This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). Customer agrees to submit to the personal jurisdiction of the state and federal courts located in Santa Clara County, California for any actions for which a party seeks to retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction as set forth in Section 12.4 below, including any provisional relief required to prevent irreparable harm. The parties agree that Santa Clara County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM AEROFS. In the unlikely event that AeroFS has not been able to resolve a dispute it has with Customer after sixty (60) days, the parties each agree to resolve any claim, dispute, or controversy (excluding any AeroFS claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the JAMS, Inc. (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. Nothing in this Section 12.4 shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to protect any of its proprietary interests.
Except as set forth in Section 12.4.2 below, the following applies: The arbitration will be conducted in Santa Clara County, California, unless Customer and AeroFS agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
12.4.2 Exception for Individuals.
If Customer is an individual, then the following provision applies in lieu of Section 12.4.1: JAMS may be contacted at www.jamsadr.com and may require Customer to pay a fee for the initiation of its case unless Customer applies for and successfully obtain a fee waiver from JAMS. The arbitration will be conducted in Santa Clara County, California (or the nearest JAMS office), unless Customer requests an in-person hearing in Customer’s hometown or Customer and AeroFS agree otherwise. The award rendered by the arbitrator may include Customer’s costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Customer may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve Customer of the commitment to engage in the informal dispute resolution process.
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED A SUBSCRIPTION FOR PERSONAL, COMMERCIAL, OR NON-COMMERCIAL PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS AEROFS AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND AEROFS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12.5 Attorneys’ Fees and Costs.
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.6 Notices and Reports.
Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.
12.7 Amendments; Waivers.
Except as otherwise expressly provided herein, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.8 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
12.9 Audit Rights.
Upon AeroFS’ written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including any copy and user limitations). With prior reasonable notice of at least ten (10) days, AeroFS may audit the copies of the Software in use by Customer provided such audit is during regular business hours; Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with the licensed scope of use.
12.10 Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.11 Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
12.12 Government End-Users.
The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
12.13 Export Compliance.
Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
12.14 Third-Party Code.
The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). A list of the Open Source Software included in the Software is available at: https://www.aerofs.com/terms/#freesoftware. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
12.15 Transmission of Information by Software for Diagnostic Purposes.
Customer understands and acknowledges that the Software contains a feature that sends technical information regarding the installation success rate of the Software on Customer’s computer systems to AeroFS during initial setup of the Software. Any such installation information will be used by AeroFS solely to improve the installation process of the Software. No user data or personal information is transmitted to AeroFS. Customer may opt out of providing this installation information at its sole discretion.
12.16 Purchase from Reseller.
If Customer purchased a Subscription from a Reseller:
- The terms of this Agreement constitute the only terms applicable to the use of the Software and no terms between Customer and Reseller shall apply to the license of the Software hereunder. Customer may place orders for the Software by executing an order form with Reseller (“Reseller Order Form”), but the terms of the Reseller Order Form shall have no effect as between Customer and AeroFS except as to the identification of the Software being licensed, the Subscription Term, and the number of Registered Users.
- Reseller has no authority to make any statements, representations, warranties or commitments on AeroFS’ behalf and any such statements, representations, warranties or commitments shall be null and void.
- Reseller shall handle all initial support inquiry intake, with escalation to AeroFS in accordance with the agreement between AeroFS and Reseller for any issues with the Software which Reseller is not able to resolve. AeroFS has no direct Support and Maintenance obligations to Customer under this Agreement, notwithstanding Section 6 (Support and Maintenance).
- Notwithstanding Section 3 (Payment), fees shall be payable directly to Reseller as set forth in the Reseller Order Form. Notwithstanding anything to the contrary in this Agreement, in the event Customer is entitled to a refund under this Agreement, unless otherwise elected by AeroFS in its sole discretion, AeroFS shall refund any applicable fee to Reseller and Reseller shall be solely responsible for refunding appropriate fees to Customer.
- If Reseller fails to pay AeroFS applicable fees for Customer’s use of the Software, AeroFS reserves the right to terminate this Agreement.