & Privacy. VIMCAL maintains industry-standard physical, technical, and administrative safeguards designed to protect Customer Data in accordance with its Privacy Policy located at https://www.vimcal.com/privacy.
6. Fees.
a. Payments. VIMCAL will invoice Customer for all fees and any applicable Taxes as provided in the applicable Order Form and subsequent invoice. Unless otherwise provided for in an applicable Order Form: (i) VIMCAL may invoice Customer at any time after the execution of the Order Form; (ii) all amounts are due and payable to VIMCAL within thirty (30) days from the date of VIMCAL’s invoice; and (iii) all payment obligations are non-cancellable, and all fees are based on the Software and/or Service subscription purchased, not on actual use and are non-refundable.
b. Taxes. Customer will pay all applicable Taxes excluding only those based on VIMCAL’s net income. If Customer is required under applicable law to withhold or deduct any such Taxes, Customer will (i) withhold or deduct the required amount and promptly remit such Taxes to the applicable taxing authority and (ii) pay VIMCAL such additional amounts as shall be necessary in order that the net amounts received by VIMCAL after such withholding or deduction shall equal the full amount VIMCAL would have received without the withholding or deduction. At VIMCAL’s request, Customer shall provide VIMCAL with reasonably satisfactory documentation evidencing the payment to the appropriate governmental entity of any amounts so withheld or deducted. Any applicable direct pay permits, VAT identifications or valid Tax-exempt certificates must be provided to VIMCAL prior to the execution of this Agreement. If VIMCAL is required to collect and remit Taxes on Customer’s behalf, VIMCAL will invoice Customer for such Taxes, and Customer will pay VIMCAL for such Taxes in accordance with Section 6(a). If either party receives any refund of any Taxes that are borne by the other party pursuant to this Agreement, the party receiving such refund shall promptly pay the other party the amount of such refund (net of any additional Taxes the receiving party incurs as a result of the receipt of such refund).
c. Late Payments. In the event that VIMCAL does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, VIMCAL may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Software and/or Service renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend and terminate for failure to pay (if applicable) the Software and/or Service pursuant to Section 7(b).
d. Pricing and Processing. Unless the parties agree otherwise in a separately executed written agreement, the initial fees shall be set forth in the Order Form. Order Forms will automatically renew for additional periods of the same duration as the expiring term at the then-current subscription rates. If Customer does not want to auto-renew, Customer must provide written notice at least sixty (60) days before the expiration of the then current term.
7. Term & Termination
a. Term. The “Term” of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Term under an Order Form, or until terminated earlier in accordance with Section 7(b).
b. Suspension & Termination for Non-Payment. VIMCAL may suspend Customer’s access to, or use of, the Software and/or Service upon written notice to Customer if any amount due to VIMCAL under any invoice is past due. If Customer fails to pay within 30 days of receipt of VIMCAL’s notice of suspension for late payment, VIMCAL may terminate this Agreement and/or the applicable Order Form(s) immediately upon written notice to Customer.
c. Termination. Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days’ notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
d. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), VIMCAL will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Term as of the date of such termination. Upon termination or expiration of this Agreement for any reason, VIMCAL will, upon written request and within 30 days of such request, delete all Customer Data processed on behalf of Customer during the Subscription Term.
e. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 13 (Miscellaneous, as applicable).
8. Confidentiality
a. Each party that receives (“Receiving Party”) Confidential Information of the other party (“Disclosing Party”) will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.
b. Receiving Party may disclose, distribute, or disseminate Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided Receiving Party reasonably believes that its Representatives have a need to know, and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
c. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
d. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
9. Ownership
a. VIMCAL Property. As between the parties, VIMCAL and/or its licensors owns and retain all right, title, and interest in and to the Vimcal Assets and Feedback and all intellectual property rights therein. Except for the limited license granted to Customer in Section 2(a), VIMCAL does not by means of this Agreement or otherwise transfer any other rights to Customer.
b. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data. Except for the licenses granted to VIMCAL in Sections 2(f) and 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to VIMCAL.
c. Feedback. Customer may provide comments, suggestions and recommendations to VIMCAL with respect to the Vimcal Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, “Feedback”). VIMCAL may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing. Customer assigns to VIMCAL any proprietary right that Customer may have in or to the Feedback.
d. Third Party Materials. The Software and the Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials provided by other users and third parties) or provide links to third-party websites, sites, resources, or services, including through third-party advertising as well as links contained in advertisements, including banner advertisements and sponsored links, as well as links to websites or applications (collectively, the “Third-Party Materials”). Customer acknowledges and agrees that VIMCAL is not responsible for any Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof, or any statements or opinions expressed therein. VIMCAL has no control over the contents of Third-Party Materials and assumes no responsibility or liability for them or for any loss or damage that may arise from Customer’s use of them. Third-Party Materials are provided solely as a convenience to you, and if Customer decides to access any of the Third-Party Materials, Customer does so entirely at its own risk and subject to the terms and conditions of use for such Third-Party Materials.
10. Representations & Warranties; Disclaimer.
a. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
b. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to VIMCAL; (ii) has all rights necessary to grant VIMCAL the licenses set forth in this Agreement; and (iii) will not transmit any Prohibited Content to VIMCAL.
c. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE VIMCAL ASSETS AND BETA FEATURES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. VIMCAL AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. VIMCAL DOES NOT WARRANT THAT THE VIMCAL ASSETS OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER’S REQUIREMENTS.
11. Indemnification.
a. By VIMCAL. VIMCAL will defend Customer, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “Customer Indemnified Parties“), from any third-party claim, demand, dispute, suit or proceeding alleging that the Vimcal Assets, including Customer’s permitted use thereof, infringe or misappropriate any United States patent, trademark or copyright of such third party, and VIMCAL will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement.
If VIMCAL becomes, or in VIMCAL’s opinion is likely to become, the subject of an infringement or misappropriation claim, VIMCAL may, at its option and expense: (i) procure for Customer the right to continue using the Vimcal Assets; (ii) replace the Vimcal Assets (including any component part) with a non-infringing substitute subject to Customer’s prior written approval; or (iii) modify the Vimcal Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, VIMCAL shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
VIMCAL will not be obligated to defend or be liable for costs or damages to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the Vimcal Assets or VIMCAL’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the Vimcal Assets or VIMCAL’s intellectual property rights, other than as expressly approved by VIMCAL that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
b. By Customer. Customer will defend VIMCAL, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “VIMCAL Indemnified Parties”), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the VIMCAL Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the VIMCAL Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer’s breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by VIMCAL under this Agreement or at Customer’s request or direction, has violated any applicable law.
c. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties’ prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties’ expense, in connection with the defense and settlement of the claim.
12. Limitation on Liability.
a. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
b. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (AS DEFINED BELOW), IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE VIMCAL ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
c. “Excluded Claims” means any claim or liability associated with: (i) either party’s breach of Section 8 (Confidentiality); or (ii) either party’s respective indemnification obligations under Section 11; each party’s total, cumulative liability for all Excluded Claims will not exceed three (3) times the total amount of fees paid by Customer for use of the Vimcal Assets during the period twelve (12) months prior to the event giving rise to the claim. Nothing herein shall limit a party’s liability with respect to claims that cannot be limited under applicable law, including gross negligence, recklessness, or intentional misconduct.
13. Miscellaneous
This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. Facsimile or other electronic copies of such signed copies will be deemed to be binding originals. To the extent there is an inconsistency between the terms of the Agreement and a mutually executed Order Form, the Order form shall take precedence.
This Agreement is governed by the laws of New York without reference to conflicts of law rules. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings shall be governed by the AAA Commercial Arbitration Rules. The place of such arbitration will be in New York City. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief with respect to its intellectual property rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to this Agreement will be subject to the jurisdiction of the state and federal courts New York City.
