Standard Terms
STANDARD TERMS AND CONDITIONS
These standard terms and conditions (the "Standard Terms") establishes the general terms and conditions of the relationship between Vendor and Client. If Vendor and Client desire to put in place one or more subscriptions for Vendor's proprietary Software, the Parties must execute Vendor's standard form subscription (the "Subscription"). The Subscription will become effective upon signature by both Parties and is subject to the terms and conditions of these Standard Terms. Capitalized terms not otherwise defined in these Standard Terms shall have the meanings ascribed to them in the Subscription.
1. Definitions.
(a) "Content" shall mean each third-party trade data, such as restricted party lists, harmonized commodity codes, tariffs and trade regulations available in the Software listed in the Subscription, and provided in the Vendor's format, which are sourced by Vendor and provided to Client for use with the Software.
(b) "Data Center" shall mean the physical location of the Vendor databases and computing servers which support the hosted Software on Vendor's side of the Service Demarcation Point.
(c) "Designated Contact" shall mean those persons designated by Vendor and Client in the Subscription as the designated contact.
(d) "Downtime" shall mean the minutes in a calendar month in which Client (i) suffers a complete loss of the Software, or (ii) experiences a sustained and material degradation to normal system performance which impacts Client's business in a substantial manner. Downtime does not include any outage caused by (v) the Internet or other telecommunication errors occurring outside of the Service Demarcation Point, (w) failures attributed to Computer Systems, (x) forces outside of Vendor's reasonable control, (y) the System Maintenance Period, and (z) Client's failure to install Enhancements recommended by Vendor (collectively, "Downtime Exclusions").
(e) "Licensed Materials" means the Software, Content, and other licensed supporting materials and documentation regarding the Software that are accessible through Vendor's website or provided to Client by an authorized representative of Vendor in connection with the Subscription.
(f) "Person" shall mean any natural person, corporation, division of a corporation, partnership, proprietorship, trust, joint venture, association, firm, company, limited liability company, estate, foundation, or any other entity, whether or not incorporated, and any governmental authority, unit or agency.
(g) "Service Demarcation Point" shall mean Vendor's border router, which is used to establish connectivity from the Data Center to the public Internet.
(h) "System Availability" shall mean the availability of the Software and Content at the Service Demarcation Point during a calendar month for a period of 24 hours per day, seven days per week, excluding any Downtime Exclusions in the month.
(i) "System Maintenance Period" shall mean the time from Saturday at 9:00 AM EST until Saturday at 10:00 PM EST (or such other periods as the Parties may agree to from time to time), during which time access to the Software is not available due to maintenance, upgrades, and other Data Center operating requirements.
(j) "Work Product" shall mean all materials, software, tools, data (excluding confidential and proprietary data of Client), inventions, works of authorship and other innovations of any kind, including, without limitation, any Licensed Materials and any improvements or modifications to Vendor proprietary computer software programs and related materials, that Vendor, or personnel working for or through Vendor, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing its obligations under the Agreement, or any other agreement, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection.
2. Scope of Use. Client shall be responsible for ensuring that only Authorized Users have access to and use the Licensed Materials. In that regard, Authorized Users may only use Licensed Materials to process the data of Client or to provide support services for Client. Client shall be responsible for configuring its systems to protect its data and Licensed Materials from intrusion or unauthorized access. Client may not copy or otherwise reproduce Licensed Materials. Client will not remove, obscure or alter any proprietary rights notice or trademark and/or service mark rights notice which Vendor places on or in Licensed Materials. Client shall not sublicense the Licensed Materials and shall not rent Licensed Materials or provide third parties with access to Licensed Materials through a commercial timesharing arrangement or based on any other method for any reason. Client's access of Software constitutes acceptance of the terms of the Agreement and the related Licensed Materials.
3. Delivery. With respect to any Software ordered by Client, delivery of such Software shall occur upon Vendor's provision of a user identification and password for access to such Software.
4. Warranties.
(a) Mutual Warranty. Each Party represents and warrants that it has the right and authority to enter into the Agreement and to perform its obligations hereunder.
(b) Software Warranty. Vendor warrants that it is the owner or authorized licensee of the Licensed Materials and has the authority to license the Licensed Materials subject to the provisions and qualifications of the Agreement. Subject to the provisions and qualifications of the Agreement, Vendor warrants only to Client that on the date of delivery the Software is designed to operate in substantial conformance with the functionality described in Vendor's applicable user manual in effect on the date of delivery, as expressly set forth in the Subscription under the heading "User Manual" ("Specifications"). The warranty period for each applicable Licensed Material will be the Subscription Term for that Licensed Material ("Warranty Period").
Further, Client shall also be barred from any recovery (including, without limitation, any recovery under the express warranty specified in this Section 4(b)) and Vendor shall have no liability on account of any of the following, or the use of the Licensed Materials: (i) the Software is not used by Client in accordance with Vendor's applicable Specifications or instructions, (ii) the Licensed Materials were altered, modified, tampered with, or damaged by Client or any other Person (except Vendor); (iii) any changes, enhancements, modifications or updates to, or installation of, any component of Computer Systems; (iv) causes external to the Software including, but not limited to, any failure, malfunction of, defect in or incompatibility with Computer Systems or other hardware affecting the operation of the Software, accident, neglect, negligence, alteration, modification, abuse, misuse, failure or fluctuations in electrical power or current suppliers or the like; (v) failures or defects in Software caused by or related to viruses, worms, time bombs, backdoors, logic bombs, Trojan horses, trap doors, or other malicious computer instructions; and (vi) Downtime Exclusions; or (vii) Client's failure to properly satisfy the Client Responsibilities (as defined in Section 7) of the Agreement (each of (i)-(vii) above are referred to as "Maintenance Exclusions").
In the event that a defect is discovered or should have been discovered from which it is reasonable to conclude that damage, either personal, property or economic, may result, the continued use of the suspect Software will constitute an assumption of risk and a bar to any recovery against Vendor, including, without limitation, any recovery for breach of any express warranty.
Client's SOLE AND EXCLUSIVE RIGHTS AND REMEDIES IN CONNECTION WITH THE LIMITED WARRANTY CONTAINED IN THIS SECTION 4(b) ARE LIMITED TO THE RIGHTS AND REMEDIES EXPRESSLY SET FORTH IN SECTION 4(c).
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE EXPRESS TERMS OF SECTION 4(b) AND, WITH RESPECT TO PATENT AND COPYRIGHT INFRINGEMENT, SECTION 5. THE EXPRESS WARRANTIES SET FORTH IN SECTION 4(b) AND SECTION 5 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE.
Vendor DOES NOT WARRANT THAT THE Content CONTAINED IN THE Licensed Materials WILL BE UP-TO-DATE, ACCURATE, COMPLETE, OR SUFFICIENT TO MEET Client's REQUIREMENTS. FURTHER, Vendor DOES NOT WARRANT THAT THE Licensed Materials WILL (1) BE SUFFICIENT TO MEET Client's REQUIREMENTS, (2) OPERATE ERROR-FREE, (3) OPERATE UNINTERRUPTEDLY, (3) HAVE System Availability, (4) BE SECURE, (5) OPERATE IN COMBINATION WITH Computer Systems OR ANY OTHER HARDWARE, SOFTWARE, OR CONTENT, (6) TO THE EXTENT DEFECTIVE, ARE CORRECTABLE OR WILL BE CORRECTED, OR (7) WILL ENABLE Client TO COMPLY WITH EXPORT CONTROL LAWS AND REGULATIONS.
It is hereby expressly understood and agreed that unless a statement is specifically identified in the Agreement as a warranty, the statements made in the Agreement relating to the Licensed Materials are not express warranties and do not form a part of the basis of the bargain but are merely Vendor's opinion or commendation of the Licensed Materials. Any description of the Licensed Materials specified in the Agreement and any description of Licensed Materials contained in any and all brochures, pamphlets or other literature of Vendor, including, without limitation, on Vendor's website, whether delivered before or after the date hereof, are not intended to be warranties. Instead, they are for the sole purpose of identifying such Licensed Materials; and such descriptions are not part of the basis of the bargain, and do not constitute a warranty that the Licensed Materials shall conform to those descriptions. The use of any graph, data curve, or drawing is for illustrative purposes only, conformity of the Licensed Materials to such graph, data curve, or drawing is not part of the basis of the bargain, and is not a warranty that the Licensed Materials will conform with the graph, data curve, or drawing. No affirmation of fact or promise made by or on behalf of Vendor, whether or not in the Agreement or in the Agreement, shall constitute a warranty that the Licensed Materials will conform to the affirmation or promise.
(c) Limitation of Remedies. Vendor's SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO (i) ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED (UNDER THE Agreement), (ii) DEFECTS IN Licensed Materials, NON-CONFORMITIES OF THE Licensed Materials OR THE TENDER THEREOF, AND/OR (iii) OTHER BREACHES OF ANY OBLIGATION OR DUTY OWED BY Vendor HEREUNDER OR UNDER APPLICABLE LAW, AND Client's SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT THERETO, SHALL BE LIMITED TO THE PROVISION OF Maintenance (AS DEFINED IN AND SUBJECT TO THE PROVISIONS OF SECTION 6) BY Vendor OF ANY Software LICENSED TO Client WHICH MAY PROVE TO BE DEFECTIVE WITHIN THE Warranty Period AS A DIRECT RESULT OF SUCH BREACH OF WARRANTY, DEFECT, NON-CONFORMITY OR OTHER BREACH. SUBJECT TO THE PROCEDURES SET FORTH BELOW, Vendor WILL PROVIDE SUCH Maintenance FREE OF CHARGE TO CLIENT DURING THE Warranty Period.
IF AFTER A REASONABLE NUMBER OF ATTEMPTS BY Vendor TO REMEDY A DEFECT PURSUANT TO THIS SECTION 4(c) AND THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNCONSCIONABLE OR UNENFORCEABLE IN THE JURISDICTION IN WHICH ENFORCEMENT IS SOUGHT, OR IN THE EVENT Maintenance IS NOT APPROPRIATE OR PRACTICAL AS DETERMINED BY Vendor USING ITS CURRENT SUPPORT GUIDELINES, Client SHALL, AT ITS OPTION, EITHER RECEIVE (i) A REFUND OF THE UNUSED PRO-RATA PORTION OF THE MOST RECENT Annual Subscription Fees PAID BY Client AND RECEIVED BY Vendor FOR THE DEFECTIVE Software IN QUESTION, MEASURED FROM THE DATE THE FAILURE OF SUCH Software WAS REPORTED TO Vendor BY Client ("Pro-Rata Subscription Amount"), OR (ii) A CREDIT IN AN AMOUNT EQUAL TO THE Pro-Rata Subscription Amount, IT BEING UNDERSTOOD THAT SUCH REMEDIES SHALL THEN BE Client's SOLE AND EXCLUSIVE REMEDY.
5. Infringement.
(a) All Software delivered to Client pursuant hereto shall be delivered free of any claim that such Software infringe any of the following United States registered proprietary rights: patent, copyright, or trademark. Vendor makes no other representations or warranties as to whether the Software is free from claims of third parties regarding infringement or the like, and same are hereby waived.
(b) Subject to the provisions hereof and the provisions of Section 10, during the Subscription Term for each applicable Software, Vendor will defend and indemnify Client against a claim that such Software licensed pursuant hereto infringes a United States patent, copyright, or trademark, provided (i) Client notifies Vendor in writing within thirty (30) days after the claim is asserted, and provides Vendor with all pleadings, evidence and other documents in Client's possession or control relating to such claim; (ii) Vendor has sole control of the defense, settlement negotiations and the unilateral right to settle such claim on terms satisfactory to Vendor; and (iii) Client provides Vendor with assistance, information and authority necessary for Vendor to perform its obligations and exercise its rights under this Section 5. In the event of a claim for such infringement, Vendor's obligations shall be deemed to be satisfied hereunder if Vendor, among other things (i) obtains a license for Client to continue to use the infringing Software; (ii) refunds the most recent Annual Subscription Fee paid by Client to Vendor for such infringing Software, in which event Client shall, at its expense, return such Software at Vendor's option; or (iii) replaces or modifies the infringing Software with a functionally similar software that is non-infringing.
Vendor shall have no liability or responsibility under this Section for infringements or alleged infringements resulting from (i) incorporation by Vendor of any Licensed Material into any Computer System; (ii) the combination of any Licensed Material with any other product not supplied by Vendor; (iii) the use of equipment or products not supplied by Vendor; or (iv) the use of Licensed Materials in a manner for which they were not manufactured or designed.
THIS PARAGRAPH STATES THE ENTIRE LIABILITY OF Vendor AND Client's SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY TYPE OF INFRINGEMENT AND BREACH OF REPRESENTATION OR WARRANTIES SPECIFIED IN THIS SECTION 5, AND IS IN LIEU OF ALL OTHER WARRANTIES AND OBLIGATIONS, EXPRESS OR IMPLIED.
6. Maintenance Plan.
(a) General. During the applicable Subscription Term for the Software, Client shall automatically be enrolled in Vendor's maintenance plan which entitles one designated employee of Client and one back-up employee (collectively the "Designated Contact") to contact Vendor on behalf of Client in order to receive Maintenance (as defined below) and Enhancements (as defined below) for Software and the other services stated in this Section 6 (collectively, the "Maintenance Plan"), all subject to the provisions hereof. The Maintenance Plan will only apply to Software during the applicable Subscription Term for that Software.
(b) Telephone Support. As part of the Maintenance Plan, Vendor shall provide to Designated Contact, reasonable telephone consultation relating to the operation and use of Software during normal business hours. Off-hours support is available via a call center, with call back response to emergencies.
(c) Maintenance. "Maintenance" shall mean that Vendor shall use commercially reasonable efforts to correct defects in Software within a reasonable period of time, all as described in this Section 6(c). Maintenance includes using commercially reasonable efforts to: respond to operator messages, restart jobs, monitor system performance, perform backups, load Vendor-supplied patches to the Software, develop and maintain a disaster recovery plan related to the Licensed Materials, service Vendor's computer system and install new versions of the operating system, middleware and database.
The performance of Maintenance is based on Vendor's priority assignment guidelines. The priority of every Client issue is determined and assigned during the initial contact between the Designated Contact and the Vendor customer support personnel. Client should only contact Vendor customer support after correctly applying a reasonable internal help process first.
(d) Enhancements. "Enhancements" shall mean each new release or version of the Software containing system enhancements, updates, bug fixes, patches, work-arounds or modifications that are made commercially available by Vendor. Notwithstanding the foregoing, Enhancements may be provided by the Vendor at its sole discretion and Vendor reserves the right to determine and offer Enhancements as separately priced, optional, or extra cost improvements.
(e) Waiver of Vendor's Obligations. Notwithstanding anything to the contrary contained herein, Vendor shall have no obligation to provide Maintenance, Enhancements, or telephone support (under Section 6(b)) for Software that is subject to any Maintenance Exclusions.
7. Hosting Environment. Subject to the provisions of the Agreement, Vendor is responsible for all costs associated with the acquisition, licensing and maintenance of the Hosting Environment, which includes all computer equipment, database, middleware, operating system software, Data Center facilities, security systems, power systems, utilities, third-party disaster recovery plans and all personnel including system operators and system programmers on Vendor's side of the Service Demarcation Point. Subject to the provisions hereof, the Hosting Environment will also include a high-speed connection to the Internet with sufficient capacity to meet the needs of Client using the Software under normal conditions. All other telecommunication connections and computer equipment on Client's side of the Service Demarcation Point will be the responsibility of Client. The foregoing responsibilities and the Installation Exclusions, are collectively referred to as "Client Responsibilities."
8. Confidentiality.
(a) Confidential Information. As used in the Agreement, "Confidential Information" means: (i) all information furnished or made available in tangible form or electronic record (as defined in the Electronic Signatures in Global and National Commerce Act) directly or indirectly by one Party (the "Disclosing Party") to the other (the "Receiving Party") in connection with the Agreement which is marked confidential, restricted, proprietary, or with a similar designation; (ii) the specific business terms of the Agreement; (iii) subject to the respective rights of each Party in and to the same pursuant to the Agreement, all Licensed Materials, Software, Content, Specifications, designs, documentation and other similar materials and work products provided by either Party to the other during the Term; and (iv) other information communicated orally to the Receiving Party in connection with the Agreement, provided that in order for such oral disclosures to be deemed Confidential Information, the Disclosing Party confirms in writing the confidential nature of such disclosures within fifteen (15) calendar days after such disclosure is made to the Receiving Party, and such writing shall be marked confidential, restricted, proprietary or with a similar description.
(b) Obligations. The Receiving Party shall use the Disclosing Party's Confidential Information only in accordance with the Receiving Party's rights and obligations under the Agreement. The Receiving Party shall use at least the same degree of care as it employs to avoid unauthorized use or disclosure of its own information of a similar nature, but in any event no less than reasonable care, to prevent unauthorized use or disclosure of the Confidential Information of the Disclosing Party. The Receiving Party may disclose such Confidential Information to its employees, affiliates, consultants, auditors, attorneys, authorized agents, or subcontractors (collectively, "Representatives") on a need to know basis subject to the provisions of Section 8, it being understood that the Receiving Party will inform such Representatives of the confidential nature of the Confidential Information and the obligations assumed hereunder and that the Representatives will only be given access to same if they consent to abide by such obligations. Each Receiving Party shall be responsible for ensuring that its employees and Representatives comply with these confidentiality provisions. Client shall not, directly or through any third party, use any Confidential Information to create, modify or enhance any computer software, program or user documentation that is substantially similar to any computer software, program or user documentation or any other Licensed Material or service provided by Vendor. Client shall not copy or reverse-engineer, reverse-compile, or unlock any of the Licensed Materials without the prior written consent of Vendor. In such event, any such copied or reverse-engineered, reverse-compiled, or unlocked Licensed Material shall remain subject to the provisions of Section 8.
(c) Exclusions. The provisions of Section 8 shall not apply to any particular information of the Disclosing Party which the Receiving Party can prove (i) was, at the time of disclosure to it, in the general public domain other than as a result of the improper act, omission, or fault of the Receiving Party; (ii) after disclosure to it, is published or otherwise becomes part of the general public domain other than as a result of the improper act, omission, or fault of the Receiving Party; (iii) was in the possession of the Receiving Party at the time of disclosure to it and not subject to a duty of confidentiality; (iv) was received after disclosure to it from a third party who had a lawful right to disclose such information to it without any obligation to restrict its further use or disclosure; or (v) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party by employees of the Receiving Party who have had no access to such information. In addition, the Receiving Party shall not be considered to have breached its obligations by disclosing Confidential Information of the Disclosing Party as required to satisfy any legal requirement of a competent government body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such Receiving Party advises the Disclosing Party prior to making such disclosure, so that the Disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. In the event that such protective order is not obtained, the Receiving Party agrees to determine, based on advice of its legal counsel, what disclosure of the Confidential Information shall be the minimum required to discharge the legal duties of the Receiving Party, and to furnish only the minimum portion of the Confidential Information legally required.
(d) Return or Destruction. As requested by a Disclosing Party during the term of the Agreement, and immediately upon expiration or any termination of the Agreement, the Receiving Party shall cease using the Confidential Information of the Disclosing Party and shall return or destroy, as the Disclosing Party may direct, all materials in any medium that contains, refers to, or relates to the Disclosing Party's Confidential Information.
(e) No Implied Rights. Nothing contained in Section 8 shall be construed as obligating a Party to disclose its Confidential Information to the other, or as granting to or conferring on a Party, expressly or impliedly, any right, title or interest in and to the Confidential Information of the other Party or any products or processes encompassed thereby or improvements or developments thereof or intellectual property rights thereto. The Receiving Party acknowledges and agrees that the Confidential Information of the Disclosing Party is proprietary to and is the sole and exclusive property of the Disclosing Party.
(f) Trade Secrets. Client acknowledges and agrees that the Licensed Materials are trade secrets and are not readily accessible to competitors of Vendor and that such Licensed Materials have been acquired and assembled at significant expenditures of time and other resources. The Receiving Party additionally acknowledges and agrees that such Licensed Materials (i) are novel; (ii) provide Vendor with a competitive advantage over those who do not know or use it; (iii) are a valuable and unique asset of Vendor; (iv) are kept in a safe place and Vendor has taken and is taking all reasonable precautions to protect its secrecy through the use of reasonable security measures; and (v) would be difficult for competitors of Vendors or others to duplicate. All trade secrets shall be deemed Confidential Information.
9. Proprietary Rights.
(a) Client acknowledges and agrees that, as between Vendor and Client, Vendor owns and shall retain exclusive ownership in the entire right, title and interest in and to the Licensed Materials and all updates, versions, releases, corrections, programs, information, translations, compilations, partial copies and Work Product relating to the Licensed Materials and software relating thereto conceived, created and/or developed, alone or with Client or others as a result of or related to the Agreement, including, without limitation, all proprietary rights therein or based thereon (collectively, the "Proprietary Rights"). The Proprietary Rights shall also include, without limitation, update and maintenance releases. Except and only to the extent expressly provided herein, Vendor shall not be deemed to have granted to Client any right, license or other proprietary right, express or implied, in and to any of the Proprietary Rights or other work product covered by the Agreement.
(b) All applicable rights to patents, copyrights, trademarks, and trade secrets in and to the Licensed Materials and/or Proprietary Rights shall be and remain the sole and absolute property of Vendor. Nothing in the Agreement shall explicitly or implicitly restrict, impair, transfer, license, convey or otherwise alter or deprive Vendor of any of its rights or proprietary interests in any intellectual property, software, content, data, information or any other materials or rights, tangible or intangible, including, but not limited to, the Licensed Materials. Client agrees not to directly or indirectly challenge or contest the validity of, or Vendor's rights in, the Proprietary Rights.
10. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE Agreement, AND SUBJECT TO THE PROVISIONS OF THIS SECTION 10, NEITHER Party SHALL BE LIABLE TO THE OTHER OR ANY Authorized Users or OTHER Person FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, COVER DAMAGES OR LOST PROFITS, OR DAMAGES RELATING TO OR RESULTING FROM BUSINESS INTERRUPTION, Downtime, LACK OF System Availability, LOSS OF GOODWILL, LOSS OF DATA, OR COMPUTER FAILURE OR MALFUNCTION OR OTHER CAUSE OTHERWISE, DIRECTLY OR INDIRECTLY RESULTING FROM, RELATING TO, OR ARISING OUT OF THE Agreement OR THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH A Party KNEW OR SHOULD HAVE KNOWN OF AND REGARDLESS OF WHETHER THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, TORT OR OTHERWISE. IN THE EVENT THAT ANY TERM OF ANY OF THE Agreement IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT. THE FOREGOING LIMITATION OF DAMAGES CONTAINED IN THIS SECTION 10 WILL NOT APPLY TO A BREACH OF THE PROVISIONS OF SECTIONS 8 OR 9 OF THE Agreement.
THE MAXIMUM AGGREGATE LIABILITY OF Vendor ARISING OUT OF OR RELATING TO THE Agreement OR THE TRANSACTIONS CONTEMPLATED THEREBY SHALL NOT EXCEED THE FIRST Annual Subscription Fee ACTUALLY COLLECTED BY Vendor FOR THE AFFECTED Software IN QUESTION, REGARDLESS IF THE CLAIMS IN QUESTION ARE BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, TORT OR OTHERWISE.
11. General.
(a) Governing Law. The Parties acknowledge and agree that the Agreement shall be a contract made in the United States, state of New Jersey. All questions pertaining to the validity, construction, execution and performance of the Agreement shall be construed and governed in accordance with the domestic laws of the state of New Jersey (including, without limitation, the New Jersey Uniform Commercial Code), without giving effect to principles of (i) comity of nations or (ii) conflicts of law. The Agreement shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods. In case of a dispute arising from the interpretation or enforcement of Vendor's or its licensors' patents, trademarks, copyrights, confidential information, or other proprietary rights, U.S. federal law also shall apply.
(b) Dispute Resolution. Any dispute arising under the Agreement or the transactions contemplated thereunder shall be settled by binding arbitration in accordance with the United States Arbitration Act and administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitration proceedings shall be conducted before a panel of three (3) neutral arbitrators. The place of the arbitration shall be in New York, New York. Any award in an arbitration initiated hereunder shall be in accordance with New Jersey law and U.S. federal law, as more particularly specified in Section 11(a). Subject to Section 10 of the Agreement, the successful party will be entitled to be awarded all costs, including reasonable attorney's fees, paid or incurred by such prevailing party during the course of the arbitration proceedings. In any arbitration initiated hereunder the arbitrators will have no authority to award consequential, exemplary, incidental, indirect or special damages, lost profits or punitive or other damages not measured by the prevailing party's actual direct damages, except as may be required by applicable statute and then only to the extent such requirement cannot, as a matter of law, be waived. The limitation of damages stated above will not apply to a breach of the provisions of Sections 8 or 9. Except as required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Vendor and Client. Except as otherwise expressly provided in this Section 11(b), if either Party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other Party shall be entitled to be awarded costs, including reasonable attorneys' fees, paid or incurred by such other Party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
Notwithstanding anything to the contrary contained herein, Vendor shall not be required to mediate or arbitrate and shall have the right to seek immediate judicial resolution for all disputes involving Client's breach of any of the provisions of Sections 8 or 9. This Section 11(b) shall not be construed to prevent a Party from instituting, at any time, including before or during the dispute resolution process, (i) formal proceedings to avoid the expiration of any applicable statute of limitations period, (ii) claims for injunctive relief, or (iii) proceedings to preserve a superior position with respect to other creditors.
(c) Assignment. Client shall not assign any of its rights or delegate any of its duties under the Agreement without the prior written consent of Vendor, it being understood that Vendor has a substantial interest in having Client perform its obligations hereunder. Any attempted assignment or transfer without such consent of Vendor shall be null and void, and without legal force and effect. Vendor shall, in its sole discretion, have the right to assign all or part of its rights and obligations to any entity controlling, controlled by, or under common control with Vendor.
(d) Notices. Any notice, request, demand or other communication permitted or required to be given under the Agreement shall be in writing, sent to the Party or Parties at their respective addresses set forth on the face hereof, or any other address designated by a Party by written notice of such address change, and shall be deemed to have been duly given, made and received (i) when delivered personally or by facsimile, in each case against electronic confirmation of receipt thereof, (ii) one (1) day following the day when deposited with a reputable, established overnight courier service for delivery to the intended addressee, or (iii) three (3) days following the date when deposited with the United States Postal Service as registered or certified mail, postage prepaid, return receipt requested and addressed as set forth above.
(e) Severability. Any provision of the Agreement that is held to be invalid by a court of competent jurisdiction shall be severed from the Agreement, and the remaining provisions shall remain in full force and effect.
(f) Force Majeure. Except for the payment of monies due hereunder, neither Party shall be liable to the other Party for failure or delay in fulfilling its obligations under the Agreement to the extent that such failure or delay is due to a force majeure, including, without limitation, interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, acts of God, wars, terrorism, acts of public enemy, civil disturbance, interfacing with Computer Systems, telecommunication errors occurring outside of the Service Demarcation Point, or any other causes beyond its reasonable control, whether or not such cause be of the same class or kind as those enumerated above, such enumeration being expressly understood to be in addition to other causes or classes of causes beyond a Party's control. However, the delayed Party shall use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused pursuant to this Section 11(f), and inform the other Party of its plans to resume performance. In the event of the occurrence of a force majeure event, Vendor shall have the right to allocate labor and delivery among its customers in such proportions as it deems appropriate, in its sole and absolute discretion.
(g) Waiver. Failure or delay by either Party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition.
(h) Entire Agreement. These Standard Terms, the Subscription and all exhibits thereto, constitute the entire agreement (collectively, the "Agreement") between the Parties with regard to the subject matter of the Agreement and supersedes all previous communications, whether oral or written, as well as any side letters, between the Parties with respect to such subject matter. Neither the course of conduct between the Parties nor trade usage shall modify or alter the Agreement. If Client issues a purchase order or other similar writing addressing the subject matter of the Agreement but which contains terms that conflict with, are different from, or are in addition to, the Agreement, such purchase order or writing shall be for Client's internal purposes only, and such conflicting, different, or additional terms and conditions contained therein shall not be applicable and shall have no legal force or effect.
(i) Modification. No waiver or modification of any of the provisions hereof shall be binding unless in writing and signed by duly authorized representatives of the Party against whom enforcement is sought.
(j) Independent Contractors. Nothing in the Agreement shall be construed to constitute either Party as a partner, employee, agent or joint venture of the other; it being the intention that Vendor and Client are contractors independent of one another and that each shall be responsible for the supervision and control of their operations, including without limitation, supervising and controlling their own personnel. In that regard, neither Party shall have the authority to bind the other Party or otherwise act in any way as the representative of the other, unless otherwise expressly agreed to in a writing signed by both Parties hereto. Nothing herein shall be deemed to preclude Client from obtaining similar software, products and services or retaining the services of other persons or entities undertaking the same or similar services as those undertaken by Vendor hereunder.
(k) Compliance with Law. Each Party shall comply with all international, national, state, regional, and local laws and regulations applicable to it in performing its obligations and/or services hereunder.
(l) Limitation of Action. No arbitration, action, or proceeding at law, in equity or otherwise shall be commenced by Client against Vendor for Vendor's alleged breach of warranty (express or implied) under the Agreement, failure to deliver a conforming Licensed Material, Software, or Content, or other breach of any obligation or duty owed by Vendor under the Agreement or under applicable law, unless: (i) Client notifies Vendor in writing within thirty (30) days from the date of such alleged breach or failure to deliver a conforming Licensed Material, Software, or Content, or other breach of an obligation owed by Vendor under the Agreement or applicable law, provided Vendor does not remedy or correct the breach or non-conformity within sixty (60) days from the receipt of the notice; and (ii) such action or proceeding is commenced by Client within twelve (12) months from the date the breach or non-conformity occurs for any action whether in contract, negligence, strict products liability, tort or otherwise, other than breach of warranty, regardless of the Client's lack of knowledge or, in the event of breach of warranty, within twelve (12) months from the date the breach occurs or from the expiration of the applicable statute of limitations period, whichever occurs first. Notwithstanding the foregoing, nothing contained in this Section 11(l) shall be construed to modify, abridge or limit the express warranty contained in Section 4(b).
(m) Publicity. Upon mutual signature of the Agreement, Vendor shall have authority to issue a press release describing the general relationship of the Parties, without disclosing any Confidential Information. Vendor shall also have the right to use the name and logo of Client as a customer of Vendor in promotional materials. Neither Party will issue any press release or engage in any other promotional activities, other than the foregoing that identify the other Party without obtaining such other Party's prior written approval; provided, that either Party may at any time reiterate any information contained in any jointly issued or previously approved press release or promotional material.
(n) Headings. Headings and captions used in the Agreement are for convenience of reference only and shall not be used in the interpretation of the Agreement. Words used in the singular may import the plural and vice versa.
Survival. Rights and obligations accruing prior to termination of the Agreement shall survive termination of the Agreement. Sections 9, 10, and 11 shall survive the termination or expiration of the Agreement for any reason. Without granting any right or license, the obligations of Section 8 shall continue with respect to any Confidential Information disclosed pursuant to the Agreement during any Subscription Term hereunder for a period of thirty-six (36) months following the termination of the Agreement.