Pico MES Service Terms and Conditions

1. DEFINITIONS

1.1 “Affiliate” means any company controlling, controlled by or under common control with a party, where “control” shall mean ownership, directly or indirectly, of the shares of a company representing fifty percent (50%) or more of the voting rights in this company.

1.2 “Change of Control” means (a) a sale, lease, transfer or other disposition of all or substantially all of the assets of Company, (b) a transaction or series of related transactions to which Company is a party in which in excess of 50%, by voting power, of Company’s capital securities is transferred by existing equity holders of Company (other than transactions principally for bona fide equity financing purposes); or (c) a merger or consolidation of Company with or into another company (other than one in which stockholders of Company own a majority by voting power of the outstanding shares of the surviving or resulting company or the parent company of such surviving or resulting company).

1.3 “Content” means content, data, and information that is owned by Company or any of its licensors that is provided or made available by Company through use of the Software. Content does not include Customer Data.

1.4 “Customer Data” means the electronic data and information input into or generated by the Software related to Customer’s products or manufacturing processes by or on behalf of Customer or its Users.

1.5 “Customer System” means the computer system(s) and network(s) operated by or on behalf of Customer to support operations of Customer’s business, including the Hardware as integrated into Customer’s computer system(s) and network(s).

1.6 “Documentation” means any user materials, instructions, and technical documentation made available by Company to Customer for the use and operation of the Software.

1.7 “Effective Date” shall be the signature date of the first Order entered into by Customer when Customer has no other active Orders with Company.

1.8 “Error” means a reproducible failure of the Software to substantially conform to the Documentation.

1.9 “Order” means any written subscription order form executed by Company and Customer setting forth the terms and conditions relating to the Services. Each Order is incorporated by reference into this Agreement.

1.10 “Hardware” means certain hardware components purchased by Customer from Company on which are installed portions of the Software and are identified in a separate purchase order. The Hardware includes, but may not be limited to, the Pico server and Pico hubs. The Hardware does not include the Customer System, Customer’s connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Software or to utilize the Services.

1.11 “Software” means the modules of Company’s proprietary PICO MES software solution, including any modified, updated, or enhanced versions of such software that may become part of the Software and which are identified on a Customer Order Form.

1.12 “Support” means the technical and consultative support in the Subscription purchased by Customer as set forth on the Order and described at Appendix B.

1.13 “Usage Data” means any content, data, or information that is collected or produced by the Software in connection with the use of the Services in an aggregated format not identifiable to Customer or a particular User, and may include, but is not limited to, usage patterns, traffic logs and user conduct associated with the Software.

1.14 “Users” means the employees, independent contractors, and agents of Customer and other individuals who are authorized to use the Services on behalf of Customer.

2. THE SOFTWARE

2.1 Access Rights; Customer’s Use of the Software.

(a) Company Hosted Software. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 12.2), non-sublicensable right for Users to access and use the Software for Customer’s own internal business purposes in accordance with the terms of this Agreement, the Documentation and subject to any usage limitations set forth in the applicable Order.

(b) Software Installed on Hardware. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 12.2), non-sublicensable right to use and perform the Software as hosted on the Hardware for Customer’s own internal business purposes in accordance with the terms of this Agreement, the Documentation and subject to any usage limitations set forth in the applicable Order.

(c) No Other Rights Granted. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Software, or any part thereof.

2.2 Restrictions on Use. Customer shall not, and shall not permit any User or any other party to: (a) reproduce, display, download, modify, create derivative works of or distribute the Software, or attempt to reverse engineer, decompile, disassemble or access the source code for the Software or any component thereof; (b) use the Software, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer; or (c) permit any party, other than the then-currently authorized Users to access the Software, or Content; or (d) access or use Content, or Software to create a competing product or service. Customer may not remove or export from the United States or allow the export or re-export of the Software, Content or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

2.3 Users. Subject to the terms and conditions of this Agreement, Customer may permit employees and independent contractors of Customer to become Users in order to access and use the Software on Customer’s behalf. Customer will be liable for all acts and omissions of Users, including Users’ compliance with this Agreement. Customer shall not, and shall not permit any User to, use the Software or Documentation except as expressly permitted under this Agreement. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and notify Company promptly of any such unauthorized use known to Customer.

2.4 Remote Monitoring. Customer agrees to allow Company to set up a virtual private network (“VPN”) connection to the Hardware, particularly the Pico server or other designated Hardware, to allow Company to backup Customer’s deployment regularly, and provide support, updates and to monitor the operation of and Customer’s use of the Software and functionality of the Hardware. In the event that Customer does not provide Company VPN access to the Hardware, Company cannot perform backups, and Company’s ability to provide support will be severely diminished. Accordingly, if Customer fails to provide Company the VPN access required in this Section 2.4, then Customer hereby waives any claims against Company related to Company’s backup of Customer’s deployment or support services that are attributable to the time such VPN access is unavailable.

2.5 Software Support. Subject to the terms and conditions of this Agreement, Company shall provide the support services and remedies pursuant to the service level chosen and paid for by Customer, as described in the Customer Order Form. Customer acknowledges Company’s ability to provide support will be severely diminished if Customer is in breach of Section 2.4.

3. HARDWARE

3.1 Hardware Order. The parties agree that Hardware must be purchased from Company and the parties shall enter into a separate Order for the Hardware required by Customer for its deployment of the Software. The parties agree that Customer may submit its purchase order for the Hardware, but the terms of this Agreement shall govern, supersede, and control over any terms included in a Customer purchase order. Unless otherwise agreed to by the parties in writing, all sales are final.

3.2 Title. Upon payment in full and delivery of the Hardware, all right, title and interest in and to the Hardware shall pass from Company to Customer. All Hardware is provided by Company “as-is” and on an “as-available” basis, without representation or warranty of any kind (except for the pass-through warranties provided in Section 3.3), including implied warranties of merchantability, non-infringement, title, and fitness for a particular purpose.

3.3 Hardware Warranty. Company will pass through any manufacturer or reseller warranty to Customer. Customer’s only warranty, if any, shall be that from the original manufacturer or the reseller from which Company purchased such Hardware. Customer may request such manufacturer or reseller information from Company at any time during the Term of this Agreement. The parties agree that the manufacturer’s or reseller’s warranty shall be the sole and exclusive warranty applied to Customer’s purchase and use of the Hardware.

3.4 Use of the Hardware. Customer must implement the Hardware in accordance with instructions by Company. Customer will use the Hardware solely for its internal business purposes. Customer may not re-sell the Hardware or use the Hardware until any Software installed on such Hardware is permanently and completely deleted.

3.5 Repair and Replacement of Hardware. As provided in the support services descriptions, Customer shall first reach out to Company in the event of a malfunction or failure of the Hardware and Company shall help diagnose the problem. In the event Hardware needs to be repaired or replaced, unless otherwise agreed to by the parties in writing, Customer should contact the manufacturer reseller from which such Hardware is purchased to request such repair or replacement of Hardware. Per Section 2.4 above, in the event that Customer does not provide Company VPN access to the Hardware, Company cannot perform backups and Company’s ability to provide support will be severely diminished.

4. FEES, PURCHASES, AND PAYMENT TERMS

4.1 Price. Customer shall pay Company the Software fees or Hardware prices set forth in the applicable Order (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to Company under this Agreement (excluding any taxes arising from Company’s income or any employment taxes). Fees for any Services requested by Customer that are not set forth in the applicable Order will be charged as mutually agreed to by the parties in writing. Company reserves the right to change the Fees and to institute new Fees for any Renewal Term upon prior written notice to Customer at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term.

4.2 Payment. Customer shall pay to Company all Fees or reimbursable expenses within thirty (30) days after Customer’s receipt of the applicable invoice for such Services. If Customer disputes in good faith any Fees set forth in an invoice, it shall notify Company of the dispute within thirty (30) days after receipt of such invoice. All payments received by Company are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars. Any amounts not paid when due are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. Customer shall be responsible for all Company’s costs of collection, including without limitation reasonable attorney’s fees.

4.3 Suspension. If any undisputed amount owing by Customer under this Agreement is thirty (30) days or more overdue, Company may, without limiting its other rights and remedies, suspend Services, including Customer’s and its Users’ access to the Software, until such undisputed amounts are paid in full on the condition that Company provides Customer with at least ten (10) days’ prior written notice that such amounts are overdue before suspending Services.

5. TERM AND TERMINATION

5.1 Term. This Agreement commences on the Effective Date and continues until all Orders have expired or been terminated (the “Term”).

5.2 Order Term. The initial term of an Order shall begin on the date set forth in the Order and continue for the Order Term set forth therein (“Initial Term”). Thereafter, the Order will automatically renew for additional one-year periods (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term.

5.3 Termination for Cause. A party may terminate this Agreement or any Order immediately upon written notice if the other party breaches any material provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within thirty (30) days after being provided with written notice of such breach.

5.4 Effects of Termination. Upon any expiration or termination of this Agreement or any Orders: (a) all amounts owed to Company under this Agreement or such Order will be due and payable in accordance with Section 4, (b) all licenses granted to in this Agreement will immediately cease unless otherwise indicated, (c) Customer shall promptly discontinue all access and use of the Software and return or erase, all copies of the Documentation in Customer’s possession or control. For thirty (30) days after the end of the Term, as applicable, Company will make the Customer Data available to Customer through the Software on a limited basis solely for purposes of Customer retrieving the Customer Data, unless Company is instructed by Customer to delete such data before that period expires. After such period, Company will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession, except as permitted by applicable law or as required to be retained for Company’s data archives, for example for tax audit or claim defense purposes. Sections 1, 4.1, 4.2, 5.4, 6.1, 6.2, 6.4, 7.1, 7.3, 8.2, 8.5, 9, 10, 11 and 12 will survive any termination or expiration of this Agreement.

6. PROPRIETARY RIGHTS

6.1 Company Technology. The Software, Content, and Documentation, and all worldwide intellectual property rights in each of the foregoing, and all additions and modifications to each of the foregoing (the “Company Technology), are the exclusive property of Company and its suppliers. Company will own any and all developments made by Company related to identifying, controlling, or monitoring any tool whether such developments were made at Customer’s request or need. Any such developments shall be considered Software for the purposes of this Agreement. Subject to Company’s obligations with respect to Customer Technology set forth below, any rights to Company Technology not expressly granted to Customer hereunder are reserved by Company and its suppliers.

6.2 Customer Technology. The Customer’s manufacturing processes, tool orientation, tool selection, process timing, measurements, quality control measures, and machine settings, and any other information directly related to Customer’s manufacturing process and operation (the “Customer Technology”) shall at all times be the property of Customer. Customer agrees that by inputting this information into the Software or otherwise making such information available to Company, Customer hereby grants Company a limited, non-exclusive, fully-paid and royalty-free license to use and reproduce such Customer Technology solely for the purpose of providing the Services through the Software and solely for the Term of this Agreement or the applicable Order. Other than expressly provided herein, Company shall have no right or license to use such Customer Technology.

6.3 Open Source Software. The Services may include individual open source software components, each of which has its own copyright and its own applicable license conditions. Open source software is licensed to Customer under the terms of the applicable open source license conditions and copyright notices that can be found in the licenses file, the Documentation or other materials accompanying the Services. In the event of a conflict between the licenses and restrictions set forth in this Section 2.2 and the terms of the open source license governing open source software, the terms of the open source software license will prevail.

6.4 Feedback. Customer hereby grants to Company a fully-paid, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into Company’s products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Services. Company will not identify Customer as the source of any such feedback.

6.5 Publicity. Company will be permitted to reference its relationship with Customer on its website, during discussions with actual and potential investors, analysts and reporters and in investor and customer briefings and regulatory filings. Company will comply with Customer’s publicly available trademark usage policies.

7. DATA RIGHTS AND DATA SECURITY

7.1 Customer Data. As between the parties, Customer owns all right, title, and interest in and to Customer Data, including all intellectual property rights therein. Any rights not expressly granted to Company hereunder are reserved by Customer and its suppliers. If Customer provides VPN access to the Hardware, then Company will back up any Customer Data on the Hardware. Otherwise, the Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer will have the ability, during the Term, to export at least some portions of the Customer Data out of the Software. Customer is solely responsible for all Customer Data, including, without limitation, the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer has any and all necessary third-party licenses, consents, and permissions needed for Company to use the Customer Data as contemplated by this Agreement.

7.2 Customer Data License Grant. Customer hereby grants to Company, during the Term, a limited, non-exclusive, fully-paid and royalty-free license to: (a) access, reproduce, process, analyze, store, retain, transmit copy, modify, perform, display, and otherwise use the Customer Data in order to perform the Services under this Agreement; (b) update, recalibrate, modify and/or create derivative works of the Customer Data in order to perform the Services under this Agreement.

7.3 Usage Data. Customer acknowledges and agrees that, during the Term, Company may collect data related to the operations of the Software and the Customer’s tools, including but not limited to the number of workstations and processes used by Customer, tracking the general functionality (is it working or not) of the operation and reliability of tools (“Usage Data”). Provided, however, Usage Data will at no time include the particular processes, settings, arrangement, or any information included in the Customer Technology or which could be used to replicate Customer’s processes or produced products. As between the parties, Customer owns all right, title, and interest in and to the Usage Data, including all intellectual property rights therein. Customer hereby grants Company a perpetual, irrevocable, worldwide, fully paid and royalty free license to aggregate, use and disclose Usage Data, both during and after the Term, in connection with its performance of its obligations in this Agreement and for any other business purpose, including, but not limited to, benchmarking, data analysis, and to improve Company’s products, services, systems, and algorithms.

7.4 Data Security.

(a) Company Obligations. Company will implement and maintain procedural, technical, and administrative safeguards for its Services designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Data stored in the Services. Notwithstanding any other provision of this Agreement or any other agreement related to the Services, Company will not be responsible for any breach or loss resulting from Customer’s security configuration or administration of the Services.

(b) Customer Obligations. Customer will implement and maintain procedural, technical, and administrative safeguards designed to protect the confidentiality, security, integrity, availability, and privacy of the Customer System and the Hardware.

8. WARRANTY; DISCLAIMERS

8.1 Limited Software Warranty. Company represents and warrants that the Software will conform to the Documentation during the Term of this Agreement and that the Software will comply with all laws applicable to Company’s provision of the Software. The parties agree that the above limited warranty shall not apply for any period in which Customer is in breach of Section 2.4.

8.2 Remedies. Provided that Customer notifies Company in writing of the breach within thirty (30) days following its knowledge of such breach, specifying the breach in reasonable detail, Company will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, fix the Software and provide the support described in Section 2.5. Such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Software in combination with other products, equipment, software, or data not supplied or approved in writing by Company; or (c) any modification of the Software by any person other than Company or its authorized agents or subcontractors.

8.3 Customer Warranties. Customer represents and warrants that: (a) it has obtained and will maintain throughout the Term, all rights, licenses, consents, and permissions to make available the Customer Data to Company and to authorize Company to use it as contemplated by this Agreement; and (b) it has obtained and will maintain throughout the Term the right to grant Company the licenses in Section 7.2; and (c) it will use the Services, Software, and all Content therein in accordance with the all applicable laws, rules, and regulations.

8.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY IS NOT RESPONSIBLE FOR ERRONEOUS DATA INTRODUCED BY CUSTOMER OR THIRD PARTIES, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT ERRORS ORIGINATING FROM CUSTOMER FROM THIRD-PARTY DATA SHALL NOT BE CONSIDERED BREACHES OF COMPANY’S WARRANTY OBLIGATIONS. COMPANY DOES NOT WARRANT THAT THE SOFTWARE OR HARDWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

9. INDEMNIFICATION

9.1 Claims Against Customer. Company shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any U.S. intellectual property rights of such third party (each, a “Customer Claim”), and Company shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Company in writing of such Customer Claim; (b) giving Company sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Company’s request and expense, assisting in such defense. In the event that the use of the Software is enjoined or in Company’s opinion is likely to be enjoined or the subject of an infringement claim, Company may, at its option and at its own expense either (i) procure for Customer the right to continue using the Software, (ii) replace the Software with a non-infringing but functionally equivalent product, (iii) modify the Software so it becomes non-infringing or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Software that relate to the period during which Customer was not able to use the Software. Notwithstanding the foregoing, Company will have no obligation under this Section 9.1 with respect to any infringement claim based upon: (1) any use of the Software not in accordance with this Agreement or as specified in the Documentation; (2) any use of the Software in combination with products, equipment, software, or data not supplied or approved in writing by Company of if such infringement would have been avoided without the combination with such other products, equipment, software, or data; or (3) any modification of the Software by any person other than Company or its authorized agents or subcontractors. This Section 9.1 states Company’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

9.2 Claims Against Company. Customer shall defend, any claim, suit, or action against Company brought by a third party to the extent that such claim, suit or action is based upon (a) Customer Technology, (b) Customer Data, (c) Customer’s configuration of the Software to conform with Customer’s manufacturing needs, (d) Customer's breach of its warranties, or (e) any act or omission of Customer or its authorized Users (“Company Claim”) and Customer shall indemnify and hold Company harmless, from and against Losses that are specifically attributable to such Company Claim or those costs and damages agreed to in a settlement of such Company Claim. The foregoing obligations are conditioned on Company: (a) promptly notifying Customer in writing of such Company Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense.

10. LIMITATIONS OF LIABILITY

10.1 INDIRECT DAMAGES. IN NO EVENT WILL EITHER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 LIABLITY CAP. COMPANY’S AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDEING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY. THE LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 9, TO LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 11, TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 2.2, OR TO LIABILITY ARISING FROM A PARTY’S WILLFUL MISCONDUCT OR VIOLATION OF LAW.

11. CONFIDENTIALITY

11.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, whether or not such information is designated as confidential. Company’s Confidential Information includes Software and Documentation. Customer’s Confidential Information includes Customer Technology and Customer Data.

11.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Users (with respect to Customer) and those of its employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement (with respect to Company) and who are, in each case, under subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 11. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Recipient shall use commercially reasonable data security measures to prevent unauthorized access to Discloser’s electronically stored or processed data. At Discloser’s request or upon termination or expiration of this Agreement, Recipient will return to Discloser or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that Recipient does not have a continuing right to use under this Agreement, and Recipient will, upon request, certify to Discloser its compliance with this sentence. The foregoing will not apply to Customer Data, which will be returned or destroyed pursuant to Section 5.4.

11.3 Exceptions. Recipient shall have no confidentiality obligations under Section 11.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; or (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process, provided that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

12. GENERAL

12.1 Independent Contractor. Company’s relationship to Customer is that of an independent contractor, and neither Customer nor Company is intended to or should be construed to be an agent, partner, joint venture, or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, and neither party may represent to anyone that it has a right to do so.

12.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a party may assign this Agreement without consent from the other party by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.

12.3 Force Majeure. Except for payment obligations, neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party, including, but not limited to, acts of God, earthquake, fire, flood, embargo, pandemic, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots, or war.

12.4 Notices. To be effective, notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the Order and will be effective upon receipt, except that electronic mail may be used to distribute routine communications and to obtain approvals and consents but may not be used for any other notices. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.

12.5 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware without reference to its choice of law rules. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Delaware in any litigation arising out of this Agreement or the Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

12.6 Bankruptcy. In the event of the commencement of a bankruptcy case or proceeding by or against Company under the United States Bankruptcy Code, as it may be amended or supplemented from time to time (the “Code”), Customer will be entitled to retain all of its rights under this Agreement to any “intellectual property” (as defined in 11 U.S.C. § 101(35A)) licensed to it hereunder, if any. Without limiting the foregoing, the licenses and rights to the Software hereunder, if any, are “intellectual property” as defined in 11 U.S.C. § 101(35A) and, if Company files for bankruptcy, or if any action or proceeding under the Code is filed against Company, this Agreement will be governed by, and Customer shall be entitled to the rights and protections provided pursuant to, 11 U.S.C. § 365(n), as the same may be amended or supplemented from time to time. Nothing in this provision will be deemed to grant to Customer any rights in and to the Software greater than or for a term longer than provided in this Agreement.

12.7 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 5.1 or 12 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

12.8 Compliance with Laws. Each party shall comply with those laws, rules, and regulations in jurisdictions within the United States that are specifically applicable to the applicable party.

12.9 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.10 Severability. If any provision of this Agreement is, for any reason, held to be unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

12.11 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

12.12 Entire Agreement. This Agreement, including any Order and any exhibits or attachments thereto, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement shall govern. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.