Software License Agreement
BY SIGNING THE ORDERING DOCUMENT INCORPORATING THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”), OR BY CLICKING “I ACCEPT,” YOU HEREBY AGREE TO COMPLY WITH AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AN ENTITY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THIS AGREEMENT.
Software/Products Provided. Best Coast Pairings LLC (“BCP”) agrees to license the software and products (collectively, the “Software”) to Retailer described in the Ordering Document. Retailer desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.
“Authorized User” means an employee or contractor of Retailer who Retailer permits to access and use the Software and/or Documentation pursuant to Retailer’s license hereunder.
“Documentation” means BCP’s user manuals, handbooks and installation guides relating to the Software provided by BCP to Retailer either electronically or in hard copy form, and end user documentation relating to the Software available at [https://www.bestcoastpairings.com/support].
“Software” means the product described in the Ordering Document in object code format, including any Updates provided to Retailer pursuant to this Agreement.
“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that BCP generally makes available free of charge to all licensees of the Software.
License Grant. Subject to and conditioned on Retailer’s payment of Fees and compliance with all the terms and conditions of this Agreement, BCP hereby grants Retailer a non-exclusive, non-sublicenseable, and non-transferable license during the Term to: (i) use the Software solely for Retailer’s internal business purposes up to the number of Authorized Users set forth in the Ordering Document; and (ii) use and make a reasonable number of copies of the Documentation solely for Retailer’s internal business purposes in connection with Retailer’s use of the Software.
Open-Source Licenses Used in the Service. The Service includes Open-Source Components licensed under the MIT License, a copy of which can be found at https://github.com/twbs/bootstrap/blob/master/LICENSE (each, an “Open-Source License”). BCP reserves the right to use additional Open-Source Licenses as part of the Service. Any use of the Open-Source Components by Retailer is governed by, and subject to, the terms and conditions of the Open-Source Licenses.
License to Data.
“Customer Data” means any and all information submitted or provided by individuals who participate in Events, including, without limitation personally identifiable information (such as names and e-mail addresses of users) player score information, and other information that may be submitted via the Service as part of an event.
“Retailer Data” means any and all information submitted by Retailer to BCP related to its use of the Software other than Customer Data, including without limitation, Retailer’s trademarks, logos, tradenames, business plans, tournaments and other events scheduled at Retailer’s location(s).
BCP shall own all right, title, and interest, in and to the Customer Data. BCP shall have no responsibility, whatsoever, for the accuracy, quality, integrity, legality, reliability, or appropriateness of Customer Data, and BCP shall not review, monitor or check the Customer Data except as necessary to perform its obligations under this Agreement. BCP shall not be responsible or liable, in any way, for the deletion, destruction, damage or loss of any Customer Data through no fault of BCP or its providers.
If Retailer requests access to Customer Data (as set forth on the Ordering Document), BCP hereby grants to BCP a limited, non-exclusive, non-sublicensable and non-transferable license to use the Customer Data for as long as Retailer licenses the Software from BCP. will allow data to be exported.
Retailer hereby grants to BCP a limited, worldwide, royalty-free, non-exclusive, non-sublicensable and non-transferable license to use the Retailer Data for as long as Retailer licenses the Software from BCP, whether it is the version now existing or a future version of the Software that includes additional or different functionality.
Exclusivity. Retailer hereby grants to BCP, and BCP accepts from Retailer, the exclusive right during the term of this Agreement to act as the sole provider of Event Suite tournament application software (or any software similar to the Software) for Retailer in connection with any and all events regardless of whether the Software is used for the tournament. Retailer acknowledges that BCP has the right to include a designation that states “Powered by Best Coast Pairings” (or any similar logo, statement, or trademark reasonably selected by BCP) on any Retailer or website, podcast, blog, video feed or other publication that is supported by or uses Customer Data and Retailer Data maintained by BCP.
Use Restrictions. Retailer shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Retailer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights. BCP reserves all rights not expressly granted to Retailer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Retailer or any third party any intellectual property rights or other right, title, or interest in or to the Software.
Delivery. BCP shall deliver the Software electronically, on tangible media, or by other means to Retailer within 10 days following the Effective Date. [Risk of loss of any tangible media on which the Software is delivered will pass to Retailer on delivery to carrier.] Software will be available via Playstore, App store or similar downloadable options.
General. Retailer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Retailer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Retailer is responsible for all acts and omissions of its employees, contractors and agents (collectively, the “Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Retailer will be deemed a breach of this Agreement by Retailer. Retailer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
Support. BCP will provide Retailer with technical support for the Software during the Term of the Agreement, during regular business hours from 8am-6pm Pacific Time, on business days. BCP offers support via email at: email@example.com.
Fees and Payment.
Fees. Retailer shall pay BCP the fees (”Fees”) set forth on the Ordering Document without offset or deduction. Retailer shall make all payments hereunder in US dollars on or before the due date set forth on the Ordering Document. If Retailer fails to make any payment when due, in addition to all other remedies that may be available: (i) BCP may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Retailer shall reimburse BCP for all reasonable costs incurred by BCP in collecting any late payments or interest, including attorneys’ fees and costs, court costs, and collection agency fees; and (iii) if such failure continues for 30 days following written notice thereof, BCP may prohibit access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Retailer or any other person by reason of such prohibition of access to the Software.
Taxes. All Fees and other amounts payable by Retailer under this Agreement are exclusive of taxes and similar assessments. Retailer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Retailer hereunder, other than any taxes imposed on BCP’s income.
Auditing Rights and Required Records. Retailer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. BCP may, at its own expense, on reasonable prior notice, periodically inspect and audit Retailer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Retailer has underpaid BCP with respect to any amounts due and payable during the Term, Retailer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6.1 (Fees). Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two years after the termination or expiration of this Agreement.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the foregoing: (a) the Software and Documentation are the Confidential Information of BCP; and (b) the terms of this Agreement are the Confidential Information of each of the Parties. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. If the disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7 (Confidential Information), the receiving Party remains required by law to disclose any Confidential Information, the receiving Party shall disclose only that portion of the Confidential Information that the receiving Party is legally required to disclose and, on the disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.
Intellectual Property Ownership. Retailer acknowledges that, as between Retailer and BCP, BCP owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data, Software and Documentation and, with respect to Third-Party Products, the applicable third-party licensors own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
Feedback. If Retailer or any of its employees or contractors sends or transmits any communications or materials to BCP by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), BCP is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Retailer hereby assigns on its behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and BCP is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although BCP is not required to use any Feedback.
Limited Warranties and Warranty Disclaimer.
BCP warrants that: (i) the Software will perform materially as described in the Documentation when installed, operated and used as recommended in the Documentation; and (ii) at the time of delivery the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation. THE FOREGOING WARRANTIES DO NOT APPLY, AND BCP STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
The warranties set forth in Section 9.1 do not apply and become null and void if a problem arises out of or relates to (a) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or other service not specified for Retailer’s use in the Documentation; (b) Retailer’s failure to promptly install all maintenance releases that BCP has previously made available to Retailer; (c) any open-source components, beta software, software that BCP makes available for testing or demonstration purposes, temporary software modules or software for which BCP does not receive a license fee; (d) Retailer’s (or any of its employee’s, contractor’s or agent’s) breach of any material provision of this Agreement; or (e) any other circumstances or causes outside of the reasonable control of BCP (including abnormal physical or electrical stress)
If, during the period specified in Section 9.1 any Software fails to comply with the warranty in Section 8(a), and such failure is not excluded from warranty pursuant to Section 9.2, BCP shall, subject to Retailer’s promptly notifying BCP in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Retailer provides BCP with all information BCP reasonably requests to resolve the reported failure, including sufficient information to enable the BCP to recreate such failure; or (ii) refund the Fees paid for such Software, subject to Retailer’s ceasing all use of and, if requested by BCP, returning to BCP all copies of the Software. The remedies set forth in this Section 9.3 are Retailer’s sole remedies and BCP’s sole liability under the limited warranty set forth in Section 9.3.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH HEREIN, THE SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND OTHER SERVICES PROVIDED BY BCP ARE PROVIDED “AS IS.” BCP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BCP MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION, OR ANY OTHER BCP OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET RETAILER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN RETAILER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS. FOR THE AVOIDANCE OF DOUBT, BCP MAKES NO REPRESENTATION AND PROVIDES NO WARRANTIES WITH RESPECT TO THIRD-PARTY HARDWARE OR OTHER EQUIPMENT WHICH RETAILER MAY USE IN CONNECTION WITH BCP’S SOFTWARE.
BCP Indemnification. BCP shall indemnify, defend and hold harmless Retailer from and against any and all damages, liabilities, claims, expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by Retailer arising out of or relating to any third party action alleging that the Software, or any use of the Software in accordance with this Agreement (including the Documentation) infringes any U.S. intellectual property right. The foregoing obligation does not apply to the extent that such action or Losses arise from any allegation of or relating to any: (a) Open-Source Components or other Third-Party Materials; (b) incorporation by the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by BCP or specified for Retailer’s use in the Documentation; (c) modification of the Software other than: (i) by BCP in connection with this Agreement; or (ii) with BCP’s’ express written authorization and in strict accordance with BCP’s written directions and specifications; (d) failure to timely implement any maintenance release, modification, update or replacement of the Software made available to Retailer by BCP; (e) use of the Software after BCP’s notice to Retailer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (f) negligence, abuse, misapplication or misuse of the Software by or on behalf of Retailer (including by Retailer’s personnel, contractors, or agents) or a third party authorized by Retailer; (g) use of the Software by or on behalf of Retailer that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to BCP’s instructions; (h) events or circumstances outside of BCP’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions); or (i) Losses for which Retailer is obligated to indemnify BCP pursuant to Section 10.2.
Retailer Indemnification. Retailer shall indemnify, defend, and hold harmless BCP from and against any and all Losses resulting from any third party alleging Retailer’s, or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by BCP or authorized by BCP in writing; (iv) modifications to the Software not made by BCP; (v) use of the Retailer Data infringes, misappropriates, or otherwise violates a US. Intellectual property right; (iv) breach of any representation, warranty, covenant or obligation under this Agreement or (iv) use of any version other than the most current version of the Software or Documentation delivered to Retailer, provided that Retailer may not settle any Third-Party Claim against BCP unless such settlement completely and forever releases BCP from all liability with respect to such Third-Party Claim or unless BCP consents to such settlement, and further provided that BCP will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Mitigation for IP Infringement. If the Software, or any part of the Software, is, or in BCP’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party’s U.S. intellectual property right, or if Retailer’s use of the Software is enjoined or threatened to be enjoined, BCP may, at its option and sole cost and expense: (a) obtain the right for Retailer to continue to use the Software as contemplated by this Agreement; (b) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing substantially equivalent features and functionality, and such modified or replacement software will constitute the Software under this Agreement; or (c) if, after BCP’s exercise of commercially reasonable efforts, none of the remedies set forth in the above Sections 10.3(a) or (b) is reasonably available to BCP, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Retailer, in which event: (i) Retailer shall cease all use of the Software and Documentation immediately on receipt of such notice; and (ii) provided that Retailer fully complies with its post-termination obligations set forth in this Agreement, BCP shall promptly refund to Retailer, on a pro rata basis, the share of any fees prepaid by Retailer.
Sole Remedy. THIS SECTION 10 SETS FORTH RETAILER’S SOLE REMEDIES AND BCP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL BCP 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 OF ANY SERVICE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, HARDWARE, EQUIPMENT, (d) USE, INABILITY TO USE, LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER THE PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF BEST COAST PAIRINGS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF: (i) THE AMOUNTS PAID BY RETAILER TO BCP IN THE TWELVE MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CAUSE OF ACTION; or (ii) TWO-THOUSAND FOUR HUNDRED DOLLARS ($2400). THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Term and Termination.
Term. The initial term of this Agreement commences as of the Effective Date and will continue in effect for twelve (12) months thereafter unless terminated earlier pursuant to any of the Agreement’s express provisions (the “Initial Term”). This Agreement will automatically renew for successive twelve (12) month terms until terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
Termination. BCP may terminate this Agreement, effective on 30 days’ written notice to Retailer, for any reason, including, without limitation, if Retailer fails to pay any amount when due under this Agreement, where such failure continues more than 30 days after BCP’s delivery of written notice thereof. Either Party may terminate this Agreement, effective on written notice to the other Party, if (a) the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or (b) if either Party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will immediately terminate, and, without limiting Retailer’s obligations under this Agreement, Retailer shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the BCP that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Retailer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Retailer to any refund.
Survival. Sections 6.1, 6.3, 7, 8.1, 9, 10, 11, 12.3 and 14 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Future Products. The Parties understand and agree that BCP may create new mobile applications, website functionality, or other related products (collectively “Future Products”). In such case, Parties may modify this Agreement by issuing new Ordering Document(s) attached hereto to include a license to such Future Products at rates to be negotiated by the Parties.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Public Announcements. Except as otherwise provided herein, neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably delayed or withheld.
Assignment. Retailer shall not assign, transfer, or delegate any of its rights, obligations or performance, under this Agreement without BCP’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by a Party of any of its obligations under this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party 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. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Notices. Any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to a party at the address provided on the Ordering Document (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond the Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provisions. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Export Regulation. Retailer shall not itself, or permit any other person to, export, re-export or release, directly or indirectly any controlled technology to any country, jurisdiction or Person to which the export, re-export 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).
General Provisions. No provision of this Agreement is intended to confer any benefit upon any third party and no third party shall have the right to enforce any provision of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. This Agreement shall be interpreted in an even-handed manner and without regard to any presumption against the party that was responsible for its drafting. If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. This Agreement including any documents attached hereto, may not be modified except in writing executed by duly authorized representatives of the parties. This Agreement together with the Ordering Document constitutes the entire agreement between the parties pertaining to its subject matter, superseding all prior and contemporaneous agreements, proposals, letters of intent and memorandums of understanding. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments and appendices, the terms of this Agreement shall prevail. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.