Terms of Service
Phosphorus End User License Agreement
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“Agreement”) is entered into as of ____________, 2023 (the “Effective Date”) by and between Phosphorus Cybersecurity Inc., a corporation organized under the laws of Delaware (“Licensor”) and [________________], a [ENTITY] incorporated under the laws of [STATE] (“Licensee”).
WHEREAS, Licensor provides the Software (as defined below);
WHEREAS, Licensee desires to obtain a license to the Software, solely for Licensee’s own internal business purposes; and
WHEREAS, Licensor is willing to grant a limited license to Licensee to use the Software on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS
1.1 “Affiliate” means, with respect to a party, any other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a party, through ownership of more than fifty percent (50%) of the voting securities of such party (or, in the case of a non-corporate entity, equivalent rights).
1.2 “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.
1.3 “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.4 “Software” means Licensor’s proprietary software, solely in object code form. The Software may be provided as a virtual appliance for Licensee to install in its network environment.
1.5 “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, licensed contractors, authorized service providers, and legal advisors.
1.6 “Third Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third party: (a) documents, data, content, or specifications; (b) software, hardware, or other products, facilities, equipment, or devices; and (c) accessories, components, parts, or features of any of the foregoing.
2.1 License Grant
(a) Delivery. Within seven (7) days after the Effective Date or as otherwise agreed by the parties, Licensor will electronically deliver or make available one (1) copy of the Software to Licensee in a form and format elected by Licensor. 2
(b) License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, personal, nontransferable (except in accordance with Section 11.8), nonsublicensable, revocable (as provided in accordance with Section 5.2 and Section 9.3) license to: (i) deploy the Software solely at network locations controlled by Licensee (including on third party cloud provider platforms); (ii) use the Software to secure devices at facilities owned and operated by Licensee (the “Facilities”); and (iii) reproduce the Software solely as necessary for, and subject to the licensed use restrictions of, the Permitted Use. For the purposes of this Agreement, “Permitted Use” means Licensee’s internal business use of the Software at the Facilities, for implementation, deployment, and run-time use of the Software as reasonably necessary to permit Licensee to inventory, view and analyze security and firmware status, as well as to update firmware, drivers and other software for network devices on the internal networks at the Facilities, in each case for internal business purposes only, and solely for its own benefit. For the purposes of this Agreement, the term “use” (as used herein with respect to any “use” of the Software), means to copy, install, access, execute, operate, archive and/or run the Software for test, integration and production purposes.
(c) Scope of Licensed Use. Any copy of the Software made by Licensee: (i) will remain the sole and exclusive property of Licensor; (ii) is subject to the terms and conditions of this Agreement; and (iii) must include all copyright and/or other Intellectual Property Rights and confidentiality notices contained in the original. Licensee is responsible for all use of the Software by its Representatives.
(d) Other Licenses. Licensee understands and agrees that its use of the Software may be dependent on rights to Third Party Materials. Licensor has no obligation to provide such Third Party Materials in connection with this Agreement.
(e) Reservation of Rights; No Implied Rights. Except for the limited rights and licenses expressly granted under this Section 2.1 with respect to the Software during the Term, nothing in this Agreement grants to Licensee or any third party any rights under Intellectual Property Rights or any other right, title, or interest, whether by implication, waiver, estoppel, or otherwise.
2.2 License Restrictions. Notwithstanding anything to the contrary in this Agreement, without the prior written consent of Licensor, Licensee will not and will not permit any third party to: (a) modify, adapt, translate, create derivative works of, market, sell, offer to sell, lease, rent, license, sublicense, pledge, disclose, distribute or otherwise provide, make available to, or transfer, in whole or in part, the Software, or any portion thereof (in any form); (b) reverse engineer, decompile or disassemble any portion of the Software, except where such restriction is expressly prohibited by applicable law; (c) use the Software in any way that results in subjecting the Software to any “open source license”, “viral license”, or any other agreement requiring the conveyance, distribution, licensing, or disclosure of the Software, or rights relating thereto, to any third party; (d) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (e) use the Software for purposes of (i) benchmarking or competitive analysis of the Software, (ii) developing, using, or providing a competing software product or service, (iii) publicly displaying or performing, publishing or providing any results of tests run on the Software to a third party or (iv) any other purpose that is to Licensor’s detriment or commercial disadvantage; (f) merge the Software with any other software; (g) sublicense, rent, lease, grant a security interest in, or otherwise transfer rights to the Software; (h) use the Software to operate in or as a time-sharing, outsourcing, or service bureau environment or any use other than for Licensee’s own internal use, or in any way allow third-party access to the Software; (i) use the Software for any illegal, unauthorized or otherwise improper purposes; (k) remove any proprietary identification from the Software; or (j) use the Software for any purpose other than as expressly permitted in Section 2.1.
2.3 Support Services; Updates. Unless otherwise agreed by the parties pursuant to a separate agreement, Licensor has no obligation to provide Licensee any support services in connection with the Software. Licensor will provide Licensee with any released maintenance releases or updates to the Software (“Updates”) which it makes generally available to its other Software customers. Licensor has no obligation to provide Licensee any new versions of the Software (“New Versions”), or any documentation related thereto. To the extent Licensor provides any Updates or New Versions to Licensee, such Updates or New Versions will be deemed part of the Software, and are licensed under and subject to the terms and conditions of this Agreement. 3
3. DATA; THIRD PARTY SOFTWARE
3.1 Data. Licensee acknowledges and agrees that the Software and/or Licensor may collect certain data related to Licensee’s hardware hosting the Software or other hardware connected to the Software through the Internet or a local network, as well as Licensee’s use of the Software (collectively, “Data”) during the term of this Agreement, including: (a) certain hardware data, such as IP address, MAC Address, DHCP information, DNS Events, user sessions, virtual machine information, and device security posture (“Controlled Data”); and (b) operational data, such as Licensor-generated device identifier, device manufacturer name and model, device firmware version, device credential version, and analytics and statistics generated by the Software (collectively, “Operational Data”). Licensor may, and Licensee hereby authorizes Licensor to, access Licensee’s systems or Facilities in order to gather, collect, use, process, analyze, reproduce, create derivative works of, adapt, translate modify and otherwise exploit (collectively “Use”) any and all Data to (i) perform its obligations and exercise its rights hereunder, (ii) operate, support and maintain the Software, (iii) develop and improve Licensor’s products and services, and (iv) generate de-identified or anonymized data that cannot reasonably be used to identify Licensee (“Anonymous Data”). Licensor may Use Anonymous Data for any legal purpose.
3.2 Third Party Software. Licensee understands that the Software includes functionality that may recommend and install third party software updates of software for devices on Licensee’s networks (“Third Party Updates”). Licensee understands and agrees that such Third Party Updates are not part of the Software and Licensor does not review, verify, maintain or guarantee any aspect of such Third Party Updates, including any harm caused by such Third Party Updates, such as security vulnerabilities, viruses, malware and interoperability issues. Licensor has no liability in connection with Third Party Updates. Third Party Updates are subject to license terms and conditions between Licensee and the applicable third party licensor, and Licensor is not party to such agreements. As between the parties, Licensee is solely liable for acceptance of and compliance with such license terms and conditions.
4. FEES AND PAYMENT
4.1 Fees and Payment. Licensee shall timely pay all fees (the “Fees”) required of it in connection with the commercial engagement under which the Software is made available to Licensee. Unless otherwise provided for in such commercial engagement documents (including, without limitation, order forms, purchase orders, invoices, schedules or other commercial engagement documents under which the Software is made available (collectively, “Order Form(s)”)), all amounts (including all Fees) incurred under this Agreement shall be due upon Licensee’s receipt of the invoice. Unless otherwise stated elsewhere in connection with the engagement, all payments made under this Agreement shall be in United States Dollars.
4.2 Invoices. Upon Licensee’s receipt of an invoice from Licensor for Fees, Licensee will pay the invoiced amount on the terms set forth on the relevant Order Form(s). All Fees paid hereunder are irrevocable and non-refundable.
4.3 Late Payment. If Licensee fails to pay any amounts under an invoice when due, such overdue unpaid invoice shall accrue interest at a rate equal to the lesser of 1.0% per month on the remaining amount due and the highest rate permitted by applicable law, such interest to accrue on a daily basis after, as well as before, any judgment relating to collection of the amount due. If at any time there are overdue, unpaid invoices that have remained unpaid for more than 30 days past the date payment is due, Licensee agrees that Licensor may remotely disable access to the Software, until all overdue, unpaid invoices are paid in full.
4.4 Taxes. All Fees are exclusive of taxes. Licensee shall be responsible for the payment of any sales, use, personal property, excise, import or export, value added or similar tax or duty, and any other tax not based on Licensor’s net income, including any penalties and interest, licenses, customs and similar fees in connection with this Agreement.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of this Agreement’s express provisions, shall continue for an initial term of one (1) year (the “Initial Term”) and may be thereafter renewed for successive one-year periods (each a “Renewal Term”) upon written agreement of both parties (collectively, the “Term”).
5.2 Termination. This Agreement may be terminated at any time: 4
(a) by either party, effective on written notice to the other party stating such party’s intent to terminate, if the other party breaches any provision of 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 the breaching party with written notice of such breach; and
(b) by Licensor, effective immediately, if Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
5.3 Effect of Termination. Upon any termination of this Agreement:
(a) all rights, licenses, and authorizations granted to Licensee hereunder will immediately terminate;
(b) Licensee will immediately cease all use of and other activities with respect to the Software; and
(c) within five (5) days after any termination of this Agreement, Licensee will immediately return to Licensor, or, at Licensor’s request, permanently destroy, the Software, any related documentation and any other Confidential Information of Licensor, and certify to Licensor in writing that all of the foregoing have been returned or permanently destroyed in full compliance with this Section.
5.4 Surviving Terms. The provisions set forth in the following sections, and any other right, obligation, or provision under this Agreement that, by its nature, should survive termination of this Agreement, will survive any termination of this Agreement: 1, 2.1(e), 2.2, 3, 4, 5.3, 5.4, 6, 7, 8.2, 9, 10 and 11. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other party for damages of any kind arising as a result of termination of this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
6. PROPRIETARY RIGHTS
6.1 Licensor Ownership. Licensee acknowledges and agrees that the Software is licensed, not sold, to Licensee by Licensor and Licensee does not have under or in connection with this Agreement any ownership interest in the Software, or in any related Intellectual Property Rights. Licensee will have only those rights in or to the Software granted to it pursuant to this Agreement. As between the parties, Licensor and its licensors (if any) retain all of their respective right, title, and interest in and to: (a) the Software and any copy or portion thereof; and (b) any bug-fixes, updates, releases, versions, enhancements, new functionalities, or other software relating to the Software that are developed by or for Licensor prior to or after the Effective Date. Licensee will not take any action to jeopardize, limit, or interfere in any manner with Licensor’s ownership of, and rights with respect to, the Software. Licensee will not remove or obscure any Licensor confidentiality, copyright, or other Intellectual Property Right or proprietary notices or legends contained in or on the Software, and will reproduce them in any copies thereof, regardless of form or medium. Licensee acknowledges that it is obtaining only a limited license right to use the Software and that no ownership rights are being conveyed to Licensee under this Agreement or otherwise. Licensee acknowledges that it will acquire no rights in any trademarks, service marks, trade names or logos of Licensor pursuant to this Agreement; as such marks are and shall remain the exclusive property of Licensor.
6.2 Feedback. Licensee have no obligation to provide Licensor with ideas, suggestions, or proposals (“Feedback”). However, if Licensee submits Feedback to Licensor, then Licensee hereby grants Licensor a non-exclusive, worldwide, royalty-free, sublicensable and transferable license, to Use the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
7. CONFIDENTIALITY 5
7.1 Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that: (a) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary”; or (b) if disclosed orally or in other intangible form or medium, is identified by the Disclosing Party or its Representative as confidential or proprietary when disclosed and summarized and marked “confidential” or “proprietary” in writing by the Disclosing Party or its Representative within thirty (30) days after disclosure. Without limiting the foregoing, the Software is the Confidential Information of Licensor.
7.2 Exclusions. Except with respect to the Software, which will not be subject to the exclusions set forth in this Section 7.2, Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will:
(a) not access or use Confidential Information other than to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted under the terms and conditions of Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7, and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7.
The Receiving Party’s obligations under this Section 7 will expire five (5) years after initial disclosure, provided that such obligations will continue in perpetuity for the Software, and for Confidential Information that is a trade secret under applicable law, until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
7.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance 6
or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment
8. REPRESENTATION AND WARRANTIES; DISCLAIMER
8.1 Each party represents and warrants to the other party that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (b) it has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms. Licensee represents and warrants to Licensor that it has valid and sufficient ownership rights to use (including with the Software) all applicable devices and network infrastructure at the Facilities.
8.2 LICENSOR PROVIDES THE SOFTWARE “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, LICENSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO OR RELATING TO THE SOFTWARE OR THIS AGREEMENT. LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ALL WARRANTIES OF ACCURACY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD PARTY MATERIALS. THIS SECTION 8 (NO WARRANTY) WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. LICENSEE’S USE OF THE SOFTWARE AND SUCH THIRD PARTY MATERIALS IS AT LICENSEE’S SOLE RISK.
9.1 Licensee Indemnification. Licensee will indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns (each, a “Licensor Indemnitee”) from and against any and all Losses incurred by the Licensor Indemnitee to the extent based on any claim, action, lawsuit, or proceeding, whether at law, in equity, or otherwise (“Action”) brought by a third party: (a) arising or resulting from, or related to, Licensee’s use of, or other exercise of the rights and licenses granted hereunder to, the Software; (b) alleging that any Intellectual Property Rights or other right of any person, or any law, is or will be infringed, misappropriated, or otherwise violated by (i)Intentionally Omitted; (ii) use or combination of the Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is not provided by Licensor, or (iii) materials directly or indirectly provided by Licensee or installed, combined, or integrated by or for Licensee, or used by Licensee with, as part of, or in connection with, the Software; (c) relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement or any violation of applicable laws, rules or regulations; (d) relating to negligence, misapplication, misuse, or a more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Software or otherwise in connection with this Agreement; (e) relating to use of the Software by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope, or manner of use authorized by this Agreement, or in any manner contrary to Licensor’s instructions; (f) relating to Third Party Updates; or (g) relating to Licensee’s products or services.
9.2 Indemnification Procedure. Licensor will promptly notify Licensee in writing of any Action for which any Licensor Indemnitee believes it is entitled to be indemnified pursuant to Section 9.1. Each applicable Licensor Indemnitee will cooperate with Licensee at Licensee’s sole cost and expense. Licensee will promptly assume control 7
of the defense and investigation of such Action and will employ counsel reasonably acceptable to Licensor to handle and defend the same, at Licensee’s sole cost and expense. The Licensor Indemnitee(s) may participate in and observe the proceedings at their own cost and expense with counsel of their own choosing. Licensee will not settle any Action on any terms or in any manner that would constitute an admission of fact or liability or otherwise adversely affect the rights of any Licensor Indemnitee without the Licensor Indemnitee’s prior written consent. If Licensee fails or refuses to assume control of the defense of such Action, the Licensor Indemnitee will have the right, but no obligation, to defend or settle such Action, in each case in such manner and on such terms as the Licensor Indemnitee may deem appropriate and Licensee will remain obligated to indemnify and hold the Licensor Indemnitee harmless from and against all Losses to the same extent as Licensee would have been responsible had Licensee defended or settled such Action. The Licensor Indemnitee’s failure to perform any obligations under this Section 9.2 will not relieve Licensee of its obligations under this Section 9, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result of such failure.
9.3 Mitigation. If the Software, or any part of the Software, is, or in Licensor’s opinion is likely to infringe, misappropriate or otherwise violate any third party Intellectual Property Right, or if Licensee’s use of the Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense: (a) obtain the right for Licensee to continue to use the Software materially as contemplated by this Agreement; (b) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software; or (c) terminate this Agreement effective immediately on written notice to Licensee, in which event (i) Licensee will cease all use of the Software immediately on receipt of Licensee’s notice.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Damages. IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR ANY: (A) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (B) LOSS OF GOODWILL OR REPUTATION; (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF THE SOFTWARE OR OTHER MATERIALS; (D) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) COST OF REPLACEMENT GOODS OR SERVICES; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARE BASED IN BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, AND REGARDLESS OF WHETHER LICENSEE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING LIMITATIONS FURTHER WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY STATED HEREIN.
10.2 Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID TO LICENSOR BY LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. MISCELLANEOUS PROVISIONS
11.1 Force Majeure. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, pandemic, strikes, labor stoppages or slowdowns, or other industrial disturbances, passage of law, or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other 8
restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
11.2 Intentionally omitted.
11.3 Relationship of the Parties. Nothing contained in this Agreement will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
11.4 Injunctive Relief. Notwithstanding any terms to the contrary in this Agreement, if either party alleges that the other party has breached this Agreement, the non-breaching party may seek equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court. These remedies are not deemed to be exclusive but will be in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
11.5 Third Party Beneficiary. The parties do not confer any rights or remedies upon any third party whether entity or individual) other than the parties to this Agreement and their respective successors and permitted assigns.
11.6 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement will have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section 11.6):
If to Licensor: Address: 1600 West End Avenue, Suite 300, Nashville, TN 37203
Email: [EMAIL ADDRESS]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]
If to Licensee: Address: [LICENSEE ADDRESS]
Email: [EMAIL ADDRESS]
Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES]
Notices sent in accordance with this Section 11.6 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the fourth (4th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
11.7 Interpretation. For purposes of this Agreement: (a) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; (b) the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to this Agreement as a whole; (c) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (d) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices 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. The parties intend this Agreement to 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 exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were 9
set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
11.8 Assignment. Licensee will not, and will have no right to, assign, delegate, or otherwise transfer (whether voluntarily, by operation of law, or otherwise) this Agreement or any of its rights or obligations hereunder without the prior written consent of Licensor. Subject to the preceding sentence, the rights and obligations of the parties hereto will bind, and inure to the benefit of, their respective assignees and successors and is binding on the parties and their successors and assigns. Any attempted assignment by Licensee other than in accordance with this Section 11.8 will be null and void. Licensor may assign this Agreement without the consent of Licensee.
11.9 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, U.S.A., without reference to its conflicts of law provisions. Any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in Tennessee, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.
11.10 Attorneys’ Fees. If any legal action, including an action for injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment, or the non-dismissing party in the event of a dismissal without prejudice, will be entitled to the full amount of all reasonable expenses, including all court costs and actual attorneys’ fees paid or incurred in good faith.
11.11 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, and no delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
11.12 Severability. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
11.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
11.14 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom. No amendment or modification of any provision of this Agreement will be effective unless in writing and signed by a duly authorized signatory of each of Licensor and Licensee.