THIS SOFTWARE SUBSCRIPTION AGREEMENT, dated and effective as of the latest date set forth on the signatures below (the “Effective Date”), between ProSellus, Inc., a Texas corporation (“ProSellus”), and the customer set forth on the signature page below (“Customer”), sets forth the terms and conditions whereby ProSellus agrees to provide to Customer and Customer agrees to acquire from ProSellus one or more limited term licenses to use certain software and documentation related thereto, owned or licensed by ProSellus, in each case as set forth on the Purchase Order (as defined below) pursuant to which Customer subscribed to the Licensed Material and such Purchase Order is hereby incorporated herein by reference and is hereby made a part of this Agreement. To the extent any terms or conditions contained in the Purchase Order conflict with the terms or conditions contained in this Agreement, the terms and conditions of the Purchase Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent necessary to harmonize the terms in such Purchase Order with the terms contained herein. The Purchase Order together with the terms and conditions of this Agreement, shall constitute and be construed as a single agreement consisting of the terms and conditions contained in the Purchase Order together with the terms of this Agreement. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between ProSellus and Customer regarding the licensing of the Licensed Material, including, but not limited to, any trial agreement, demonstration agreement, beta agreement and all other shrink-wrap agreements and click-wrap agreements which may accompany or are embedded in ProSellus’ products or which have been previously in force between the parties. In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows: 1. Definitions – 1. “Agreement” means this software subscription agreement, together with all Exhibits, Schedules, Annexes, Purchase Orders made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.
2. “Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer information, Customer Data (as defined in Section 11), cost and pricing information, financial information, the terms of this Agreement and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Licensed Software; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.
3. “Error” means any error, defect or omission that (i) is discovered in the Licensed Software, (ii) is reproducible and (iii) prevents its operation substantially in accordance with the Licensed Documentation.
4. “Licensed Documentation” means the published user manuals that ProSellus makes generally available for the Licensed Software.
5. “Licensed Material” means the Licensed Software and the Licensed Documentation.
6. “Licensed Software” means the machine-readable object code version of (i) the software specified on each Purchase Order and (ii) all Updates for the Licensed Software that ProSellus may, in its sole discretion, elect to make available to Customer.
7. “License Term” means the period of time (i) specified on the Purchase Order pursuant to which Customer agreed to subscribe to the Licensed Material or (ii) to the extent no such period is specified on the Purchase Order, a one-year period of time, in each case commencing on the Effective Date, together with all subsequent renewals and extensions thereof effected in accordance with the terms of this Agreement, including Sections 2(d) and 2(e) below.
8. “Licensed User” means an end user that (i) is an employee, contractor or representative of Customer, (ii) is authorized by Customer to use the License Material and (iii) has registered a user account with ProSellus and been issued a valid user name and password by either ProSellus or Customer.
9. “Purchase Order” means (i) ProSellus’ standard price quote, purchase order, order form or purchase confirmation, as such document may be amended, supplemented or modified from time to time in accordance with this Agreement or (ii) any other non-ProSellus price quote, purchase order, order form or purchase confirmation delivered by Customer to ProSellus but solely to the extent permitted by and delivered in accordance with Section 13.
10. “Supported Device” means a mobile device (e.g. smart phone or tablet) that is currently supported by ProSellus, as indicated on ProSellus’ website from time to time.
11. “Update” means any revision, enhancement, improvement or modification to or programming fix for the Licensed Software or Licensed Documentation which ProSellus elects, in its sole discretion, to make generally available to all customers in respect of the Licensed Software or Licensed Documentation and does not separately price or market. 2. LICENSE – 1. Use – Subject to the terms and conditions of this Agreement including, but not limited to the applicable licensing restrictions set forth in Section 2(b) below, and subject further to Customer’s full compliance herewith and according to the scope, time period and other terms indicated on the applicable Purchase Order delivered in connection with this Agreement, ProSellus hereby grants Customer and Customer hereby accepts from ProSellus, a limited, non-exclusive and non-transferable right and license during the License Term to install the Licensed Software on Supported Devices that are owned or operated by or on behalf of Customer and to access and use the Licensed Material subscribed to by Customer in accordance with the applicable restrictions and conditions contained in this Agreement and to copy the Licensed Material as permitted by this Agreement. Customer’s right to use the Licensed Material shall extend to use by third parties under written contract with Customer to provide outsourcing or contract services for Customer’s own internal business operations; provided, that (i) such third parties have agreed to abide by the terms of this Agreement, including the confidentiality provisions contained herein and (ii) use by such third parties together with use by Customer does not exceed the number of Licensed Users purchased by Customer. Upon expiration of the License Term this Agreement and all rights and licenses granted under this Agreement shall automatically terminate.
2. License Usage and Restrictions – Customer acknowledges and agrees that, as between Customer and ProSellus, ProSellus and its licensors own and shall continue to own all right, title, and interest in and to the License Material, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer or any Licensed User any ownership interest in or to the Licensed Material, but only a limited right and license to use the Licensed Materials in accordance with the terms of this Agreement and each applicable Purchase Order. Customer further acknowledges and agrees that the licenses granted hereunder shall expire automatically upon the earlier of expiration or termination of the License Term or upon termination of this Agreement. Customer shall not exceed the total number of Licensed Users subscribed to by Customer. Each Licensed User is required to register with ProSellus and create an account (a “User Account”) with a unique user name and password. Each User Account is unique to a Licensed User and may not be shared or accessed by other Licensed Users or by other employees, contractors or representatives of Customer. Customer further agrees that it shall not share licenses associated with a Licensed Users or User Accounts among other employee, contractors or representatives of Customer. Upon delivering written notice to ProSellus, Customer may terminate a Licensed User and the related User Account (a “Terminated User”) and reassign the license associated with such Terminated User to any other employee, contractor or representative of Customer. Upon receiving any such written notification from Customer, ProSellus shall disable access to such Terminated User and delete all information associated with the User Account related to such Terminated User. In no event shall Customer install, operate use or access the Licensed Materials in contravention of the foregoing restrictions.
3. Copies and Disaster Recovery — Customer may make a reasonable number of back-up archival copies of the Licensed Software and any related Updates. In the event of any loss or damage to a Supported Device upon which Customer has installed the Licensed Software, Customer’s right to use the Licensed Software shall include, the right to use the Licensed Software on a replacement Supported Device. Customer shall reproduce all confidentiality and proprietary notices on each of the copies permitted hereunder and maintain an accurate record of the location of each of the copies. Customer shall not otherwise copy or duplicate the Licensed Material. Customer shall not reverse engineer, disassemble, translate, modify, adapt, or decompile the Licensed Material or apply any procedure or process to the Licensed Material in order to ascertain, derive, and/or appropriate the source code or source listings for the Licensed Software or any trade secret or other proprietary information contained in the Licensed Software.
4. Renewal of License – Subject to Section 2(e) below, upon expiration of each License Term, all licenses granted under this Agreement shall renew upon the mutual agreement of the Parties for an additional 12-month License Term and ProSellus will invoice Customer at the then-current subscription-based list price for such additional License Term. Prior to the commencement of each Renewal Term, the Parties will agree upon the aggregate number of License Users.
5. Licensed Users Added during License Term – Each instance that Customer (i) desires to subscribe for additional Licensed Users during the License Term or (ii) Customer’s usage of the License Materials exceeds the number of Licensed Users then subscribed to by Customer during the License Term, Customer shall deliver to ProSellus a Purchase Order specifying the number of additional Licensed Users to be purchased as of such date (the “Additional User Date”). The Purchase Order will also indicate the number of months left in the then current License Term and a prorated Subscription Fee that reflects the remaining time in the then current License Term. For example, if six (6) months remain in the then current License Term, Customer will pay a prorated Subscription Fee of $1,000 (i.e., 50% of the annual $2,000 Subscription Fee per User). Upon acceptance of each such Purchase Order, the aggregate number of Licensed Users shall be increased by the number of additional Licensed Users subscribed to therein (the “Additional Licensed Users”). 3. DELIVERY AND PAYMENT TERMS – 1. Delivery – On the Effective Date, ProSellus will make Licensed Software which is hosted by ProSellusor its authorized subcontractor available to Client. On the Effective Date, all other Licensed Material (e.g., Documentation, mobile applications used on Supported Devices) shall be delivered by ProSellus to Customer via electronic delivery using an internet download site. For the initial License Term, ProSellus agrees to set up a User Account for each Licensed User prior to December 31, 2017. Prosellus’s obligations to set up User Accounts in the previous sentence is conditioned on Customer providing Customer ProSellusthe information required to set up a User Account for each Licensed User, including the client information related to each Licensed User. Ownership of the all licenses purchased hereunder shall be deemed to have passed to Customer once ProSellus has granted Customer access to the Licensed Software and made all other Licensed Material available for download by Customer, notified Customer of the availability of access to the Licensed Software and the ability to download all other Licensed Material for download and provided Customer with all information necessary to access the Licensed Software and/or Customer will all access keys necessary for the installation and operation of the Licensed Software and other Licensed Material for the License Term.
2. Payment –All recurring subscription fees payable in respect of the License Term (the “Subscription Fees”) shall be billed in advance as set forth in the Purchase and Section 2(e). Customer acknowledges and agrees that, unless otherwise expressly set forth in Section 2(e) and a Purchase Order, the License Term and all fees payable in respect thereof are annual commitments. Accordingly, in the event that this Agreement terminates for any reason other than a For-Cause Termination (as defined in Section 8 below), all unpaid Subscription Fees in respect of the remaining portion of the License Term shall automatically and immediately accelerate and become due and payable (“Termination Fees”).
3. Payment Process – Customer shall either pay by check or by electronic wire transfer or by a valid authorized credit card to ProSellus upon purchase of a license for a Licensed User and shall promptly update all payment information or credit card information to ensure that such payment information remains complete, accurate and authorized. .
4. Other Amounts; Late Fees – For all fees and amounts payable hereunder (other than Subscription Fees and Termination Fees), ProSellus shall deliver an invoice to Customer specifying the amount of all such fees and Customer shall pay all invoiced amounts within thirty (30) days of Customer’s receipt of such invoice. Any late payment of any undisputed amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law.
5. Taxes – All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with the exception only of those based on ProSellus’ income) shall also be payable by Customer in accordance with applicable law. 4. PROPRIETARY RIGHTS – Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein. Customer shall not reproduce the Licensed Material or other confidential or proprietary information of ProSellus, except as provided in this Agreement. All proprietary rights in and to the Licensed Material, all derivatives, translations, modifications, adaptations, improvements, enhancements or developments thereof and all confidential or proprietary information of ProSellus, including without limitation, all rights under and with respect to patents, copyrights, trademarks and rights under the trade secret laws of any jurisdiction shall remain the property of ProSellus or its applicable licensor, whether recognized by or perfected under applicable local law. Customer shall promptly notify ProSellus of any infringement of ProSellus’ proprietary rights of which it becomes aware. Customer hereby acknowledges that the Licensed Software incorporates certain information, software and codes known as “Current Procedural Terminology” or “CPT” (collectively, “CPT”) that are owned by the American Medical Association, a notforprofit corporation, located at AMA Plaza, 330 N. Wabash Ave., Suite 39300, Chicago, IL 60611-5885, USA (“AMA”) and licensed to ProSellus. CPT is copyrighted by the AMA and CPT is a registered trademark of the AMA. The Licensed Material includes CPT which is commercial technical data, which was developed exclusively at private expense by the AMA. The AMA does not agree to license CPT to the Federal Government based on the license in FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items) or any other license provision. The AMA reserves all rights to approve any license with any Federal agency and licenses granted by ProSellus hereunder are subject to and contingent upon the foregoing rights of the AMA. 5. LIMITED WARRANTIES
1. Warranty – ProSellus warrants to Customer that during the License Term (the “Warranty Period”) the Licensed Software shall: (i) function properly under ordinary use and perform substantially as described in the accompanying Licensed Documentation; (ii) be free from defects in manufacture, materials, and design, and (iii) be manufactured in a good and workmanlike manner using a skilled staff properly qualified to perform their respective duties. ProSellus represents and warrants that Licensed Material will not result in or give rise to any infringement or misappropriation of any patent, copyright, trademark, design, trade secret, proprietary data or license.
2. ProSellus shall host the Licensed Software and Customer Data in a secure environment that is consistent with the highest industry standards. ProSellus shall use commercially reasonable efforts to keep the Licensed Software operational twenty-four (24) hours a day every day of the year, subject to temporary service interruptions resulting from technical difficulties experienced by ProSellus from time to time. In addition, ProSellus may interrupt service or otherwise cause the Services to be unavailable from time to time in its sole discretion during non-peak usage periods for scheduled maintenance, or at any time to correct any operational or technical difficulties. ProSellus will provide administrative support to Customer and its authorized end user as documented in the applicable Licensed Documentation. ProSellus will use commercially reasonable efforts to provide support to Customer and its authorized end users who are experiencing any technical problems. ProSellus will also perform backups of Customer Data using commercially reasonable practices in accordance with ProSellus’s current data storage procedures. Except as otherwise set forth in this Agreement, ProSellus does not warrant that (i) the Licensed Material will satisfy or may be customized to satisfy any of Customer’s requirements or any other particular use or (ii) the use of the Licensed Material will be uninterrupted or error-free. Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent. This Agreement shall be read and construed subject to any such statutory provisions.
3. Remedies – If at any time during the Warranty Period, ProSellus breaches the warranties set forth in clause (a) above, then Customer shall promptly notify ProSellus of such Error or breach and ProSellus shall (A) use all commercially reasonable efforts to correct such Error or breach within a commercially reasonable period following such notification or (B) provide Customer within a commercially reasonable period following such notification with a plan acceptable to Customer for correcting such Error or breach. If such Error or breach is not corrected or if an acceptable plan for correcting such Error or breach is not established, ProSellus shall replace any defective Licensed Software or, if not practicable, accept the return of the defective Licensed Software and refund to Customer the pro rata pre-paid amount for the remaining portion of the License Term. ProSellus’ obligations under this Section 5(b) shall be waived in the event such Error or breach is due to (I) any defect in or misconfiguration of the computer upon which the Licensed Software is installed, (II) improper installation or use of the software media by Customer, or (III) an unauthorized alteration or revision or configuration of the Licensed Software or to Customer’s computer system by Customer or its employees. Customer acknowledges that this Section 5(b) sets forth Customer’s sole and exclusive remedy, and ProSellus’ and its authorized representatives’ sole and exclusive liability, for any breach of warranty, Error or failure of the Licensed Software to function properly.
4. Disclaimer – EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY PROSELLUS OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED. 6. LIMITATION OF LIABLITY AND INDEMNIFICATION EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), UNDER NO CIRCUMSTANCES WILL CUSTOMER, PROSELLUS, AMA OR THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY EITHER PARTY OR THE AMA , ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S BREACH OF SECTION 7 (CONFIDENTIALTY), IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY CLIENT, PROSELLUS, AMA OR THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER DURING THE THEN-CURRENT LICENSE TERM. THE FOREGOING LIMITATIONS OF LIABILITY IN THIS SECTION WILL NOT APPLY TO THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTEND THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.
ProSellus, at its own expense, shall defend, indemnify and hold Customer, its officers, directors, agents, affiliates, and employees harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs, arising from any claim brought against Customer by a third party on the basis of an infringement or misappropriation of any third party’s intellectual property, trade secrets or other privacy rights by the Licensed Material, provided that: (i) Customer notifies ProSellus promptly of each such claim; and (ii) Customer fully co-operates and provides all reasonable assistance to ProSellus in the defense or settlement, at ProSellus’ cost. If all or part of the licensed material becomes, or in the opinion of ProSellus may become, the subject of a claim or suit of infringement or misappropriation, ProSellus shall at its own expense and sole discretion (i) procure for Customer the right to continue to use the Licensed Material or the affected part thereof; (ii) replace the Licensed Material or affected part with other suitable non-infringing services; or (iii) modify the licensed material or affected part to make the same non-infringing.
Each Party shall, at that Party’s sole cost and expense, procure, keep and maintain throughout the Term (as defined herein) of this Agreement: (a) commercial general liability insurance in the amount of not less than $1,000,000 per claim and $1,000,000 per aggregate; (b) professional liability insurance in the amount of not less than $1,000,000 per occurrence and $3,000,000 annual aggregate; and (c) applicable state statutory limits for workers compensation. Notwithstanding the foregoing, each Party shall maintain insurance coverage in the minimum amounts stated above, or as required by law, whichever is greater. By requiring insurance herein, neither Party represents that such coverage and limits will necessarily be adequate to protect the other Party. Upon request, each Party will provide the other Party with a certificate of insurance reflecting the general nature of insurance coverage provided and the policy limits stated above. 7. CONFIDENTIALITY
1. Confidentiality. – Customer acknowledges that the Licensed Material incorporate confidential and proprietary information developed or acquired by or licensed to ProSellus and that all results of testing of the Licensed Software, whether performed by Customer or another third party, are confidential. In no event will Customer publish or disclose the results of any testing or performance specifications of the Licensed Software without ProSellus’ express prior written consent. Subject to Section 11 below, each party shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information disclosed by the other party, including those precautions (i) taken by the disclosing party to protect it’s own Confidential Information and (ii) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or defacement of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copyright notices on Confidential Information shall not constitute publication or otherwise impair their confidential nature of such information.
2. Disclosure – If an unauthorized use or disclosure of the disclosing party’s Confidential Information occurs within the recipient party’s enterprise, the recipient party will immediately notify the disclosing party or its authorized representative and take, at recipient party’s expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination. 8. TERMINATION – If either Party breaches any material term or condition of this Agreement and such breach remains unremedied for thirty (30) days following its receipt of the non-breaching Party’s written notice specifying such breach, then non-breaching Party may terminate this Agreement for cause by delivering written notice to the breaching Party (a “For-Cause Termination”). In the event of a For-Cause Termination brought by Customer, then Customer shall be released from any obligation to pay any unpaid Subscription Fees in respect of the remaining portion of the then-current License Term and ProSellus shall refund any Subscription Fees prepaid by Customer for any remaining portions of the then-current License Term. Upon five (5) days prior written notice to ProSellus, Customer may terminate this Agreement for its convenience and without reason; provided, however that upon such termination Customer shall not be entitled to a refund of any amounts paid or a release from or cancellation, waiver or novation of any amount payable, and all such amounts payable or promised to be paid through the License Term shall automatically accelerate and be immediately due and payable and shall survive such termination of this Agreement. Prior to or upon expiration or termination of this Agreement, ProSellus agrees to provide Customer Data to Customer in a nonproprietary form (standard, interoperable). This Agreement will terminate automatically (i) upon expiration of the License Term or (ii) if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or takes or suffers any similar action in consequence of debt. Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (i) purge the Licensed Software and any related Updates from all of Customer’s computer systems, storage media and other files, (ii) destroy the Licensed Material and all copies thereof and (iii) deliver to ProSellus an affidavit certifying that Customer has complied with these termination obligations. The provision of Sections 3, 4 and 6 through 14 shall survive the termination of this Agreement. 9. U.S. EXPORT RESTRICTIONS – Customer acknowledges that the Licensed Materials and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations. Customer covenants and agrees to comply with all import and export control regulations of the United States with respect to the Licensed Material. Customer acknowledges that it may not re-export or divert the Licensed Material or any related technical information, document or material, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce’s list of T-5 countries (currently, Cuba, Iran, North Korea, Sudan and Syria), including any future changes to the government’s list of T-5 countries. 10. EQUITABLE RELIEF – The parties recognize that Sections 4, 7 and 9 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law. 11. USE REPORTING – ProSellus reserves the right to gather data on license usage by Customer for each item of Licensed Software, including server IP addresses and other information deemed relevant, to ensure that the Licensed Software is being used in accordance with the terms of this Agreement. Customer hereby consents to ProSellus gathering such usage information and agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any unauthorized use of the Licensed Software by Customer or other use by Customer in violation of the restrictions contained herein shall be deemed a material breach of this Agreement. As between ProSellus and Customer, all data submitted or generated by Customer through use of the Licensed Software (collectively “Customer Data”), is and shall remain the sole property of Customer; provided, however, that (i) ProSellus may access Customer’s user accounts, including without limitation Customer Data, to support the Licensed Software or to respond to technical problems. 12. ENFORCEABILITY – If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. 13. ENTIRE AGREEMENT 1. Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms. Customer and ProSellus further agree that, subject to clause (b) below, this Agreement, together with all Purchase Orders delivered in connection herewith, is the complete and exclusive statement of the agreement between Customer and ProSellus and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties.
2. UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY PROSELLUS PURCHASE ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-PROSELLUS INVOICE OR NON-PROSELLUS PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO PROSELLUS. EACH PARTY ACKNOWLEDGES AND AGREES THAT, AS A CONVENIENCE TO CUSTOMER AND ONLY FOR CUSTOMER’S INTERNAL ACCOUNTING PROCEDURES, CUSTOMER MAY DELIVER TO PROSELLUS A CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY PROSELLUS, INCLUDING PROSELLUS’S DELIVERY OF ANY LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY ProSellus PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES. 14. MISCELLANEOUS 1. Customer may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity without ProSellus’ prior written consent. In the Event of any merger of Customer or a sale of substantially all of the assets of Customer in which Customer is not the surviving entity, Customer may assign or transfer any licenses granted under this Agreement prior to the date of such merger or sale. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.
2. All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth below the signatures to this Agreement or in any Purchase Order delivered in connection with this Agreement.
3. The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of either Party set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
4. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. PROSELLUS AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE COMMONWEALTH OF PENNSYLVANIA.
5. Unless otherwise specified herein, the rights and remedies of either Party set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
6. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.
7. Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.