Terms & Conditions

 

These Terms and Conditions (the “Terms”) describe the relationship between Leonardo247, Inc., a Delaware corporation with its principal offices at 3300 Dallas Parkway, Suite 200, Plano, TX 75093 (“Licensor”) and the licensee named on the applicable Order Form (“Licensee”). These Terms, any exhibits, schedules and addendums attached hereto (if any), and any order forms signed by both parties that reference these Terms and Conditions (each, an “Order Form”) shall collectively be referred to herein as this “Agreement”. Each Order Form is governed by, and incorporates by reference, these Terms. In the event of a conflict between these Terms and an Order Form, the Order Form will control unless explicitly stated otherwise.

1. SERVICES
   • Services. The Services include operations and maintenance management software designed to assist users in the automation of processes and tasks related to the operation of real property. As used herein, the “Services” means any services provided by Licensor to Licensee as set forth on the applicable Order Form and any other related content, materials or information enabled or available on the foregoing or any other content, materials or information otherwise provided by or on behalf of Licensor.
   • Access.
     • Access and Use. Subject to the terms and conditions of this Agreement, including Licensee’s timely payment of all amounts due hereunder, Licensor hereby grants to Licensee, during the Term (as defined below), and Licensee hereby accepts from Licensor, a limited, personal, non-exclusive, non-transferable (except as otherwise set forth herein), non-sublicensable (except as otherwise set forth herein), and revocable right and license to access and use the Services solely for Licensee’s internal business purposes.
     • App License. For any mobile application (“App”) made available as part of the Services, subject to the terms and conditions of this Agreement and any third-party app store proprietor terms of use, Licensor hereby grants Licensee, subject to Licensee’s compliance with this Agreement, a limited, personal, non-exclusive, non-transferable (except as otherwise set forth herein), non-sublicensable (except as otherwise set forth herein), revocable right and license to download, install and use a copy of the App solely for Licensee’s internal business use.
     • Acceptable Use Policy; Privacy Policy. In connection with this Agreement and its use of the Services, Licensee shall comply with all related policies Licensor may communicate from time to time, including Licensor’s Privacy Policy currently available at https://leonardo247.com/privacy-policy/ and Acceptable Use Policy currently available at https://leonardo247.com/acceptable-use-policy/ (the “Acceptable Use Policy”), each of which are hereby incorporated by reference as a part of this Agreement.
     • Authorized Users. Users authorized by Licensee to access and use the Services on Licensee’s behalf (“Authorized Users”) may access and use the Services on Licensee’s behalf contingent upon each such Authorized User’s compliance with the terms and conditions of this Agreement and the Acceptable Use Policy, provided that: (i) each Authorized User has a separate user account and only one Authorized User has access to each account; (ii) such use is only in furtherance of Licensee exercising its rights granted and fulfilling its obligations set forth herein; (iii) such use does not represent or constitute an increase in the scope of the license provided hereunder; and (iv) Licensee remains fully responsible and liable for any and all acts or omissions by each Authorized User related to this Agreement and the Acceptable Use Policy as if such acts or omissions are committed by Licensee itself. For the avoidance of doubt, each Property Stakeholder shall be an Authorized User of Licensee, and each Property Stakeholder may designate one or more of its employees, agents or independent contractors as the same. As used herein, a “Property Stakeholder” means any Property Manager, Property Landlord, Owner or Additional Party as set forth on and defined in Schedule A to the Order Form. Licensee shall promptly notify Licensor of any changes to Schedule A by sending an email to help@leonardo247.com or through the Services.
   • Covered Properties. During the Term, Licensee can, at any time with a minimum of 30 days’ notice, add properties to the list of Covered Properties (as defined in the applicable Order Form) by sending an email to help@leonardo247.com that indicates the properties to be added or by adding the properties directly to the portfolio list through the Services. These actions will add such Covered Properties to Licensee’s subscription and Licensee will be responsible for any Fees for such added Covered Properties. Prior to the effective date of the addition of the new Covered Property, Licensee must provide Licensor a completed Schedule A for the additional Covered Property to be incorporated into the applicable Order Form. Licensee may only remove a Covered Property from Licensee’s account for convenience if (i) Owner no longer holds title to such Covered Property or (ii) if Licensee is no longer contractually managing the Covered Property (each, a “Change Event”). In the event of a Change Event, Licensee must: (a) provide written notice in form and substance satisfactory to Licensor certifying the Change Event (such notice, a “Notice of Sale”); (b) provide a minimum of 30 days written notice; and (c) remain responsible for all Fees through the notice period without monthly proration.
   • Additional Services. Licensor may provide, and Licensee may elect to receive or benefit from, additional Services (g., professional services) from time to time (collectively, “Additional Services”). The Additional Services are subject to Licensor’s additional terms described on separately executed Order Forms in accordance with the terms contained in such Order Forms.
   • Enhancements; Updates. Licensor may, in its sole discretion, elect to offer separate product enhancements, offerings, extensions, updates and upgrades to the Services (collectively, “Enhancements”). In the event that access to any Enhancement requires payment of additional fees or consideration for access, Licensee shall be provided an opportunity to elect whether to add or accept such Enhancement as part of the Services.
   • [.]
2. PROPRIETARY RIGHTS.
   • Ownership. Licensor and its suppliers own all rights, title and interest in and to the Services (excluding any Property Data hosted therein), and to any Performance Data or Aggregated Data (each as defined below), including but not limited to concepts, specifications, integration scenarios and examples of code, and all intellectual property rights in each of the foregoing. The Services are licensed, not sold, to Licensee for use only under the terms of this Agreement, and Licensor reserves all rights in and to the Services not expressly granted herein. Licensee acknowledges and agrees that Licensee’s entering into this Agreement is neither contingent on the delivery of any future features or functionality nor subject to any written or oral statement made by Licensor regarding future features or functionality. This Agreement does not grant any ownership right, title or interest, nor any security interest or other interest, without limitation, in any intellectual property rights relating to the Services (including any source materials) nor any copy thereof.
   • Feedback. If Licensee elects to provide or make available to Licensor any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Licensor shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in Licensee’s Feedback in any form and any medium (whether now known or later developed) without credit or compensation to Licensee.
3. RESTRICTIONS ON USE. Licensee shall not itself or through any other party (including any Authorized User): (a) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services or any software component thereof; (b) license, sublicense, sell, resell, transfer, assign, distribute or make available, in whole or in part, the Services to any third party; (c) build a product using similar ideas, features, functions or graphics of the Services or otherwise engage in competitive benchmarking; (d) use the Services to (i) send or store infringing, threatening, harassing, defamatory, libelous, obscene, pornographic, indecent or otherwise unlawful or tortious materials, including materials harmful to children or violating third-party privacy rights, (ii) send or store materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (iii) perform any function for which the Services are not designed, as specified in its functional specifications, or (iv) engage in any illegal, unauthorized or otherwise improper activities; (e) interfere with or disrupt the integrity or performance of the Services or the data contained therein, or attempt to probe, scan or test vulnerability of the Services without prior authorization of Licensor; (f) use any equipment, device, software or other means to circumvent or remove any usage restrictions; (g) attempt to gain unauthorized access to the Services or its related systems or networks; or (h) use or offer any functionality of the Services on a service provider, service bureau, hosted, software as a service, or time-sharing basis, provide or permit other individuals or entities to create Internet links to the Services, or frame or mirror the Services on any other server or wireless or Internet-based device. Licensee agrees that the Services contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, trade secret, patent and trademark protection, and that Licensee will not use such proprietary content, information, or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means other than as expressly permitted herein. Licensee covenants not to make any representations or warranties to any third parties with respect to the Services other than as have been approved by Licensor in writing.
4. DATA
   • Registration Data and Other Information Provided by Licensee. Licensee agrees to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Services (“Registration Data”); (b) maintain the security of usernames and passwords; (c) maintain and promptly update the Registration Data, and any other information Licensee provides to Licensor, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided by Licensee. Licensee is responsible for all activity on its account for Services, and for all charges incurred by Licensee in connection with the Services.
   • Property Data. “Property Data” means all information, data, or materials that Licensee discloses, posts, inputs, uploads, or otherwise provides to Licensor in connection with using the Services, including information related to residents, occupants, units, any Covered Property, tasks, projects, or the like. Licensee hereby grants Licensor a non-exclusive, royalty-free, sublicensable, transferable right to use, copy, display, perform, reproduce, distribute, publish, modify, adapt, translate, create derivative works from, and share pursuant to Section 6 for the purposes of: (a) providing the Services to Licensee; (b) exercising Licensor’s rights and fulfilling its obligations under this Agreement; and (c) generating Aggregated Data (as defined below). All rights in and to the Licensee Data not expressly granted herein are retained by Licensee. Notwithstanding and subject to Section 6.4, during the Term, Licensor will store Property Data for so long as the applicable Covered Property remains active on Licensee’s subscription (the “Data Storage Term”). Unless Licensee purchases additional storage space for the Property Data during the Term, such Property Data will be deleted from Licensor’s active databases after the Data Storage Term. Licensee shall not provide or store any unit rental pricing information through the Services, and Licensor will not use any Property Data or Aggregated Data for the purpose of calculating, determining, recommending or disclosing any unit rental pricing information, whether to Licensee, its Authorized Users or any third party.
   • Data Representations. Licensee will be solely responsible for providing all appropriate notices to third parties (including all employees, agents, and independent contractors (collectively, “Personnel”) and any residents or occupants of or other individuals renting a unit in a Covered Property) and obtaining all necessary consents and rights for Licensor to use the Property Data submitted by or on behalf of Licensee for the purposes set forth in this Agreement, including all consents required in accordance with all applicable privacy laws. Licensee, and not Licensor, is entirely responsible for all Property Data that Licensor or any Authorized User submits, uploads, emails, transmits, or otherwise makes available, either directly or indirectly, through or to the Services or to Licensor, including ensuring the accuracy, completeness, and integrity of such Property Data. Licensor represents and warrants that any Property Data submitted, uploaded, emailed, transmitted, or otherwise made available, either directly or indirectly, through or to the Services or to Licensor shall not: (a) violate Licensor’s then-existing policies, this Agreement or any other laws or regulations applicable to such Property Data, including privacy and data protection laws; (b) contain downloadable software or malicious code, or content or links to websites that contain content (or further links to content); (c) be illegal, discriminatory, unethical, defamatory, obscene, hateful, libelous, or that otherwise may reflect negatively upon Licensor’s reputation; or (d) infringe, misappropriate, or violate the intellectual property rights of any third party. Licensee agrees that any use of the Services contrary to or in violation of the foregoing constitutes a material breach of this Agreement.
   • Performance Data. “Performance Data” means any analytics or similar data collected, generated, or processed by Licensor based on Licensee’s access to and use of the hosted aspects of the Services and any App. Performance Data will be owned by Licensor, and Licensor may collect and use such Performance Data for any lawful purpose, provided that Licensor will only disclose Performance Data to third parties, including its subcontractors, to facilitate its provision of the Services, for its internal purposes (including to improve its products and services), to perform its other obligations and exercise its other rights under this Agreement, or as otherwise required by law.
   • Aggregated Data. Notwithstanding anything to the contrary herein, Licensee agrees that Licensor may use Property Data and Performance Data to create aggregated, anonymized and deidentified data or information of similar form that does not permit the identification of Licensee or any individual or entity (the “Aggregated Data”). Licensee further agrees that Licensor shall own such Aggregated Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.
5. LICENSE FEES AND PAYMENT
   • Charges and Payment of Fees.
     • Fees. Licensee shall pay all applicable Fees set forth in an applicable Order Form in effect at the time when such Fees are due and payable.
     • Additional Payment Terms and Acceleration. All Fees shall be in the currency set forth in an applicable Order Form. All amounts paid are nonrefundable, unless otherwise explicitly set forth herein. If Licensee provides notice of non-renewal during the Term (as defined below) under Section 1, for any reason other than Licensor’s material breach, or provides a Notice of Sale pursuant to Section 1.3, all amounts owed under this Agreement for the remainder of the Term will be accelerated and due and payable within thirty (30) days from the notice of termination.
   • Taxes. The Fees are exclusive of and do not include taxes, duties, or charges of any kind. If Licensor is required to pay or collect any local, value added, goods and services taxes or any other similar taxes, assessments, charges or duties (collectively, “Taxes”) arising out of or related to this Agreement (not including taxes based on Licensor’s net income), then such Taxes shall be billed to and paid by Licensee in accordance with the terms of this Agreement.
   • Interest. Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law if less, from the due date until paid. Licensor reserves the right to collect from Licensee reasonable collection fees and costs associated with recovering any past due invoice, including attorney’s fees and collection agency fees.
6. TERMINATION AND SUSPENSION
   • License Term. This Agreement commences on the effective date of an applicable Order Form and shall remain in effect for the initial term specified in the accompanying Order Form (the “Initial Term”), unless earlier terminated as provided herein. Upon the expiration of the Initial Term, this Agreement shall automatically be renewed for additional periods of equal duration to the Initial Term (each, a “Renewal Term”) unless otherwise elected by either party by providing written notice to the other at least thirty (30) days prior to the expiration of the Initial Term of the then-current Renewal Term.  The Initial Term and any Renewal Terms are collectively referred to as the “Term”.
   • Assumption Prior to Termination. Upon receipt of Licensee’s notice to not renew this Agreement pursuant to Section 1, Licensor may, in its sole discretion, contact any Property Stakeholder and provide such Property Stakeholder an opportunity to assume Licensee’s rights and licenses granted and obligations set forth herein with respect to the applicable Covered Property. In the event a Property Stakeholder agrees to assume Licensee’s rights and licenses granted and obligations set forth herein (the “Assuming Party”), Licensee hereby agrees to assist Licensee and the Assuming Party in every proper way to timely secure the transfer, assumption or assignment of this Agreement to the Assuming Party. For the avoidance of doubt, Licensor’s exercise of its rights under this Section 6.3 and/or any sharing of information with a Property Stakeholder regarding continued access to the Services shall not constitute a breach of Licensor’s obligations under Section 8 or otherwise.
   • Termination for Cause. Either Party may terminate this Agreement: (i) upon thirty (30) days’ written notice to the other Party if the other Party materially breaches this Agreement in a manner that is curable, and the breaching Party fails to cure such breach within such time period; or (ii) immediately upon notice to the other Party if the other Party materially breaches this Agreement in a manner that is not curable. Licensor may also terminate this Agreement if Licensee becomes subject to bankruptcy proceedings, become insolvent, or makes an assignment for the benefit of Licensee’s creditors.
   • Suspension. In addition to Licensor’s right to terminate this Agreement under Section 2, Licensor may suspend Licensee’s access to the Services: (a) if Licensee fails to make a payment to Licensor and such payment default is not cured within thirty (30) days of the date on which the payment was originally due; or (b) if deemed necessary or appropriate by Licensee in its sole discretion to maintain information security. If access is suspended pursuant to clause (b), Licensor will use commercially reasonable efforts to limit suspension to the minimum extent and duration necessary.
   • Effect of Termination; Survival. Upon termination or expiration of this Agreement for any reason: (a) Licensee will immediately cease use of the Services; and (b) any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination. Further, Licensee agrees that Licensor shall not be liable to Licensee or any third party (including any Property Stakeholder) for any termination of Licensee’s account or access to the Services.
   • Database Release or Transfer; Retention. Upon termination of this Agreement or termination of the Data Storage Term for a Covered Property, Licensee may request Licensor provide a copy of applicable Property Data, including action item histories and notes, to: (i) Licensee; or (ii) an Assuming Party with respect to a specific Covered Property. Unless specifically requested by Licensee or reasonably required for the Assuming Party to exercise its rights or fulfill its obligations with respect to the assumed agreement, Property Data provided under (ii) above shall not include Registration Data. The data shall be provided in a .CSV format or such other format as Licensor may reasonably deem appropriate. Such a request shall be subject to the Fees set forth in an applicable Order Form or Licensor’s current standard pricing for such services. Licensee must submit such request in writing to Licensor within thirty (30) days of termination, and Licensor shall deliver the applicable Property Data within thirty (30) days of the request. Prior to the expiration of the 60-day time period following the termination of this Agreement, Licensee may request that Licensor retain any or all Property Data for an extended period. If Licensor elects to grant such request, Licensee shall be charged the Fees set forth in an applicable Order Form or Licensor’s current standard pricing for such data retention. If Licensee fails to request extended data retention prior to the expiration of the 60-day time period following the termination of this Agreement, then following such time period, or upon Licensee’s written request, whichever is earlier, Licensor shall destroy all Property Data in its possession. Notwithstanding the foregoing, Licensor may retain, subject to the confidentiality obligations hereunder: (a) Property Data for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning or business continuity purposes; and (b) copies of the Property Data which Licensor may be required to maintain under applicable law or regulation or for audit and compliance purposes. For the avoidance of doubt, for the purposes of this Section and this Agreement, Property Data shall not include Performance Data or Aggregated and Anonymized Data. For the avoidance of doubt, if this Agreement is assumed by an Assuming Party pursuant to Section 2, this Agreement shall not be considered terminated with respect to the applicable Covered Property, and Licensor shall have no obligation to provide Licensee with a copy of the Property Data unless mutually agreed otherwise by Licensee, Licensor and the Assuming Party.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
   • Representations and Warranties by Licensee.
     • Right to Bind Owner. To the extent Licensee is not the Owner, Licensee hereby represents and warrants that it has all necessary authority to bind the applicable Owner to the terms of this Agreement and that upon Licensee entering into this Agreement, this Agreement will be binding upon each of Licensee and Owner. For avoidance of doubt, each Owner shall be the beneficiary of the benefits and responsible for the obligations of this Agreement, including the payment of Fees pursuant to the terms hereof, with respect to the Covered Property it owns, and Licensee shall ensure each Owner’s compliance with its obligations hereunder and be jointly and severally liable for such obligations.
     • Non-Discriminatory Use. Licensee hereby represents and warrants that it will not, and will ensure that each Authorized User does not, use the Services in any manner that: (i) violates the federal Fair Housing Act (42 U.S.C. §§ 3601-3619), applicable state fair housing laws, or any other applicable anti-discrimination laws or regulations; or (ii) facilitates discrimination based on race, color, religion, sex, familial status, national origin, disability, sexual orientation, gender identity, or any other protected characteristic under applicable law. Any violation of this provision shall constitute a material, uncurable breach of this Agreement.
   • Disclaimer of Warranties.
     • General. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND LICENSOR DISCLAIMS ALL WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR NONINFRINGEMENT. LICENSOR DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PROPERTY DATA WILL NOT BE LOST OR COMPROMISED. LICENSOR SHALL NOT BE RESPONSIBLE FOR, AND IS EXPRESSLY RELIEVED OF RESPONSIBILITY FOR: (1) ITS REASONABLE RELIANCE ON ANY INACCURATE OR INCOMPLETE CONTENT PROVIDED TO IT HEREUNDER; AND (2) LICENSEE OR ITS PARTNERS’ COMPLIANCE WITH ANY APPLICABLE STATUTE, CODE OR OTHER REGULATION OR LAW.
     • Disclaimer for Property Maintenance. THE SERVICES ARE NEITHER A SUBSTITUTE FOR A PROPERTY MANAGER OR PROPERTY OWNER’S OWN PROPERTY MANAGEMENT OPERATIONS, RISK MANAGEMENT PROGRAM, LIFE SAFETY PROTOCOL OR BUILDING MAINTENANCE SCHEDULE, NOR ARE THE SERVICES A SUBSTITUTE FOR LICENSEE’S OR ITS PERSONNEL’S PROFESSIONAL JUDGMENT, EXPERIENCE, TRAINING, OR INDEPENDENT TESTING. THE SERVICES SHOULD NOT BE RELIED UPON FOR PROFESSIONAL, PERSONAL, LIFE SAFETY, RISK MANAGEMENT, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT A QUALIFIED PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR PROPERTIES, SITUATION, AND MANAGEMENT PROGRAM. USERS OF THE SERVICES ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SERVICES AND THE RESULTS OF THEIR USE.

8. Each party agrees that during and after the Term it will hold in strictest confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other party. “Confidential Information” means all non-public information, whether business or technical in nature, that the other party designates as being confidential, or which under the circumstances of disclosure ought to be treated as confidential, and shall include (but is not limited to) information concerning trade secrets, know-how, business methods, business plans, new product launches, customer and vendor information, internal policies and procedures and pricing and other financial information. The receiving party will protect the disclosing party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event less than reasonable care.  Neither party shall disclose the terms or conditions of this Agreement or any Confidential Information disclosed hereunder without the prior written consent of the other party, except: (i) as may be required by applicable law; or (ii) to its Personnel or agents who have a specific need to know such information and are bound by a written obligation or legal duty of confidentiality at least as restrictive as that contained in this Section; provided that the receiving party shall be liable for any breach of this Section 8 by such Personnel or agents.  Notwithstanding the foregoing, information will not be deemed Confidential Information if it: (A) was known to the receiving party and acquired through proper methods prior to its receipt from the disclosing party, as evidenced by written records of the receiving party; (B) is now or (through no act or failure on the part of the receiving party) later becomes generally known through no breach of this Agreement by the receiving party; (C) is supplied to the receiving party by a third party that is free to make that disclosure without restriction; or (D) is independently developed by the receiving party without use of or reference to any Confidential Information provided by the disclosing party.  The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party, provided that in each such case the receiving party provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief. Any breach of this Section 8 may irreparably harm the disclosing party. As such, in the event of a breach, in addition to any other remedy provided herein or by law or in equity, the disclosing party is entitled to seek injunctive relief in a court of competent jurisdiction without the requirement to prove actual damages or to post any applicable bond.
9. INDEMNIFICATION; DISCLAIMERS OF WARRANTIES AND LIABILITY
   • • By Licensor. Licensor will defend at its expense any suit, action or investigation brought against Licensee, and will pay any settlement Licensor makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the use of the Services infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Services becomes, or in Licensor’s opinion is likely to become, the subject of a claim of infringement (“Infringing Technology”), Licensor may, at Licensor’s option: (i) procure for Licensee the right to continue using the Infringing Technology; (ii) replace the Infringing Technology with non-infringing software or services which do not materially impair the functionality of the Services; (iii) modify the Infringing Technology so that it becomes non-infringing; or (iv) terminate this Agreement and refund any prepaid, unused portion of the Fees (if applicable). Notwithstanding the foregoing, Licensor will have no obligation under this section or otherwise with respect to any infringement claim based upon: (A) any use of the Services not in accordance with this Agreement; (B) any use of the Services in combination with other products, equipment, software or data not supplied by Licensor; or (C) any modification of the Services by any person other than Licensor or its authorized agents (each, an “Exclusion”). This section states the sole and exclusive remedy of Licensee and the entire liability of Licensor, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
     • By Licensee. Licensee will defend at its expense any suit, action or investigation brought against Licensor, and will pay any settlement Licensee makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a third-party (including any Property Stakeholder not a party hereto) claim arising out of or relating to: (i) an Exclusion; (ii) Licensee’s breach of law; or (iii) Licensee’s breach or alleged breach of Sections 4.3 (Data Representations) or 2 (Representations and Warranties by Licensee).
     • Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 9, except to the extent the indemnifying party has been prejudiced thereby; (ii) the indemnifying party having sole control of the defense or settlement of any claim or suit; and (iii) the indemnified party cooperating, at the indemnifying party’s expense, with the indemnifying party to facilitate the settlement or defense of any claim or suit.
   • Limitations of Liability. EXCLUDING LICENSEE’S PAYMENT OBLIGATIONS HEREUNDER, BREACHES OF SECTIONS 2 (ACCESS), 3 (RESTRICTIONS ON USE), 4.3 (DATA REPRESENTATIONS), 7 (REPRESENTATIONS AND WARRANTIES; DISCLAIMERS) AND 9.1 (INDEMNIFICATION) OR ANY DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, COSTS OF DELAY, BUSINESS INTERRUPTION, COST OF REPLACEMENT SERVICES, COSTS OF LOST OR DAMAGED PROPERTY, DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE (WHETHER A CLAIM FOR SUCH DAMAGES IS BASED, WITHOUT LIMITATION, ON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS PAID OR PAYABLE FROM LICENSEE TO LICENSOR IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE DATE OF WHICH SUCH LIABILITY AROSE.
   • Reliance on Disclaimers. Licensor and Licensee acknowledge that Licensor has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Licensor and Licensee agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose.
10. ARBITRATION OF DISPUTES. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within thirty (30) days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be confidential and conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in Wilmington, Delaware. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The arbitrator’s decision will be final and binding on both parties. Notwithstanding the foregoing, this Section 10 will not prohibit either party from seeking injunctive or other equitable relief in a court of competent jurisdiction.
11. MISCELLANEOUS PROVISIONS
    • Entire Agreement. This Agreement and any other terms referenced in this Agreement constitute the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof. Each party acknowledges that, in entering into this Agreement, it is not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement. Terms stipulated by Licensee in any communication by Licensee which purport to vary from this Agreement or such other terms will be void and of no effect unless explicitly agreed in a writing signed by an authorized representative of Licensor. Licensor may, at its discretion, update these Terms from time to time upon prior notice to Licensee. Licensee’s continued use of the Services following such notice shall constitute acceptance of such updated Terms. Any other modification to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of each party.
    • Insurance. Each party shall maintain, at its own cost, general liability, and other appropriate insurance in an amount appropriate to the nature and scope of its services, products, and business, which is reasonable and customary in its respective industry for entities of comparable size and activities. Each party shall, upon the reasonable written request of the other party, provide the other party with a certificate of insurance confirming coverage.
    • Governing Law. The validity, construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware except as to its principles of conflicts of laws. Licensor and Licensee agree that this Agreement is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, any codification of the Uniform Computer Information Technology Act (UCITA), or any references to the United National Convention on Contracts for the International Sale of Goods.
    • No Waiver. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
    • Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations.
    • Agreement Construction. Ambiguities in this Agreement will not be construed against the drafter. Any headings, titles, and captions used in this Agreement are for reference purposes only and should not have any effect on the interpretation or enforceability of this Agreement. 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) words denoting the singular have a comparable meaning when used in the plural and vice-versa; and (d) words denoting any gender include all genders.
    • Severability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the rest of this Agreement, which shall remain in full effect and enforceable.
    • No Assignment. Neither Party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Licensor may assign this Agreement in connection with a merger, acquisition, change of control, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
    • Force Majeure. Neither party will be liable hereunder (other than Licensee’s obligations to pay Fees) by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond its reasonable control.
    • Independent Contractors. Licensee’s relationship to Licensor is that of an independent contractor, and neither party is an agent or partner of the other. Neither Party will not have and will not represent to any third party that it has, any authority to act on behalf of the other party (email being sufficient).
    • Export. Licensee agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Licensor, or any products utilizing such data, in violation of the United States export laws or regulations.
    • Notices. All notices or other communications required or permitted under this Agreement will be in writing to the other party at the address listed on the signature page and will be delivered by personal delivery, email (with return receipt), certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and will be deemed given upon personal delivery or upon confirmation of receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
    • Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.