Terms and Conditions
MOBILE APPLICATION LICENSE AND WEBSITE USER AGREEMENT
PLEASE READ THIS MOBILE APPLICATION LICENSE AND WEBSITE USER AGREEMENT (THIS "AGREEMENT") CAREFULLY BEFORE CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING OR USING THE PAGEOUT MOBILE APPLICATION (THE "APPLICATION"). BY CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING OR USING THE APPLICATION, YOU ARE ENTERING INTO AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT" BUTTON OR DOWNLOAD OR USE THE APPLICATION.
This "Agreement is by and between the party accepting this Agreement by clicking the "Accept" button, or otherwise downloading or using the Application ("Licensee"), and PAGE-OUT, LLC, a Kansas limited liability company, whose principal place of business is 600 N. Main St., Wichita, Kansas 67203 ("Licensor").
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 "Derivative Work(s)" means a work which has been created based upon the Licensed Software, or documentation (including, without limitation, the Documentation) related to the Licensed Software, including, without limitation, a partition, localization, enhancement, improvement, revision, modification, translation, abridgment, condensation, expansion, or any other form, including a new work in which the Licensed Software or such documentation may be recast, transformed or adapted, which, if prepared, used and/or distributed in the absence of appropriate authorization, would constitute an infringement of the owner's intellectual property rights.
1.2 "Documentation" means the documentation, if any, provided by Licensor for use with the Licensed Software.
1.3 "Free Trial" means any introductory promotional period for which Licensor permits Licensee to use the Licensed Software and grants Licensee Access (as defined below).
1.4 "Licensed Software" means Licensor's proprietary software that embodies the Application, including, without limitation, all copyrights, trade secrets, know-how, patents, patentable material, rights in materials subject to patents, trademarks and all other intellectual property.
1.5 "Licensor's Website" means www.page-out.com or such other website as Licensor shall designate from time-to-time, or otherwise notify Licensee of pursuant to this Agreement.
1.6 "Revisions of the Licensed Software" means modifications to or revisions of the Licensed Software that incorporate changes, enhancements, modifications, and/or upgrades to the functions and/or capabilities of the Licensed Software made by Licensor or Licensee, if any, as may be made available to Licensee pursuant to this Agreement.
1.7 "Subscriber" means a Licensee which registers for a Free Trial and/or pays Fees (as defined below) pursuant to this Agreement.
1.8 "User Account" means such account as Licensee shall set-up through Licensor's Website for the purpose of using the Licensed Software and managing the Users, and as otherwise for the purposes of this Agreement.
1.9 "Users" means those individuals which Licensee designates through the User Account as being authorized to use the Licensed Software pursuant to this Agreement.
2. GRANT OF LICENSE AND ACCESS
2.1 Grant of License. Subject to and conditional upon the terms and conditions of this Agreement, the Documentation and the Term Sheet, Licensor grants to Licensee, a fully revocable, non-transferable, non-exclusive, non-sublicenseable license to access the Licensed Software during the Term (as defined herein). Access to the Licensed Software by Licensee is restricted to Licensee and the Users. The rights granted by this Agreement are limited to those expressly stated herein and no additional rights or licenses are being granted by implication or otherwise. Licensee shall be entitled to use the Licensed Software upon the foregoing terms for the number of Users for which Licensee has timely paid the applicable Fees as listed on Licensor's Website (or as may be permitted by Licensor subject to a then current Free Trial), as such Fees may be modified by Licensor in its sole discretion from time-to-time without notice. Licensee shall be obligated to ensure that all such Users are aware of this LicenseAgreement and agree to be bound by the same. Licensee understands and acknowledges that portions of the Licensed Software may be licensed by Licensor from third parties ("Third Party Portions") and that Licensor's performance and Licensee's rights hereunder is subject thereto. Licensee shall have the option to license from Licensor Revisions of the Licensed Software, subject to the terms specified herein. All Revisions of the Licensed Software provided to Licensee and/or made by Licensee shall be considered to be (a) Licensed Software, (b) owned by Licensor, (c) sometimes referred to collectively as the "Licensed Software", and (d) subject to all terms and conditions of this Agreement. Licensor shall have no obligation to maintain or support any version of the Licensed Software other than the then current version.
2.2 Access. Licensor hereby grants Access to the subscriber portion of Licensor's Website to Licensee subject to the following terms.
(a) Access. "Access" means (i) the right to use the subscriber portion of Licensor's Website to establish and maintain a User Account and access and view certain information, which Licensor may provide from time-to-time through Licensor's Website and/or the User Account in its sole discretion, and (ii) the right to send to servers designated by Licensor relating to Licensee, and view from the same, certain information Licensor shall make available in its sole discretion, relating to Licensee and the Users.
(b) Restrictions on Access. Licensee's use of Licensor's Website and the User Account shall at all times be subject to the then current terms and conditions posted on Licensor's Website, as the same may be modified by Licensor in its sole discretion without notice from time-to-time, and by accepting this Agreement, Licensee agrees to be bound by the same as modified from time-to-time.
(c) Duration of Access. Licensor shall permit Licensee to have Access during a Free Trial and any period for which Licensor pays Fees ("Subscribes"). If Licensor permits Licensee to have Access outside of such times, it may revoke such Access at any time in its sole discretion, and such Access shall not be construed as granting Licensee any right to continued Access, and all such Access shall be subject to the terms of this Agreement.
(d) No Guaranty of Access. Licensor shall not be obligated to provide or maintain any functionality at any time available to Licensee through the User Account or Licensor's Website, or otherwise through the Access. Licensor makes no representation, warranty, or guaranty as to the availability or functionality of Licensor's Website, the User Account or any continued functionality available through Licensor's Website or the User Account. Licensor makes no representation, warranty, or guaranty as to the quality of Licensee's use of Licensor's Website, the User Account or the Access. Licensee acknowledges and agrees that Access may be interrupted from for an indeterminate duration time to time for any reason or no reason, including, without limitation, system upgrades, inadequate internet connectivity, system malfunctions, defects in hardware or software, acts of God and other causes (an "Interruption"). Licensee agrees that it shall not have any right to a refund of Fees because of an Interruption, regardless of the duration of such Interruption.
2.3 Restrictions. Except as reasonably required to access and use the Licensed Software strictly in accordance with this Agreement as set forth below, copying of the Licensed Software or any portion thereof, including Licensed Software that has been modified or incorporated into or with other software, if any, is expressly forbidden. The original and any copies of the Licensed Software which are made by Licensee, in whole or in part, shall remain the exclusive property of Licensor. Licensee must reproduce and include the copyright notice and any other notices that appear on the original Licensed Software on any copies and any media therefor. Licensee shall not, and shall not allow any third party to, do any of the following: (a) decompile, disassemble, translate, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Licensed Software or of any files contained in or generated using the Licensed Software by any means whatsoever; (b) remove any product identification, copyright or other notices from the Licensed Software; (c) except as specified in the applicable Documentation provided by Licensor, modify, enhance or change the Licensed Software or create a Derivative Work; and/or (d) disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Licensed Software.
2.4 Users. If Licensee is a Subscriber, it may designate Users through the User Account in accordance with the applicable amount of Fees Licensee has paid for the current subscription period, or then current Free Trial. The amount of Users Licensee is entitled to designate may be reduced if Licensee changes its subscription. Licensee shall be obligated to ensure that such Users are informed of the provisions of this Agreement and agree to be bound by the same and enter into a license agreement with Licensor. Licensee shall be fully liable for such Users' obligations pursuant to such license agreements. Licensee acknowledges and agrees that Licensor shall have the right in its sole discretion to terminate the rights of any User for breach of this Agreement or any agreement such User shall have with Licensor.
2.5 SPECIAL PROVISIONS APPLICABLE TO USERS. IF LICENSEEE IS A USER AND NOT A SUBSCRIBER, THE PARTIES AGREE THAT LICENSEE SHALL HAVE NO OBLIGATION TO PAY FEES PURSUANT TO THIS AGREEMENT, BUT THAT LICENSEE'S RIGHTS UNDER THIS AGREEMENT ARE LIMITED TO THE RIGHTS OF THE SUBSCRIBER WHICH DESIGNATES LICENSEE AS A USER, AND THAT SUCH SUBSCRIBER MAY ALTER, MODIFY, REVOKE TERMINATE OR CHANGE LICENSEE'S ACCESS AT ANY TIME, INCLUDING, WITHOUT LIMITATION, DENYING LICENSEE ACCESS TO THE USER ACCOUNT, SUBSCRIBER PORTION OF LICENSOR'S WEBSITE, OR ACCESS ENABLING CERTAIN FUNCTIONALITY OF THE APPLICATION, AND THAT SUBSCRIBER MAY DELETE OR REMOVE LICENSEE AS A USER AT ANY TIME IN ITS SOLE DISCRETION.
2.6 Notice of Unauthorized Use. Licensee agrees to use the same efforts to prevent unauthorized licensing, copying, and/or use of the Licensed Software as Licensee uses for its own most rigorously protected software and/or trade secrets, but in all cases at least a high standard of care using industry best practices. If Licensee becomes aware of any unauthorized licensing, copying, or use of the Licensed Software, Licensee shall promptly notify Licensor in writing.
2.7 Title. As between the parties, Licensor retains title to, ownership of and all proprietary rights with respect to the Licensed Software, the Documentation, and all Derivative Works, including Revisions of the Licensed Software, and all copies and portions thereof, whether or not incorporated into or with other software or other materials. The above license does not constitute a sale of the Licensed Software, Documentation or any portion or copy of them. Licensee shall not jeopardize, limit, or interfere with such rights in the Licensed Software and related Documentation.
2.8 Trademark License. During the Term of this Agreement, Licensee hereby grants to Licensor, a non-exclusive license to use Licensee's trademarks, service marks, trade names and logos for purposes of marketing the Licensed Software, and shall not use the trademarks, service marks, trade names or logos for any other purpose. Such use and license shall terminate automatically and immediately upon the expiration or termination of this Agreement.
Licensee agrees to pay Licensor the then current fees for continued use of the Licensed Software and the Access pursuant for the applicable Authorized Users in accordance with the schedule of fees set forth at http://page-out.com/ or any related webpageLicensor's website, as Licensor may increase the same from time-to-time ("Fees"). in its sole discretion ("Fees"). All fees shall be due in advance of the period for which Licensee Subscribes. IF LICENSEE DOES NOT TIMELY PAY THE FEES, LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR MAY TERMINATE THIS AGREEEMENT, AND MAY TERIMINATE THE ACCESSS OF LICENSEE (AND ALL APPLICABLE USERS) WITHOUT NOTICE.
All Fees or payments due under this Agreement to Licensor not received within ten (10) days of the due date (including the due date) shall be subject to a late payment fee equal to the lesser of (a) Fifty Dollars ($50.00) or (b) interest at the highest rate allowed by applicable law, until such amount has been paid in full. Also, if Licensee is delinquent on any payment to Licensor hereunder for a period greater than thirty (30) days, Licensee agrees and understands that Licensor may terminate this Agreement and/or have the right to refer any past due balance to a collection agency or law firm (or both). If Licensor uses a collection agency to collect past due amounts owed by Licensee, Licensee agrees to pay, in addition to all past due amounts, all reasonable costs of collecting such past due amounts ("Collection Fees"). For purposes of this Agreement, the term "Collection Fees" includes the fees charged by a collection agency to collect such past due amounts. Collection Fees shall not exceed forty percent (40%) of the past due amounts owed by Licensee to Licensor. If Licensor refers Licensee's delinquent account to a law firm, Licensee agrees to pay, in addition to all past due amounts and Collection Fees, reasonable attorneys' fees and court costs incurred by Licensor in collecting Licensee's past due balance.
4. TERM; TERMINATION
4.1 Term. This Agreement shall commence as of the earlier of the date Licensee Subscribes and the date Licensee downloads the Application, and shall remain in force until terminated in accordance with this Agreement.
4.2 Termination. This Agreement shall terminate as follows:
(a) either party may terminate this Agreement by providing at least thirty (30) days' written notice to the other party;
(b) Licensee may terminate this Agreement at any time by providing advance written notice to Licensor, effective at the end of the period for which Licensor has Subscribed;
(c) either party may terminate this Agreement immediately if the other party fails to substantially perform or comply with this Agreement;
(d) this Agreement shall automatically terminate at the end of thirty (30) days after Licensee downloads the Licensed Software, unless Licensee registers for a Free Trial or Subscribes within such time.
(e) this Agreement shall automatically terminate effective upon the expiration of the Free Trial, if any, unless Licensee Subscribes within thirty (30) days after the end of the Free Trial, in which case this Agreement shall not terminate except in accordance with the other provisions of this Agreement;
(f) if Licensee fails to pay Fees when due and payable, this Agreement shall terminate effective upon the last day for which Licensee paid Fees, unless Licensee pays such Fees, and any late fees due thereon, not later than thirty (30) days after such Fees were due and payable, in which case this Agreement shall not terminate except in accordance with the other provisions of this Agreement; and
(g) if Licensee is a User and not a Subscriber, this Agreement shall terminate (i) if the Subscriber which designates Licensee a User terminates Licensee as a User, this Agreement shall automatically Terminate effective as of the date Licensee is terminated as a User, unless such Subscriber re-designates Licensee as a User in which case Licensor may require Licensee to execute a new Agreement, or (ii) upon the termination of such Subscriber's agreement.
4.3 Effect of Termination. Upon termination or expiration of this Agreement (a) all rights and licenses granted under this Agreement and all other rights and obligations hereunder shall terminate, except for Licensee's obligation to pay Fees for all periods through the end of the Term, a party's indemnity obligations, confidentiality obligations and any other obligation, covenant or agreement that by its terms is meant to survive termination or expiration of this Agreement, and (b) Licensee will immediately cease using and delete all of Licensor's Confidential Information (as defined herein), Licensed Software, Documentation, and any other materials and literature in Licensee's possession, custody or control in whatever form held (including without limitation all documents or media containing any of the foregoing and all copies, extracts or embodiments thereof), if Licensor elects, Licensee shall immediately furnish Licensor a certificate certifying that the original and all copies (in whole or in part, in any form, including partial copies or modifications) of such above items have been destroyed, and Licensee shall have effected such destruction. At Licensor's option, Licensee shall return all Confidential Information, Licensed Software and Documentation to Licensor.
4.4 No Preclusion. The right to terminate this Agreement under this Article 4 shall not preclude any other rights and remedies provided by law or equity or this Agreement and all other remedies will remain available. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not release or limit liability for breach of a party's obligations hereunder at law or in equity.
5. CONFIDENTIAL INFORMATION / COMPLIANCE WITH HEALTH LAWS
5.1 Confidential Information.
(a) Licensee agrees, acknowledges and covenants that (i) the technical data, methods, processes, Documentation, access passwords, program listings, user logins, and other information relating to the Licensed Software (including, without limitation, the information provided to Licensee by Licensor in a demonstration / sales format in advance of the entering into of this Agreement) and (ii) any other information provided to Licensee by Licensor (in any case, whether oral, written or in machine-readable form) or by its nature is deemed to be confidential disclosed to Licensee by Licensor pursuant to the provisions of this Agreement (collectively, the "Confidential Information") may contain valuable trade secrets and other proprietary information of Licensor and that any unauthorized use or disclosure of such Confidential Information would irreparably injure Licensor, which injury cannot be remedied solely by the payment of money damages. Licensee shall hold in strict confidence and not disclose, reproduce or use the Confidential Information except as expressly provided for in this Agreement or with the exception of information which (A) is already in the public domain at the time of disclosure; or (B) after disclosure becomes a part of the public domain by publication other than by Licensee in violation of this Agreement or any other confidentiality agreement to which Licensor is a party; or (C) is received by Licensee from a third party who did not require such information to be held in confidence and who did not acquire, directly or indirectly through one or more intermediaries, such information from Licensor under any obligation of confidence; or (D) is agreed to by Licensor in writing in advance of such publication or reproduction.
(b) Licensee shall use all commercially reasonable efforts to prevent unauthorized use and/or disclosure of the Confidential Information by third parties. Licensee may disclose the Confidential Information only to Licensee's employees (i) solely for the permitted use of this Agreement, and (ii) on a need to know basis in order to effectuate Licensee's use as contemplated hereunder. Licensee guarantees to Licensor the performance by Licensee's employees of each and every obligation of the terms of this Section; and Licensee shall indemnify, defend and hold Licensor harmless from any and all expenses, damages and costs (including reasonable attorneys' fees) or losses resulting from any breach of such obligations of this Section.
(c) Licensee shall cooperate fully with Licensor at no cost to Licensor (except for reasonable out-of-pocket expenses, approved in advance in writing by Licensor for any action or proceeding related to a third party) in any action or proceeding, whereby Licensor seeks to prevent or restrain any unauthorized use of the Confidential Information or to seek damages therefore. The provisions of this Agreement shall not limit any rights which Licensor may have under any other confidentiality agreement, whether in force before or after this Agreement.
5.2 Disclosure of Terms of Agreement. Each party agrees that the terms and conditions of this Agreement shall be treated as Confidential Information, provided, that each party may disclose the terms and conditions of this Agreement to the extent (a) required by any court or other governmental body or as otherwise required by law, provided, that such party has first notified the other party immediately upon learning of the possibility of any such requirement and has given the other party a reasonable opportunity (and cooperated with the other party) to contest or limit the scope of such required disclosure (including application for a protective order); (b) required by the applicable securities laws, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder; (c) for Licensor's marketing purposes; (d) to legal counsel; (e) in confidence, to accountants, banks and financing sources and their advisors; and (f) in confidence in connection with the enforcement of this Agreement or any rights hereunder.
6. REPRESENTATIONS AND WARRANTIES
Except as otherwise set forth herein, each party represents and warrants to the other party only that the performance of any of the terms and conditions of this Agreement on its part to be performed does not and will not constitute a breach or violation of any other agreement or understanding, written or oral, to which it is party. Each party also represents, warrants and covenants to the other party that such party shall comply with all applicable laws.
Licensee shall provide all required hardware, software (other than the Licensed Software), Internet connectivity and other necessary materials in order to use and/or access the Licensed Software. Such hardware, software, Internet connectivity and other necessary materials may change and/or increase during the Term, which Licensee is responsible to provide due to the fact that Licensor has no obligation to support "old" versions of the Licensed Software.
7. INDEMNIFICATION; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
7.2 Licensee's Indemnity. Licensee shall indemnify, defend, and hold Licensor harmless from and against any and all losses, costs, and expenses and claims of any nature whatsoever (including reasonable attorneys' fees and court costs) as well as monetary damages, incurred by Licensor that are based upon, arising out of or in respect of any breach by Licensee of the terms and conditions of this Agreement, and/or any breach of this Agreement or any other agreement with Licensor by any User designated by Licensee. The parties agree that Licensor shall have the right to control all such proceedings, and that Licensee shall have no right to agree to the settlement of any such claim, action, or proceeding without Licensor's prior written consent (which consent shall not be unreasonably withheld or delayed).
7.3 Third-Party Claims. In the event that any third party claims that either party's use of the Licensed Software and/or the Documentation infringes upon any patent, copyright and/or any other intellectual property right of such third party, each party shall reasonably cooperate and consult with the other party, in a manner consistent with such party's confidentiality obligation and preservation of attorney-client, work product and other privileges, regarding the other party's review of such claim and/or efforts to resolve such matter. It is understood that each party's obligations under this Section are in addition to, and neither expands nor limits, either party's respective indemnity obligations set forth in Section 7.1 and Section 7.2, as the case may be.
7.4 DISCLAIMER OF WARRANTIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LICENSED SOFTWARE, DOCUMENTATION, APPLICATION, ACCESS, LICENSOR'S WEBSITE, USER ACCOUNT AND ALL OTHERTHE SERVICES, IF ANY (THE "PAGEOUT SOFTWARE"), ARE PROVIDED ON AN "AS IS" BASIS; AND LICENSEE'S USE OF THE PAGEOUT SOFTWARE IS AT LICENSEE'S OWN RISK. EXCEPT AS OTHERWISE SET FORTH HEREIN, LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ANY OF THE PAGEOUT SOFTWARE IS ERROR FREE, OR THAT ITS USE WILL BE UNINTERRUPTED. LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PAGEOUT SOFTWARE, OR THE DOCUMENTATION OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE PERFORMANCE OR RESULTS OF THE PAGEOUT SOFTWARE IS ASSUMED BY LICENSEE. LICENSOR MAKES NO WARRANTY THAT ALL ERRORS WILL BE CORRECTED.
7.5 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISON OF THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL LICENSOR BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, OR FOR ANY CLAIM AGAINST LICENSEE BY ANY THIRD PARTY, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE:
(A) FOR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY;
(B) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, EVEN IF THE PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
(C) FOR ANY BODILY INJURY, PERSONAL INJURY AND/OR ANY PROPERTY DAMAGE; AND/OR
(D) FOR ANY MATTER BEYOND LICENSOR'S REASONABLE CONTROL.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT (EXCEPT TO THE EXTENT SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW) SHALL LICENSOR BE LIABLE TO LICENSEE, ANY EMPLOYEE OF LICENSEE OR ANY OTHER USER FOR MORE THAN THE FEES PAID PURSUANT TO THIS AGREEMENT. ALSO, LICENSOR MAY ELECT TO REPLACE OR REPAIR THE LICENSED SOFTWARE AS LICENSEE'S EXCLUSIVE REMEDY UNDER THIS AGREEMENT.
8. ADDITIONAL PROVISIONS
8.1 Governing Law; Venue. This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Kansas. Each party irrevocably consents to the exclusive jurisdiction of any state or federal court for or within Sedgwick County, Kansas, over any action or proceeding arising out of or related to this Agreement, and waives any objection to venue or inconvenience of the forum in any such court.
8.3 Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Such invalid, illegal, or unenforceable, provision shall be immediately replaced with a legal, enforceable and valid provision as near as possible to the stricken term so as to give full effect, as near as possible, to the intent of the parties.
8.4 Assignment. Licensee may not assign this Agreement by agreement, operation of law or otherwise, in whole or in part, without Licensor's prior written consent. Any attempt by Assignee to assign this Agreement shall be null and void. Licensor may assign this Agreement.
8.5 No Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement by the other party shall not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor shall any 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 agreement or remedy by such party.
8.6 Further Assurances. Licensee shall take such action (including, without limitation, the execution, acknowledgment and delivery of documents) as may reasonably be requested by Licensor for the implementation or continuing performance of this Agreement.
8.7 Force Majeure. Except for Licensee's payment obligations to Licensor under this Agreement, neither party shall be liable to the other for any failure or delay in complying with the provisions, terms and conditions of this Agreement, nor shall any such failure or delay constitute an event of default, if such failure or delay shall be due to causes beyond either of the party's reasonable control, including third party providers. This provision shall not, however, release a party from using its reasonable best efforts to avoid or remove all such causes and both parties shall continue performance hereunder with reasonable dispatch whenever such causes are removed. A party claiming such non-liability shall give prompt notice thereof to the other party.
8.8 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing, will reference this Agreement, and shall be deemed to have been delivered and given (a) three (3) business days after having been sent by registered or certified first class United States Mail, return receipt requested, postage and charges prepaid, whether or not actually received; or (b) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt on the next business day after transmittal, or (c) one (1) business day after being sent by electronic mail message (i) if to Licensor, to the email address of Licensor at [___________________]email@example.com or such other address as it shall designate from time-to-time, or (ii) if to Licensee at such email address as it shall designate in its User Account.
8.9 Headings. The headings used in this Agreement are for convenience only and are not to be construed to have legal significance.
8.10 Export Law Assurances. Licensee agrees and certifies that neither the Licensed Software, nor the Documentation, nor any other technical data received from Licensor, nor the direct product thereof, will be exported outside the United States except as authorized and as permitted by the laws and regulations of the United States. Licensee agrees that Licensee will not re-export the Licensed Software and/or Documentation nor any other technical data received from Licensor, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Licensee obtained the Licensed Software and/or Documentation.
8.11 Taxes. Licensee shall pay all local, city, county, state and federal sales, use, privilege, excise or other taxes or assessments, however designated, imposed or levied with respect to the Licensed Software or its use with the exception of any Licensor income taxes.
8.12 Terms and Words. All terms and words used in this Agreement, regardless of numbers and genders in which they are used, shall be deemed to include singular or plural and all genders as the context or sense of this Agreement or any section or clause herein may require.
8.13 No Third Party Rights. This Agreement is for the sole and exclusive benefit of the parties hereto, and nothing in this Agreement will be construed as giving any rights to any third party, including, without limitation, any and all third parties that have provided Third Party Portions.
8.14 Injunctive Relief. The parties hereby acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect such party's legitimate interests and that any violation of these restrictions will cause irreparable damage to the aggrieved party within a short period of time, and that the aggrieved party shall be entitled to specific performance and/or injunctive relief from each violation, without the necessity of posting bond, in addition to any and all other remedies at law or in equity.