Terms of Service
TERMS OF SERVICE
Effective Date: June 28, 2017
These Terms of Service, including the Registration Form and Order Form, which by this reference are incorporated herein (collectively, this “Agreement”), is a binding agreement between Thalonet, Inc., a Delaware corporation d/b/a Haste (“we” or “us”) and the person or entity identified on the Registration Form as the licensee of the Software (“you” or “your”).
WE PROVIDE THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “ACCEPT” BUTTON ON THE REGISTRATION FORM OR ORDER FORM, CHECKING THE “ACCEPT” BOX DURING THE SOFTWARE INSTALLATION, OR USING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF AND BIND YOU TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT AND DO NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHTS CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF OUR SOFTWARE.
For purposes of this Agreement, the following terms have the following meanings:
“Beta Services” means certain features, technologies, and services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import, that are not generally available to our customers, as updated from time to time.
“Confidential Information” means all nonpublic information disclosed by us, its employees or agents, to you, whether in writing, orally or by inspection of tangible objects, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential or proprietary. Confidential Information includes, without limitation (a) information relating to our customers, partners, technology, specifications and designs, source code, development plans, products and service offerings, pricing, sales and marketing plans, financial data, promotional activities, and other business affairs, and (b) third-party information that we are obligated to keep confidential. Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to you at the time of its receipt from us, without an obligation of confidentiality to us, or (iii) can be shown by documentation to have been independently developed by you without use of or reference to any Confidential Information.
“Documentation” means user manuals, technical manuals, and any other materials provided by us, located at https://support.haste.net, or such other URL or such other materials as may be provided by us from time to time, that describe the installation, operation, use, or technical specifications of the Software and the different license versions of the Software offered by us from time to time.
“Haste Pro™” means the full version of the Software license, with the features and functionalities as set forth in the Documentation.
“Haste Rewards™” means the unpaid, limited version of the Software license, with the features and functionalities as set forth in the Documentation.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“License Fees” means the license fees required to be paid by you for the license granted under this Agreement, as set forth on the Order Form.
“Order Form” means the order form filled out and submitted by or on your behalf, and accepted by us, for your purchase of a license to use the Software.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Registration Form” means the form filled out and submitted by or on your behalf, and accepted by us, for the creation of your account to access the Software for a free trial license or paid license.
“Software” means the Haste Pro™, Haste Rewards™, or other software program(s) that you are licensing hereunder, as expressly set forth in the Registration Form and/or Order Form, as applicable.
“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
“Term” has the meaning set forth in Section 9.
“Third Party” means any Person other than us or you.
“Update” has the meaning set forth in Section 4(b).
“we/us” has the meaning set forth in the preamble.
“you/your” has the meaning set forth in the preamble.
2. LICENSE GRANT AND SCOPE
Subject to and conditioned upon your payment of the License Fees and your strict compliance with all terms and conditions set forth in this Agreement, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Software and Documentation in accordance with the terms and conditions set forth in this Agreement. This license grants you the right, exercisable solely by you, to download and install the Software on one or more computers owned or leased, and controlled by, you. Each such computer shall be for a single user of the Software, which user must be you. Such use is permitted only on the computer(s) on which the Software is installed, at the physical location(s) thereof and not via any remote access or other network.
3. USE RESTRICTIONS
You shall not, directly or indirectly:
(a) use the Software or Documentation beyond the scope of the license granted under Section 2;
(b) use the Software concurrently on more than one (1) device at a time;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(h) use the Software or Documentation in violation of any law, regulation, or rule; or
(i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the our commercial disadvantage.
4. MAINTENANCE AND SUPPORT
(a) Subject to Section 4(c), the license granted hereunder entitles you to the basic software maintenance and support services described from time to time on our website located at https://support.haste.net during the Term.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as we make generally available free of charge to all licensees of the Software then entitled to maintenance and support services. We may develop and provide Updates in our sole discretion, and you agree that hawse have no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. You acknowledge that we may provide some or all Updates via download from a website designated by us and that your receipt thereof will require an internet connection, which connection is your sole responsibility. We have no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that we may issue as a separate or new product, and we may determine whether any issuance qualifies as a new version, new release, or Update in our sole discretion.
(c) We have no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) if you are in breach under this Agreement; or (iii) for any Software that has been modified other than by or with our, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by us in writing.
5. TRIAL ACCOUNTS
If you register for a trial of the Software, you will receive the Haste Pro™ version of Software license without charge for the trial period set forth on the Registration Form or under the terms of a specific promotional offer (the “Trial Period”). All use of the Software during the Trial Period and thereafter shall be subject to the terms of this Agreement. In order to continue using the Software after the Trial Period, you must submit an Order Form and pay the applicable License Fees in accordance with Section 8 below prior to expiration of the Trial Period. IF YOU FAIL TO PAY THE APPLICABLE LICENSE FEES PRIOR TO EXPIRATION OF THE TRIAL PERIOD, YOUR LICENSE HEREUNDER WILL AUTOMATICALLY SWITCH TO THE HASTE REWARDS™ VERSION UPON EXPIRATION OF THE TRIAL PERIOD. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION OR LOSS OF ANY YOUR DATA AS A RESULT OF SUCH DOWNGRADE. Notwithstanding any other provision in this Agreement, all Trial Period licenses are provided solely as an accommodation to you and we reserve the right, at all times in our sole discretion, to terminate any Trial Period at any time without notice. Once the Trial Period expires, you will be ineligible to subsequently establish another Trial Period account, unless expressly permitted to do so under the terms of a specific promotional offer. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, DURING THE TRIAL PERIOD THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY, AND YOU WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE DURING THE TRIAL PERIOD.
6. BETA SERVICES
From time to time, we may invite you to try Beta Services at no charge. You may accept or decline any such trial in your sole discretion. Beta Services are for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALL BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY, AND WE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE.
7. INCENTIVE PROGRAM
From time to time, we may offer incentives to you for referrals that result in new customers purchasing a license of the Software. All such incentives will be subject to the requirements and restrictions located at https://haste.net/referral-terms/ in conjunction with such offer, which may be amended from time to time by us without notice. We reserve the right to limit, exclude or deny incentives for suspicious activity or attempted contravention of the applicable requirements and restrictions, and may disqualify you from the incentives program at any time in our sole discretion.
Also from time to time, we may offer certain incentives to users of Haste Pro™ and Haste Rewards™, including but not limited to free optimization. We reserve the right to limit, exclude, or deny incentives or adjust program features at any time in our sole discretion.
8. FEES AND PAYMENT
(a) You will pay all License Fees specified in the Order Form and provide accurate and updated billing and contact information to us. All License Fees are not refundable except as otherwise expressly provided herein.
(b) We will invoice you in accordance with the billing frequency selected by you, as stated in the Order Form. Invoices are due on the invoice date. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies: (a) we may downgrade your license of the Software to the Haste Rewards™ version, until all overdue amounts are paid in full; and (b) the applicable fees may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. You will provide us with valid credit card information (or such other payment method which may be stipulated by us) and promptly notify us of any changes necessary to charge the payment method. The provision of payment method information to us authorizes us to charge such payment method for all License Fees specified in an Order Form on the applicable due date, including renewals. You agree to reimburse us upon receipt of invoice for any bank charges that may be incurred by us in charging the payment method authorized by you on the applicable Order Form (as may be updated by you from time to time), including, without limitation, any NSF fees or chargeback fees.
(c) We reserve the right to change the License Fees from time to time, in our sole discretion. we will provide you with at least thirty (30) days prior written notice of any increase in the License Fees, which notice may be sent by email. If you do not agree to such change, you may suspend your use of the Haste Pro™ version of the Software and downgrade to the Haste Rewards™ version in accordance with Section 14 below, or cancel your account by notifying us and ceasing all further use of the Software prior to the effective date of such License Fee increase. By continuing to use the Haste Pro™ version after the effective date of such License Fee increase, you accept all such changes in the License Fees and agrees that we may bill the payment method on file accordingly.
(d) The License Fees do not include any Taxes. You are responsible for paying all Taxes associated with purchases hereunder. For clarity, we are solely responsible for taxes assessable against our income, property and employees. If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
You acknowledge that, in the course of using the Software, you may obtain Confidential Information. You hereby agree, during the Term of this Agreement and during the five (5) year period following the end of the Term: (a) to protect the confidentiality of the Confidential Information using the same degree of care that you use to protect the confidentiality of your own confidential information of like kind (but not less than reasonable care); (b) not to use the Confidential Information for any purpose outside the scope of this Agreement, and (c) not to use or disclose any Confidential Information to any third parties.
You acknowledge and agree that the Software and Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. We and our licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to you in this Agreement. You shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify us if you become aware of any infringement of the our Intellectual Property Rights in the Software and fully cooperate with us in any legal action taken by us to enforce our Intellectual Property Rights.
11. THIRD-PARTY MATERIALS
The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than us and that are provided to you on terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). You are bound by and shall comply with all Third-Party Licenses. Any breach by you of any Third-Party License is also a breach of this Agreement.
12. RESPONSIBILITY FOR USE OF SOFTWARE
You are responsible and liable for all uses of the Software and Documentation through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by you or by any other Person to whom you may provide access to or use of the Software and/or Documentation, whether or not in violation of this Agreement.
13. COLLECTION AND USE OF INFORMATION
(a) You acknowledge that we may, directly or indirectly through the services of Third Parties, collect and store information regarding your use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, including, without limitation, through the provision of maintenance and support services, as well as through security measures included in the Software as described in Section 19.
14. SUSPENSION BY YOU
You may suspend the Haste Pro™ version of the Software license at any time by switching to the Haste Rewards™ version by accessing the account administration feature of our website (“My Account”) and selecting the suspend option. Such suspension will be effective as of, and you may continue to use the Haste Pro™ version through, the end of the period for which the applicable License Fees have been paid by you, but you will not be entitled to a refund or credit for any License Fees already due or paid. All License Fees due prior to the effective date of such suspension will become immediately due and payable, and you will not be entitled to a refund for any amounts prepaid by you for the period following the effective date of such suspension. You will not incur any additional License Fees during the period of suspension unless and until you reactivate the Haste Pro™ license. All other terms and conditions set forth in this Agreement will continue to apply during the period of suspension. To the extent that you wish to cease use of the Haste Rewards™, you may disable or uninstall the Software at any time.
15. TERMS AND TERMINATION
(a) This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
(b) Either party may terminate this Agreement for breach, effective upon written notice to the other party, if the other party breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides written notice thereof.
(c) Either party may terminate this Agreement for convenience upon no less than thirty (30) days’ prior written notice to the other party.
(d) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate effective immediately, and you shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect your obligation to pay all License Fees that may have become due before such expiration or termination, or entitle you to any refund. Sections 8-20 will survive any termination or expiration of this Agreement.
16. LIMITED WARRANTY AND DISCLAIMER
(a) Solely with respect to Software for which we receive a License Fee, we warrant that, for a period of ninety (90) days following the purchase date set forth on the Order Form, the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. THE FOREGOING WARRANY DOES NOT APPLY, AND WE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranty set forth in Section 16(a) will not apply and will become null and void if you breach any provision of this Agreement, or if you, or any other Person provided access to the Software by you, whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by us in writing; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation.
(c) If, during the period specified in Section 16(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 16(b), we will, subject to your promptly notifying us in writing of such failure, at our sole option, either: (i) repair or replace the Software, provided that you provide us with all information we reasonably request to resolve the reported failure, including sufficient information to enable us to recreate such failure; or (ii) refund the License Fees pre-paid for such Software, if applicable, for the period following submission of a valid warranty claim, subject to your ceasing all use of the Software. If we repair or replace the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from your receipt of the repair or replacement. The remedies set forth in this Section 16(c) are your sole remedies and our sole liability for breach of the warranty in Section 16(a).
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 16(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
You will indemnify and defend us against any and all third party claims, demands, suits or proceedings and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, alleging, arising out of, or in connection with, your use of the Software in breach of the Agreement, provided that we (i) promptly give you written notice of the Claim; (ii) give you sole control of the defense and settlement of the Claim (except that you may not settle any Claim unless it unconditionally releases us of all liability related to the Claim); and (iii) gives you all reasonable assistance, at your expense. The above defense and indemnification obligations do not apply to the extent a Claim arises from our breach of this Agreement. For purposes of this Section 17, a Claim shall include a claim against us, our affiliates, and our or our affiliates’ officers, directors, and employees.
18. LIMITATIONS OF LIABILITY
(a) IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL OUR AND OUR AFFILIATES’, INCLUDING ANY OF OUR OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE US PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 18(a) AND SECTION 18(b) SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
19. COMPLIANCE MEASURES
(a) The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
(b) During the Term, we may, in our sole discretion, audit your use of the Software to ensure your compliance with this Agreement. We shall only examine information directly related to your use of the Software.
(c) If the audit under this Section 19 determines that your use of the Software exceeds or exceeded the use permitted by this Agreement then we shall have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to you, and you shall pay all retroactive License Fees for such excess use within ten (10) days after our notice.
Our remedies set forth in this Section 19(c) are cumulative and are in addition to, and not in lieu of, all other remedies we may have at law or in equity, whether under this Agreement or otherwise.
20. GENERAL PROVISIONS
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the City of Atlanta and Fulton County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
(b) The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(c) The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the United States.
(d) We will not be responsible or liable to you, or deemed in default or breach hereunder by reason of any failure or delay in the performance of our obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or your equipment, loss and destruction of property, or any other circumstances or causes beyond our reasonable control.
(e) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the next business day following the date sent by email (provided that email shall not be sufficient for notices of breach, termination, or an indemnifiable claim); or (iv) on the third business day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent as follows: if to us, to: 75 5th Street NW, Atlanta, GA 30308, Attn: CEO, email@example.com; if to you, to the email address or billing address set forth on the Registration Form or Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 20(e)).
(f) This Agreement, together with the Registration Form, Order Form and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between you and us with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(g) You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without our prior written consent, which consent we may give or withhold in our sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving you (regardless of whether you are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which our prior written consent is required. No delegation or other transfer will relieve you of any of your obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 20(g) is void. We may freely assign or otherwise transfer all or any of our rights, or delegate or otherwise transfer all or any of our obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(h) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(i) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(j) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(k) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Registration Form and Order Form referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
(l) JURY TRIAL WAIVER. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
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Version 1.1, June 1, 2017