1. License Grant
The Company hereby grants the Customer a nonexclusive, nonsublicensable, nontransferable, and revocable license to use the Company’s application software system known as Elevated X CMS (the “Software”), including compiled and obfuscated code, solely for the Customer’s internal business purposes.
1.1 Software License
The Company hereby grants the Customer a nonexclusive, nonsublicensable, nontransferable, and revocable license to use the Company’s application software system known as Elevated X CMS (the “Software”), including compiled and obfuscated code, solely for the Customer’s internal business purposes.
1.2 Reservation of Rights
Any rights not expressly granted to the Customer in this agreement are reserved to the Company. The Customer does not acquire any interest under this agreement other than the right to use the Software in accordance with this agreement.
2. InstallationThe Company will install the Software in the Customer’s chosen website hosting location or one provided by the Company.
3. Support ServicesThe Company will provide the Customer with the following support services:
3.1 Internet-based support system generally available Monday through Friday, 9AM to 5PM PST; and
3.2 24/7 emergency SMS paging for system outages / complete product non-function.
4. Maintenance Services
4.1 Fixes and Patches
The Company will provide the Customer with bug fixes and code corrections to correct software malfunctions to bring the Software into substantial conformity with the operating specifications.
Unless otherwise stated in writing or advertised as a paid option or addition, the Company will provide the Customer without charge with all extensions, enhancements, and other changes that the Company makes or adds to the Software.
5. Fees and Payment
5.1 The Customer will pay the Company the license fee and any add-on fees listed on the order form and on any monthly invoice issued after the initial order in accordance with the terms of that order form or invoice. The Customer acknowledges that the monthly payment to the Company may vary due to items or services purchased or added after the initial order.
5.2 The Customer will pay the Company for any additions and customizations before the Company begins working on the requested additions and customizations.
5.3 All fees and other amounts payable by the Customer under this agreement are exclusive of taxes and similar assessments. The Customer is responsible for all sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by the Customer under this agreement, other than any taxes imposed on the Company’s income.
5.4 If the Customer fails to make any payment when due then, in addition to all other remedies that may be available to the Company:
(a) the Company may disable the Software after the first weekday after the 15th of the month; or
(b) the Company may assess a 15% late fee if the Customer wants to extend the Customer’s payment until the end of the month.
5.5 All amounts payable to the Company under this agreement will be paid by the Customer to the Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
6. Rights, Restrictions, and Responsibilities
6.1 The Customer acknowledges that it will be responsible for all acts or omissions of authorized users. Any act or omission by an authorized user that, if undertaken by the Customer, would constitute a breach of this agreement, will be considered a breach of this agreement by the Customer. The Customer will undertake reasonable efforts to make all authorized users aware of the provisions of this agreement as applicable to that authorized user’s use of the Software, and will cause authorized users to comply with those provisions. For purposes of this section 6, “authorized user” means each individual given access to the Software by the Customer and permitted to perform work or make changes using the Software.
6.2 The Customer will not use the Software or the documentation for any purpose beyond the scope of the license granted here. Prohibited uses include (i) authorizing or permitting use of the Software or documentation by persons other than authorized users; (ii) using the Software except as stated in the documentation; (iii) using any “add-on” products without appropriate licensing or purchase; (iv) marketing or distributing the Software or the documentation; (v) assigning, sublicensing, selling, leasing, or otherwise transferring or conveying, or encumbering the Customer’s rights under the license granted here; (vi) modifying or creating any derivative works of the Software, documentation, or any component of them; or (vii) decompiling, disassembling, reverse engineering, or otherwise attempting to obtain or perceive the source code from which any component of the Software is compiled or interpreted. The Customer acknowledges that nothing in this agreement will be construed to grant the Customer any right to obtain or use the source code.
6.3 The Customer will not resell, white label, rent, partner, share, or otherwise make the Software available for use by any person except the Customer. An additional license is required and may be purchased for each subsequent/additional site/domain managed by but not owned by the Customer. Failure to obtain additional licenses for sites using the Software that are not owned by the Customer may result in immediate termination of this agreement and deactivation of the Software. The Customer will produce all evidence reasonably requested by the Company to establish ownership of any domain used in connection with the Software.
6.4 The Customer will not, under any circumstances, publicly or privately advertise or solicit use of, access to, or offer or make the Software available for use by anyone other than the Customer as part of a service, partnership, or any other relationship. Attempting to solicit others for shared use of the Customer’s copy of the Software may result in immediate termination of this agreement and deactivation of the Software.
6.5 The Company may, at its own expense, on reasonable notice, periodically inspect and audit the Customer’s use of the Software and documentation for purposes of determining the Customer’s compliance with this agreement. The Customer will cooperate with the Company in the performance of any audit, and will provide the Company with access to the Customer’s relevant records, data, information, personnel, or facilities as the Company may reasonable request for these limited purposes.
6.6 Use of the Software and documentation by the Customer will comply with all applicable laws, statutes, regulations, ordinances, or other rules. Additionally, the Customer acknowledges that the Company makes no statement that the Software may be exported without appropriate licenses or permits under applicable law, or that any license or permit has been, will be, or can be obtained.
6.7 The Customer acknowledges that it is responsible for making sure that it keeps its server/host-side hardware, software, and hosting related configuration up to date with the Company’s CMS requirements.
7. Term and Termination
This agreement begins on the order date and will continue so long as the Customer complies with this agreement and uses the Software in compliance with this agreement.
(a) Termination Because of Material Breach
Each party may terminate this agreement with immediate effect by delivery notice of the termination to the other party, if
• (i) the other party fails to perform, has made or makes any inaccuracy in, or otherwise materially breaches,
• (ii) any of its covenants, representations, or obligations, and
• (iii) the failure, inaccuracy, or breach continues for a period of 15 days’ after the injured party delivers notice to the breaching party reasonably detailing the breach.
(b) Termination Because of Insolvency
If either party becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other party may terminate this agreement with immediate effect.
7.3 Effect of Termination
On termination of this agreement, all rights, licenses, and authorizations granted to the Customer under with agreement will immediately terminate and the Customer will promptly stop use of and other activities with respect to the Software and documentation, and within 15 days deliver to the Company, or at the Company’s written request destroy, and permanently erase from all devices and systems the Customer directly or indirectly controls, the Software and the documentation, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials.
8. Intellectual Property Rights
8.1 Intellectual Property Ownership
The Customer acknowledges that:
• (a) the Software is licensed, not sold, to the Customer by the Company and the Customer does not and will not have or acquire under or in connection with this agreement any ownership interest in the Software, or in any related intellectual property rights;
• (b) the Company is and will remain the sole and exclusive owner of all interest in the Software, including all intellectual property rights relating to the Software, subject only to the limited license granted to the Customer under this agreement; and
• (c) the Customer hereby unconditionally and irrevocably assigns the Company its entire interest in any intellectual property rights that the Customer may now or later have in or relating to the Software (including any rights in derivative works or patent improvements relating to the Software), whether held or acquired by operation of law, contract, assignment, or otherwise.
The Customer acknowledges that the Company will have sole title (both legal and equitable) to all adaptations, enhancements, modifications, improvements, or other changes in or to the Software that either the Company or the Customer invent, create, or make.
8.3 Program Access
The Customer will not lock the CMS admin panel by any means other than the CMS’s built in method.
9.1 Maintaining Confidentiality
For as long as it remains Confidential Information, the Receiving Party will not (a) disclose that Confidential Information except as contemplated in this agreement, or (b) use that Confidential Information other than for purposes of this agreement.
9.2 Permitted Disclosure
The Receiving Party will disclose Confidential Information to only those of its representatives who
• (a) require the Confidential Information to perform under this agreement (but to the extent practicable, only the part that is required);
• (b) are informed in writing by the Receiving Party of the confidential nature of the Confidential Information; and
• (c) agree in writing to be bound by the obligations of this section 9.
9.3 Precautions against Unauthorized Disclosure or Use
The Receiving Party will take precautions to prevent disclosure or use of Confidential Information other than as authorized in this agreement. Those precautions must be at least as effective as those taken by the Receiving Party to protect its own Confidential Information or those that would be taken by a reasonable person in the position of the Receiving Party, whichever are greater. If the Receiving Party complies with its obligations under this section 9.3, the Receiving Party will not be liable for any losses or liabilities of the Disclosing Party arising out of misappropriation of Confidential Information from the Receiving Party by any third party.
9.4 Unauthorized Disclosure or Use by Representatives
If any one or more representatives of the Receiving Party disclose or use Confidential Information other than as authorized in this agreement, the Receiving Party will be liable to the Disclosing Party for that disclosure or use to the same extent that it would have been had the Receiving Party disclosed or used that Confidential Information.
9.5 Notification of Unauthorized Disclosure or Use
If the Receiving Party becomes aware of disclosure or use of Confidential Information other than as authorized in this agreement, the Receiving Party will promptly notify the Disclosing Party of that disclosure or use and will cooperate with the Disclosing Party in mitigating any adverse consequences to the Disclosing Party of that disclosure or use.
9.6 Disclosure Required by Law
(a) If any proceeding is brought to compel the Receiving Party or any of its representatives to disclose Confidential Information, or if the Receiving Party or any of its representatives is otherwise required by law to disclose any Confidential Information, the Receiving Party will do the following:
• (i) Unless by doing so the Receiving Party would violate any law or an order of a Government Body, notify the Disclosing Party of that proceeding or that requirement, as the case may be, promptly after learning of it, taking into account for purposes of determining the Receiving Party’s promptness any time constraints that the Disclosing Party would face in bringing a proceeding to prevent that disclosure or to protect the confidentiality of any information that is disclosed; and
• (ii) At the Receiving Party’s expense, cooperate with the Disclosing Party in any proceeding that the Disclosing Party brings to prevent that disclosure or to protect the confidentiality of any information that is disclosed.
(b) It will not constitute a breach of the Receiving Party’s obligations under this section 9 for the Receiving Party or any of its representatives to disclose Confidential Information as required by law, on condition that the Receiving Party has complied with its obligations under section 9.6(a) for that disclosure and has delivered to the Disclosing Party a written opinion of the Receiving Party’s legal counsel prepared at the Receiving Party’s expense stating that the disclosure is required by law and that opinion is reasonably acceptable to the Disclosing Party.
9.7 Nondisclosure of Restricted Information
The Disclosing Party will not disclose to the Receiving Party or any of its representatives any information if doing so would cause the Disclosing Party to breach a duty to any other person to keep that information confidential or would cause the Disclosing Party to violate any law or any order of a Government Body.
9.8 Export Controls
The Receiving Party will not export or re-export any Confidential Information, directly or indirectly, without first obtaining any license required under any export control laws.
9.9 No License
The Disclosing Party’s disclosure of Confidential Information will not constitute a grant to the Receiving Party or any of its representatives of a license to, or any other interest in, any intellectual property of the Disclosing Party unless stated in this agreement.
9.10 No Statement about Accuracy
The Disclosing Party is not making in this agreement any statement about accuracy of any Confidential Information. The Receiving Party acknowledges that because it has not relied on, and will not be relying on, any statements made by the Disclosing Party to the Receiving Party about accuracy of any Confidential Information, the Receiving Party will have no basis for bringing any claim for fraud about those statements.
9.11 Reverse Engineering
The Receiving Party will not reverse engineer, disassemble, or create other works from any software or hardware constituting or included in any Confidential Information.
9.12 Residual Information
Use of Residual Information for the Receiving Party’s benefit by any representatives of the Receiving Party to whom Confidential Information was disclosed in accordance with this section 9 will not constitute a breach of the Receiving Party’s obligations under this section 9, on condition that the Receiving Party did not have its representatives intentionally commit to memory the Confidential Information in question.
For purposes of this section, the following definitions apply:
• (a) “Confidential Information” means the following:
(i) Information (other than Excluded Information) relating to the Disclosing Party and its business that the Disclosing Party discloses to the Receiving Party during this agreement (including specifications, samples, patterns, designs, plans, drawings, documents, data, source code, object code, any other computer or programming code, business operations, customer lists, pricing, discounts, rebates, and information about the Disclosing Party’s products, services, marketing plans, and technical environment); and
(ii) Derived Information.
• (b) “Derived Information” means information (including notes, analyses, compilations, and summaries) that is in writing or embodied in an electronic medium and that the Receiving Party or any of its representatives derive, in whole or in part, from any information described in section 9.13(a)(i).
• (c) “Excluded Information” means information that comes within any of the following categories, with the Receiving Party having the burden of establishing that any information constitutes Excluded Information:
(i) Other than personally identifiable information, information that is or becomes public other than as a result of breach of any obligation under this agreement;
(ii) Information that, when it is disclosed, is already in the possession of the Receiving Party or any of its representatives as the result of disclosure by a person that was not under an obligation to the Disclosing Party to keep that information confidential;
(iii) Information that, after it is disclosed under this agreement, is disclosed to the Receiving Party or any of its representatives by a person that was not then under an obligation to the Disclosing Party to keep that information confidential; and
(iv) Information that the Receiving Party develops independently before the Disclosing Party discloses equivalent information to the Receiving Party.
• (d) “Government Body” means (i) the government of a country or of a political subdivision of a country; (ii) an instrumentality of any government; (iii) any other individual, entity, or organization authorized by law to perform any executive, legislative, judicial, regulatory, administrative, military, or police functions of any government; or (iv) an intergovernmental organization.
• (e) “Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or Government Body.
• (f) “Representative” means, as to an entity, any of that entity’s directors, officers, employees, agents, consultants, advisors, and other representatives.
• (g) “Residual Information” means, as to any individual, any Confidential Information that the individual remembers without any need to refer to that Confidential Information as fixed in a tangible medium.
10. Limited Warranty
The Company warrants, for the benefit of the Customer only, that the Software will perform in all material respects in accordance with the description in the documentation. The Company is not making any warranty that the use of the Software will be uninterrupted or error free, nor that program errors will be corrected. This limited warranty will not apply to any error or failure resulting from (a) machine error, (b) the Customer’s failure to follow operating instructions, (c) negligence or accident, or (d) modifications to the Software by any person other than the Company. In the event of a breach of warranty, the Company will use commercially reasonable efforts to repair the Software. The remedies set out in this section 10 are the Customer’s exclusive remedies, and the Company’s sole obligations, in the event of a breach of any warranty under this agreement.
11. Limitation of Warranties
Except as set out in section 10, the Software, documentation, and maintenance services are sold “as is” and without any warranty as to the performance, noninfringement, merchantability, design, or operation of the Software. The Company is not making any warranty of fitness for a particular purpose. The Company does not state that the Software or maintenance services will be uninterrupted or error free or meet the Customer’s requirements. Except as described in section 10, all warranties, express and implied, are disclaimed.
12. Limit of Liability
12.1 Exclusion of Liability
The Company will not be liable for past elements that are no longer supported due to being outdated or being replaced by other things. If the element is not included in the current software build, the Company is not liable for it. The Company will not be liable for technical support services for server performance or uptime guarantees.
12.2 Exclusion of Damages
The Company will not 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, and 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 off any software or open-source components or other third-party materials; (d) loss, damage, corruption, or recovery of data, ore breach of data or system security; (e) cost of replacement goods or services; or (f) consequential, incidental, indirect, statutory, exemplary, special, enhanced, or punitive damages, in each case regardless of whether the Company was advised of the possibility of these losses or damages or those losses or damages were otherwise foreseeable, and despite the failure of any agreed or other remedy of its essential purpose.
12.3 Cap on Monetary Liability
The aggregate liability of the Company 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 the Company under this agreement in the one-month period before the event giving rise to the claim. The foregoing limits apply even if any remedy fails of its essential purpose.
13.1 In General
• (a) The Customer will pay the Company for any loss of the Company’s that is caused by the Customer’s (i) breach of this agreement; (ii) abuse, misuse, or unauthorized use of the Software; (iii) actual or alleged violation or infringement of third-party rights, including intellectual property rights; (iv) actual or alleged violation of law; or (v) actual or alleged tortious conduct. But the Customer is not required to pay if the loss was caused by the Company’s intentional misconduct.
• (b) The Company will pay the Customer for any loss of the Customer’s that is caused by the Company’s actual infringement of third-party intellectual property rights, but excluding any patent issued on a patent application published after January 1, 2006. But the Company is not required to pay if the loss arises from any allegation of or relating to (i) any open-source components or other third-party materials; (ii) patent issued on a patent application published after the date of this agreement; (iii) unauthorized use or modification of the Software; or (iv) events or circumstances outside of the Company’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions).
• (a) “Loss” means an amount that the injured party is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
• (b) A loss is “caused by” an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
13.3 Duty to Notify
The injured party will notify the indemnifying party before the 15th business day after the injured party knows or should reasonably have known of a claim for a loss that the indemnifying party might be obligated to pay. The injured party’s failure to give the indemnifying party timely notice does not terminate the indemnifying party’s obligation, except to the extent that the failure prejudices the indemnifying party’s ability to defend the claim or mitigate losses.
13.4 Legal Defense of a Claim
• (a) Injured Party’s Control
The injured party has control over defending a claim for a loss (including settling it), unless the injured party directs the indemnifying party to control the defense.
• (b) Direction to Control
If the injured party directs the indemnifying party to control the defense, each of the following applies:
(i) The indemnifying party may choose and retain legal counsel.
(ii) The injured party may retain its own legal counsel at its expense.
(iii) The indemnifying party will not settle any litigation without the injured party’s written consent if the settlement (1) imposes a penalty or limitation on the injured party, (2) admits the injured party’s fault, or (3) does not fully release the injured party from liability.
• (c) Good Faith
The indemnifying party and the injured party will cooperate with each other in good faith on a claim.
13.5 No Exclusivity
The injured party’s rights under this section 13 do not affect other rights that the injured party might have.
14. Dispute Resolution
14.1 Litigation Election
Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this section 14.
Each party will give the other a reasonable opportunity to comply before it claims that the other has not met its obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of, or relating to the subject matter of, this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “dispute notice”). A primary representative designated by each party will try to resolve the dispute. If the parties’ primary representatives fail to resolve the dispute no later than 15 days after receiving a dispute notice, a vice president (or higher-level officer) of each party will try to resolve it.
If the vice presidents (or higher-level officers) of the parties are unable to resolve the dispute no later than 30 days after receiving the dispute notice, either party may, by notice to the other party and the American Arbitration Association, demand mediation under the Commercial Mediation Rules of the American Arbitration Association. Mediation will take place in Los Angeles County, California. Each party will bear its own costs in mediation and the parties will share equally between them all third-party mediation costs unless the parties agree otherwise in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
• (a) If the parties cannot fully settle a dispute through mediation, the parties will settle any unresolved dispute arising out of this agreement or relating to the subject matter of this agreement by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
• (b) A single arbitrator will preside over the arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator will issue a final award on all issues submitted to the arbitrator. The arbitrator’s award will be binding on the parties and judgement on the award rendered in the arbitration may be entered in any court having jurisdiction.
• (c) Arbitration will take place in Los Angeles County, California. Except as provided in section 14.7, the parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case.
• (d) Unless required by law, neither a party nor the arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
14.5 Equitable Remedies
The Customer acknowledges that a breach or threatened breach by the Customer of any of its obligations under section 8 (Intellectual Property Rights), section 9 (Confidentiality), or section 13 (Indemnification) of this agreement would cause the Company irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of that breach or threatened breach, the Company will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.6 Jurisdiction and Venue
• (a) If a party brings any court proceeding authorized under this agreement, that party will bring that court proceeding only in the United States District Court for the Central District of California or in any state court in Los Angeles County, California, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any court proceeding, except that judgement on an award rendered in arbitration may be entered in any court of competent jurisdiction.
• (b) Each party hereby waives any claim that any court proceeding brought in accordance with section 14.6(a) has been brought in an inconvenient forum or that the venue of that court proceeding is improper.
14.7 Recovery of Expenses
• (a) In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.
• (b) For purposes of section 14.7(a), “prevailing party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
14.8 Jury Trial Waiver
Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
14.9 Limited Time to Bring Claims
A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than six months after the cause of action arose. Any claim brought after one year is barred.
15.1 Entire Agreement
This agreement and the related order form constitutes the entire agreement of the parties with respect to the subject matter of this agreement. It supersedes all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the transactions contemplated in this agreement.
The parties may amend this agreement only by a written agreement of the parties that identities itself as an amendment to this agreement.
15.3 Assignment and Delegation
The Customer will not assign any rights or delegate any performances under this agreement without the Company’s advance written consent. The Company may assign its rights or delegate its performances under this agreement without the Customer’s written consent. Any purported assignment of rights or delegation of performance in breach of this section 15.3 is void. No assignment or delegation will relieve the Customer of any of its obligations under this agreement.
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
• (a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
• (b) that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
• (c) that if an unenforceable provision is modified or disregarded in accordance with this section 15.5, then the rest of the agreement will remain in effect as written; and
• (d) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
15.6 Public Announcements
The Customer will not use the Company’s name, logos, service marks, trademarks, trade names, domain names, or other indicia of source, association, or sponsorship without the Company’s advance written consent. The Company may use the Customer’s name, logos, service marks, trademarks, trade names, domain names, or other indicia of source, association, or sponsorship for announcements, statements, press releases, or other publicity or marketing materials relating to this agreement.
• (a) All notices and other communications between the parties will be in writing.
• (b) All notices will be given by (i) personal delivery; (ii) a nationally-recognized, next-day courier service; (iii) first-class registered or certified mail, postage prepaid; or (iv) electronic mail to the following addresses (or any other address either party may specify in writing):
Elevated X, Inc.
Attn: AJ Hall
24307 Magic Mtn. Pkwy. #435
Valencia, California 91355
Name and contact information identified on order form.
• (c) All notices will be effective on receipt by the party to which notice is given, or on the fifth day after mailing or emailing, whichever occurs first.
15.8 Governing Law
The laws of the state of California—without giving effect to its conflicts of law principles—govern all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
15.9 Force Majeure
• (a) If a force majeure event prevents a party from complying with any one or more obligations under this agreement, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that force majeure event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that force majeure event, and (3) that party complies with its obligations under section 15.9(c).
• (b) For purposes of this agreement, “force majeure event” means, for any party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstances that results in that party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
• (c) If a force majeure event occurs, the noncomplying party will promptly notify the other party of occurrence of that force majeure event, its effect on performance, and how long the noncomplying party expects it to last. From then on, the noncomplying party will update that information as reasonably necessary. During a force majeure event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
15.10 No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
15.11 Relationship of the Parties
The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
15.12 Successors and Assigns
This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 15.12 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 15.3 addresses these matters.
15.13 Further Assurances
The parties will take any further actions, or sign any further documents, as may be necessary to implement and carry out the intent of this agreement.
15.14 Export Regulation
The Customer will not itself, or permit any other person to, export, reexport, or release, directly or indirectly any controlled technology to any country, jurisdiction, or person to which the export, reexport, or release of controlled technology (a) is prohibited by applicable law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval). For purposes of this section 15.14, “controlled technology” means any software, documentation, technology, or other technical data, or any products that include or use any of the foregoing, the export, reexport, or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law, including the US Export Administration Act and its associated regulations.
The parties may sign this agreement in any number of counterparts. The parties will consider each counterpart an original, and all counterparts, when taken together, will form the same agreement.
15.16 Electronic Signatures
The Customer acknowledges that any affirmation, assent, or agreement the Customer sends through www.elevatedx.com in response to a prompt binds the Customer. The Customer further acknowledges that when the Customer clicks on an “I agree,” “I consent,” or other similarly worded “button” or entry field using a finger (for touchscreen devices), mouse, keystroke, or other device, this action is the legal equivalent of the Customer’s handwritten signature and binds the Customer in the same way.
15.17 Voluntary Agreement
The parties have signed this agreement voluntarily and for valid reasons. The parties acknowledge that they (i) have carefully read this agreement, (ii) discussed it with their attorneys or other advisors, (iii) understand all the terms, and (iv) will comply with it. The parties have relied on the advice of their attorneys or other advisors about the terms of this agreement and waive any claim that the terms should be construed against the drafter.
15.18 No Reliance
Each party acknowledges that in signing this agreement, that party does not rely and has not relied on any statement by the other party or its agents, except those statements contained in this agreement.
In this agreement, the following usages apply:
• (a) Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
• (b) References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
• (c) References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
• (d) References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
• (e) “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
• (f) “Including” means “including, but not limited to.”