PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
This End-User License Agreement is a legal agreement between the entity specified on the Order Document (“Licensee”) and ImageSource, Inc., with its principal place of business at 3003 Sunset Way SE, Tumwater, Washington 98501 (“ImageSource”). This Agreement governs the use of any Software and the provision or use of any Software Maintenance (defined below) identified in the Order Document (defined below) and is effective upon the first date of installation or use of the Software (“Effective Date”).
BY ASSENTING ELECTRONICALLY, OR DOWNLOADING, INSTALLING OR USING THE SOFTWARE, LICENSEE IS AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN LICENSEE MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. IF AN EMPLOYEE OR AGENT OF LICENSEE IS ASSENTING ELECTRONICALLY, OR DOWNLOADING, INSTALLING, OR USING THE SOFTWARE ON BEHALF OF LICENSEE, SAID EMPLOYEE OR AGENT HEREBY REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND LICENSEE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Licensee acknowledges and agrees that ImageSource has made the current version of this Agreement available to Licensee on ImageSource’s website or otherwise. Licensee acknowledges and agrees that ImageSource may revise and update the terms and conditions of this Agreement from time to time. ImageSource will make such revised and updated versions of the Agreement available on its website. Licensee’s continued use of the Software shall represent Licensee’s acceptance of and agreement to the then-current terms and conditions of this Agreement. Licensee agrees to frequently check the ImageSource website for any revisions and updates.
1. DEFINITIONS.
For purposes of this Agreement:
(i) “CPU” (central processing unit) means a single physical processor which is installed into or addressed by a physical or logical server, for the purposes of this Agreement, a processor containing more than one core is still considered a single processor, it is common for one server to contain or address multiple CPUs;
(ii) “Computer” means an End User device containing one or more CPUs that is not utilized as a Server;
(iii) “Concurrent User” means any individual User of the Software who is permitted by Licensee to access or use the Software. Each login to the Software (through Software application or Software Application Programming Interface (API)) shall be deemed one Concurrent User. When one User is simultaneously logged in to the Software from two different devises, this constitutes two Concurrent User sessions. Further, Concurrent Users are any individuals who are actively using any device or other software program that may access the Software either directly, or indirectly through any other software program including custom software accessing the product’s Application Programming Interface (“API”), regardless of how such access occurs or if such User uses any software that reduces the apparent number of Users who are using the Software, such as custom software that aggregates services for multiple Users under a single User account. Once a User is authenticated into ILINX (logs in) and thereby consumes an ILINX concurrent user license, through any of the ILINX client applications or through a custom application that connects to ILINX via any of the ILINX APIs, that User will be counted as a “Concurrent User” until the User terminates the ILINX session. An ILINX session can be terminated by the following specific actions:
- User manually logs out of the active ILINX client application by selecting the “Logout” option;
- User closes all browser instances running an active ILINX client application;
- Licensee has configured the idle-timeout feature and the User is auto-logged out of the ILINX client after the specified period of inactivity
- All ILINX APIs provide login and logout services. It is solely the responsibility of the Licensee to ensure all custom applications that integrate with the ILINX APIs properly manage User sessions.
(iv) “Enterprise” means the Licensee and any subsidiaries thereof that are wholly owned by Licensee;
(v) “Network” means a group of Computers electronically-linked to a Server and capable of accessing data and software by means of that Server;
(vi) “Order Document” means a Project Charter, Annual Software Assurance (ASA), Statement of Work (SOW), order, purchase order or any other written document that memorializes the Software licensed and Software Maintenance provided to Licensee hereunder as well as any terms such as price, delivery, contact information, and payment terms.
(vii) “Scanner” means any hardware device used for imaging capturing that is on the ImageSource list of supported scanners, which list may be updated from time to time by ImageSource with or without notice to Licensee;
(viii) “Server” means a single installation of the server operating system software and may be either a logical or physical device, for purposes of this agreement, a physical hardware device that runs multiple instances of operating system software is considered to be multiple servers;
(ix) “Software” means the program in machine readable object code form licensed to Licensee hereunder as such is specified in the Order Document, including documentation downloaded therewith, and any updates or upgrades provided through Software Maintenance.
(x) “Software Maintenance” means services made commercially available by ImageSource and provided by ImageSource to Licensee in order to provide Software updates or upgrades to Licensee (for the purpose of clarity, Software Maintenance does not include installation or other professional services).
(xi) “User” or “End User” means the ultimate user for whom a machine, as a computer, or product, as a computer program, is designed.
2. GRANT OF LICENSE.
Subject to the terms and conditions of this Agreement, ImageSource hereby grants to Licensee(i) a non-exclusive, non-transferable, non-sublicensable license to use the Software solely for Licensee’s internal business purposes on any Computer or Server now or hereafter owned, leased or otherwise used by Licensee; and (ii) the right to make one (1) copy of the Software, solely for archival or backup purposes. Licensee’s rights under this Agreement are limited to the number of Scanners, Servers, Computers, and Users specified in the Order Document. Further, Licensee’s right to install the Software for use by Concurrent Users is limited to the maximum number of Concurrent Users for whom Licensee has paid the applicable license fees.
3. COVENANTS OF LICENSEE.
During the term of its license to the Software hereunder:
(a) Licensee shall: (i) adopt and enforce such internal policies, procedures and monitoring mechanisms as are reasonably necessary to ensure that the Software is used only in accordance with the terms of this Agreement ; (ii) take all steps necessary to ensure that no person or entity will have unauthorized access to the Software; and (iii) assume liability for any access to or use of the Software by any person or entity, whether authorized or unauthorized.
(b) Licensee shall not: (i) assign, sublicense, lease, encumber or otherwise transfer or attempt to transfer the Software or any portion thereof, other than in accordance with Section 16 hereof; (ii) permit any third party to use or have access to the Software, whether by timesharing, networking (except as expressly permitted hereunder) or any other means; (iii) modify, translate, reverse engineer, decompile or disassemble the Software, other than to the extent ImageSource is required by law to permit Licensee to do so; (iv) possess or use the Software or any portion thereof, other than in machine readable object code; (v) make any copies of the Software, other than as, permitted by Section 2 hereof; (vi) remove any copyright, trademark, patent or other proprietary notices from the Software or any portion thereof, or (vii) create any derivative work thereof.
(c) Licensee shall comply with all applicable international, national, regional, and local laws and regulations, including any applicable import and export laws and regulations, and the U.S. Foreign Corrupt Practices Act, which prevents unlawful payments to third parties. Licensee agrees that it will not export or re-export the Software in any form in violation of the export or import laws of the United States or any foreign jurisdiction. Licensee will defend, indemnify, and hold harmless ImageSource and its licensors from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors, or employees.
4. INTELLECTUAL PROPERTY.
Licensee acknowledges and agrees that ImageSource or its licensors has and will retain all right, title, interest and ownership in and to the Software and any copies or updates of the Software, including any improvements, modifications, upgrades, derivatives and/or ameliorations thereto. Licensee further acknowledges and agrees that the Software constitutes proprietary information and trade secrets of ImageSource or its licensors, whether or not any portion thereof is or may be the subject of a valid copyright or patent and that any licensor technology or materials provided hereunder, either as incorporated in or provided separate from but with the Software, are protected by the terms of this Agreement. Licensee shall maintain all information and data contained in the Software or any portion thereof in strict confidence and shall not publish, communicate or disclose, or permit to be published, communicated or disclosed, to third parties such information and data without ImageSource’s prior written consent, nor shall Licensee publish any results of benchmark tests run on any of the Software. Licensee agrees to take all appropriate steps to ensure that persons having access to the Software shall refrain from any unauthorized reproduction or disclosure of the Software or any portion thereof.
5. LICENSE FEE.
As consideration for the Software license granted to Licensee hereunder, Licensee shall pay to ImageSource the license fee specified in the Order Document, upon delivery of the Software and activation codes, which shall be deemed to have been made as of the license term start date specified in the Order Document. Licensee shall pay all sales, use and other taxes (excluding taxes on ImageSource income or its licensors) imposed by any jurisdiction arising out of or related to the license granted under this Agreement or to Licensee’s use of the Software, regardless of when such tax liability is asserted.
6. INSTALLATION AND CONVERSION OF DATA.
Except as otherwise agreed in writing between the parties hereto, Licensee shall be solely responsible (i) for installation of the Software, and (ii) for any conversion of data required in connection with Licensee’s use of the Software to make such data compatible with the Software.
7. SOFTWARE MAINTENANCE.
Software Maintenance shall consist of the right for Licensee to receive all new releases of the Software. These releases are intended to correct errors, support new releases of the operating systems with which the Software is designed to operate, add significant functional capability, support new input/output devices, or provide other incidental updates and corrections.
Software Maintenance purchased under this Agreement (as specified in the Order Document) shall commence on the ship date of the Software. Software Maintenance may be renewed annually at the option of the parties. Unless otherwise specified in the Order Document, the annual fee for this service is twenty-two percent (22%) per year of the currently published list price of the Software. Software Maintenance will be billed annually sixty (60) days prior to the renewal date and due no later than the annual renewal date. At any one time, ImageSource will support both its current release of the Software and its previous release of the Software. So long as ImageSource supports the Software, it will not increase the Software Maintenance fees by more than ten percent (10%) in any given year, and not until the conclusion of the present Software Maintenance agreement.
8. TERM AND TERMINATION.
(a) The license granted to Licensee hereunder is perpetual and will continue unless terminated as provided herein. This Agreement shall immediately terminate: (i) at the expiration of the term as specified in the Order Documents; (ii) upon ImageSource’s written notice to Licensee if Licensee breaches or violates any of its obligations under Sections 3, 4 or 5 of this Agreement; (iii) automatically, without further notice to Licensee, if Licensee breaches or violates any material term of this Agreement and fails to correct such breach or violation to the satisfaction of ImageSource within thirty (30) days after written notice is given of such breach or violation; or (iv) if the Order Document is an “Enterprise License,” then automatically, sixty (60) days after Licensee directly or indirectly acquires one or more business entities, or substantially all of the assets of one or more business entities that would increase the total number of Users in the Enterprise by more than 10% (in the event of any increase in the number of Users greater than 10% or such percentage as otherwise agreed, Licensee shall pay all applicable license fees for such).
(b) Licensee shall, upon termination of this Agreement: (i) discontinue all use of the Software; (ii) deliver to ImageSource all compact disks or other media containing the Software and all other physical copies of the Software; (iii) destroy the Software and all copies of the Software contained in any computer memory or data storage apparatus under the control of Licensee, including any copies of the source code thereof; (iv) certify to ImageSource within one week after the termination of this Agreement that Licensee has delivered the Software to ImageSource or destroyed the Software and all copies of the Software in accordance with this Section 8(b); and (v) return all ImageSource Confidential Information.
9. COMPLIANCE.
Licensee shall make no use of the Software which is greater than or different from the use set forth in the Order Document. Upon ImageSource’s reasonable request, Licensee will furnish ImageSource with a certification signed by Licensee’s authorized representative verifying that the Software is being used in accordance with this Agreement and the applicable Order Document. ImageSource shall have the right, upon reasonable notice to Licensee, to audit Licensee’s use of the Software no more than once each calendar year to ensure that Licensee is in compliance with the terms of this Agreement. ImageSource shall have the right to have an independent audit firm conduct such audit. Licensee shall cooperate with the audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Licensee’s normal business operations. Licensee agrees to retain software system usage measurements and reporting data collected and stored automatically by the Software for a minimum of 24 months. Licensee shall provide, upon reasonable notice to Licensee, electronic copies of this system usage data. The cost of the audit shall be paid by ImageSource unless the audit reveals that the Licensee has exceeded the license granted as set forth in the Order Document, in which event Licensee shall bear the total cost of the audit. In the event Licensee has exceeded such licensed use, ImageSource will invoice Licensee, and Licensee will promptly pay ImageSource any underpaid Fees based on ImageSource’s price list in effect at the time the audit is completed. Licensee’s failure to pay such additional fee within thirty (30) days after the date of invoice shall be deemed a breach of this Agreement and shall entitle ImageSource to terminate this Agreement.
10. WARRANTIES.
(a) ImageSource warrants that the Software will perform substantially as specified in the documentation downloaded with the Software and that the Software media will be free of defects in materials and workmanship for ninety (90) days after the date of Licensee’s receipt of the Software; provided, however, that ImageSource shall not be liable under this warranty if the Software has been modified or altered by anyone other than ImageSource, if the Software has been abused or misapplied, or if Licensee has failed to use a version of the Software supported under Software Maintenance. ImageSource’s entire liability and Licencee’s exclusive remedy will be, at ImageSource’s sole option, to either repair or replace the defective Software; provided, however, this remedy is conditioned upon Licensee reporting the defect in writing to ImageSource within the ninety (90) day warranty period.
(b) ImageSource does not warrant any modifications created by Licensee from the source code of the Software or customizations created through the use of any Software Development Kit (SDK).
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, IMAGESOURCE DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE OR THE APPLICATION OR ANY TECHNOLOGY OR MATERIALS PROVIDED HEREUNDER, OPERATION OR USE THEREOF, THE DATA GENERATED BY THE OPERATION OR USE THEREOF, OR ANY SOFTWARE MAINTENANCE OR OTHER SERVICES RENDERED WITH RESPECT THERETO. IMAGESOURCE AND ITS LICENSORS HEREBY EXCLUDE ALL IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW, INCLUDING, SPECIFICALLY, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. IMAGESOURCE AND ITS LICENSORS HEREBY EXCLUDE ALL IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULARLY, SPECIFIC OR OTHERWISE, OR OF TITLE OR NONINFRINGEMENT, CONCERNING THE SOFTWARE, THE APPLICATION, ANY TECHNOLOGY, MATERIALS, SERVICES, OR ANY OPERATION OR USE THEREOF.
11. LIMITATION OF REMEDIES.
Licensee acknowledges and agrees that it has independently verified that the Software is appropriate for the purposes for which Licensee intends to use the Software, and that Licensee did not rely upon any skill or judgment of ImageSource in such selection. Licensee assumes the entire risk related to the use of the Software or any services.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT IMAGESOURCE, ITS LICENSORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND SHAREHOLDERS, TO THE EXTENT PERMITTED BY LAW, SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, RESULTING FROM THIS AGREEMENT OR LICENSEE’S USE OR INABILITY TO USE THE SOFTWARE OR ANY OTHER TERCHNOLOGY OR MATERIALS PROVIDED HEREUNDER OR FROM ANY SOFTWARE MAINTENANCE OR OTHER SERVICES RENDERED WITH RESPECT THERETO, EVEN IF IMAGESOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IMAGESOURCE’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID BY LICENSEE FOR THE SOFTWARE OR ANY SERVICES GIVING RISE TO SUCH LIABILITY.
IMAGESOURCE DOES NOT GUARANTEE THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT IMAGESOURCE WILL CORRECT ANY ERRORS IN THE SOFTWARE OR ANY OTHER TECHNOLOGY OR MATERIALS PROVIDED HEREUNDER. REMEDIES FOR ANY BREACH OF THE ABOVE WARRANTIES ARE IN ACCORDANCE WITH SECTION 10(A).
12. INDEMNIFICATION.
(a) ImageSource will indemnify Licensee from and against any liability to third parties, as such liability is determined by a court of competent jurisdiction, arising from a claim that the Software in the form provided hereunder infringes upon any third party’s patent, copyright or trade secret rights as such are recognized in the United States. The foregoing indemnification obligation is dependent upon Licensee: (i) promptly giving ImageSource written notice of the claim, (ii) giving ImageSource full authority to defend such claim and providing ImageSource with all information and assistance ImageSource requests in connection with any defense of such claim, and (iii) giving ImageSource sole control of the defense of such claim and all negotiations for the compromise or settlement thereof including, without limitation, the right to delegate its obligations or rights under this Section 12, in whole or in part, to its licensors. If a third party claim against Licensee results in a judicial order preventing Licensee from using the Software, ImageSource, in its sole discretion, may: (1) procure from the third party the right to allow Licensee to continue to use the Software; (ii) modify or replace the Software or infringing- portions thereof to become non-infringing; or (iii) in the event that the foregoing options are not, in the sole judgment of ImageSource, reasonably practical, terminate this Agreement immediately upon written notice to Licensee, and in the event of such termination by ImageSource (and return of the Software by Licensee) the license fee paid by Licensee for the infringing Software will be promptly refunded by ImageSource.
(b) Neither ImageSource nor its licensors shall have any indemnification obligation to Licensee nor otherwise be liable to Licensee for any infringement based on: (i) Licensee’s operation of an application developed using the Software; (ii) Licensee’s combination of the Software with other products or services not furnished by ImageSource; (iii) Licensee’s use of a modified, superseded, or otherwise altered version of the Software; (iv) Licensee’s use of the Software not in accordance with the terms of this Agreement or the documentation; (v) Licensee’s use of the Software after ImageSource has terminated its license under Section 12(a)(iii) above; or (vi) open source software. ImageSource will have no obligation for any costs incurred by Licensee without ImageSource’s prior written authorization. THE PROVISIONS OF THIS SECTION 12 STATE THE EXCLUSIVE LIABILITY OF IMAGESOURCE, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT. LICENSEE SHALL MAKE NO CLAIM AGAINST IMAGESOURCE ON ACCOUNT THEREOF.
13. DISPUTE RESOLUTION.
(a) Except as set forth in this Section 13, any claim or dispute between the parties hereto pertaining to or arising out of this Agreement (including, without limitation, the negotiation or execution of this Agreement, or the interpretation, performance or breach of any provision of this Agreement) shall be arbitrated in the State of Washington, before a single neutral arbitrator under the Commercial Arbitration Rules of the American Arbitration Association. Such award may be entered as a judgment in any court of competent jurisdiction. This provision for arbitration shall be specifically enforceable by the parties and, except as otherwise provided by applicable law, the decision of the arbitrator in accordance herewith shall be final and binding. The arbitrator shall have the power to issue and grant permanent injunctive relief and other equitable orders and remedies. Any such arbitration shall be conducted in confidence and in accordance with the confidentiality provisions of this Agreement. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared.
(b) Licensee recognizes that ImageSource will be irreparably harmed in the event of its breach or threatened breach of Sections 3 and 4, and that, notwithstanding anything contained herein to the contrary, ImageSource may commence an action in any court of competent jurisdiction, to obtain equitable relief to prevent such breach or threatened breach at any time prior to the commencement of an arbitration proceeding and, if an arbitration proceeding has been commenced, at any time until an arbitration award is rendered in such arbitration proceeding or the claim or dispute is otherwise resolved. If ImageSource prevails in such an action Licensee shall reimburse ImageSource for all fees, costs and expenses including, without limitation, attorneys’ fees, costs and expenses incurred by ImageSource in taking such court action to obtain equitable relief. ImageSource shall not be deemed to have waived its right to arbitrate any dispute, claim or controversy by reason of seeking such equitable relief.
14. SURVIVAL.
Upon termination of this Agreement, all rights and obligations of the parties shall cease, except for the obligations under Sections 3, 4, 8, 11, and 13 through 26, which obligations shall survive the termination of this Agreement.
15. REMEDIES.
The pursuit by either party of any remedy to which it is entitled at any time shall not be deemed an election of remedies or waiver of the right to pursue any of the other remedies to which it may be entitled.
16. BINDING EFFECT: ASSIGNMENT.
This Agreement and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except as otherwise provided in this Section 16, Licensee may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of ImageSource, which consent will not be unreasonably withheld. If ImageSource approves in writing, Licensee must permanently transfer and cease use of the Software and the proposed transferee must agree to abide by the terms of this Agreement. Any attempted assignment in violation of this Section 16 by Licensee of its rights or obligations under this Agreement, whether by operation of law or otherwise, shall have no force and effect.
17. ENTIRE AGREEMENT.
This Agreement, together with the Order Document, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. Any standard purchase order terms or other agreements from Licensee shall be of no effect.
18. WAIVER.
A failure of either party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.
19. NOTICES.
All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given to a party if delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, or by overnight delivery by a nationally-recognized courier, to such address or person as either party may from time to time designate to the other in writing. Any such notice or other communication shall be deemed to be given as of the date it is personally delivered, five (5) days after its being deposited in the United States mail, or one (1) day after being deposited with a nationally recognized courier for overnight delivery.
20. INVALID, ILLEGAL OR UNENFORCEABLE PROVISIONS.
In the event that any one or more provisions of this Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and shall be enforced as so modified.
21. INDEPENDENT CONTRACTORS.
Nothing in this Agreement shall be deemed or construed by the parties or any other entity to create an agency, partnership or joint venture between ImageSource and Licensee.
22. GOVERNING LAW; VENUE.
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Washington. Subject to paragraphs 13(a) and 13(b) hereof, any lawsuits brought to resolve disputes arising out of the terms of this Agreement shall be brought in the Superior Court for Thurston County, Washington, or the U.S. District Court for the Western District of Washington, Tacoma Courthouse.
23. CONFIDENTIALITY.
(a) Definition of Confidential Information: Each party agrees that all information and materials disclosed by ImageSource and Licensee pursuant to and including the terms and conditions of this Agreement whether disclosed orally, in writing or electronically and whether marked “Confidential” or not, will be considered and referred to collectively in this Agreement as “Confidential Information” subject to the protections of this Agreement. Confidential Information does not include information that (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of either party; (ii) either party can demonstrate to have had rightfully in its possession prior to disclosure to the receiving party; (iii) is independently developed by either party without the use of any Confidential Information; or (iv) either party rightfully obtains from a third party who has the right to transfer or disclose it.
(b) Nondisclosure and Nonuse of Confidential Information: The parties shall not disclose, publish, or otherwise disseminate confidential information to anyone other than those of its employees with a need to know or to trusted subcontractors or advisors with a need to know and who agree to be bound by the obligations of this Agreement. Each party shall take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. The parties accept the Confidential Information for the sole purpose of evaluation in connection with either party’s business discussions with each other. Each party shall not use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of the disclosing party in each instance. Upon termination of the discussions or transaction for which this Agreement is made, the receiving party shall either return the Confidential Information to the other or shall certify in writing that such information has been destroyed.
The foregoing restrictions on Confidential Information shall not apply to Confidential Information that is required to be disclosed in connection with any suit, action or other dispute related to the Confidential Information, or otherwise required to be disclosed as a matter of law. However, upon receipt of a legal demand for the production of Confidential Information subject to this Agreement, the party receiving such demand shall give prompt notice to the other party and shall provide such other party with an opportunity to object before producing the Confidential Information.
(c) Miscellaneous: All Confidential Information remains the property of the disclosing party and no license or other rights to Confidential Information is granted or implied hereby. All Confidential Information is provided “AS IS” and without any warranty, whether express or implied, as to its accuracy or completeness. Each party hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the disclosing party that may be difficult to ascertain. Accordingly, each party agrees that the disclosing party will have the right to seek and obtain immediate injunctive relief to enforce obligations under this Agreement, in addition to any other rights and remedies each party may have.
24. FORCE MAJEURE.
Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party or such other party’s employees, agents or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control. The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement.
25. EXCLUSION FROM THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT.
The parties agree this Agreement shall not be governed by the Uniform Computer Information Transactions Act.