Terms and Conditions
TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the usernames and passwords (“Credentials”), access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Platform.
1.2 “Authorized User” means any individual who is approved and authorized by Customer to access the Platform pursuant to Customer’s rights under this Agreement.
1.3 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
1.4 “Data” means near real-time data from the Divirod water network, including all related information, databases, manner of organization, presentation, rendering or display, that Divirod has collected and is displayed through the Platform and/or in any Reports provided to Customer by Divirod.
1.5 “Documentation” means the technical materials provided by Divirod to Customer in hard copy or electronic form describing the use and operation of the Platform.
1.6 “Error” means a reproducible failure of the Platform to substantially conform to the Documentation.
1.7 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.8 “Performance Data” means any analytics or similar data collected, generated or processed by Divirod based on Customer’s access to and use of the Platform.
1.9 “Platform” means the Divirod software-as-a-service application identified in an Services Order that allows Authorized Users to access certain features and functions through a web interface.
1.10 “Professional Services” means professional services provided by Divirod to Customer as described in a Services Order.
1.11 “Reports” means historical summary reports delivered to Customer and designated as such on a Services Order.
1.12 “Sensor” means a wireless sensor device that Divirod uses to collect Data, and which, if Customer is also a Host (as defined in a Hosting Agreement), is delivered by Divirod to Customer pursuant to a separate agreement (the “Hosting Agreement”) executed between the Parties.
1.13 “Services” means any services provided by Divirod to Customer under this Agreement as set forth in a Services Order, including, but not limited to, provision of the Platform and Professional Services.
1.14 “Services Order” means an order form that signed by both Parties and references this Agreement.
2. PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth in the Services Order (“Fees”), Divirod will provide Customer with access to the Platform. On or as soon as reasonably practicable after the Effective Date, the Parties will work together to coordinate the necessary Credentials, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Platform in accordance with the Access Protocols. Customer is responsible for maintaining the confidentiality of its Access Protocols, and is solely responsible for all activities that occur through the use thereof. Customer agrees (a) not to allow a third party to use its account at any time, and (b) to notify Divirod promptly of any actual or suspected unauthorized use of Customer’s account, or any Authorized User’s Credentials. Divirod reserves the right to change or update the Access Protocols in Divirod’s sole discretion from time to time. Divirod also reserves the right to suspend or terminate any Credentials, or other method of Customer access, that Divirod reasonably determines may have been used by an unauthorized third party.
2.2 Authorized Users. Customer will ensure that only Authorized Users will access the Platform. Once Customer assigns Credentials to an Authorized User, except as otherwise set forth herein, such Credentials shall be non-transferrable. Notwithstanding the foregoing, Customer may reassign an Authorized User’s Credentials to another individual, provided that, such Authorized User is (a) no longer employed or engaged by Customer, or (b) no longer in a position requiring use of and access to the Platform or other applicable Services. Customer shall notify Divirod in writing within thirty (30) days of such reassignment.
2.3 Support Services. Subject to the terms and conditions of this Agreement, Divirod will exercise commercially reasonable efforts to (a) provide support for the use of the Platform to Customer, and (b) keep the Platform operational and available to Customer, in each case in accordance with its standard policies and procedures. Customer may obtain additional support services if elected on a Service Order (“Additional Support Services”). Unless otherwise stated on a Service Order, Additional Support Services will be provided at Divirod’s then-current rates.
2.4 Platform Hosting. Divirod will, at its own expense, provide for the hosting of the Platform, provided that nothing herein will be construed to require Divirod to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Platform from the Internet.
3. ACCESS
3.1 Platform. Subject to the terms and conditions of this Agreement, Divirod will make the Platform available to Customer solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Services Order. Customer can access and use (a) the Platform in accordance with the Documentation, and (b) the Documentation solely to support Customer’s use of the Platform. Customer may permit any Authorized Users to access and use the features and functions of the Platform as contemplated by this Agreement.
3.2 Use of Data; Reports. Subject to the terms and conditions of this Agreement, Divirod grants Customer (a) a royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12.5), non-sublicensable license during the Term to use the Data solely for Customer’s internal business purposes, and (b) a perpetual, revocable, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12.5), non-sublicensable license to use the Reports solely for Customer’s internal business purposes.
3.3 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) access the Platform, Data, or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Platform or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform, Data or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except as permitted by law; (e) disclose or transmit any Data contained in the Platform to any individual other than an Authorized User, except as expressly allowed herein; (f) export any raw Data from the Platform, including table and spreadsheet elements; (g) otherwise use the Platform, Data or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or 3.2, or in a manner inconsistent with applicable law, the Documentation, or this Agreement; (h) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Divirod or its licensors on the Platform or the Reports; or (i) directly or indirectly compile, store, or maintain the Data to develop its own database or access or use the Platform to build a similar or competitive product or service. Except as expressly set forth herein, under this Agreement, no express or implied license or right of any kind is granted to Customer regarding the Services, Platform, Data, Documentation, or any part thereof.
4. DIVIROD PROPRIETARY RIGHTS
4.1 Ownership. The Platform, Data (subject to a requirement by law that the Data be made publicly available), and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Divirod and its suppliers. All rights in and to the Platform, Data and Documentation not expressly granted to Customer in this Agreement are reserved by Divirod and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, Data or Documentation, or any part thereof.
4.2 Feedback. From time to time Customer or its agents may provide suggestions, enhancement requests, recommendations, corrections, or other feedback to Divirod with respect to the Services (“Feedback”). Customer acknowledges and agrees that all Feedback and all Intellectual Property Rights therein are the exclusive property of Divirod, and hereby assigns to Divirod all right, title and interest thereto.
4.3 Performance Data. Performance Data will be owned by Divirod, and Divirod may collect and use such Performance Data for any lawful purpose, provided Divirod will only disclose Performance Data to third parties, including its subcontractors, for the purposes of facilitating the Services, for internal purposes, including to improve its products and services, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law.
5. CUSTOMER CONTENT
5.1 Rights. Customer is solely responsible for any and all obligations with respect to the completeness, accuracy and quality of Customer Content provided to Divirod by Customer. Customer will obtain all third party licenses, consents and permissions needed for Divirod to use the Customer Content to provide the Services. Customer grants Divirod a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content as necessary for purposes of providing and improving the Services, (b) to use the Customer Content in an aggregated and anonymized form to: (i) improve the Platform and Services, and Divirod’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Divirod in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that Customer Content will not (a) infringe upon any third party’s rights; (b) misappropriate any trade secret; (c) be unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Divirod’s system or data; and (e) otherwise violate the rights of a third party.
5.3 Data and Security. Customer and its Authorized Users will be responsible for all changes to and/or deletions of Customer Content and the security of all Credentials and other Access Protocols required to access the Platform. Customer will not have the ability to export Data and Customer Content out of the Platform and is encouraged to make its own back-ups of the Customer Content.
6. FEES AND EXPENSES; PAYMENTS
6.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Divirod under this Agreement, Customer will pay to Divirod the Fees as set forth in a Services Order. Except as otherwise provided in a Services Order, all Fees are billed at the end of the month, due and payable within thirty (30) days of the date of the invoice. Divirod reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. Divirod will be reimbursed only for expenses that are expressly provided for in a Services Order or that have been approved in advance in writing by Customer, provided Divirod has furnished such documentation for authorized expenses as Customer may reasonably request. Divirod reserves the right (in addition to any other rights or remedies Divirod may have) to discontinue the Platform and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
6.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Divirod’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Platform to Customer. Customer will make all payments of Fees to Divirod free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Divirod will be Customer’s sole responsibility, and Customer will provide Divirod with official receipts issued by the appropriate taxing authority, or such other evidence as the Divirod may reasonably request, to establish that such taxes have been paid.
6.3 Interest. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
7. PROFESSIONAL SERVICES. Where the Parties have agreed to Divirod’s provision of Professional Services, the details of such Professional Services will be set out in a Services Order. The Services Order will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services.
8. WARRANTIES AND DISCLAIMERS
8.1 Limited Warranty. Divirod represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Divirod in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Divirod will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Divirod’s option, refund the fees paid by Customer for the Services which gave rise to the breach. Divirod further warrants to Customer that Divirod will use commercially reasonable efforts to operate the Platform free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Platform not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Platform in combination with other products, equipment, software or data not supplied by Divirod; or (c) any modification of the Platform by any person other than Divirod or its authorized agents. Provided that Customer notifies Divirod in writing of any breach of the foregoing warranty during the Term, Divirod will, as Customer’s sole and exclusive remedy, provide the support described in Section 2.3.
8.2 MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that: (a) it is a legal entity duly organized, validly existing and in good standing; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations hereunder; (c) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other Party to perform fully its respective obligations hereunder; and (d) its performance of its obligations under this Agreement will not knowingly violate any other agreement between such Party and any third party.
8.3 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, REPORTS AND DOCUMENTATION ARE PROVIDED “AS IS,” AND DIVIROD MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DIVIROD DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE DIVIROD PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. DIVIROD SHALL NOT BE RESPONSIBLE FOR, AND IS EXPRESSLY RELIEVED OF RESPONSIBILITY FOR ITS REASONABLE RELIANCE ON, ANY INACCURATE OR INCOMPLETE CONTENT PROVIDED TO IT HEREUNDER. THE DIVIROD PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER COMMUNICATIONS PROBLEMS INHERENT IN THE USE OF THE INTERNET, AND DIVIROD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9. LIMITATION OF LIABILITY
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO DIVIROD DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL DIVIROD’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
9.3 Exclusions. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE CUSTOMER’S OBLIGATION TO PAY FEES OWED TO DIVIROD HEREUNDER, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR BREACHES OF SECTIONS 3, 10 OR LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS, OR FOR DEATH OR PERSONAL INJURY.
THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE ANY LIMITATION IN THIS SECTION. MOREOVER, NOTWITHSTANDING THE SEPARATE AGGREGATE CAPS ON LIABILITY IN THIS AGREEMENT AND THE HOST AGREEMENT, TO THE EXTENT APPLICABLE, IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO RECOVER DAMAGES OR ANY OTHER AMOUNT, WHETHER THROUGH REIMBURSEMENT, RESTITUTION, OR OTHERWISE, FROM DIVIROD MORE THAN ONCE IN RESPECT OF THE SAME CLAIM, LOSS OR LIABILITY.
9.4 Basis of the Bargain. The Parties agree that the limitations of liability set forth in this Section 9 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
10. CONFIDENTIALITY
10.1 Confidential Information. “Confidential Information” means any nonpublic information of a Party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving Party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Platform, Data, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Divirod.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who are bound by confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Divirod). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 will not apply to any information that (a) is at the time of disclosure or later becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.4 Disclosure Obligations. Without limiting the generality of the foregoing, any Data disclosed by Customer pursuant to the last sentence of Section 10.3 (including, without limitation, Data made publicly available pursuant to the “Government in the Sunshine Act” of 1976 or other similar federal or state laws) shall (a) continue to be owned solely by Divirod (subject to any exceptions set forth herein), and (b) shall remain, and continue to be treated by Customer as Confidential Information pursuant to Section 10.2.
11. INDEMNIFICATION
11.1 By Divirod. Divirod will defend at its expense any suit brought against Customer, and will pay any settlement Divirod makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Platform infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Platform becomes, or in Divirod’s opinion is likely to become, the subject of a claim of infringement, Divirod may, at Divirod’s option: (a) procure for Customer the right to continue using the Platform; (b) replace the Platform with non-infringing software or services which do not materially impair the functionality of the Platform; (c) modify the Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Platform, Data, and Documentation. Notwithstanding the foregoing, Divirod will have no obligation under this Section 11.1 or otherwise with respect to any infringement claim based upon (i) any use of the Platform not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Platform in combination with other products, equipment, software or data not supplied by Divirod; or (iii) any modification of the Platform by any person other than Divirod or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 11.1 states the sole and exclusive remedy of Customer and the entire liability of Divirod, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 By Customer. Customer will defend at its expense any suit brought against Divirod, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Divirod’s use of Customer Content, (c) Customer’s breach of applicable law, or (d) Customer’s gross negligence or willful acts or omissions. This Section 11.2 states the sole and exclusive remedy of Divirod and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
11.3 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party will cooperate with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
12. HOST AGREEMENT. Customer may execute a Host Agreement with Divirod, pursuant to which Customer permits Divirod to install, operate and access a Sensor at Customer’s building, dock, marina, pier, ramp, tower or otherwise on Customer’s property, in accordance with the terms thereof. If: (a) Customer or Divirod terminates the Host Agreement; or (b) Customer removes or uninstalls the Sensor(s) from Customer’s property for any reason; then the Data will no longer include information from such Sensor(s).
13. TERM AND TERMINATION
13.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Services Order remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Services Order, the term of a Services Order will begin on the effective date of the Services Order and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement (the “Order Term”). Thereafter, the Services Order will automatically renew for additional terms of equal duration to the initial Order Term, unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the expiration of the then-current term.
13.2 Termination for Breach. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
13.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each Party will comply with the obligations to return all Confidential Information of the other Party, as set forth in the Section 10; and (c) any amounts owed to Divirod under this Agreement will become immediately due and payable. Sections 1, 3.3, 4, 5, 6, 8, 9, 10, 11, 12, 13.3, and 14 will survive expiration or termination of this Agreement for any reason.
14. MISCELLANEOUS
14.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Boulder, Colorado for any lawsuit filed there against Customer by Divirod arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
14.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Divirod, or any products utilizing such data, in violation of the United States export laws or regulations.
14.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.5 No Assignment. Neither Party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other Party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other Party. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
14.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Platform, Data and Documentation.
14.7 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
14.8 Independent Contractors. Customer’s relationship to Divirod is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Divirod.
14.9 Notices. Each Party must deliver all notices or other communications required or permitted under this Agreement in writing at the address provided on an applicable Services Order. Notices must be sent by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
14.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
14.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Divirod. To the extent that a conflict arises between the terms and conditions of a Services Order and the terms of the Agreement, the Agreement will govern, except to the extent that the Services Order expressly states that it supersedes specific language in the Agreement.