Notices. All notices required or permitted under this Agreement will be in writing and will be deemed given: (a) when delivered personally, (b) when sent by confirmed facsimile, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt. All communications will be sent to the principal office of each party or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 11.1. If the communication is from CUSTOMER to CYBRARY, it shall be addressed to “Attn: CEO.” If the communication is from CYBRARY to CUSTOMER, it shall be addressed to the Chief Executive Officer of CUSTOMER.
Assignment. CUSTOMER may not assign, delegate or otherwise transfer this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of CYBRARY. Any attempt to transfer or assign this Agreement without such written consent will be null and void. If the Platform is a valid Update, a permitted transfer may be made only in conjunction with the prior version(s) of the Platform. CYBRARY may assign this Agreement without CUSTOMER’s consent to any affiliate or to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which this Agreement pertains, by merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under this Agreement. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors, executors, and administrators, as the case may be.
Waiver. The failure of either party to enforce in any one or more instances any of the terms and conditions of this Agreement shall not be construed as a waiver of future performance of any such term or condition. Waiver of any term or condition shall only be deemed to have been made if expressed in writing by the party granting such waiver.
Severability. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be reformed, construed, and enforced to the maximum extent permissible and the remaining provisions shall remain in full force and effect.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Maryland without regard to conflict of laws provisions, provided however that the parties expressly disclaim and exclude the application to this Agreement of the Uniform Computer Information Transactions Act as adopted in Maryland. The federal and state courts sitting in Maryland shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the courts of Maryland and service of process being effected upon it by registered mail sent to the respective addresses referred to in Section 11.1 above. The United Nations Convention on Contracts for the International Sale of Goods does not apply. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO, BOTH OF WHOM ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
Entire Agreement. This Agreement and its Exhibits, including all Orders, and any separate CYBRARY agreement referenced elsewhere in this Agreement constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Any preprinted or otherwise prescribed provisions of CUSTOMER’s purchase orders required by CUSTOMER other than quantity, price, and the like, shall not apply, exception to such provisions and terms is hereby given by CYBRARY, and the terms set forth in this Agreement shall be applicable and control. Any modification or amendment to this Agreement must be in writing and signed by authorized representatives of both parties. Except as otherwise provided in Section 4.2 above regarding Open Source Platform, any item or service furnished by CYBRARY in furtherance of this Agreement, although not specifically identified in it or in an Order referencing this Agreement, shall nevertheless be covered by this Agreement unless specifically covered by some other written agreement executed by CUSTOMER and an authorized representative of CYBRARY. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement.
U.S. Government Restricted Rights. CUSTOMER may not acquire the Platform on behalf of the U.S. Government unless CYBRARY has consented to such acquisition in writing. If the Platform is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor at any tier, then the Platform and the accompanying Documentation are to be considered “commercial computer Platform” and “commercial computer Platform documentation,” respectively, as such terms are used in 48 C.F.R. 12.1212 and 48 C.F.R. 227.7202. Except for any arrangements or agreements that CYBRARY may have with U.S. Government or agency thereof with respect to the Platform or intellectual property rights therein, the U.S. Government’s rights in the Platform and any accompanying Documentation will be only as set forth in this Agreement, in accordance with 48 C.F.R. 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions). The Platform is provided with RESTRICTED RIGHTS. The Platform is comprised of “commercial computer Platform” and “commercial computer Platform documentation” as such terms are used in 48 C.F.R. 12.212 and is provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-4.11.8 Export Control. CUSTOMER acknowledges that the Platform licensed herein is subject to the export control laws and regulations of the United States of America (the “U.S.”) and any amendments to them. CUSTOMER confirms that with respect to the Platform, it will not export or re-export it, directly or indirectly, either to: (a) any countries that are subject to U.S. export restrictions, (b) any end user who CUSTOMER knows or has reason to know will utilize it in the design, development, or production of nuclear, chemical or biological weapons, or (c) any end user who has been prohibited from participating in U.S. export transactions by any federal agency or the government of the U.S.. CUSTOMER further acknowledges that the Platform may include technical data subject to export and re-export restrictions imposed by U.S. law. CUSTOMER agrees to indemnify CYBRARY, to the fullest extent permitted by law, from and against any fines or penalties that may arise as a result of CUSTOMER’s breach of this provision. This export control clause shall survive termination of this Agreement.
Export Controls and Trade Sanctions Compliance. CUSTOMER agrees that CUSTOMER’s use of the Services will comply with applicable export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws“). CUSTOMER represents and warrants that (i) CUSTOMER is not a citizen of, or located within, a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria and North Korea); (ii) CUSTOMER is not identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS); and (iii) that no content created or submitted by CUSTOMER is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. CUSTOMER agrees that it will not use the Services to disclose, transfer, download, export or re-export, directly or indirectly, any content to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other laws or regulations to which CUSTOMER may be subject. CUSTOMER acknowledges that the Services may not be available in all jurisdictions and that CUSTOMER is solely responsible for (i) complying with the Export Control Laws and (ii) monitoring them for any modifications.
Use of CUSTOMER Name. CUSTOMER agrees that CYBRARY may use CUSTOMER’s name in CYBRARY’s customer list and may publish information identifying CUSTOMER as a user of CYBRARY products in advertisements, news releases and releases to professional and trade publications. CUSTOMER will have the right to approve each such release prior to its placement, but agrees not to unreasonably withhold its approval.
Independent Contractors. The relationship of CYBRARY and CUSTOMER established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. For a period of one (1) year following the completion of any Support Services performed for CUSTOMER under this Agreement, CUSTOMER shall not directly or indirectly employ, solicit for employment or contract with any CYBRARY personnel performing such Support Services for CUSTOMER under this Agreement.
Confidential Information. Each party acknowledges that by reason of its relationship to the other party under the provisions of this Agreement it may have access to certain non-public information and material concerning the other party’s business, plans, customers, technology, and products that are confidential and of substantial value to the disclosing party (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties. Each party agrees to maintain all Confidential Information received from the other, both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Information to any third party without the prior written consent of the disclosing party. Each party further agrees to use the Confidential Information only for the purpose of performing this Agreement. No information shall be deemed confidential unless so marked if given in writing or, if given orally, identified as confidential orally prior to disclosure, except that CUSTOMER agrees that any information in whatever form relating to (a) the terms of this Agreement, the Documentation and the underlying ideas, algorithms, techniques, knowhow, design, architecture, functionality, operational methods or coding of the Platform, including but not limited to any complete or partial source or object code versions or related patent applications, and (b) performance information, test results, algorithms, techniques, product roadmap and knowhow or analyses created by or for CUSTOMER (including, without limitation, benchmarks) relating to the Products, shall be deemed Confidential Information of CYBRARY regardless of the presence or absence of any confidential markings or identification.
The obligations of non-disclosure under this Agreement shall not apply to information which: (a) is or becomes a matter of public knowledge through no fault of or action by the receiving party; (b) was rightfully in the receiving party’s possession prior to receipt from the disclosing party without restriction; (c) subsequent to disclosure, is rightfully obtained by the receiving party from a third party who is lawfully in possession of such information without restriction; (d) is independently developed by the receiving party without resort to Confidential Information; or (e) is required to be disclosed by law or judicial order, provided that prior written notice of such required disclosure is furnished to the disclosing party as soon as practicable in order to afford the disclosing party an opportunity to seek a protective order and that if such order cannot be obtained disclosure may be made without disclosing party liability. The receiving party shall promptly notify the disclosing party upon discovery of any loss or unauthorized disclosure of disclosing party’s Confidential Information. Whenever requested by the disclosing party, the receiving party shall immediately return to the disclosing party all manifestations of its Confidential Information or, at the disclosing party’s option, shall destroy all such Confidential Information as the disclosing party may designate. Recipient’s obligation of confidentiality shall survive this Agreement for a period of seven (7) years from the date of its termination, and thereafter shall terminate and be of no further force or effect. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information hereunder may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event each party shall be entitled to seek equitable relief to protect its interests, including but not limited to temporary restraining orders, preliminary and permanent injunctive relief, as well as money damages.
Audit. While this Agreement is in effect and for a period of one (1) year after it terminates, CYBRARY will have the right not more often than twice during any calendar year, on reasonable notice to CUSTOMER and during normal business hours, to conduct an audit of CUSTOMER’s books, records, and supporting documentation that relate to any of CUSTOMER’s obligations under this Agreement. Any underpayment revealed by the audit will promptly be remitted by CUSTOMER in a manner designated by CYBRARY. In the event of an underpayment to CYBRARY of five (5%) or more, CUSTOMER will also reimburse CYBRARY for the reasonable cost of such audit. On CYBRARY’s written request, but not more frequently than annually, CUSTOMER will furnish CYBRARY with a statement signed by an officer authorized to legally bind CUSTOMER verifying that the Platform is being used in full compliance with the provisions of this Agreement.
Cybrary’s Digital Media Copyright Act (DMCA): Read more about Cybrary’s Digital Media Copyright Act (DMCA) Policy, as well as the process of Submitting a Digital Media Copyright Act (DMCA) Notice and Submitting a Digital Media Copyright Act (DMCA) Counter Notice.
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