Software License Agreement
IMPORTANT – READ CAREFULLY
The terms and conditions of this Software License Agreement set forth a legal contract (this “Agreement”) between you (whether you are an individual or a legal entity, you will be referred to in this Agreement as the “Licensee”) and ACSL, Ltd. (“Licensor”), relating to Licensor’s grant of a limited license to Licensee to use certain Software (defined below) and other Licensed Materials (defined below) on the terms and conditions set forth below.
Please carefully read this Agreement before downloading, installing, using, or accessing the Software or other Licensed Materials. The license contained herein is expressly conditioned upon Licensee’s acceptance of all of the terms and conditions contained in this Agreement.
By clicking or selecting the “ACCEPT” button at the end of this Agreement or other button, check-box, or similar mechanism designed to acknowledge agreement to the terms and conditions of an electronic copy of this Agreement, or by otherwise installing, downloading, accessing, or copying or using any or all of the Licensed Materials, (a) you hereby accept this Agreement on behalf of the entity Licensee for which you are authorized to act and acknowledge that such entity Licensee is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity Licensee for which you are authorized to act, you accept this Agreement on behalf of yourself as the individual Licensee and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity Licensee (if any) or yourself as Licensee. YOU MAY NOT ACCEPT THIS AGREEMENT ON BEHALF OF AN ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AUTHORIZED AGENT OF SUCH ENTITY WITH THE FULL RIGHT, POWER, AND AUTHORITY TO ACT ON BEHALF OF SUCH ENTITY.
If Licensee does not wish to and enter into this Agreement, or you do not have the full right, power, and authority to act on behalf of and bind an entity Licensee or yourself as an individual Licensee, then (aa) select the “DENY” button at the end of this Agreement and the download, installation, or delivery (if it has already been commenced) will be aborted and this Agreement will be of no force or effect; (bb) do not click or select any other button, check-box, or similar mechanism designed to acknowledge agreement to the terms and conditions of an electronic copy of this Agreement; (cc) do not install, download, access, or otherwise copy or use any or all of the Licensed Materials; and (dd) destroy any and all copies of the Licensed Materials in your possession and promptly notify Licensor of such destruction. If you click clicking or selecting the “ACCEPT” button at the end of this Agreement or other button, check-box, or similar mechanism in error, please notify Licensor immediately.
1. Definitions.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Confidential Information” includes any trade secrets or other information of Licensor that is not in the public domain or otherwise generally known by or available to the public, including, without limitation, information relating to Licensor, Licensed Materials, methods, techniques, compilations, methods, techniques, processes, personal, private, confidential, or proprietary information, intellectual property, or knowhow of Licensor or any affiliate of Licensor, or other information which is received by Licensee, in any way, whether directly or indirectly, from Licensor or its affiliates. Such information includes, but is not limited to, business plans; financial information; business strategies; marketing plans; prospects; customer and supplier lists; price lists; cost information; information about directors, officers, managers, members, shareholders, employees, representatives, licensees, affiliates, and subcontractors of Licensor; drawings; data, plans or specifications; samples; costs; pricing data; research and development materials; any other technical, business or marketing, promotional, or advertising information; works of authorship, whether or not copyrightable or subject to other proprietary, trade secret, and/or intellectual property right protection. “Confidential Information” shall not include information that: (a) can be demonstrated to have been generally available to the public, other than through Licensee’s breach of this Agreement or any other confidentiality obligation owed to Licensor; or (b) Licensor agrees in writing that Licensee may disclose, prior to such disclosure by Licensee.
“Documentation” means any user manuals, handbooks, and installation guides or other materials, whether or not electronic, relating to the Software thereof that Licensor provides or makes available to Licensee and which describe the functionality, components, features, processes, uses, or requirements of the Software, including, without limitation, any aspect of the installation, maintenance, upgrading, configuration, integration, operation, or use of the Software, as well as all associated updates to such items now or hereafter provided by Licensor pursuant to the terms of this Agreement.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, guidance or interpretive materials which have the force of law, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensed Materials” means the combination of the Software and Documentation now or hereafter provided or Licensed to Licensee by Licensor in connection with this Agreement.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any update, upgrade, release, or other adaptation or modification of any of the Licensed Materials (including any Documentation) that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, modifications, or other changes or additions to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Licensed Materials.
“Open-Source Components” means any Software component that is subject to any open-source license agreement or similar agreement.
“Permitted Use” means use of the Licensed Materials by Licensee or its employees or authorized agents in the ordinary course of Licensee’s internal business operations.
“Software” the executable version (but not the source or object code) of the ACSL TAKEOFF Ground Control Application, TAKEOFF VPN, and related software, as well as all associated Maintenance Releases, patches, or other updates now or hereafter provided by Licensor pursuant to the terms of this Agreement.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open-Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, documentation, parts or features of any of the foregoing.
2. Grant of License. As of the date of License’s acceptance of this Agreement in accordance with the first page hereof, Licensor grants to Licensee and as of such date, Licensee accepts a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license and right to use the Licensed Materials and Documentation during the Term (as defined below) only for the Permitted Use and for no other purposes, and strictly in compliance with the terms and provisions of this Agreement (the “License”). All Intellectual Property Rights associated with the Licensed Materials shall at all times belong to Licensor, and nothing in this Agreement shall be construed as granting Licensee any ownership rights or license thereto except as expressly provided herein, all of which rights are hereby reserved by Licensor; provided that with respect to any portion of the Licensed Materials that has been incorporated from Third-Party Materials under license or otherwise, the Intellectual Property Rights of that portion of the Licensed Materials belong to the respective third-party provider. The Licensed Materials are protected by copyright or other intellectual property Laws in various countries, including Japan, as well as international copyright treaties. Licensee’s use of the Licensed Materials inures solely to the benefit of Licensor or any licensor or provider of Third-Party Materials, as applicable.
3. Term and Termination. This Agreement shall become effective when Licensee accepts this Agreement and shall remain in effect until the termination of this Agreement in accordance herewith (the “Term”). For avoidance of doubt, Licensee shall be solely responsible for downloading and installing the Software. If Licensee breaches any provision of this Agreement, this Agreement will automatically terminate, and all rights granted to Licensee will be automatically and irrevocably terminate, without notice to Licensee. Upon termination of this Agreement, Licensee shall cease using all applicable Licensed Materials and return or dispose of all components, copies, and related materials at its sole expense, and Licensor shall have no further obligations to Licensee except as may be expressly set forth herein. Licensor reserves the right to terminate Licensee’s access to or use of the Licensed Materials upon termination hereof without notice to Licensee. If Licensee continues to access or use the Licensed Materials after termination hereof, Licensor may demand, and Licensee shall promptly provide, monetary compensation for Licensee’s continued and unauthorized access and use of the Licensed Materials. Any provision under this Agreement that, by its nature, is intended to survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement. Termination hereof shall not limit any rights or remedies which Licensor may have or seek for Licensee’s breach of or default under this Agreement.
4. Maintenance Releases; Repairs. During the Term, Licensor may, but shall be under no obligation to provide Licensee with Maintenance Releases or make or install Maintenance Releases directly to the Licensed Materials, with or without prior notice to Licensee. Licensee acknowledges and agrees that during the installation or provision of any Maintenance Release, Licensee may be limited or prohibited from using or accessing the Licensed Materials. Licensee shall not interfere with Licensor’s installation or provision of any Maintenance Release. Licensor further acknowledges and agrees that an Internet connection may be required in order for Licensor to make or provide a Maintenance Release. If Licensor provides Maintenance Releases to the Licensed Materials or Licensee, this Agreement and the License will continue to apply to the Licensed Materials as improved or modified. Licensor will use commercially reasonable efforts to resolve defects or errors in the Licensed Materials through Maintenance Releases or otherwise, provided that Licensor shall have no specific obligation to Licensee to do so. Licensor may, on a case by case basis in its sole and absolute discretion provide technical or other support to Licensee. For avoidance of doubt, Licensor shall have no obligation to provide such support or assistance to Licensee.
5. Restricted Activities. Except as expressly permitted by this Agreement or by the prior written consent of Licensor (which may be withheld, delayed, or conditioned in Licensor’s sole and absolute discretion), Licensee shall not, and shall not permit any other person to undertake any of the following acts or omissions: (a) copy the Licensed Materials, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Licensed Materials; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Materials, or provide access to the Licensed Materials to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Licensed Materials, or otherwise attempt to derive or gain access to the source code of the Licensed Materials, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Licensed Materials; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, service marks, terms of the Licensed Materials, warranties, disclaimers, or Intellectual Property Rights, proprietary rights, or other symbols, notices, marks, or serial numbers on or relating to any copy of the Licensed Materials; (g) use the Licensed Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right, privacy right, confidentiality right, or other right of any person, or that violates any applicable Law; (h) use the Licensed Materials in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Licensed Materials could lead to personal injury or property damage; (i) use the Licensed Materials other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement; (j) use any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling open-source license(s); or (k) use the Licensed Materials for purposes of: (i) benchmarking or competitive analysis of the Licensed Materials; (ii) developing, using, or providing a competing product or service; or (iii) any other purpose that is to Licensor’s detriment or commercial disadvantage.
6. Monitoring. Licensor reserves the right, but shall not be obligated to, embed mechanisms within the Licensed Materials to (a) monitor Licensee’s compliance with this Agreement and applicable Laws; (b) detect the installation, access or use of unauthorized or illegal copies of the Licensed Materials or any parts thereof; and (c) collect and transmit to Licensor or its delegees data about any unauthorized or illegal copies of the Licensed Materials or noncompliance with this Agreement. Said mechanisms may store and/or transmit data, including, without limitation, data relating to the usage of the Licensed Materials and the number of times they have been copied or accessed, and may communicate with Licensor’s computers, devices, or servers over any type of communications link to exchange communications and report data relating to the usage of the Licensed Materials and the number of times they have been copied. Licensee may not take any steps to avoid or defeat the purpose of any such measures. Licensee hereby consents to Licensor’s usage of such mechanisms.
7. Disclaimers. Except as may be specifically set forth in this Agreement, Licensor makes no representation or warranty of any kind (warranties arising from course of dealing or course of performance included) whether expressed or implied (either in fact or by operation of Law), with respect to the Licensed Materials or otherwise, and all such warranties are hereby disclaimed. Licensee acknowledges that it has relied on no warranties other than any express warranties in this Agreement. Licensee is and at all times shall remain solely responsible for the supervision, management, and control of its employees and agents’ use of the Licensed Materials. Therefore, Licensor makes no warranty, express or implied, that: (a) the use of the Licensed Materials will be error-free, malfunction-free, defect-free, virus-free, uninterrupted, or secure; (b) the Licensed Materials and the quality and functionality thereof will meet the specific needs or intended uses of Licensee; (c) the Licensed Materials will be fit for a particular purpose; (d) specific results will be achieved with the Licensed Materials; (e) the Licensed Materials will be compatible with Licensee’s hardware, devices, systems, or software; or (f) all errors or failures will be corrected. Any representations or warranties made by any person, including employees of Licensor, which are inconsistent herewith, shall be disregarded by Licensee and shall not be binding upon Licensor. Without limiting the generality of the foregoing, Licensee acknowledges and agrees that Licensor shall not be responsible any direct or indirect losses or damage arising from, relating to, or in any way associated with (i) copyright or other intellectual property disputes or disputes based on product liability Law that may arise between or among Licensee and third parties concerning Licensee’s use of the Licensed Materials; (ii) any direct or indirect damages resulting from Licensee’s installation, use, or inability to install or use the Licensed Materials, all of which shall be the obligation of Licensee at Licensee’s risk; or (iii) all liability for direct or indirect damages that may occur in connection with Licensee’s use of the Licensed Materials, whether for its own purposes or to provide services for third parties.
8. Limited Exclusion from Disclaimers. The provisions of Section 7 above shall not apply to (a) damage to property or (b) injury to persons, if and only if Licensee can conclusively and objectively prove that each of the following elements existed at the time when such damage to property or personal injury were incurred (“Disclaimer Exclusion”): (i) the aircraft in remote operation using the Licensed Materials (“Aircraft”) was operated by Licensee or its authorized employee or agent; (ii) this Agreement is in full force and effect and was not first terminated prior to Section 3 above; (iii) the Aircraft caused damage to property or personal injury due solely to defects in the Licensed Materials, and not due in whole or in part to any other fact, circumstance, act, occurrence, or omission; (iv) the Aircraft or dedicated radio controller was not modified or repaired except as authorized by Licensor; (v) Licensee or its authorized employees or agents strictly complied with the applicable safety and operational guidelines or instructions for the Aircraft contained in any Documentation or other instructions of Licensor, all applicable Laws, and any terms of this Agreement; and (vi) the incident or crash was impossible to avoid despite Licensee’s or its authorized employee’s or agents’ use of the dedicated radio controller for the Aircraft in a manner that was not negligent under the circumstances. In any Action or circumstance in which Licensee asserts that the Disclaimer Exclusion applies, Licensee agrees that Licensee shall have the burden of proof thereof by clear and convincing evidence, and the provisions of Section 10 below shall nevertheless apply.
9. Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its affiliates, and each of their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, and including Licensor, an “Indemnitee”) from and against any and all Losses incurred by the Indemnitee resulting from any acts or omissions of Licensee or any person acting on its behalf. Licensee shall have the right to control the defense of any claim for which it is obligated to indemnify any Indemnitees, as applicable, provided that the Indemnitees shall have the right to join in the defense of any such claim with counsel of their own choosing at their own expense. Claims subject to indemnification shall not be settled without the applicable Indemnitees’ approval of all the terms and conditions thereof. The Indemnitees shall reasonably cooperate with Licensee in the defense of any such claim. To the extent Licensee and any Indemnitees are in a position of joint defense with respect to any claim for which indemnification is sought, they shall conduct such defense in a manner that will preserve all attorney-client, work product, joint defense, and other applicable privileges to the greatest extent possible. Notwithstanding anything to the contrary herein, Indemnitees shall be deemed third-party beneficiaries hereunder, entitled to enforce this Section 9 and any other relevant provision hereof.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, AFFILIATES, REPRESENTATIVES, SERVICE PROVIDERS, OFFICERS, EMPLOYEES, AGENTS, VENDORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED MATERIALS OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (D) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (E) COST OF REPLACEMENT GOODS OR SERVICES, OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR BY LICENSEE IN THE PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. Confidentiality. Licensee agrees, for the Term and in perpetuity after its expiration or termination, to hold all Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized in writing by Licensor to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted under this Agreement. Without limiting the generality of the foregoing, Licensee shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) not disclose or permit access to Confidential Information other than to its representatives who (i) need to know such Confidential Information for purposes of Licensee’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; and (ii) have been informed of the confidential nature of the Confidential Information and Licensee’s obligations under this Section 11; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; (d) promptly notify Licensor of any unauthorized use or disclosure of Confidential Information and cooperate with Licensor to prevent further unauthorized use or disclosure; and (e) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 11. If Licensee or any of its representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, Licensee will first: (aa) promptly, and prior to such disclosure, notify Licensor in writing of such requirement so that Licensor can seek a protective order or other remedy in its discretion; and (bb) provide reasonable assistance to Licensor in opposing such disclosure or seeking a protective order or other limitations on disclosure. Upon termination of this Agreement, Licensee shall, at Licensor’s sole discretion, return or destroy all Confidential Information in its or its agents’ possession, including, without limitation, notes, copies (physical and electronic), and memoranda, and shall provide a written certification of Licensee’s completion of such return or destruction executed by an authorized officer or other similar representative of Licensee. The obligations set forth in this Section 11 shall survive termination or expiration of this Agreement in perpetuity.
12. Export Control. The Licensed Materials are not intended for export, re-export or use outside of the United States. If Licensee intends to bring or use any of the Licensed Materials outside of the United States, Licensor shall first obtain the written consent of Licensor and comply with all Laws related to export control of the United States, including the Export Administration Regulations (“EAR”), as well as any other applicable Laws of any country or jurisdiction that may apply to the export of the Licensed Materials from the United States. Licensor will not be responsible for Licensee’s export, re-export or use of the Licensed Materials outside the United States and for any sanctions, fines, or other penalties imposed by the governments of any country due to violations of any export control Laws or other Laws.
13. Force Majeure. Any delay in the performance of any duties or obligations of Licensor that is caused by an event beyond the reasonable control of Licensor, including, but not limited to strikes, walkouts or other labor disputes, shortages of materials, losses of power or Internet connectivity, natural disasters (including, but not limited to, fires, earthquakes, floods, hurricanes, or tornados), states of war, pandemics, epidemics, acts of any government or quasi-governmental authority, changes in Law, acts of any third party (including, but not limited to, any act of terrorism, theft, hacking, ransomware, or similar event), shall not be considered a breach of this Agreement if Licensor uses commercially reasonable efforts, under the circumstances, to resume performance as soon as possible.
14. Applicable Law. This Agreement is governed by and interpreted in accordance with the internal Laws of the nation of Japan without regard to the conflicts of laws.
15. Arbitration. Any and all disputes, Actions, or claims arising out of, relating to, or in connection with this Agreement, Licensee’s use of the Licensed Materials, or any other aspect of Licensor and Licensee’s relationship shall be resolved solely and exclusively through binding and final arbitration, rather than a court, in accordance with the Commercial Arbitration Rules of the Japan Commercial Arbitration Association. Judgment on any arbitral award, as well as actions for provisional relief by Licensor in accordance with Section 17 or actions to compel arbitration may be initiated or entered in any court having jurisdiction. The place of arbitration shall be Tokyo, Japan and the language of arbitration shall be Japanese. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties. Whether in arbitration or any other venue, jurisdiction, or before any tribunal, Licensor and Licensee agree that all aspects of any Action will take place without resort to any form of class or representative action. Licensor and Licensee may only bring Actions against each other in an individual capacity and waive any right they may have to do so as a class representative or a class member in a class or representative action. THIS CLASS ACTION WAIVER PRECLUDES ANY PARTY FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING AN ACTION.
16. Amendment. No amendment, modification, or termination of this Agreement shall in any event be effective unless the same shall be in writing and signed by duly authorized representative of Licensor and Licensee, provided that any modifications to the Licensed Materials by Licensor shall automatically constitute an amendment to the relevant provisions hereof.
17. Specific Performance. Licensee agrees that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that Licensor shall be entitled to specific performance of the terms hereof, temporary restraining order, preliminary or permanent injunction, or other similar relief, in addition to any other remedy to which Licensor is entitled to at Law or in equity, without the obligation to prove damages. Licensee hereby waives any requirements for Licensor to secure or post any bond, provided that if a court or arbitrator requires Licensor to secure or post a bond, one thousand dollars ($1,000.00) shall be the cumulative bond amount.
18. Miscellaneous. This Agreement supersedes all prior and contemporaneous agreements, representations, warranties, and understandings of any nature (whether written, oral, or implied) and contains the entire agreement between Licensor and Licensee with respect to the subject matter hereof. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of Licensor and Licensee and their respective successors and permitted assigns, representatives, heirs, and estates, as applicable. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. The section headings of this Agreement are for convenience of reference only and do not form a part hereof and do not in any way modify, interpret, or construe the intentions of the Parties. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (e) words denoting any gender include all genders; (f) the word “days” refers to calendar days; and (g) the word “dollars” or symbol “$” refers to United States dollars. Nothing in this Agreement is intended to, nor should be construed to, create a partnership, agency, joint venture, or employment relationship between Licensor and Licensee or any of the owners, officers, employees, independent contractors, or agents of the Licensor and Licensee. Neither Licensor nor Licensee shall be considered an agent for the other party, nor shall either party have authority to bind or obligate the other to third parties. No waiver of any provision of this Agreement or consent to any departure therefrom shall be effective unless in writing and signed by the waiving party, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Except as may be expressly required hereby, no notice to or demand on any party in any case shall entitle it to any other or further notice or demand in similar or other circumstances. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy hereunder.