Software Service Terms
This outlines the software, service and licensing terms for Alliant provided by TEXO.
ALLIANT SYSTEMS, LTD. SOFTWARE MASTER LICENSE AGREEMENT
This Software Master License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between Alliant Systems, Ltd., a Texas limited partnership ("Licensor") and the person or entity identied on the Order Form as the licensee of the Software ("Licensee"). LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THIS AGREEMENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) IF LICENSEE IS AN INDIVIDUAL, YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, LICENSEE HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
1. Denitions. For purposes of this Agreement, the following terms have the following meanings:
"Authorized Users" means solely those individuals authorized to use the Software pursuant to the license granted under this Agreement, and limited to the number of Authorized Users concurrently using the Software as specied on the Order Form.
"Documentation" means Licensor's installation guides and instructions relating to the Software and/or end user documentation relating to the Software provided by Licensor to Licensee by any and all means including, without limitation, electronically via links, at Licensor’s online portal or website, or in hard copy form.
"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.
"Fees" means the fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement as specied on the Order Form or otherwise due from Licensee as provided hereunder.
“Licensee Devices” means computers, servers, virtual machines and mobile phones (for the mobile application Software) which are owned and controlled by Licensee and used solely by Authorized Users in furtherance of and in the course of Licensee’s business.
“Licensee Minimum Requirements” means the minimum system and Software implementation and ongoing maintenance requirements for the use of the Software as set out from time to time on Licensor’s website at http://www.alliantsystems.com/HardwareSoftwareRequirements "Order Form" means the Software Proposal/Schedule of Software and Services executed by Licensor and Licensee for Licensee's purchase of the license for the Software granted under this Agreement. Licensor shall use commercially reasonable eorts to provide at least (6) months' notice of required changes to Licensee Minimum Requirements to Licensee.
"Order Form" means the Software Proposal/Schedule of Software and Services executed by Licensor and Licensee for Licensee's purchase of the license for the Software granted under this Agreement.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
"Software" means the product(s) described in the Order Form in object code format, including any Updates provided to Licensee pursuant to this Agreement.
"Third Party" means any Person other than Licensee or Licensor.
"Updates" means any new releases, updates, bug xes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software, but specically excludes any bugs caused by Licensee’s failure to comply with the Licensee Minimum Requirements.
2. License Grant and Scope. Subject to and conditioned upon Licensee's payment of the Fees and Licensee's compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants Licensee a nonexclusive, non-sublicensable, non-transferable (except in compliance with Section 15(e)), license, during the Term and solely by and through its Authorized Users, to:
(a) Install in accordance with the Documentation copies of the Software on Licensee’s servers which may be accessed solely by Authorized Users and solely on Licensee Devices. Licensee may permit access to the Software by more Licensee Devices than licenses that are specied on the Order Form; provided, however, that Licensee may not have more Authorized Users concurrently using the Software at one time than such number of Licenses that are specied on the Order Form. Each such Licensee Device accessing the Software shall only be used by a single Authorized User. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy. All copies of the Software made by the Licensee:
(i) will be the exclusive property of the Licensor;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
(b) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee's internal business purposes. Such use is permitted only on Licensee Devices by Authorized Users.
(c) Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee: (i) will be the exclusive property of Licensor; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all Intellectual Property Rights notices contained in the original.
3. Third-Party Materials. The Software may include or interoperate with third-party software, content, data or materials, including related documentation that are owned by third parties and are required for the use or operation of the Software ("Third-Party Materials). These Third-Party Materials are governed by their own license terms (ThirdParty Licenses). Licensee agrees to comply with all applicable Third-Party Licenses for any Third-Party Materials that are necessary for Licensee to access or use the Software, as such requirements may change from time to time. A breach of any applicable Third-Party License by Licensee or its Authorized Users shall be deemed a breach of this Agreement.
4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2 and in the Order Form;
(b) provide any other Person, including any subcontractor, independent contractor, aliate, or service provider of Licensee, with access to or use of the Software or Documentation, without the express written consent of Licensor, except for authorized employees of Licensee during the normal course of business, without written consent of Licensor.
(c) modify, translate, or adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof, except that Licensee may create internal training materials, job aids, or standard operating procedures that reference or incorporate unaltered excerpts, screenshots, or descriptions of the Software or Documentation, provided such materials (i) are kept condential, (ii) are used solely for internal purposes, and (iii) do not include any modications to the Software itself or result in the creation of competitive software or public disclosure of proprietary content
(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) except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available, except Licensee may make the Software available to integrators approved by Licensor in section 4(b) herein (or otherwise in writing by Licensor hereafter) for support and maintenance under the supervision of an Authorized User, 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;
(i) use the Software or Documentation in violation of any law, regulation, or rule; or
(j) 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 Licensor's commercial disadvantage.
Additionally, Licensee agrees that for the Term and for two (2) years thereafter, Licensee shall not compete with Licensor in the business of providing to others software that performs functions similar to the software.
5. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
6. 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 4. Licensee 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) At any time on Licensor's request, Licensee shall conduct a review of its and its Authorized Users use the Software and certify to Licensor in a written instrument signed by an ocer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance:
(i) Licensee shall immediately remedy such noncompliance and provide Licensor with written notice thereof. Licensee shall provide Licensor with all access, supervised by an Authorized User, and assistance as Licensor requests to further evaluate and remedy such noncompliance.
(ii) If Licensee’s review discovers that Licensee's use of the Software exceeds the number concurrent Authorized Users permitted under the license, Licensee shall immediately notify Licensor of such excess use and Licensor retains the right to bill Licensee for such excess Authorized Users as specied in Section 6(d) below.
(c) During the Term, Licensor may, in Licensor's sole discretion, audit Licensee's use of the Software to ensure Licensee's compliance with this Agreement. Licensor also may, in its sole discretion, audit Licensee's systems within six (6) months after the end of the Term to ensure Licensee has ceased use of the Software and removed all copies of the Software from such systems as required hereunder. Licensee shall fully cooperate with Licensor's personnel conducting such audits and provide all reasonable access requested by the Licensor to Licensee Devices, records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. Licensor shall only examine information directly related to the Licensee's use of the Software.
(d) If the audit or any of the measures taken or implemented under this Section 6 determines that the Licensee's use of the Software in the twelve (12) month period prior to such audit or measures taken hereunder exceeds or exceeded the use permitted by this Agreement then from that point forward the Order Form shall be deemed to have been adjusted for such excess use and Licensee shall pay to Licensor the Fees for such excess use.
Licensor's remedies set forth in this Section 6(d) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.
7. Maintenance and Support.
(a) Subject to Section 7(e), the license granted hereunder entitles Licensee to the software maintenance and support services described on the Order Form:
(i) for the Term of the Agreement set forth on the Order Form; and
(ii) thereafter, solely if Licensee purchases additional support services and signs an additional agreement for such services.
(b) Maintenance and support services included under this Agreement are available and provided exclusively during Licensor’s normal business hours which are currently weekdays from 7:30 am – 5:30 pm Central Time excluding holidays observed by Licensor. Licensor’s normal business hours are subject to change in Licensor’s sole discretion and without notice. If Licensee requests maintenance and support services outside of these hours and days and Licensor, in its sole discretion, determines to provide such services then Licensee shall pay for such services at Licensor’s then current hourly rates subject to a two (2) hour minimum.
(c) Maintenance and support services will include provision of Updates. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee's receipt thereof will require an internet connection, which connection is Licensee's sole responsibility. Licensor has no obligation to provide Updates via any other media.
(d) Additionally, if Licensee noties Licensor that the Software fails to perform in accordance with Licensee’s special requirements as specied on the Order Form, as part of its maintenance and support services, Licensor agrees to provide reasonable programming and systems analysis services to include using LICENSEE’S SQL backups available at the time of error report, to correct a veried programming or documentation error. A veriable programming error in this context is one which can be recreated by Licensor at Licensor’s place of business using unaltered Software with data and input supplied by Licensee, which may include Licensee’s SQL backups available at the time of error report. In this instance, Licensor agrees to use commercially reasonable eorts to diagnose such problems even if Licensee is unable to provide adequate data and input for duplicating the problem; provided, however, that absent such information from Licensee, Licensor is relieved of any obligation relating to that programming error and any additional work that Licensor agrees to undertake will be at Licensee’s expense.
(e) Licensor reserves the right to condition the provision of maintenance and support services, including all or any Updates, as determined in Licensor’s reasonable discretion. This clause is not intended to refuse service to customers on an older version of the software but may limit Licensor’s ability to diagnose and troubleshoot service issues related to older versions of the software. Therefore, Licensor may request Licensee, as a service condition, to transition to a more current version of the software. Licensor has no obligation to provide maintenance and support services, including Updates, in the circumstances listed below, and if Licensor decides, at its sole discretion, to provide maintenance and support services, including Updates in the circumstances listed below, Licensor may charge Licensee at its then current rates for such enhanced services:
(i) for any but versions of the software published in the previous 15 months by Licensor, OR for any but versions of the software that will resolve or make diagnosing the service issue reported by Licensee possible
(ii) for any copy of Software published in the previous 15 months by Licensor for which all previously issued Updates have not been installed;
(iii) if Licensee is in breach under this Agreement; (iv) for any Software that has been modied other than by or with the specic written authorization of Licensor, or that is being used with any hardware, software, conguration, or operating system not specied in the Documentation or expressly authorized by Licensor in writing; or
(v) if Licensee has failed or fails to meet any of the Licensee Minimum Requirements
(f) Customer Support Response Time: The Licensor agrees to maintain a service level agreement wherein all customer support emails and calls shall receive an initial response within a maximum period of four (4) hours during regular business hours. This response time shall be measured from the time the support request is received by the Licensor’s designated support channels. In cases where the support request is received outside of regular business hours, the Licensor shall respond within four (4) hours of the commencement of the subsequent business day. The Licensor shall make reasonable eorts to provide timely and eective resolutions to support inquiries, however, this clause pertains specically to the initial acknowledgment of the support request. Licensor does provide support services after hours, weekends and on holidays for an additional hourly fee.
8. Additional Development/Custom Development and Ancillary Services. The parties acknowledge that any custom development services performed under this Agreement are designed solely to enhance, congure, or modify the functionality of the underlying SaaS platform and do not constitute a separate or standalone deliverable capable of independent use by Customer. Such development work is highly interdependent and integrated with the ongoing hosted software services and does not provide distinct value apart from the Customer’s continued access to the platform. Accordingly, the parties agree that these services represent a combined performance obligation with the underlying SaaS subscription and will be delivered and consumed ratably over the remaining term of the applicable SaaS agreement. In the event Licensee requests that Licensor perform additional development, data manipulations, programming requests, and/or other ancillary services, and Licensor, in its sole discretion, determines to provide such services then Licensee shall pay for such services at Licensor’s then current hourly rates subject to a two (2) hour minimum.
9. Collection and Use of Information.
(a) Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:
(i) the provision of maintenance and support services; and
(ii) any security measures included in the Software as described in Section 6.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee's equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee's compliance with the terms of this Agreement and enforcing the Licensor's rights, including all Intellectual Property Rights in and to the Software.
10. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does 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. Licensor reserves and shall retain its 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 the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor's sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights. LICENSOR acknowledges and agrees that Licensor owns and holds good title to, or otherwise has a valid license to use and sublicense, the Software and Documentation that is subject to the Agreement.
(a)
(i) Database Ownership: The underlying data utilized by the Licensor’s software shall be the exclusive property of the Licensee. The Licensee retains all rights, title, and interest in the data.
(ii) Database Structure, Functions, Stored Procedures, and Queries: The database structure, all functions, stored procedures, and queries authored or developed by the Licensor within the software shall be and remain the sole and exclusive property of the Licensor. The Licensee acknowledges and agrees that it holds no ownership interest, intellectual property rights, or claim to these specic items authored by the Licensor.
(iii) Usage Rights: The Licensee shall have the non-exclusive, non-transferable right to use the functions, stored procedures, and queries within the software solely for the purpose of utilizing the licensed software in accordance with this agreement. The Licensee shall not reverse engineer, modify, distribute, or create derivative works based on the functions, stored procedures, or queries without the express written consent of the Licensor, which shall not be unreasonably withheld.
11. Payment. All Fees are payable in advance in the manner set forth in the Order Form and are non-refundable. Any renewal of the license or maintenance and support services hereunder shall not be eective until the fees for such renewal have been paid in full and remain current at all times. The full estimated amount of any additional charges due in the circumstances specied in Sections 7(b), 7(d), and 8 are due in advance before Licensor begins such services. If payment terms are not specied on the Order Form or otherwise addressed herein, all such amounts shall be due and payable net 30 days of the date for which the Software or services are provided. Licensee shall pay all taxes arising out of this Agreement, except for taxes payable based upon the net income of Licensor.
12.Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in eect for the term set forth on the Order Form or until terminated as set forth herein (the "Term"). In the event the Term expires, this Agreement shall automatically renew on a month-to-month basis on the same terms and conditions specied in this Agreement except that 150% of the applicable Fees will be due, unless Licensor and Licensee establish a new Agreement with new terms and pricing dened in the new Agreement's Order Form.
(b) Licensor may terminate this Agreement, eective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach:
(i) is incapable of cure; or
(ii) being capable of cure, remains uncured for 30 days after Licensor provides written notice thereof.
(c) Licensor may terminate this Agreement, eective immediately, if Licensee les, or has led against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benet of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(d) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using all copies of the Software and Documentation. No expiration or termination shall aect Licensee's obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination or which Licensee is obligated to continue to pay through the end of the Term specied on the Order Form, or entitle Licensee to any refund. Upon any termination, Licensee shall follow any instructions of Licensor regarding the destruction of all copies of the Software on all Licensee Devices and servers.
13. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
(a) Solely with respect to Software for which Licensor receives a License Fee, Licensor warrants that, for a period of 60 days following the license date set forth on the Order Form, so long as Licensee meets the Licensee Minimum Requirements at all times and the Software is properly installed on Licensee Devices, the Software will substantially contain the functionality described in the Documentation if it is operated in accordance with the Documentation and will substantially perform in accordance therewith.
(b) The warranties set forth in Section 13(a) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:
(i) installs or uses the Software on or in connection with any hardware or software not specied in the Documentation, unless approved by Licensor;
(ii) at any times fails to meet the Licensee Minimum Requirements;
(iii) modies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
(iv) misuses the Software, including any use of the Software other than as specied in the Documentation or expressly authorized by Licensor in writing.
(c) If, during the period specied in Section 13(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 13(b), Licensor will, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either:
(i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sucient information to enable the Licensor to recreate such failure; or
(ii) refund the Fees paid for such Software, subject to Licensee's ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specied on the Order Form, and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 13(c) are Licensee's sole remedies and Licensor's sole liability under this Agreement.
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 13(A), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS 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 NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S 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 ANYERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
14. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE 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 THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS 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 LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN SECTION 14(A) AND SECTION 14(B) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
15. Miscellaneous.
(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 Texas without giving eect to any choice or conict 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 Texas in each case located in the City of Dallas and County of Dallas, 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 eective service of process for any suit, action, or other proceeding brought in any such court.
(b) In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to: (i) acts of God; (ii) ood, re, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in eect on or after the date of this Agreement; and (vi) national or regional emergency
(c) 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 conrmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (iii) on the date sent by email (with conrmation of transmission and receipt) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to the respective parties at the addresses (or email addresses, as applicable) set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 15(c)).
(d) This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto, and all other documents that are incorporated by reference herein, constitute the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benet of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benet 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, benet, or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modied, 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 eective 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.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not aect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) 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 modied 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 Order Form and all Annexes, Schedules, and Exhibits 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.
(j) The headings in this Agreement are for reference only and do not aect the interpretation of this Agreement.