THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF ROLLSTREAM APPLICATION SERVICES ("APPLICATION SERVICES").
IF YOU PURCHASE OUR SERVICES, THE AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF ROLLSTREAM APPLICATION SERVICES.
BY CLICKING ON THE "AGREE" BUTTON BELOW, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO BIND THE COMPANY THAT YOU REPRESENT, ROLLSTREAM IS UNWILLING TO LICENSE THE APPLICATION SERVICES TO YOU AND YOU MUST DISCONTINUE ACCESS TO AND INSTALLATION AND USE OF THE APPLICATION SERVICES NOW. YOU REPRESENT AND WARRANT THAT YOU HAVE SUFFICIENT AUTHORITY TO BIND THE COMPANY THAT YOU REPRESENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS LICENSE.
THE LICENSED MATERIALS AND OTHER MATERIALS PROVIDED BY ROLLSTREAM AS GOVERNED BY THIS AGREEMENT ARE THE PROPERTY OF ROLLSTREAM AND ARE PROTECTED BY COPYRIGHT LAWS, TRADE SECRET LAWS AND INTERNATIONAL TREATIES. YOUR RIGHT TO COPY, ACCESS AND USE THE LICENSED MATERIALS IS GOVERNED IN ALL RESPECTS BY THE FOLLOWING AGREEMENT.
The license set forth herein is granted to you, on behalf of the company that you represent (collectively, “you”), by RollStream, Inc. (“RollStream”) pursuant to this license agreement (the “Agreement”) that grants you access to and use of certain RollStream software products (the “Application Services”). This Agreement is a legal agreement between you and RollStream that governs your use of the Application Services, which includes computer software and data supplied with such Application Services as well as the printed or electronic instruction and user manuals and user documentation made available by RollStream regarding use of the Application Services (“Documentation” and, together with the Software, the “Licensed Materials”). This Agreement is effective as of the date (the “Effective Date”) that you indicate your consent to its terms by clicking the “AGREE” button below.
1. ORDERS, ACCESS AND USE.
1.1 Orders. “Application Services” is hereby further defined as the specific edition of RollStream’s online services and functionality provided by RollStream for your benefit solely to the extent identified and further described in, and as limited by, each order submitted by you in the form of an online registration form or other form as detailed by RollStream (each an “Order Form”). By submitting an Order Form to RollStream, you hereby acknowledge and agree that use of the Application Services will be governed by the terms set forth in this Agreement. Each Order Form shall identify the Application Services to which you are subscribing, the Term (as further defined in Section 11 below) during which you will be entitled to access and use the Application Services, the costs associated with such Application Services, the schedule of payments, and any unique additional terms governing such Order Form.
1.2 Provision of Access. Subject to the terms and conditions contained in this Agreement and your payment of the fees set forth in the applicable Order Form, RollStream hereby grants you a non-exclusive, non-transferable right to access and use the features and functions of the applicable Licensed Material identified in a valid Order Form during the term set forth in the applicable Order Form (the “Term”) in accordance with the terms and conditions of this Agreement. Upon RollStream’s receipt from you of a completed and valid Order Form, RollStream will deliver to you the applicable Licensed Materials and requisite Access Protocols via email or as otherwise mutually agreed by the Parties in a specific Order Form. For purposes of this Agreement, “Access Protocols” is hereby defined as the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be required for you to access the Application Services. RollStream shall have Administrator access to your instance of the Application Services in order to fulfill its obligations under this Agreement.
1.3 Use of the Application Services by Authorized Users. Authorized Users may use the Application Services solely for your internal business purposes, which for the Certificate Exchange Network (the “CEN”) solution specifically shall include posting and/or viewing information related to product and other relevant documents, and making such information available for access by other Authorized Users of the CEN. For purposes of this Agreement, “Authorized User” is hereby defined as any of your employees, agents or contractors accessing or using the Application Services; provided that you shall ensure that all such use is restricted to use for your internal business purposes according to the usage limitation set forth in the Order Form.
1.4 Usage Restrictions. You will not: (a) attempt, for any reason, to decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application Services is compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant you any right to obtain or use such source code; (b) create any derivative product from any of the foregoing; (c) build a product using similar ideas, features, functions or graphics of the Application Services; (d) allow third parties other than Authorized Users to gain access to the Application Services; (e) use the Application Services as a service bureau; or (f) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, your rights under this Agreement. You will ensure that all use of the Licensed Materials by you and all Authorized Users complies with all applicable laws, statutes, regulations or rules.
1.5 Additional Restrictions. You agree that you will not use the Applications Services in any manner for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given you specific permission to contact them in such a manner. You agree not to use the Application Services to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind. You agree to use the Application Services only in a lawful manner and in accordance with RollStream’s e-mail, security and use policies made available to you from time-to-time. You will be solely responsible for all Customer Data and RollStream will not be responsible and shall have no liability to you for any damages caused thereby or for any disclosures of such Customer Data. For purposes of this Agreement, “Customer Data” is hereby defined as any Profile (as defined in Section 1.6(a) below), data, information, or material entered by you into the Application Services, but specifically excludes Public Data (as defined in Section 1.6(a) below).
1.6 Retained Rights; Ownership.
a. Ownership and Use of Customer Content. You retain all right, title and interest in and to the Customer Data and Profiles, and RollStream acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data and Profiles not expressly granted by this Agreement. For purposes of this Agreement, “Profile” is hereby defined as basic information for an individual, group, department or company related to you or your suppliers, vendors or other third parties. RollStream further acknowledges that you retain the right to use the Customer Data and Profiles for any purpose in your sole discretion. Nothing in this Agreement shall restrict either Party from freely accessing and using any “Public Data”, which is defined as any information available from publicly accessible sources including, without limitation, publicly available contact information or basic descriptions regarding a company or its offerings. Subject to the foregoing sentences, you hereby grant to RollStream a non-exclusive, non-transferable right and license to use (reproduce, transmit, publicly display, and modify by the addition of or reordering of data fields to conform to the Application Services) the Customer Data and Profiles during the Term for the limited purposes of performing RollStream’s obligations hereunder.
b. Ownership of Application Service. Subject to the rights granted in this Agreement, RollStream retains all right, title and interest in and to the Licensed Materials and Access Protocols, and you acknowledge that you neither own nor acquire any rights in and to the foregoing not expressly granted by this Agreement. You further acknowledge that RollStream retains the right to use the foregoing for any purpose in RollStream’s sole discretion.
2. DATA STORAGE. RollStream shall allocate a maximum database and system storage space as specified in the Order Form to you for the Application Services. System space in excess of the allocation set forth in the applicable Order Form is subject to availability and additional fees, as determined by RollStream. RollStream reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
3. APPLICATION AND CONTENT HOSTING. RollStream shall, at its own expense, host the Application Services provided that nothing herein shall be construed to require RollStream to provide or bear any responsibility with respect to any telecommunications or computer network required by you to access the Application Services via the Internet.
4. CUSTOMER OBLIGATIONS.
4.1 Authorized User’s Access to Application Services. You may permit any Authorized Users to access and use the features and functions of the Application Services as expressly set forth in this Agreement. RollStream has the right, at its discretion, to suspend or terminate the access of any Authorized User that is accessing or using the Application Services in a manner not in accordance with this Agreement. You will ensure that all Authorized Users will abide and be bound by the terms of this Agreement. You will, at all times, be fully responsible and liable for all acts and omissions of Authorized Users including, without limitation, all use of the Application Services by Authorized Users, as if the Authorized User were you. All such acts, omissions or use by an Authorized User which, if undertaken by you, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by you.
4.2 Data and Security. You and your Authorized Users shall have access to the Customer Data, Public Data, and Profiles and shall be responsible for all use of, changes made to and/or deletions of Customer Data, Profiles, and Public Data. You are hereby responsible and liable for the security of all Access Protocols provided to you by RollStream.
5. FEES, EXPENSES AND PAYMENT.
5.1 Fees. In consideration for the access to and license rights relating to the Application Services granted to you herein, and for the services performed by RollStream under this Agreement, you shall pay to RollStream, without offset or deduction, all fees set forth in each applicable Order Form. RollStream will submit invoices to you with respect to such fees according to the relevant payment schedules or terms indicated on the applicable Order Form. Each invoiced amount will be due and payable within thirty (30) days of receipt of the relevant invoice by you. All fees are non-refundable and any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
5.2 Taxes. You will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on RollStream’s income), and any related penalties and interest relating to the access rights and license granted hereunder, or the delivery of related services. You will make all required payments to RollStream free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to RollStream will be your sole responsibility, and you will, upon RollStream’s request, provide RollStream with official receipts issued by appropriate taxing authorities, or such other evidence as RollStream may reasonably request, to establish that such taxes have been paid.
6. CONFIDENTIALITY.
6.1 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
6.2 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. For the avoidance of doubt, the pricing, technical specifications, the Application Service, Documentation, the Access Protocols and all negotiated terms of this Agreement are hereby deemed the Confidential Information of RollStream.
6.3 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with terms no less protective of the Confidential Information than the terms of this Agreement; and (e) return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
6.4 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.2 and 6.3 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient without use of or access to the disclosing Party’s Confidential Information; or (f) is approved in writing for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (A) 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 (B) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
6.5 Injunctive Relief; Limitation Period. Each Party acknowledges that its failure to comply with the provisions of this Section 6 will result in irreparable harm to the other Party for which a remedy at law would be inadequate and, therefore, in the event of the breach or threatened breach by a Party of its obligations under this Section 6, the other Party shall be entitled to seek, in addition to the exercise of any other remedies at law and in equity, equitable relief in the form of specific performance or an injunction for any such actual or threatened breach. The obligations set forth in this Section 6 shall survive the termination or expiration of this Agreement for a period of five (5) years.
7. REPRESENTATIONS AND WARRANTIES
7.1 General. Each Party hereby represents and warrants that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. RollStream represents and warrants that the Applications Services will perform substantially in conformance with the Documentation. RollStream represents and warrants that any support services performed under this Agreement by RollStream shall be performed in a professional and workmanlike manner.
7.2 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED MATERIALS, ACCESS PROTOCOLS AND ALL SERVICES PERFORMED BY ROLLSTREAM ARE PROVIDED “AS IS,” AND ROLLSTREAM DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ROLLSTREAM DOES NOT WARRANT THAT THE LICENSED MATERIALS OR ANY OTHER SERVICES PROVIDED BY ROLLSTREAM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. FURTHERMORE, YOU ACKNOWLEDGE THAT ROLLSTREAM’S APPLICATION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND YOU AGREE THAT ROLLSTREAM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7.3 Essential Basis of the Agreement. You acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth in Sections 7.2 and 8 form an essential basis of this Agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT FOR LIABILITIES ACCRUED AS A RESULT OF A BREACH BY ROLLSTREAM OF SECTIONS 6 AND 9 OF THESE TERMS AND CONDITIONS, THE CUMULATIVE LIABILITY OF ROLLSTREAM TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO ROLLSTREAM BY YOU UNDER SECTION 5 DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9. ROLLSTREAM INDEMNIFICATION. RollStream agrees to indemnify, defend and hold you harmless from any legal claim (“Claim”) brought by a third party against you to the extent that it is proximately caused by an allegation that the Application Services licensed under this Agreement has infringed such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights, trademarks or trade secret rights under applicable laws of any jurisdiction within the United States of America; provided that you: (a) promptly notify RollStream in writing of the Claim; (b) give RollStream full authority, information, and assistance, and sole control, to defend and settle such Claim; and (c) cooperate with RollStream in the defense and settlement of such Claim. RollStream shall have no liability under this Agreement with respect to any Claim based upon: (i) Application Services that have been modified by anyone other than RollStream; (ii) use of other than the then-current release of the Application Services, if infringement could have been avoided by use of the then-current release and such current release has been made available to you; (iii) use of the Application Services in conjunction with your data where use with such data gave rise to the infringement claim; (iv) use of the Application Services with other software or hardware, where use with such other software or hardware gave rise to the infringement claim; (v) use of any Application Service in a manner inconsistent with its Documentation, or (vi) use of any Application Service which use breaches this Agreement. If RollStream determines that the Application Services are, or are likely to be the subject of, a claim of infringement, RollStream shall have the right to: (A) modify and/or replace the Application Services with a non-infringing replacement; (B) procure, at no additional cost to you, the right to continue to use the Application Services; or (C) terminate your license to use the Licensed Materials, and refund your pro-rata portion of the applicable fees paid for the Application Services. THE PROVISIONS OF THIS SECTION STATE THE EXCLUSIVE LIABILITY OF ROLLSTREAM AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET MISAPPROPRIATION OR INFRINGEMENT BY THE LICENSED MATERIALS, ANY PART THEREOF, AND ANY MATERIAL OR SERVICES PROVIDED HEREUNDER, AND ARE IN LIEU OF ALL OTHER REMEDIES, LIABILITIES, AND OBLIGATIONS.
10. YOUR INDEMNIFICATION. You agree to hold, harmless, indemnify, and, at RollStream’s option, defend RollStream from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (a) your negligence or misconduct; and/or (b) a material breach by you of the terms of this Agreement, provided that RollStream promptly notifies you in writing of the claim, cooperates with you, and allows you sole authority to control the defense and settlement of such claim; provided that you will not settle any third-party claim against RollStream unless such settlement completely and forever releases RollStream from all liability with respect to such claim or unless RollStream consents to such settlement, and further provided that RollStream will have the right, at its option, to participate in the defense thereof by counsel of its own choice.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement will commence on the Effective Date and will continue for the length of time specified on each valid Order Form.
11.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party that specifically identifies the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such breach is not cured within such thirty (30) day period.
11.3 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (a) the other Party files a petition in bankruptcy, reorganization or similar proceeding or, if filed against it, such petition is not removed within ninety (90) days after such filing; (b) the other Party discontinues its business; or (c) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
11.4 Effect of Termination. Upon any termination of this Agreement, you will (a) immediately discontinue all access to and use of the Licensed Materials and any RollStream Confidential Information; and (b) promptly pay to RollStream all remaining fees due under this Agreement and any applicable Order Form(s). RollStream has no obligation to retain the Customer Data and may delete such Customer Data upon termination and/or expiration of this Agreement.
11.5 Survival. The provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, which provisions shall include, without limitation, Sections 1.4, 1.5, 1.6(b), 5, 6, 7.2, 8, 11.4, 11.5 and 12 will survive the termination of this Agreement.
12. MISCELLANEOUS.
12.1 Entire Agreement; Amendment and Modification. This Agreement, along with any Order Form, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any and all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement. Neither Party will be bound by any conditions, inducements or representations other than as expressly set forth in this Agreement. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
12.2 Independent Contractors. In making and performing this Agreement, you and RollStream act and will act at all times as independent contractors and nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses or any other obligations for, or in the name of, the other Party.
12.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of facsimile, certified mail, postage prepaid, to the Parties at their respective addresses set forth in applicable Order Form, or addressed to such other address as a Party may have given to the other Party by written notice in accordance with this provision. In the event that either Party delivers any notice by means of facsimile transmission, such Party must receive and retain confirmation of successful transmittal to the recipient, and such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above.
12.4 Assignment; Delegation. You will not assign any of your rights or delegate any of your duties under this Agreement without the express, prior written consent of RollStream and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. RollStream may assign this Agreement in the event of a change in control of RollStream.
12.5 No Third Party Beneficiaries. The Parties acknowledge that this Agreement is intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.6 Severability and Waiver. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
12.7 Force Majeure. Except with respect to your payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the relevant circumstances causing such failure or delay have ceased to exist, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
12.8 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COMMONWEALTH OF VIRGINIA.
12.9 . Each of the software components that constitutes the Application Service and the Documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Services and the Documentation with only those rights set forth therein.
