Software License Agreement

Software License Agreement for the Purchase of Software

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This Software License Agreement (this "Agreement") is made by and between Fractal Mob, LLC, a Utah limited liability company doing business as Modus VR, with offices located at PO Box 1070 Springville, UT 84663 ("Licensor," “we," or "us") and the individual or company named in the Order ("Licensee"). Licensor and Licensee may be referred to herein collectively as the "Parties" or individually as a "Party."

Licensor agrees to provide Licensee with a link to download the Modus VR software application ("Software"). Licensee agrees to pay the Fees (as defined below) to Licensor according to the terms of this Agreement.

 The Parties agree as follows:

  1. Definitions.
    • "Authorized User" means Licensee and Licensee’s employee who is authorized access to use the Software and/or Documentation pursuant to the terms of this Agreement.
    • "Documentation" means Licensor's user manuals, handbooks, and installation guides relating to the Software provided in writing by Licensor to Licensee.
    • "Fees" mean the fees set forth in the Order and any other written document, agreement, or addendum, which Licensee agrees to pay to Licensor for the Software.
    • “Licensee Data” means any data, information, or content that is input, uploaded, created, generated, processed, or otherwise submitted by Licensee or its Authorized Users through use of the Software. Licensee Data includes any output, reports or analyses using the Software. Licensee Data expressly excludes the Software itself, any proprietary Licensor data, and any aggregated or anonymized data that does not identify Licensee or its Authorized Users.
    • “Order” means an ordering document or other document or agreement that outlines the specific terms, fees, and related services to be provided under this Agreement.
    • "Software" means the software described in the Order in object code format, including any Updates provided to Licensee pursuant to this Agreement.
    • “Software Access ID” shall have the meaning set forth in Section 3(b)(ii).
    • “Term” shall have the meaning set forth in Section 13(a).
    • "Third-Party Products" means any third-party products described in the Order provided with or incorporated into the Software, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
    • "Updates" means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.
  2. License.
    • License Grant. Subject to Licensee's payment of all Fees and compliance with this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license (except as permitted under Section 14(h)) during the Term to: (i) use the Software solely for Licensee's internal business purposes, limited to the number of Authorized Users set forth in the Order; and (ii) use and make a reasonable number of copies of the Documentation solely for Licensee's internal business purposes in connection with Licensee's use of the Software.
    • Authorized Users. The total number of Authorized Users will not exceed the number set forth in the Order, except as expressly stated in the Order or agreed in writing by Licensee and subject to any appropriate adjustment of the Fees payable hereunder. An Authorized User may only provide services related to the Software to Licensee and is not permitted to sublicense, distribute, or otherwise transfer rights to any third-party. Unless otherwise set forth in the Order or agreed to in writing by Licensor, use of the Software by Licensee and Authorized User is limited to two (2) computers or devices per Authorized User. Licensee shall ensure that no Authorized User exceeds this limit, and any additional installations require Licensor’s prior written consent.
    • Copies of Software. Licensee may make one copy of the Software solely for back-up, disaster recovery, or testing purposes. Any copy of the Software: (x) remains exclusive property of Licensor; (y) is subject to this Agreement; and (z) includes all copyright and proprietary rights notices contained the original.
    • Use Restrictions. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to access or derive the source code of the Software, in whole or in part; (iv) remove, alter, or obscure any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    • Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.
    • Delivery. Licensor shall deliver the Software electronically. Licensee is responsible for downloading and installing the Software on hardware that meets Licensor’s minimum system requirements.
  3. Licensee Responsibilities.
    • General. Licensee is responsible and liable for all use of the Software and Documentation resulting from access provided by Licensee or its Authorized User, whether directly or indirectly, and whether such use complies with or violates this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users. Any act or omission by an Authorized User that would constitute a breach of this Agreement if committed by Licensee will be deemed a breach by Licensee. Licensee shall make reasonable efforts to ensure all Authorized Users are aware of and comply with the applicable provisions of this Agreement.
    • Access to Software.
      • Only Authorized Users are permitted to access and use the Software and related Documentation under this Agreement. Any access or use by unauthorized individuals is strictly prohibited. Licensee shall maintain a list of individuals who are Authorized Users (including the number of computers or devices) to use the Software. External professional service providers are not eligible to be Authorized Users unless expressly approved in writing by Licensor. Any unauthorized access or use shall constitute a material breach of this Agreement, and Licensee shall promptly notify Licensor upon discovery of such unauthorized access.
      • Each Authorized User is assigned a unique login credential or activation key (“Software Access ID”), which is non-transferable. If an individual ceases to be an Authorized User, Licensee must promptly deactivate or revoke their Software Access ID.
      • Licensee is responsible for all use of the Software under any Software Access ID issued to its Authorized Users, including any associated fees. Licensee shall prevent unauthorized access to or use of the Software and shall notify Licensor in writing immediately upon discovering any unauthorized use, loss, or compromise of a Software Access ID.
      • To comply with applicable privacy, data protection, and other laws, each Software Access ID is location-specific and may not be used outside the designated installation site. If Licensor suspects that a Software Access ID is being used outside the designated installation site, Licensor may suspend access or require Licensee to obtain and pay for an additional Software Access ID for the relevant location. Upon request, and subject to additional fees, Licensor may issue a geographically compliant Software Access ID.
    • Third-Party Products. Licensor may distribute certain Third-Party Products with the Software. For purposes of this Agreement, such Third-Party Products are subject to their own license terms and the applicable flow through provisions referred to in the Order. If Licensee does not agree to abide by the applicable terms for such Third-Party Product, then Licensee should not install or use such Third-Party Products. Licensee understands and acknowledges that open source software is not licensed to Licensee pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Licensee shall have only such rights and/or licenses, if any, to use the open source software in accordance with the terms of such Third-Party Product license agreement.
  4. Support; Updates.
    • Support. Licensor shall provide Licensee with the support services described in the Order, if any, during the Term. After the Term, support services will be available only if separately purchased by Licensee.
    • Updates. During the Term, Licensor shall provide Licensee with all Updates at no additional charge. Each Update constitutes part of the Software and remains subject to the terms of this Agreement.
  5. Data Storage and Security.
    • Data Storage and Security. If Licensor stores Licensee Data as part of the licensed software’s functionality, Licensor shall implement and maintain industry-standard security measures to protect such data from unauthorized access, use, or disclosure.
    • Data Breach Notification. Licensor shall promptly notify Licensee of any unauthorized access, breach, or security incident affecting Licensee Data and take reasonable steps to mitigate any potential harm caused by Licensor.
  6. Fees and Payment.
    • Fees. Licensee shall pay Licensor the fees “(Fees”), payable in advance, as specified in the Order, without offset or deduction. If Licensee fails to make any payment when due, in addition to all other remedies available, the following shall apply: (i) Licensor may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law; and (ii) Licensee shall reimburse Licensor for all costs incurred in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) Licensor may suspend access to the Software until all past due amounts and interest have been paid, without liability to Licensee or any third-party for such suspension of access to the Software.
    • No Refund. All Fees paid by Licensee under this Agreement are non-refundable, non-cancelable, and non-creditable under any circumstances. For purposes of clarity, Licensor has no obligation to provide refunds, whether due to early termination, non-use, dissatisfaction, or any other reason. These terms apply to all Fees, including but not limited to license fees, support fees, maintenance fees, and any other payments made under this Agreement.
    • Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor's income.
  7. Auditing Rights and Required Records. Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Licensor may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Licensee has underpaid Licensor with respect to any amounts due and payable during the Term, Licensee shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with this Section. Licensee shall pay for the costs of the audit if the audit determines that Licensee's underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.
  8. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information commences on the effective date in the Order and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  9. Intellectual Property Ownership; Feedback.
    • Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all rights, title, and interest, including all intellectual property rights, in and to the Software and Documentation and, with respect to Third-Party Products, the applicable third-party licensors own all rights, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
    • Licensee Data. Licensor acknowledges that, as between Licensor and Licensee, Licensee owns all rights, title, and interest in and to Licensee Data.
    • Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.
  10. Limited Warranties and Warranty Disclaimer.
    • Licensor warrants that: (i) the Software will perform materially as described in the Documentation for the Term; and (ii) at the time of delivery the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation. THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
    • The warranties set forth in Section 10(a) do not apply and become null and void if Licensee breaches any material provision of this Agreement, or if Licensee, any Authorized User, or any other person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Licensor in writing; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.
    • If the Software fails to comply with the warranty in Section 10(a), and such failure is not excluded from warranty pursuant to Section 10(b), Licensor shall, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or (ii)
    • If Licensor repairs or replaces the Software, the warranty will continue to run for the Term and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 10(c) are Licensee's sole remedies and Licensor's sole liability under the limited warranty set forth in Section 10(a).
    • EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  11. Indemnification.
    • Licensor Indemnification.
      • Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") incurred by Licensee resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim.
      • If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor's sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Licensor determines that none of these alternatives is reasonably available, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
      • This Section 11(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing; (B) modifications to the Software not made by Licensor; or (C) use of any version other than the most current version of the Software or Documentation delivered to Licensee; or (D) Third-Party Products.
      • THIS SECTION 11(a) SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
    • Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at Licensor's option, defend Licensor from and against any Losses resulting from any Third-Party Claim based on Licensee's, or any Authorized User's: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by Licensor or authorized by Licensor in writing; (iv) modifications to the Software not made by Licensor; or (v) use of any version other than the most current version of the Software or Documentation delivered to Licensee, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
  12. Limitations of Liability. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  13. Term and Termination.
    • Term. The initial term of this Agreement begins on the effective date set forth in the Order, and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect for the term set forth in the Order ("Initial Term"). This Agreement will automatically renew for an additional successive terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least 14 days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
    • Termination. In addition to any other express termination right set forth in this Agreement:
      • Licensor may terminate this Agreement, effective on written notice to Licensee, if Licensee: (A) fails to pay any amount when due hereunder, and such failure continues more than 14 days after Licensor's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(b) or Section 8;
      • Either Party may terminate this Agreement for convenience, for any reason or no reason, upon 15 days written notice to the other Party.
      • Either Party may terminate this Agreement for convenience, for any reason or no reason, upon 15 days’ prior written notice to the other Party.
      • Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 15 days after the non-breaching Party provides the breaching Party with written notice of such breach;
      • Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    • Effect of Expiration or Termination.
      • Upon termination or expiration of this Agreement, Licensee shall be solely responsible for deleting all Licensee Data stored on the Licensor’s cloud infrastructure prior to the end of then-current Term. If Licensee does not delete its data within 30 days, Licensor may, at its discretion and without liability, permanently delete such data. Licensor shall have no obligation to retain any Licensee data beyond the termination of this Agreement unless otherwise required by law.
      • Upon expiration or earlier termination of this Agreement, the license granted hereunder shall automatically terminate. Without limiting Licensee's obligations under Sections 2, 3, 5, 6, 8, and 9, Licensee shall immediately cease all use the Software and Documentation, and, within 10 days of termination, certify in writing to Licensor that such deletion or destruction has been completed.
      • No expiration or termination will affect Licensee's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
    • Survival. This Section 13(d) and Sections 1, 6, 7, 8, 9, 10, 11, 12, and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
  14. Miscellaneous.
    • Entire Agreement. This Agreement, together with the Order and any other documents incorporated by reference and all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Orders, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement (excluding its Order); (ii) second, the Order; and (c) third, any other documents incorporated by reference.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses: (i) for Licensee, the address set forth on the first page of this Agreement, and (ii) for Licensee, the address set forth in the Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (y) upon receipt by the receiving Party, and (z) if the Party giving the Notice has complied with the requirements of this Section.
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including: (i) acts of God; (ii) flood, fire, earthquake, epidemic or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of [or related to] this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Utah in each case located in the city of Mapleton and County of Utah, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
    • Dispute Resolution.
      • Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be amicably resolved by the Parties shall be solely and finally settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.
      • The arbitration shall take place in Mapleton, Utah before a panel of one (1) arbitrator. The language of the arbitration shall be English.
      • The arbitrator shall be bound to adjudicate all disputes in accordance with the laws of the State of Utah.
      • The decision of the arbitrator shall be final and binding on the Parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
      • Small Claims Option. Notwithstanding the terms in this Section 14(g), either Party may bring an individual action in small claims court for disputes or claims within the scope of that court's jurisdiction in Utah.
      • Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT.
      • Exclusive Remedies. The procedures specified in this Section 14 shall be the sole and exclusive procedures for the resolution of disputes between the Parties arising out of or relating to this Agreement; provided, however, that a Party may seek a preliminary injunction or other provisional judicial relief if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo.
    • Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that either Party may assign its rights or delegate its obligations, in whole or in part, without such consent and upon 30 days prior written notice to the other Party, to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
    • Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    • US Government Rights. Each of the Documentation and the Software is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
    • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.