Active Facility Monitoring, LLC ("AFM") HAS DEVELOPED A SOFTWARE APPLICATION
FOR MANAGING, MANIPULATING AND ANALYZING DATA COMMERCIALLY KNOWN AS “THE AFM
HUB.” AFM IS WILLING TO PROVIDE A LIMITED LICENSE OF THE SOFTWARE THAT
ACCOMPANIES THIS END USER LICENSE AGREEMENT TOGETHER WITH THE PRINTED OR
ONLINE DOCUMENTATION FURNISHED BY AFM IN CONJUNCTION WITH IT TO YOU ONLY ON
THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT. PLEASE READ
THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE "I
ACCEPT" BUTTON. BY ACCEPTING THE EULA AS PART OF THE INSTALLATION PROCESS YOU
ACKNOWLEDGE THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT, AND AGREE TO BE
BOUND BY ITS TERMS AND CONDITIONS. SUCH ACCEPTANCE IS EITHER ON YOUR OWN
BEHALF, OR ON BEHALF OF ANY CORPORATE ENTITY WHICH EMPLOYS YOU OR WHICH YOU
REPRESENT (‘CORPORATE LICENSEE’). IN THIS LICENSE AGREEMENT, “YOU” INCLUDES
ANY CORPORATE LICENSEE. YOU AGREE THAT THIS AGREEMENT IS AS ENFORCEABLE AS ANY
WRITTEN NEGOTIATED AGREEMENT MANUALLY SIGNED BY YOU AND THAT BY CLICKING ON
THE “I AGREE” BUTTON BELOW OR ANY OTHER BUTTON EXPRESSING YOUR AGREEMENT TO
THE TERMS HEREIN, YOU ARE PROVIDING YOUR ELECTRONIC SIGNATURE TO THIS
AGREEMENT. CLICK ON THE "DO NOT ACCEPT" BUTTON TO DISCONTINUE THE INSTALLATION
PROCESS. THE ACCEPTANCE OF THIS AGREEMENT IS REQUIRED FOR USE OF THE SOFTWARE.
1. LICENSE GRANTS AND RESTRICTIONS.
1.1 The rights, restrictions and obligations shall apply to all purchasers of
THE AFM HUB software hereunder, regardless of the software product purchased
(whether the standard THE AFM HUB end user software or the THE AFM HUB SaaS
Authorization option applications (separately or collectively, as applicable,
the “Software”), except as may be expressly provided in this Agreement.
1.1.1 Standard THE AFM HUB End User License ONLY. If you are purchasing a
standard THE AFM HUB end user license, then, subject to the terms and
conditions contained herein, AFM hereby grants you a non-exclusive, limited
license to install, use and execute a single copy of the Software on a single
personal computer or server, which is identified by serial number or other
means during the installation process (the "Designated System"), and to use
the documentation furnished by AFM in conjunction with it, solely for your
internal business use.
1.1.2 THE AFM HUB SaaS Authorization Option. If you are purchasing the SaaS
Authorization option, i.e., the right to use THE AFM HUB in a SaaS Mode (as
defined below), then, subject to the terms and conditions contained herein,
AFM hereby grants to you a non-exclusive, limited license to install, use and
execute a single copy of the Software on the Designated System, and to use the
documentation furnished by AFM in conjunction with it, for your internal
business use and in connection with commercial purposes and uses, including
without limitation providing services to your customers, such as hosting the
copy of the Software on a server to offer “Software as a Service” services.
For purposes of this Agreement, “SaaS Mode” shall mean the use of THE AFM HUB
in a “Software as a Service” mode, in which you retain possession and control
of your copy of the Software on the Designated System but have the ability to
grant a third-party customer access to the Software to enable such customer to
generate or deliver data, reports or other business value for such customer,
whether through use of AFM’s specific software applications in the Software,
or through use of your own proprietary software applications, views and
reports created by you, but based upon the features and capabilities of the
Software. You may not grant any rights to any customer to access or use the
Software in any manner that is outside the scope of or not permitted under
this Agreement and you shall remain solely responsible for, and liable to, AFM
for your customers’ access and use of the Software.
1.2 Restrictions. You may transfer and use the Software on a backup computer
system you own or lease if, and only for so long as, the Designated System is
(i) inoperative or (ii) unavailable due to regularly scheduled maintenance,
upon issuance by AFM of a backup license key. For purposes of this Agreement,
the “Software” shall be deemed to include the application program interfaces
(“APIs”), and related source code, as well as source code for the purposes of
creating, editing, producing or making rules, relevant databases or analytic
libraries or similar applications for use in connection with the Software (the
“Example Code”) and software owned by third parties (“Third Party Software”)
that are provided to you along with the AFM THE AFM HUB software. You may
create derivative works of the Example Code solely for the purposes set forth
in this Section 1.1, and shall have the right to modify, enhance, adapt, or
translate the Example Code for such purposes.
1.3 No Other Rights Granted. Apart from the license expressly granted herein,
no license or other right is granted by AFM to you under this Agreement,
either directly or by implication, estoppel, or otherwise (including, but not
limited to, the right to prepare derivative works of the Software). You shall
have no right or access to the source code of the Software other than the
source code, if any, for certain application program interfaces and Example
Code that are included with the Software. All rights not specifically granted
to you in this Agreement are reserved by AFM.
1.4 Rights for Purchasers of THE AFM HUB SaaS Authorized Licenses Conditioned
Upon Maintenance Agreement and Payments. If you are purchasing the SaaS
Authorization option, then the rights granted to you, and AFM’s obligations,
under this Agreement are conditioned upon (1) the prior execution of a
separate maintenance agreement with respect to the Software (“Maintenance
Agreement”) by both you and AFM or its designee; and (2) timely payment of
annual maintenance fees (“Annual Maintenance Fees”) under the Maintenance
Agreement. For the avoidance of doubt, failure to timely pay the Annual
Maintenance Fees under the Maintenance Agreement shall be deemed a material
breach of this Agreement, which may result in termination of this Agreement
under Section 10.2 herein, regardless of whether such nonpayment is deemed a
breach of the Maintenance Agreement.
2. YOUR RESPONSIBILITIES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YOU SHALL (I) USE ALL
COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT YOUR EMPLOYEES COMPLY WITH THE
TERMS OF THIS AGREEMENT; (II) NOT MODIFY, ENHANCE, DECRYPT, EXTRACT, ADAPT,
TRANSLATE, ALTER, DELETE, DISASSEMBLE, DECOMPILE OR OTHERWISE REVERSE ENGINEER
THE SOFTWARE OR ANY PART THEREOF, OR ANY APPLICATION ENABLER OR GRANT ANY
OTHER PERSON OR ENTITY THE RIGHT TO DO SO OR TAKE ANY ACTION THAT WOULD ASSIST
ANY OTHER PERSON OR ENTITY IN DOING SO AND WILL PROMPTLY NOTIFY AFM OF ANY
INFORMATION THAT ANY OTHER PERSON OR ENTITY IS OR IS ATTEMPTING TO COPY,
REVERSE ENGINEER, DISASSEMBLE, DECOMPILE, TRANSLATE OR MODIFY THE SOFTWARE ;
(III) NOT INSERT, DELETE, REPLACE, CHANGE OR OTHERWISE ALTER ANY FILES IN THE
SOFTWARE OR APPLICATION ENABLER; (IV) NOT MODIFY, CHANGE, PREPARE DERIVATIVE
WORKS OF OR OTHERWISE ALTER ANY BINARY CODE FILES INCLUDED WITH THE SOFTWARE;
(V) NOT LOAN, RENT, LEASE, GIVE, SUBLICENSE, TRANSFER, PUBLISH, DISCLOSE,
DISPLAY, PROVIDE ACCESS TO, OR OTHERWISE MAKE AVAILABLE THE SOFTWARE, IN WHOLE
OR IN PART, TO ANY OTHER THIRD PARTY OR ENTITY, PROVIDED THAT, FOR PURCHASERS
OF THE THE AFM HUB BASE LICENSE ONLY, YOU MAY PROVIDE ACCESS TO THE OBJECT
CODE OF THE SOFTWARE TO YOUR CUSTOMERS (WITH NO RIGHT TO SUBLICENSE), AS LONG
AS SUCH PERMITTED USAGE SHALL NOT OTHERWISE VIOLATE THE TERMS OF THIS
AGREEMENT AND YOU SHALL BE SOLELY RESPONSIBLE FOR, AND INDEMNIFY, DEFEND AND
HOLD AFM HARMLESS FROM, ANY SUCH USAGE; (VI) NOT MODIFY ANY APPLICATION
PROGRAMMING INTERFACE, INCLUDING MODIFYING ANY APPLICATION PROGRAMMING
INTERFACE BY CREATING ADDITIONAL CLASSES WITHIN ANY INTERFACE OR OTHERWISE
CAUSING THE ADDITION TO OR MODIFICATION OF THE CLASSES IN AN INTERFACE, (VII)
NOT INCORPORATE ANY CODE INCLUDED WITH THE SOFTWARE OR ANY DOCUMENTATION IN
ANY DEVELOPER PRODUCT, AND (VIII) OBTAIN AND MAINTAIN, AT YOUR OWN EXPENSE,
ALL COMPUTER HARDWARE, SOFTWARE, AND OTHER COMMUNICATION EQUIPMENT NECESSARY
TO USE THE SOFTWARE.
3. TECHNICAL SUPPORT, SOFTWARE MAINTENANCE AND TRAINING.
3.1 Neither AFM nor any of its affiliates, distributors or resellers shall
have any obligation to provide technical support, training or software
maintenance services to you in connection with the Software, except as may be
provided under a separate agreement between any such party and you.
3.2 If you are purchasing a standard THE AFM HUB end user license, then you
may purchase maintenance services for the Software from AFM or its resellers
under a separate Maintenance Agreement.
3.3 Any maintenance services may include providing you with regular updates,
software corrections, bug fixes, and new functionality to the Software, which
may include service packs to correct defects and add functionality
(collectively, “Updates”). Any such Updates provided to you are and shall
remain the exclusive property of AFM. Such Updates shall be considered
Software, and subject to the terms and conditions in this Agreement.
4. FEES.
The license fees paid by you to AFM or its designee are paid in consideration
of the rights granted under this Agreement.
4.1 Restrictions on Points-Based License Fees. The license fee charged to you
in connection with your use of the Software is based upon the capacity of the
Software as measured by "Points" (“Points-Based License Fee”). A Point models
a sensor, actuator, or setpoint or any similar item for which you want to
collect data. Any database record with historical trend data associated with
it, or that utilizes the Software’s Connector Framework to read or write data
values, is considered a “Point” for purposes of this Agreement.
4.1.1 Accessing Data Without Creating Points. It is specifically prohibited to
utilize the Software’s functionality to read or write data values without
creating database records for the Points associated with the external data
source, thereby bypassing the Points-based Licensing mechanism.
4.1.2 Deleting Points to Regain License Capacity. As a licensed user, the
Software allows you to delete Points thereby regaining capacity as measured by
the Points- Based License Fee. The ability to delete Points to regain capacity
is specifically authorized for use where Points are no longer being used with
the Software. The capacity regained may be used with new Points (up to the
limit of Points authorized under your license), but not for Points that you
have previously created and for which you received beneficial use and then
deleted. Should you have questions on the authorized use of your ability to
delete Points to regain license capacity, please contact AFM at info@AFM.com
5. OWNERSHIP AND CONFIDENTIALITY.
5.1 Ownership by AFM. AFM retains all right, title and interest in and to the
Software (and any portions thereof), other than Third Party Software. You
acknowledge that the Software uses trademarks, copyrights, trade secrets and
other proprietary material the rights to which are owned or licensed by AFM,
its affiliates, third party licensors or suppliers, and that such proprietary
rights are protected by law, including U.S. copyright laws, patent laws and
international treaty provisions. You shall not have or obtain any right,
title, or interest to the Software except as provided in this Agreement, and
further shall secure and protect the Software consistent with the maintenance
of AFM's proprietary rights therein. You agree that you shall not contest or
challenge, or take any action inconsistent with or that may damage or impair
AFM's ownership or rights in and to the Software, and further that you shall
not contest or challenge, or take any action inconsistent with, or that may
damage or impair the ownership or intellectual property rights of, AFM in the
Software, or of AFM's licensors with respect to the Third Party Software. You
shall not use the Software except as is expressly authorized in this
Agreement.
5.2 Confidentiality. You acknowledge that the Software contains valuable trade
secrets of AFM and you agree to use your best efforts to maintain the
confidentiality of the Software using at least the same degree of care that
you use with your own confidential information, but no less than reasonable
care. Notwithstanding any provision of this Agreement to the contrary, this
Section 5.2 shall not supercede any separate confidentiality or nondisclosure
agreement you may have entered into with AFM related to the Software.
5.2.1 Compliance with Data Protection Laws. If you have purchased the THE AFM
HUB SaaS Authorization option, you agree that you shall comply with all
applicable privacy and data protection laws that may apply to you or your
customers to whom you grant access to the Software, including without
limitation federal and state data privacy, breach notification and security
laws as well as the laws of any other country that may apply to you or your
customers, including without limitation the General Data Protection Regulation
2016/679 of the European Union.
5.3 Third-Party Code. Additional copyright notices and license terms
applicable to portions of the Software are set forth in the readmeLicenses.txt
file provided with the Software. In addition to any terms and conditions of
any third-party open source/freeware license identified in the
readmeLicenses.txt file, the disclaimer of warranty and limitation of
liability provisions contained below in paragraph 6 of this Agreement shall
apply to all third party code or software contained in the Software.
6. WARRANTIES AND LIMITATIONS.
6.1 Disclaimer of Software Warranty. THE SOFTWARE IS LICENSED “AS IS” AND YOU
RECEIVE NO ADDITIONAL EXPRESS OR IMPLIED WARRANTIES. AFM AND ITS SUPPLIERS
EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE
CONCERNING THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT OR THE RESULTS TO BE
OBTAINED FROM USE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. AFM
EXPRESSLY DISCLAIMS ANY WARRANTIES THAT MAY BE IMPLIED FROM USAGE OF TRADE,
COURSE OF DEALING, OR COURSE OF PERFORMANCE. FURTHER, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AFM MAKES NO WARRANTIES OR REPRESENTATIONS AS TO
PERFORMANCE OF THE SOFTWARE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY THAT (1)
THE SOFTWARE WILL OPERATE IN COMBINATION WITH OTHER ITEMS, EQUIPMENT,
SOFTWARE, SYSTEMS OR DATA EXCEPT, (2) THE OPERATION OF THE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR FREE, OR (3) ERRORS IN THE SOFTWARE, IF ANY, WILL BE
CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AFM, OR ITS
AGENTS OR EMPLOYEES SHALL CREATE OR FORM THE BASIS OF ANY WARRANTY OF ANY
KIND. THE SOFTWARE IS PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK OF
SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU.
6.2 Limitation of Liability. IN NO EVENT SHALL AFM, ITS AFFILIATES, SUPPLIERS
OR THIRD PARTY LICENSORS, OR THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS,
SHAREHOLDERS, AGENT, EMPLOYEES, REPRESENTATIVES, SUCCESSORS AND ASSIGNS BE
LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES
OR PENALTIES (INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA,
BUSINESS INTERRUPTION, AND THE LIKE), HOWEVER IT ARISES, INCLUDING, BUT NOT
LIMITED TO, THE USE BY YOU OF THE SOFTWARE, WHETHER FOR BREACH OF CONTRACT OR
IN TORT, EVEN IF AFM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Limitation of Remedies. NOTWITHSTANDING ANY TERM OR PROVISION TO THE
CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL AFM'S MONETARY LIABILITY IN
CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, TO YOU EXCEED $100.00.
7. ASSURANCES BY YOU.
There can be no assurances whatsoever that control systems such as the
Software will protect any individual or his or her property from harm.
Appropriate safety precautions must always be taken when reacting to
information generated by software in connection with the operation or
maintenance of equipment connected to the Software. AFM ASSUMES NO
RESPONSIBILITY OR LIABILITY FOR ANY INJURY OR DAMAGE TO ANY PERSONS OR
PROPERTY RESULTING FROM THE USE BY YOU OF THE SOFTWARE. Further, you represent
and warrant that you will take appropriate precautions, establish appropriate
procedures and post appropriate notices to ensure that persons and property
are not harmed in the event of an error, malfunction or unexpected operation
of the Software.
8. HIGH RISK APPLICATIONS.
You will make reasonable business efforts to ensure that the Software is not
used in any application in which the failure of the Software could lead to
death, personal injury or severe physical or property damage, including,
without limitation, environmental damage, (collectively, "High-Risk
Applications"), including but not limited to the operation of nuclear
facilities, mass transit systems, aircraft navigation or aircraft
communication systems, air traffic control, weapon systems and direct life
support machines, unless otherwise permitted by AFM in writing. Without
limiting any disclaimer of any express or implied warranty under this
Agreement, AFM expressly disclaims any express or implied warranty or
condition of fitness of the Software for High-Risk Applications.
9. INDEMNIFICATION.
You shall indemnify and hold harmless AFM, its affiliates, suppliers or third
party licensors, or their respective members, officers, directors,
shareholders, agent, employees, representatives, successors and assigns, from
and against all losses, claims, damages or other causes of any nature or kind
whatsoever (including reasonable attorney's fees) arising directly or
indirectly out of third party claims concerning (i) a breach of any of your
obligations, covenants, representations or warranties contained herein
(including, without limitation if you are purchasing the THE AFM HUB SaaS
Authorization option, any breaches caused by your customers); (ii) your
selection of, transactions and/or agreements with any party that is a AFM
reseller or distributor, systems integrator or trainer, or any other third
party; (iii) any derivative work or product developed by you that is based on
the APIs or Example Code, as permitted under this Agreement; (iv) any
combination of the Software, or any component of it, with any product,
equipment, device, software, hardware, system, data or other technology not
supplied by AFM, (v) the negligence or intentional misconduct of you or your
officers, employees, agents, contractors or customers, or (vi) any property or
economic damages or personal injury or death arising from or related to the
use of the Software. You agree not to interpose any cross-claim, third party
claim or similar claim against AFM based on a claim, suit, action or
proceeding threatened or commenced against you related to the Software and
arising out of any matter other than a matter, if any, for which AFM has
agreed to indemnify you under a separate agreement signed by AFM.
10. TERM AND TERMINATION.
10.1 Term. This Agreement is effective upon your clicking the "I Agree"
button, or other button expressing your agreement to the terms herein, and
shall continue until terminated.
10.2 Termination. You may terminate this Agreement at any time by deactivating
the Software or by providing written notice of termination to AFM and
returning the Software and all copies and extracts to AFM. AFM may terminate
this Agreement upon a material or continuing breach of this Agreement by you
by the giving of 30 days prior written notice of termination, stating the
cause therefore, with termination becoming effective at the close of said
30-day term if the breach is not then cured to the satisfaction of AFM.
10.3 No Refunds. Notwithstanding the reason for termination of this Agreement
by you or AFM, under no circumstances will AFM be obligated to provide any
refunds of any portion of any amounts paid by you in connection with this
Agreement or the Software.
10.4 Survival. All provisions of this Agreement that by their nature are
intended to survive the termination of this Agreement shall so survive.
11. TRADEMARKS AND PROPRIETARY NOTICES.
11.1 For Purchasers of the Standard THE AFM HUB End User License. If you are
purchasing a standard THE AFM HUB end user license, then under no
circumstances may you use any trademark or service mark of AFM to identify, or
otherwise in connection with, goods or services provided by you except as
expressly agreed to by AFM in writing.
11.2 For Purchasers of the THE AFM HUB SaaS Authorization Option. If you are
purchasing the THE AFM HUB SaaS Authorization option, then AFM hereby grants
to you a non- exclusive, nontransferable right to use the registered or
unregistered trademarks, service marks, trade names, logos, or other similar
items of AFM (the “AFM Trademarks”) that AFM may communicate to you from time
to time solely in connection with the marketing, advertising, and promotion of
the Software as it may be used in the services provided to customers by you
during the term of this Agreement. You agree to use the AFM Trademarks only in
the form and manner as prescribed from time to time by AFM (including without
limitation in any trademark usage and quality control guidelines), and will
not use any other trademark or service mark in combination with the AFM
Trademarks without the prior consent of AFM. You agree and acknowledges that
the services provided under the AFM Trademarks shall be of a quality that is
consistent with the quality of such services as provided by AFM and that AFM
has the right to monitor and control the quality of such services provided by
you. You agree that AFM is the sole and exclusive owner of the AFM Trademarks
and you shall not use any AFM Trademarks in any business, corporate or trade
name and shall not directly or indirectly attempt to adopt, use or register
any mark that is confusingly similar to the AFM Trademarks, or contest or deny
the validity or enforceability of the AFM Trademarks, or otherwise take any
action that could be detrimental to the goodwill associated with the AFM
Trademarks. Any and all goodwill arising from your use of the AFM Trademarks
shall inure solely to the benefit of AFM.
11.2.1 Promotion of the Software. You shall not produce or disseminate any
marketing materials that state that you are the manufacturer of the Software
or that you have any ownership rights in the Software. In addition, in any
written materials supporting any advertising, mailing, or other promotions
undertaken by you, you shall prominently display a notice of AFM’s ownership
of the AFM Trademarks.
11.2.2 Marketing Materials. You shall be solely responsible for developing
marketing materials, subject to AFM's prior written approval, and for bearing
all of its own costs of advertising and promoting the Software. Prior to the
first distribution of any marketing materials, you shall provide to AFM, and
obtain AFM's approval of, copies of all proposed marketing materials,
including but not limited to, all print material and web site content. AFM
shall not unreasonably withhold such approval and shall grant or deny approval
of such marketing materials within five (5) Business Days after receipt of
such marketing materials from you. Failure by AFM to respond to you within
five (5) Business Days after receipt of such marketing materials from you for
approval shall constitute approval of such marketing materials.
11.2.3 Your Trademarks. Subject to AFM’s right of approval of marketing
materials using the AFM Trademarks, you may place your trademarks on such
marketing materials. you shall obtain such approval prior to the first sale of
any Software and thereafter when proposing to make any material changes to the
marketing materials previously approved under this Section 11.2.
11.2.4 Actions upon Termination. Upon Termination of this Agreement for any
reason, you shall immediately cease all use of the AFM Trademarks and shall
destroy or return to AFM any and all marketing materials bearing the AFM
Trademarks.
11.3 Proprietary Notices. You acknowledge that the Software may contain
certain proprietary notices (included but not limited to trademark and
copyright notices), trademarks, service marks, and logos of AFM, its
affiliates, suppliers, third party licensors and other third parties, and you
agree not to remove, modify (including adding to), minimize, obscure or block
such notices, trademarks, service marks or logos.
12. GENERAL TERMS.
12.1 Assignment. You may assign this Agreement or your rights and obligations
under this Agreement to a purchaser of the hardware on which the Software is
installed, provided (i) you provide such purchaser with a copy of this
Agreement and (ii) the purchaser agrees in writing to comply with all of the
terms and conditions of this Agreement. AFM may assign this Agreement without
your consent.
12.2 Export. Software, including technical data, is subject to U.S. export
control laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import regulations in other
countries. You agree to comply strictly with all such regulations and
acknowledge that you have the responsibility to obtain such licenses to
export, re-export, or import the Software. The Software may not be used, sold,
resold, sublicensed, diverted, transferred, reshipped, or otherwise exported
or re- exported: (i) in, into or through any country designated as a terrorist
supporting country by the U.S. government or any of its agencies; (ii) in,
into or through any country for which the U.S. has an embargo or with which
the U.S. or any of its agencies maintains comprehensive trade controls; (iii)
to or by a national or resident of the countries described in (i) or (ii); or
(iv) to or by any party included in the United States Department of Commerce's
Denied Persons List, Entity List or Unverified List; or the United States
Department of the Treasury's Specially Designated Nationals, Specially
Designated Global Terrorists, Specially Designated Narcotics Traffickers,
Specially Designated Narcotic Traffickers, or Specially Designated Terrorists
List; or the United States Department of State's Designated Foreign Terrorist
Organizations or Debarred Persons List; or is otherwise designated by the U.S.
government or any of its agencies as a party with which it is unlawful to do
business.
12.3 Equitable Relief. You acknowledge that any breach of your obligations
hereunder with respect to the Software or the confidential information of AFM,
including, without limitation, Section 5.1 and 5.2 above, will cause AFM
irreparable injury for which it has no adequate remedy at law. You further
agree that AFM will be entitled to seek and obtain equitable relief, including
preliminary injunctions and temporary restraining orders, to prevent any
unauthorized use of the Software and confidential information, without posting
of bond or other security, in addition to all other remedies available to it
under this Agreement or other applicable law.
12.4 Entire Agreement. Except with respect to any separate confidentiality
agreements that you may have signed with AFM relating to the Software, this
Agreement comprises the entire agreement between the parties relating to its
subject matter and this Agreement supersedes all prior agreements and
understandings, written or oral, express or implied. This Agreement can be
amended or modified only by a writing executed in advance by duly authorized
representatives of each of the parties hereto. In the event any foreign
ministry or other governmental entity or agency makes any changes, deletions
or modifications to this Agreement, holds any provision herein unenforceable
or imposes any conditions or restrictions on either party to this Agreement
which affects its ability to fully perform, AFM shall have the right to
immediately terminate this Agreement. You represent and warrant that all
consents, approval or authorizations of third parties, foreign ministries or
any governmental entities or agencies, required as a condition or otherwise
necessary for you to enter into and perform its obligations under this
Agreement have been duly obtained.
12.5 Notices. Any notice or other communication required or permitted under
this Agreement shall be in writing and shall be delivered by hand, by
registered prepaid first class mail, by facsimile or by electronic mail to the
persons or addresses specified on the signature page of this Agreement (or as
otherwise may have been communicated in writing). A notice or other
communication shall be deemed to have been served and received (a) on the date
delivered, if delivered by hand or sent by registered prepaid first class
mail, or (b) upon acknowledgement of receipt, if sent by facsimile or
electronic mail.
12.6 Waiver. A waiver of any breach of default of this Agreement shall not
create a waiver of the term or of any subsequent breach of default.
12.7 Governing Law; Choice of Venue. The validity of this Agreement and the
rights, obligations and relations of the parties hereunder shall be construed
and determined under and in accordance with the substantive laws of the State
of Florida with respect to claims governed by state law and the laws of the
United States with respect to claims arising under the laws of the United
States, without regard to conflicts of laws principles and excluding the
Convention on Contracts for the International Sale of Goods. Any action
arising from or relating to this Agreement or the conduct of the parties
pursuant hereto shall be commenced and heard solely within a federal or state
court of competent jurisdiction found within the boundaries of the United
States District Court for the State of Florida, and AFM and you each consent
to personal jurisdiction and venue in any such court.
12.8 Severability. Should any term or provision of this Agreement be finally
determined by a court of competent jurisdiction to be void, invalid,
unenforceable or contrary to law or equity, the offending term shall be
modified and limited (or if strictly necessary, deleted) only to the extent
required to conform to the requirements of law and the remainder of this
Agreement (or, as the case may be, the application of such provisions to other
circumstances) shall not be affected thereby but rather shall be enforced to
the greatest extent permitted by law.
12.9 Government Use. The Software is provided with restricted rights. With
respect to any acquisition of the Software by or for any unit or agency of the
U.S. Government ("Government"), the Software shall be classified as
"Commercial Computer Software," as that term is defined in the applicable
provisions of the Federal Acquisition Regulation ("FAR") and supplements
thereto, including the Department of Defense (“DoD”) FAR Supplement ("DFARS").
If the Software is supplied for use by DoD, the Software is delivered subject
to the terms of this Agreement and either (i) in accordance with DFARS
252.227-7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in
accordance with DFARS 252.227 7013(c), as applicable. If the Software is
supplied for use by a federal agency other than DoD, the Software is
restricted computer software delivered subject to the terms of this Agreement
and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14 (ALT III),
as applicable.
12.10 Binding on Successors. This Agreement shall be binding upon you, your
successors and assignees.