Terms and Conditions ("Terms")
Last updated: September 06, 2016
Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the http://ideamapr.com/ website (the "Service") operated by Bouldin Labs, LLC ("us", "we", or "our").
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.
Links To Other Web Sites
Our Service may contain links to third-party web sites or services that are not owned or controlled by IdeaMapr.
IdeaMapr has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that IdeaMapr shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.
Termination
We may terminate or suspend access to our Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.
All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Governing Law
These Terms shall be governed and construed in accordance with the laws of Texas, United States, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.
Changes
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
Contact Us
If you have any questions about these Terms, please contact us at matt@bouldinlabs.com.
SAAS LICENSE AGREEMENT
THIS SOFTWARE-AS-A-SERVICE (“SAAS”) LICENSE AGREEMENT (“AGREEMENT”), MADE AND ENTERED INTO AS OF THE EFFECTIVE DATE, IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR AN ENTITY (“YOU” OR “CUSTOMER”) AND BOULDIN LABS, INC., WITH ITS PRINCIPAL PLACE OF BUSINESS AT 1102 S. AUSTIN AVE, STE 110-165, GEORGETOWN TX, 78626 (“BOULDIN”) AND SETS FORTH THE TERMS, CONDITIONS, RIGHTS AND OBLIGATIONS THAT GOVERN CUSTOMER’S ACCESS AND USE OF THE BOULDIN SOFTWARE (DEFINED BELOW). UNDER WHICH BOULDIN LICENSES CERTAIN OF ITS SOFTWARE PRODUCTS AND SERVICES AND PROVIDES RELATED SUPPORT TO YOU.
BY EXPRESSLY ACCEPTING THESE TERMS IN A WRITTEN AGREEMENT OR BY DOWNLOADING, INSTALLING, ACTIVATING AND/OR OTHERWISE USING THE SOFTWARE, YOU AGREE THAT YOU HAVE READ AND WILL COMPLY WITH AND ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT ACCESS, DOWNLOAD, INSTALL OR IN ANY WAY ACTIVATE OR OTHERWISE USE ANY OF THE SOFTWARE OR SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, COMPANY OR THIRD PARTY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF AND BIND SUCH ENTITY, COMPANY OR THIRD PARTY.
From time to time, Bouldin may modify this Agreement, including any referenced policies and other documents, by posting notice of the change online. You are advised to review the terms of this Agreement on a regular basis. You further acknowledge and agree that your use of the Software or services, after such notice has been posted online, constitutes its acceptance of the terms of this Agreement, as modified. Notwithstanding anything contained herein to the contrary, if Bouldin and Customer have entered into a written agreement for the access and use of the Software and Services that replaces this Agreement (“Signed Agreement”), the Signed Agreement will supersede this Agreement.
DEFINITIONS
“Confidential Information” means all non-public information provided by or relating to a Discloser or its affiliates and includes, without limitation, source and object code, customer lists, products, product roadmaps, financial information, business information and marketing strategies disclosed in written or other tangible form (including on magnetic media) or by electronic, oral, visual or other means.
“Customer Content” means any and all information provided, generated or encountered by Customer or Users pursuant to this Agreement and in the course of using the Software, including without limitation all Personal Data, software, any hypertext mark-up language files scripts, texts, messages, programs, recording, sound, music, graphics, images applets or servlets created, installed, uploaded or transferred by Customer, End-Users or recipients in connection with the Software, as well as any technical, statistical or diagnostic information relating to the use of the Software and any information for account management including End-User ID and contact information.
“Discloser” means a party, including its Representatives, that discloses Confidential Information to the other party.
“Documentation” means explanatory and informational materials concerning the Software, in printed or electronic format.
“End-User” means the employees or independent contractors of Customer or any individual who is authorized by Customer to access or use the Software.
“Error” means any material error or defect in the Software that causes the Software not to substantially conform to the Documentation.
“Maintenance Releases” means any update or release of the Software or any part thereof that Bouldin, at its sole discretion, may provide or make available to Customer from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Services, but does not constitute a different licensed product that Bouldin may make available to Customer at an additional cost under a separate written agreement.
“Maintenance Services” means Bouldin’s support and maintenance services for the Software as set forth below.
“Order” means a written or electronic order form submitted by or on behalf of Customer, or by Customer and an authorised reseller of the Software, which identifies the Software ordered and establishes the billing and contractual relationship between the parties. Each Order shall describe the Software ordered by Customer and shall be governed by and deemed to incorporate the terms and conditions contained in this Agreement.
“Personal Data” means any information: (a) that identifies or can be used to identify, contact, or locate the person to whom such information pertains; or (b) from which identification or contact information of an individual person can be derived.
“Recipient” means a party, including its Representatives, that receives Confidential Information from the other party.
“Representatives” means the employees, affiliates, affiliates’ employees, directors, officers, attorneys, accountants, financial advisors and agents of a party.
“Services Components” means all software, tools, API’s utilized to provide the infrastructure and functionality of the Software and which is needed by Customer in order for Customer to use the Software and services that Bouldin makes available to Customer as part of the services.
“Software” means the IdeaMapr software provided as SaaS Services in accordance with the Software License and that is made available to Customer pursuant to an Order as well as any corrections, enhancements, and upgrades to such software that are made available to Customer pursuant to this Agreement, and all copies of the foregoing.
“Term” means the subscription license term listed on the applicable Order.
SOFTWARE LICENSE
General. Subject to the terms of this Agreement, Bouldin hereby grants to Customer, a non-exclusive, non-transferable, non-sublicensable, subscription license to access and use the quantities of each item of Software, installed on equipment operated by Bouldin or its suppliers (“SaaS Services”), identified in the applicable Order during the Term. Customer shall only use the Software to support the internal business operations of itself and its worldwide Affiliates. Customer is responsible for the use of the Software by End-Users and for ensuring that Users comply with this Agreement and other referenced herein documents.
Services Components. As part of the services, and subject to the terms and conditions of this Agreement, Bouldin will allow Customer and End-Users to install (as applicable), access and use the Services Components. Customer agrees to use the Services Components only as part of the Software and in connection to the services provided hereunder. Customer acknowledges and agrees that particular Services Components may be subject to other software license agreements or terms of use, which Customer must read, accept, and agree to as a condition of using these particular Services Components.
Evaluation License. If an Order indicates that Software is to be used by Customer for evaluation purposes, Customer shall be granted a License to use such Software and the associated Documentation solely for Customer’s own non-production, internal evaluation purposes (an “Evaluation License”) during an evaluation period set forth in the Order. There is no fee for an Evaluation License during the evaluation period, however, Customer is responsible for any applicable taxes which may be incurred, and any fees which may be associated with usage beyond the scope permitted herein. Customer will only be granted one Evaluation License per release of any item of Software. Evaluation Licenses are provided “AS IS” and Bouldin does not provide warranties or Maintenance Services for Evaluation Licenses.
Restrictions. Customer shall not and shall not permit any third party to: (a) translate, disassemble, reverse engineer, recompile, decompile, update, modify, merge, prepare derivative works, adapt, translate or copy any portion of the Software except as authorized herein or as otherwise expressly permitted by applicable law; (b) use the Software in violation of applicable local, state, national and international laws and regulations; (c) use the Software in excess of the number of licenses purchased from or authorized by Bouldin; (d) use the Software on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Software or "frame" or "mirror" the Software on any other server or wireless or Internet-based device; (e) sell, lease, license, sublicense, assign, distribute or otherwise transfer or encumber in whole or in part the Software; (f) alter, change, or remove any titles, trademarks, trade names, copyright notices, legends or other proprietary markings placed on the Software; (g) use the Software to create a competitive offering; (h) share or publish the results of any benchmarking of the Software without Bouldin’s prior written consent; or (i) provide, make available to, or permit use of the Software in whole or in part by, any third party, including contractors, without Bouldin's prior written consent, unless such use by the third party is solely on Customer’s behalf, is strictly in compliance with the terms and conditions of this Agreement, and Customer is liable for any breach of this Agreement by such third party. Customer shall be responsible for providing and maintaining all necessary hardware and the proper environment to operate the Software as specified by the Documentation or as otherwise specified in writing by Bouldin. Bouldin is not responsible or liable for any errors or defects in such hardware or third party software.
Proprietary Rights. Customer understands and agrees that (i) the Software are protected by copyright and other intellectual property laws and treaties, (ii) Bouldin and/or its suppliers own the copyright, trademark, trade secret, patent and any other intellectual property rights on and in the Software, (iii) the Software is licensed, and not sold, and (iv) Bouldin reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement.
CUSTOMER CONTENT AND CONDUCT
Customer Content. Customer is solely responsible for all the Customer Content submitted in, transferred through and stored in the Software and services. Customer acknowledges and agrees that Customer is solely responsible for the accuracy, selection, creation, design usage, licensing, testing, maintenance, processing, backup and support of Customer Content. As part of this responsibility Customer acknowledges and agrees that Customer is solely responsible for any individual’s Personal Data that may be contained in Customer Content, including any information which Customer shares with third parties or any information Customer considers confidential. With respect to Personal Data, Customer has and accepts full responsibility as the controller of such data. Customer agrees to comply with all applicable laws, to obtain all necessary consents, and make all necessary disclosures including without limitation Personal Data in Customer Content and using the Software. Customer will be solely responsible for remaining in compliance with all applicable content privacy and protection laws that may be applicable to Customer Content and for taking all required steps before including data and Personal Data in the Customer Content and using the Services. Customer represents and warrants that it has obtained all rights, permissions and consents necessary to use and transfer all Customer and/or third party data within and outside of the country in which Customer or the applicable Customer Affiliate is located (including providing adequate disclosures and obtaining legally sufficient consents from Customer’s employees, customers, agents, and contractors). If Customer transmits data to a third-party website or other provider that is linked to or made accessible by the Software, Customer will be deemed to have given its consent to Bouldin to enable such transmission and Bouldin shall have no liability to Customer in connection with any claims by a third party in connection with such transmission. Bouldin shall have the right to delete all Customer Content stored in connection with the use of the Software thirty (30) days following any termination of this Agreement or any license to Software granted hereunder. Customer acknowledges and agrees that Bouldin reserves the right to provide the Software and services from various locations worldwide and Customer expressly consents to Customer Content being transferred across a country boarder provided these countries have not been declared by the European Commission as not providing an adequate level of data protection. To the extent that Customer’s Personal Data are being processed, Bouldin shall obligate its personnel and subcontractors and partners entrusted with the processing of Customer’s Content to content protection and content secrecy and privacy in accordance with applicable law. Customer grants Bouldin and its subcontractors and partners a non-exclusive, worldwide, royalty-free, paid-up, transferable license and approval to collect, host, store, cache, copy, transmit, process and display Customer Content for the purpose of and in conjunction with providing the Software for the term of this Agreement, and represents that Customer has or will have at all times all relevant licenses and approvals necessary to grant such license and rights.
Conduct. In connection with the use of Software, Customer may not (i) attempt to use or gain unauthorized access to Bouldin’s or to any third-party's networks or equipment; (ii) permit other individuals or entities to copy the Software; (iii) provide unauthorized access to or use of any Software or the associated access credentials; (iv) attempt to probe, scan or test the vulnerability of the Software, or the system, account or network of Bouldin or any of Bouldin’s customers or suppliers; (v) interfere or attempt to interfere with service to any user, host or network; (vi) engage in fraudulent, offensive or illegal activity of any nature or intentionally engage in any activity that infringes the any copyrights, trademarks, trade secrets, patents and any other intellectual property rights or privacy rights of any individual or third-party; (vii) transmit unsolicited bulk or commercial messages; (viii) intentionally distribute worms, Trojan horses, viruses, corrupted files or any similar items; (ix) restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (x) restrict, inhibit, interfere with or otherwise disrupt or cause a performance degradation to any Bouldin (or Bouldin supplier) facilities used to provide the services. Customer shall cooperate with Bouldin’s reasonable investigation of outages, security issues, and any suspected breach of this Section, and shall, at its expense, defend Bouldin and its affiliates from any claim, suit, or action by a third party (a “Third Party Claim”) alleging harm to such third party caused by Customer’s breach of any of the provisions of this Section. Additionally, Customer shall pay any judgments or settlements reached in connection with the Third Party Claim as well as Bouldin’s costs of responding to the Third Party Claim.
Suspension. Bouldin may suspend Customer’s use of the Software (a) if required by law enforcement or legal process, (b) in the event of an imminent security risk to Bouldin or its customers, or (c) if continued use would subject Bouldin to material liability. Bouldin shall make commercially reasonable efforts under the circumstances to provide prior notice to Customer of any such suspension.
RECORDS, REPORTS AND AUDIT
Records and Reports. Customer agrees to maintain and use systems and procedures to accurately track, document, and report its installation and usage of the Software. Bouldin will send usage reports to Customer and Customer agrees to notify Bouldin of any discrepancy between the usage report and Customer’s installation and usage.
Audit. Bouldin or its designated auditing agent shall have the right to audit Customer's deployment of the Software for compliance with the terms and conditions of this Agreement and the applicable Order(s). Any such audits shall be scheduled at least ten (10) days in advance and shall be conducted during normal business hours at Customer's facilities.
FEES AND PAYMENT
Customer shall pay the fees in accordance with the terms of the applicable Order.
MAINTENANCE SERVICES AND other professional services
Maintenance Services. During the Term, Bouldin shall provide or make available to Customer all Maintenance Releases (including updated Documentation) that Bouldin may, in its sole discretion, makes generally available to its customers at no additional charge. All Maintenance Releases, upon being provided or made available by Bouldin to Customer hereunder, shall be deemed subject to all applicable terms and conditions in this Agreement. Maintenance Services are available 24x7x365 and the response times (“SLAs”) are available at (http://ideamapr.com/ideamapr-sla).
Training and Consultation Services. Customer may engage Bouldin to provide training and consultation services. The details of those services are set forth in Exhibit A.
Other Professional Services. Other professional services are available for purchase under the terms of the Bouldin Professional Services Agreement.
INDEMNIFICATION
Intellectual Property Infringement Indemnification. Bouldin shall indemnify, defend and hold Customer harmless from any third party claim and resulting losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or in connection with any alleged or actual direct infringement by the Software of any patent, copyright, trademark or any other proprietary right enforceable in the country in which the Software is delivered to Customer (a “Claim”). Bouldin’s indemnification obligations or a Claim are expressly conditioned on Customer (a) providing prompt notice of the claim to Bouldin; (b) giving Bouldin sole control of the defense and settlement of the claim; (c) providing to Bouldin all available information, assistance, and authority to defend; and (d) not having compromised or settled such claim in any way nor having made any admissions with respect to such claim without Bouldin’s prior written consent.
Remedies. Should the Software become or in Bouldin’s reasonable opinion, be likely to become, the subject of a claim of infringement, Bouldin may, at Bouldin’s option, (a) procure for Customer, at no cost to Customer, the right to continue to use the Software; (b) replace or modify the Software, at no cost to Customer, to make such Software non-infringing, provided that the similar function is performed by the replacement or modified Software as originally provided hereunder, or (c) if the right to continue to use the Software cannot reasonably be procured or the Software cannot reasonably be replaced or modified, Bouldin may terminate this Agreement and refund the unused pro-rata portion of any license fees pre-paid by Customer for such Software.
Exclusions. Notwithstanding the foregoing, Bouldin shall have no liability for any Claim resulting or arising from (a) any use of the Software not in accordance with this Agreement if such claim would not have occurred absent such use; (b) any use of any release of the Software other than the most current release made available to Customer, if the most current release was furnished to Customer specifically to avoid such claim and such claim would have been avoided by use of the most current release; (c) any modification of the Software made by any person other than Bouldin (other than at Bouldin’s direction), if such claim would not have occurred absent such modification; or (d) a use for which the Software was not designed and such claim would not have been made absent such non-conforming use.
No Additional Liability. This section (Indemnification) states the Bouldin’s entire liability and its sole and exclusive indemnification obligations to Customer and Customer’s exclusive remedy for any Claim.
Indemnification by Customer. Customer shall indemnify, defend and hold Bouldin harmless from and against any and all claims, costs, losses, liabilities suits and expenses (including reasonable lawyer’s fees and costs) arising out of or in connection with Customer’s use of the services, or any breach of this Agreement by Customer or its End-Users.
Confidential information
Confidentiality. Recipient must use the same degree of care in protecting Confidential Information as it uses to protect its own proprietary and confidential materials, but in no event less than a reasonable standard of care. If a party becomes aware of any misappropriation or misuse of Confidential Information, that party must immediately advise the other in writing. If Recipient is required to disclose Confidential Information by law or legal process, Recipient must first promptly notify Discloser unless prohibited from doing so by a court or other legal authority of competent jurisdiction, and Recipient at Discloser’s expense will provide reasonable assistance to discloser in seeking a protective order or other remedy from the proper authority. Any such required disclosure shall not be a breach of this section but does not relieve recipient of its confidentiality obligations. All Confidential Information is and shall remain the property of Discloser.
Period of Protection. Recipient agrees that upon the Effective Date of this Agreement and for a period of five (5) years from the date of disclosure or termination of this Agreement, whichever is later (and in perpetuity with respect to source code and trade secrets), it will hold the Confidential Information disclosed by Discloser in confidence.
Restrictions on Disclosure. Customer and its employees, agents and contractors shall not disseminate, disclose or otherwise provide or make available the Confidential Information, or any portion or copy thereof, to any third party, or use the Confidential Information or portion thereof for any purpose other than as expressly permitted by this Agreement. Disclosure of the Confidential Information will be restricted to the Recipient’s employees, contractors, or agents on a “need to know” basis and who are bound by confidentiality obligations no less stringent than these prior to any disclosure. All Confidential Information that is disclosed in a tangible form by Discloser to Recipient under this Agreement (including, without limitation, documents, writings, designs, drawings, specifications and information incorporated in computer software or held in electronic storage media) shall be returned to Discloser or destroyed promptly upon the termination of this Agreement or upon written request by Discloser, and shall not thereafter be retained in any form by Recipient, except as otherwise provided by this Agreement. Upon request of the Discloser, a duly authorized officer of the Recipient will certify such return or destruction.
Exclusions. Confidential Information does not include information which: (a) is already known to the Recipient at the time of disclosure; (b) is or becomes publicly known through no wrongful act or failure of the Recipient; (c) is independently developed without use or benefit of the other’s Confidential Information; or (d) is received from a third party that is not under and does not thereby breach an obligation of confidentiality.
WARRANTY AND LIMITATION OF LIABILITY
Warranty. Bouldin warrants that it owns all right, title, and interest in and to the Software and that it has full power to enter into and perform this Agreement. Bouldin warrants that the SaaS services will conform to Bouldin’s then-current user Documentation.
Sole Remedy. Bouldin’s sole and exclusive responsibility and Customer’s sole remedy under the Limited Warranty set forth in Section 9.1 shall be for Bouldin to correct or replace, at no additional charge to Customer any material errors and if that is not feasible, to refund pre-paid license fees paid by Customer.
Disclaimer of Warranty. EXCEPT FOR THE PRECEDING WARRANTY, BOULDIN MAKES, AND CUSTOMER RECEIVES, NO OTHER WARRANTIES RELATED TO THE SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, AND BOULDIN SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BOULDIN DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
LIMITATION OF LIABILITY
BOULDIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST OR CORRUPTED DATA, CUSTOMER CONTENT OR SOFTWARE, LOSS OF USE OF SYSTEMS OR NETWORKS OR THE RECOVERY OF SUCH DATA, SYSTEMS OR NETWORKS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL OR REPUTATION UNDER ANY PART OF THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, EXCEPT FOR ANY CLAIMS UNDER THE INDEMNIFICATION SECTION, BOULDIN’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CAUSE OF ACTION AROSE. THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL LIMIT A PARTY’S LIABILITY FOR (I) DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE OR (II) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
TERMINATION
Termination for Cause. Either party may, at its option and upon written notice to the other party, terminate this Agreement if a material breach of this Agreement by the other party is not remedied within thirty (30) days after the breaching party’s receipt of written notice of the breach.
Survival after Termination. The following shall survive expiration or termination of this Agreement: Sections 1 (Definitions), 2.5 (Property Rights), 3 (Customer Conduct and Content), 4 (Records, Reports and Audits, 7 (Indemnification), 8 (Confidential Information), 9.4 (Disclaimer of Warranty), 9.5 (Limitation of Liability), and 11 (General Provisions).
GENERAL PROVISIONS
Governing Law/Venue. This Agreement shall be exclusively governed and construed in accordance with the laws of the State of Texas without regard to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed in their entirety. Notwithstanding anything contained in this Agreement to the contrary, the parties shall be entitled to seek injunctive or other equitable relief.
Time Limit for Claims. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen.
Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights hereunder to any individual or entity (including, without limitation, a government body, division, agency or administration) without the prior written consent of Bouldin provided, however, that Customer may assign all of its rights under this Agreement to: (a) a subsidiary of Customer, (b) a purchaser of all or substantially all of the stock or assets of Customer, or (c) a third party participating in a merger or other corporate reorganization in which Customer is a constituent corporation. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any purported attempt to assign or transfer this Agreement in violation of this provision will be deemed void.
Use by U.S. Government. The Software is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government is prohibited except as expressly permitted by the terms of this Agreement.
No Third Party Beneficiaries / Independent Contractors. This Agreement is not intended nor shall be construed to confer upon or give to any person or entity other than Customer and Bouldin any rights, remedies or other benefits under or by reason of this Agreement. The relationship of the parties is that of independent contractors. Nothing in this Agreement is intended to or should be construed to create a partnership, agency, joint venture or employment relationship between the parties.
Export. Customer shall comply with all applicable governmental laws, statutes, ordinances, administrative orders, rules and regulations including, without limitation, those related to the export of technical materials.
Publicity. Neither party shall disclose the terms of this Agreement without prior written consent from the other. Customer, however, agrees that its name and any logo may be included by Bouldin in any published list of Bouldin licensees on the Bouldin website and in other marketing materials.
Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, acts of terrorists, or any other cause which is beyond the reasonable control of such party.
Injunctive Relief. The parties agree that a breach of product license, customer content and conduct and confidential information would result in irreparable and continuing damage for which there will be no adequate remedy at law, and Bouldin shall be entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.
Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile transmission, overnight delivery service or by registered mail, return receipt requested, and shall be deemed given upon personal delivery, the next business day for overnight delivery service, five (5) days after deposit in the mail, or upon acknowledgment of receipt of facsimile transmission. Notices shall be sent to the signatory of this Agreement at the address set forth in the opening paragraph of this Agreement or such other address as either party may specify in writing.
No Waiver; Severability. A party’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by a court of competent jurisdiction, such unenforceable or invalid provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
Modification. This Agreement can be modified only by a written amendment signed by persons duly authorized to sign agreements on behalf of Customer and Bouldin, and variance from the terms and conditions of this Agreement in any order or written notification from either party shall be void and of no effect.
Section Headings. The section headings in the Agreement are solely used for the convenience of the parties and have no legal or contractual effect.
Entire Agreement. This Agreement and the applicable Order shall constitute the complete and exclusive agreement of the parties. A faxed, electronic, or scanned copy of and a certified electronic signature on this Agreement or any Order shall be sufficient to create an enforceable and valid agreement. In the event of a conflict between the terms of this Agreement and the terms contained in an Order, the terms of a signed Order shall control; for all other Order, the terms of this Agreement shall control.