Standard License and Services Agreement
This Standard License and Services Agreement is made and entered into by and between Jettee and Customer as of the earlier of the date on which Customer first installs or uses any Software or the date on which the initial Order Form is entered into by the parties (the “Effective Date”).
BY INSTALLING OR USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT INSTALL OR USE THE SOFTWARE.
In consideration of the foregoing, the premises and mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Jettee and Customer hereby enter into this Agreement as follows:
1. Definitions
Any capitalized term used but not otherwise defined in this Agreement has the meaning ascribed to it as set forth below.
“Jettee” means: (a) Jettee Inc, a Delaware corporation.
“Jettee Materials” means, collectively, the Software, Updates, Deliverables, Documentation, and Platform.
“Claim” means any dispute or claim arising from or relating to this Agreement, including the validity, applicability or interpretation of this Agreement.
“Confidential Information” means information that a party discloses to the other party in connection with this Agreement that the party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information includes non-public information that a party discloses in connection with this Agreement relating to: Intellectual Property; technology; know-how; prototypes; current and future products and services; processes; customers; vendors; suppliers; employees; contractors; business plans and methods; research and development; promotional and marketing activities; finances; pricing; contracts and business arrangements; and other business affairs.
“Customer” means the party identified as “Customer” in each applicable Order Form or SOW.
“Deliverable” means any work product or other material created by or on behalf of Jettee that Jettee provides to Customer as part of Implementation Services, Professional Services or Maintenance and Support.
“Disclosing Party” means the party disclosing Confidential Information to the other party.
“Documentation” means Jettee’s then-current user manual and technical documentation for the Software that Jettee provides to Customer.
“Exception” means: (a) use of the Software by Customer in any manner that does not comply in all material respects with the terms and conditions of this Agreement; (b) use of the Software by Customer in combination with any hardware or software not provided by Jettee or approved as set forth in the Documentation; or (c) modifications to the Software by or on behalf of Customer not made or authorized by Jettee.
“Implementation Services” means the initial implementation, configuration and integration services (if any) that Jettee will provide to Customer in connection with the Software as set forth in each applicable Order Form.
“Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); sui generis database rights; trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
“Maintenance and Support” means the maintenance and support services that Jettee will provide to Customer as set forth at https://www.jettee.ai/standard-support-terms, subject to Section 3(f).
“Order Form” means an order form for Customer to obtain access to and use of certain Jettee products and services specified in the order form, each as may be agreed to in writing by the parties under this Agreement.
“Platform” means Jettee Governance, Jettee’s proprietary online platform for locating, accessing, analyzing and managing information configured with the components and use allowances set forth in the Order Form.
“Professional Services” means any training, deployment or other professional services that Jettee will provide to Customer as set forth in an SOW.
“Receiving Party” means the party receiving Confidential Information from the other party.
“Software” means, with respect to each Order Form, the Jettee software identified in such Order Form to be licensed to Customer pursuant to the Order Form and the terms and conditions of this Agreement.
“SOW” means a statement of work for Professional Services as may be agreed to in writing by the parties under this Agreement.
“Suggestion” means any suggestion, comment, idea, improvement or other feedback relating to any Jettee Materials that Customer elects to provide or make available to Jettee.
“Territory” means worldwide except for the People’s Republic of China and the Russian Federation, and any territories worldwide in which the People’s Republic of China or the Russian Federation claims sovereignty.
“Update” means a periodic upgrade, update or fix to the Software that Jettee, in its sole discretion, makes generally available to Jettee customers in the ordinary course of its business.
2. Grant of Rights
(a) License. Subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement, Jettee hereby grants Customer a time-bound, revocable, non-exclusive, non-transferable, non-sublicensable license to: (i) install, operate and use the Software within the Territory on a machine owned or controlled by Customer solely for Customer’s internal business purposes; and (ii) use the Documentation as necessary for Customer to install, operate and use the Software solely for Customer’s internal business purposes as per the subscription terms agreed in the Order Form.
(b) Third-Party Components. Some components of the Software may be provided with or incorporate third-party components licensed under open-source license agreements or other third-party license terms (collectively, “Third-Party Components”). Third-Party Components are subject to separate terms and conditions set forth in the respective license agreements relating to such components as identified in the README, LICENSE or similar notice accompanying the Software. Jettee shall have no liability or responsibility (other than compliance with open-source license agreements) for any Third-Party Components.
3. Services and Maintenance and Support
(a) Implementation Services. Jettee shall provide Customer with Implementation Services (if any) as set forth in each applicable Order Form.
(b) Professional Services. From time to time, Jettee may provide Customer with Professional Services as set forth in an SOW. Each SOW will be governed by the terms and conditions of this Agreement, specifying, among other terms the parties deem relevant: (i) a description of the Professional Services and any Deliverables that Jettee will provide; (ii) the schedule for performance; and (iii) the fees that Customer will pay and the schedule for payment.
(c) Acceptance Testing. Jettee shall provide each Deliverable to Customer for testing pursuant to the procedure set forth in the applicable Order Form or SOW. If the applicable Order Form or SOW does not specify any such testing procedure, the testing procedure in this Section 3(c) will apply. Upon Jettee’s completion of a Deliverable, Jettee shall provide the Deliverable to Customer for testing. If Customer determines that a Deliverable fails to conform in any material respect to the specifications for the Deliverable set forth in the applicable Order Form or SOW, Customer shall give Jettee written notice of such non-conformance, specifying in detail the manner of non-conformance (each, a “Notice of Deficiency”) within 10 days after Jettee provides the Deliverable to Customer for testing (the “Testing Period”). The Deliverable will be deemed accepted by Customer if: (i) Customer gives written notice of acceptance; (ii) Customer makes production use of the Deliverable; or (iii) the Testing Period for the Deliverable concludes without Customer giving a Notice of Deficiency to Jettee. If Customer issues a Notice of Deficiency within the Testing Period, Jettee shall use commercially reasonable efforts to resolve any non-conformance identified in the Notice of Deficiency and resubmit the Deliverable to Customer for testing pursuant to this Section 3(c). Upon acceptance of a Deliverable pursuant to this Section 3(c), the Deliverable will be deemed to be part of the Software, and the terms and conditions herein applicable to the Software will apply in the same manner to the Deliverable.
(d) Change Order. From time to time, a party may request changes to the Implementation Services or Professional Services. Upon such request, the parties shall discuss a change order to incorporate any changes requested and any appropriate changes to the applicable Order Form or SOW, including any changes to the schedule for performance or fees (each, a “Change Order”). No Change Order will be binding unless it has been accepted in writing by both parties.
(e) Customer Responsibilities. Customer shall perform the tasks and fulfill the responsibilities specified in each Order Form or SOW as tasks and responsibilities that Customer has the obligation to perform or fulfill (collectively, “Customer Responsibilities”). Customer acknowledges and agrees that Jettee’s performance of Implementation Services, Professional Services and Maintenance and Support and Jettee’s completion of Deliverables are subject to: (i) Customer fulfilling Customer Responsibilities in all material respects in a timely manner; (ii) the assumptions set forth in the applicable Order Form or SOW remaining valid in all material respects; and (iii) Customer obtaining all licenses and consents required from third parties with respect to any materials provided by Customer that are required for use by Jettee to fulfill its obligations hereunder.
(f) Maintenance and Support. Provided that Customer maintains a valid subscription for Maintenance and Support under the applicable Order Form, Jettee shall provide Maintenance and Support to Customer for the Software under the applicable Order Form.
4. Restrictions, Technical Requirements and Verification
(a) Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor may it permit any other party to: (i) reproduce, distribute, modify, translate, adapt or create derivative works based upon any Jettee Materials; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive any source code or architectural framework of any Jettee Materials; (iii) access or use any Jettee Materials for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes functions and features substantially similar to any Jettee Materials; (iv) rent, lease, lend, sell or sublicense any Jettee Materials, or otherwise provide access to or use of any Jettee Materials as part of a service bureau or similar fee-for-service purpose; or (v) access or use any Jettee Materials in any way that does not comply with all applicable laws and regulations.
(b) Technical Requirements. Except to the extent covered by Implementation Services, Professional Services or Maintenance and Support, Customer shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software or services required to install, operate and use the Software, including computers, mobile devices, operating systems, web browsers and storage devices.
(c) Verification. Upon at least 10 days written notice to Customer, Jettee may: (i) request that Customer conduct an inspection of its installation, operation and use of the Software and issue to Jettee a written certification from an officer of Customer that such installation, operation and use comply with the terms and conditions of this Agreement in all material respects; or (ii) inspect Customer’s installation, operation and use of the Software as necessary to confirm compliance with the terms and conditions of this Agreement in all material respects (collectively, “Verification”). Customer shall promptly remedy any non-compliance disclosed by a Verification, including by obtaining any additional licenses necessary for the Software. Jettee shall not conduct Verification more frequently than once per 12-month period, provided that if a Verification discloses that Customer’s installation, operation or use of the Software does not comply with the terms and conditions of this Agreement in all material respects, Jettee may conduct an additional Verification within the same 12-month period.
5. Fees and Taxes
(a) Fees. Customer shall pay Jettee the applicable fees set forth in each Order Form and SOW pursuant to the payment terms therein. If an Order Form or SOW does not set forth payment terms, payment will be due within 30 days from the date Customer receives the applicable invoice. Any payment not received from Customer when due will incur interest at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower. Unless otherwise specified, all fees set forth in an Order Form or SOW are denominated and due in the currency set forth in the applicable Order Form or SOW.
(b) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes, except for any Taxes based upon Jettee’s net income. If Jettee has the legal obligation to collect any Taxes, Customer shall reimburse Jettee upon invoice by Jettee. If Customer is required by applicable law to withhold any amount from its payments to Jettee under this Agreement and pay such amount to a tax authority, Customer shall: (i) deduct such amount from its payments to Jettee under this Agreement and pay such amount to the applicable tax authority, taking reasonable and lawful measures to minimize the amount paid to the tax authority; and (ii) provide Jettee with an official receipt or other appropriate documentation of such payment to the tax authority.
(c) No Physical Delivery. Customer shall not request, and Jettee will not honor any request for, physical delivery of Jettee Materials. Customer acknowledges and agrees that the calculation of Taxes may be affected by the delivery method and delivery location for Jettee Materials.
6. Intellectual Property
(a) Jettee Ownership. As between Jettee and Customer, Jettee owns all rights, title and interest (including all Intellectual Property) in and to the Jettee Materials and all improvements, enhancements or modifications thereto. To the extent that Customer holds or comes to hold any rights, title or interest (including any Intellectual Property) in or to Jettee Materials, Customer hereby assigns all such rights, title or interest (including all Intellectual Property) to Jettee.
(b) Suggestions. If Customer provides any Suggestion to Jettee, Customer hereby grants Jettee a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made such Suggestion for any lawful purpose, without credit or compensation to Customer.
(c) Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright, trademark, patent or other proprietary notices or disclaimers that appear on or within Jettee Materials.
(d) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
7. Confidential Information
(a) Maintenance and Use. Receiving Party shall maintain Confidential Information in strict confidence, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like nature, but in no case less than reasonable care. Receiving Party shall not: (i) use or disclose Confidential Information other than as necessary to exercise its rights and fulfill its obligations under this Agreement; or (ii) modify, adapt, reverse engineer, decode, decompile or disassemble Confidential Information, or create any derivative work based upon Confidential Information, except as expressly permitted under this Agreement.
(b) Access. Receiving Party shall restrict access to and use of Confidential Information to its directors, officers, employees, contractors, agents and legal and financial advisers who: (i) have a legitimate need to know Confidential Information; (ii) are informed of the confidential nature of Confidential Information; and (iii) have obligations with respect to Confidential Information that are consistent with, and at least as restrictive as, those imposed by this Agreement.
(c) Exclusions. The duties of confidentiality imposed by this Section 7 do not apply to any information to the extent that it: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement or any other confidentiality agreement; (ii) was known by or in the lawful possession of Receiving Party prior to receipt from Disclosing Party; (iii) is or has been independently developed or conceived by Receiving Party without use of or reference to Confidential Information; or (iv) is or has been provided or made known to Receiving Party by a third party without a breach of any obligation of confidentiality to Disclosing Party.
(d) Required Disclosures. Receiving Party may disclose Confidential Information as required to comply with the order of a governmental entity that has jurisdiction over Receiving Party or as otherwise required by law, provided that Receiving Party: (i) notifies Disclosing Party of such required disclosure in advance (to the extent permitted by law) to provide Disclosing Party with an opportunity to seek a protective order; and (ii) takes reasonable steps to minimize the extent of any such required disclosure.
8. Term, Suspension and Termination
(a) Term. The term of this Agreement will commence on the Effective Date and remain in effect until the earlier of: (i) termination pursuant to Section 8(b); or (ii) all Order Forms and SOWs have expired or been terminated.
(b) Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement or an Order Form or SOW: (i) upon a material breach of this Agreement or, as applicable, an Order Form or SOW, by the other party if such breach remains uncured 30 days after the party gives the other party written notice of the breach, provided that such termination will be limited to the affected Order Form or SOW unless the breach at issue constitutes a material breach of the Agreement as a whole; or (ii) by either party if the other party becomes insolvent or bankrupt; becomes the subject of any proceeding under bankruptcy, insolvency or debtor’s relief law where such proceeding has not been dismissed within 60 days; has a receiver or manager appointed where such appointment has not been dismissed within 60 days; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business where such action is not dismissed within 60 days.
(c) Events Upon Termination. Upon termination of this Agreement for any reason, each party shall immediately cease all use of the other party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control. If Jettee terminates this Agreement or any Order Form or SOW for material breach by Customer pursuant to Section 8(b)(i), then: (i) if termination is of the Agreement as a whole, all rights granted by Jettee under this Agreement terminate immediately, and Customer shall immediately cease all access to and use of all Jettee Materials; or (ii) if termination is of a particular Order Form or SOW, then all rights granted by Jettee under the applicable Order Form or SOW terminate immediately, (iii) Customer shall immediately pay any and all outstanding amounts due under this Agreement, and (iv) Customer shall immediately cease all access to and use of all Jettee Materials provided under such Order Form or SOW.
(d) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections: 4(a) (Restrictions); 5 (Fees and Taxes); 6 (Intellectual Property); 7 (Confidential Information); 8(c) (Events Upon Termination); 8(d) (Survival); 9 (Representations and Warranties); 10 (Indemnification); 11 (Disclaimer of Warranties); 12 (Limitation of Liability); 13 (Governing Law and Dispute Resolution); and 14 (Miscellaneous).
9. Representations and Warranties
(a) General. Jettee and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) its execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) its entry into and performance of this Agreement will not conflict with any provision of law or its certificate of incorporation, bylaws or comparable organizational documents; (iv) no action by any governmental entity is necessary to make this Agreement valid and binding upon it; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
(b) Jettee Representations and Warranties. Jettee represents and warrants to Customer that: (i) Jettee shall perform Implementation Services, Professional Services and Maintenance and Support in a competent and workmanlike manner; and (ii) Jettee Materials will conform to the applicable specifications for such materials set forth in the applicable Documentation, Order Form or SOW for a period of 90 days after delivery. Customer’s exclusive remedy and Jettee’s sole obligation with respect to any breach of the foregoing representation and warranty will be for Jettee to reperform the affected services or provide replacement Jettee Materials in compliance with the foregoing representation and warranty, failing which Jettee shall refund to Customer the fees paid by Customer for the applicable services or Jettee Materials.
10. Indemnification
(a) Jettee Indemnification. Jettee agrees that Customer shall have no liability and Jettee shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement (collectively, “Losses”) to the extent arising from any action or claim of an unaffiliated third party asserting that any Jettee Materials infringe the Intellectual Property of such third party. Notwithstanding anything to the contrary, Jettee shall have no obligation to indemnify, defend or hold Customer harmless against any Loss to the extent arising from an Exception or Customer’s use of a version of any Jettee Materials that has been superseded by an Update made available by Jettee to Customer for more than 60 days. If any part of the Jettee Materials becomes the subject of a claim, or Jettee reasonably determines that any part of the Jettee Materials is likely to become the subject of a claim, asserting that the Jettee Materials infringe the Intellectual Property of a third party, Jettee may, in its sole discretion: (i) procure a license as necessary for Customer to continue use of the Jettee Materials in accordance with this Agreement; (ii) modify or replace the Jettee Materials to avoid infringement, provided that the Jettee Materials as modified or replaced retain materially the same or better features and functionality; or (ii) terminate the applicable Order Form or SOW (or portion thereof) for the Jettee Materials and provide a pro rata refund of the fees paid by Customer to Jettee for the Jettee Materials based upon a useful life of 36 months for such materials.
(b) Customer Indemnification. Customer agrees that Jettee shall have no liability and Customer shall indemnify, defend and hold Jettee harmless against any Loss to the extent arising from any Exception or breach of this Agreement by Customer, including use of the Software outside the Territory or in violation of Section 14(b).
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim, provided that failure of the indemnified party to give such prompt written notice will not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 10, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim, provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation. The indemnified party shall have the right to retain its own counsel at its own expense to participate in the defense or settlement of any indemnified claim.
11. DISCLAIMER OF WARRANTIES
SUBJECT TO SECTION 9(b), ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXCEPT AS SET FORTH IN SECTION 9), EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (b) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT ACCESS TO OR USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE SOFTWARE BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS.
12. LIMITATION OF LIABILITY
(a) DISCLAIMER. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF (OR INABILITY TO USE) THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE JETTEE MATERIALS, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
(b) DAMAGES. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO JETTEE UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
(c) EXCLUSIONS. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 12(a) AND 12(b) DO NOT APPLY WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, VIOLATION OF APPLICABLE LAW, BREACH OF CONFIDENTIALITY UNDER SECTION 7, OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.
(d) JETTEE SUPPLIERS AND LICENSORS. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION 12 APPLY FOR THE BENEFIT OF JETTEE’S SUPPLIERS AND LICENSORS, WHO ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
13. Governing Law and Dispute Resolution
(a) U.S. Customers. The terms of this Section 13(a) apply if Customer is, as of the Effective Date, an entity organized and existing under the laws of a state or territory within the United States of America.
(i) Choice of Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Texas and the laws of the United States of America applicable therein, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any state) are specifically excluded from application to this Agreement.
(ii) Forum for Disputes. Any Claim will be brought only in a court of competent jurisdiction in Austin, Texas. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Claim.
(b) Non-U.S. Customers. The terms of this Section 13(b) apply if Customer is, as of the Effective Date, not an entity organized and existing under the laws of a state or territory within the United States of America.
(i) Choice of Law. This Agreement will be governed by and construed and enforced in accordance with the laws of Ireland, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Agreement.
(ii) Arbitration. Any Claim will be resolved through arbitration conducted by the ICC International Court of Arbitration under its then-applicable Arbitration Rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objection with respect to the existence, scope or validity of the arbitration agreement or to the arbitrability of any Claim. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Dublin, Ireland. The decision of the arbitrator on all matters relating to a Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction. Notwithstanding anything to the contrary, either party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Intellectual Property, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13(b)(ii).
14. Miscellaneous
(a) Independent Contractors. The relationship between Jettee and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party without the express prior written consent of such other party.
(b) U.S. Government Matters. Notwithstanding anything to the contrary, Customer shall not provide to any person or export or re-export or allow the export or re-export of any Jettee Materials or any direct product of Implementation Services, Professional Services or Maintenance and Support (collectively “Controlled Subject Matter”) in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the generality of the foregoing sentence, Customer acknowledges and agrees that it shall not, and it shall not permit any other party to, use, export or re-export the Controlled Subject Matter in or to jurisdictions outside the Territory or in or to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), including in or to any national or resident of an Embargoed Country, or any entity on the United States Department of Treasury’s List of Specially-Designated Nationals or the United States Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the United States Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Jettee are “commercial items” and, according to DFAR section 252.227 7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government is governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
(c) Notice. Except as expressly provided otherwise in this Agreement, notices given under this Agreement will be in writing and personally delivered by hand, sent via an internationally-recognized courier service, mailed by first-class certified mail (return receipt requested), or sent via email to the address for each party set forth below. Notices will be deemed to have been given: (i) if personally delivered by hand, when delivered (with written confirmation of delivery); (ii) if sent via an internationally-recognized courier service or by first-class certified mail (return receipt requested), when delivered (as shown in the records of the courier or postal service, as applicable); or (iii) if sent via email, on the date such email is transmitted, provided that any notice sent by email after 5:00 p.m. local time for the recipient will be deemed received on the next business day.
To Jettee Inc
Jettee Inc
Attn: Legal DepartmentTo Customer
As set forth in the most recent Order Form.
(d) Assignment. Customer may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Jettee. Jettee may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the consent of Customer. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict among the terms and conditions of this Agreement and any Order Form or SOW, the terms and conditions of this Agreement will take precedence except as expressly and unambiguously stated otherwise in the applicable Order Form or SOW. Notwithstanding anything to the contrary, if Customer enters into a written Master License and Services Agreement or other comparable written agreement with Jettee or its designee with respect to the Software or related Implementation Services, Professional Services or Maintenance and Support (the “MLSA”), then this Agreement will be of no effect and will be superseded and replaced by the MLSA.
(g) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(h) Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(i) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(j) Force Majeure. Neither party will be liable for any failure to perform under this Agreement to the extent due to any cause beyond the reasonable control of the party invoking this provision, including any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities or insurrection.
(k) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.