ARMORTEXT ENTERPRISE TERMS & CONDITIONS
THE FOLLOWING ARMORTEXT ENTERPRISE TERMS & CONDITIONS (“AGREEMENT”) APPLY TO ALL ENTERPRISE SUBSCRIPTIONS FOR THE ARMORTEXT PLATFORM PROVIDED BY GRYPHN CORPORATION (“ARMORTEXT”) TO CUSTOMER. ARMORTEXT’S ACCEPTANCE OF ANY CUSTOMER PURCHASE ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN CUSTOMER’S PURCHASE ORDER OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND ARMORTEXT (IN EACH CASE, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN) WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. ARMORTEXT’S COMMENCEMENT OF PERFORMANCE WILL NOT BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
“Agreement” means these ArmorText Enterprise Terms & Conditions.
“ArmorText Client Software” means the desktop software client owned by ArmorText and provided to Customer in object code format only, including any Updates to the desktop client.
“ArmorText Helm” means the area within the ArmorText Client Software through which Customer may access, view, and manage Customer’s (and its Registered Users’) use of the ArmorText Platform, including any Updates to the feature.
“ArmorText Mobile App” means the mobile application owned by ArmorText and made available through a legitimate marketplace (such as Apple’s iTunes store or the Google Play store) or from a source authorized by ArmorText, solely in object code format and including all Updates to the mobile application.
“ArmorText Platform” means the ArmorText end-to-end encrypted messaging platform.
“ArmorText Technology” means, collectively, the ArmorText Client Software, the ArmorText Mobile app, and the Documentation.
“Authorized User” means an employee or independent contractor of Customer or other individual approved by Customer to enroll in Customer’s ArmorText enterprise account.
“Customer Data” means the contents of any messages (including all files therein) transmitted by or on behalf of Customer or any Registered User using the ArmorText Platform.
“Documentation” means ArmorText-provided user documentation, in all forms, relating to the ArmorText Client Software and ArmorText Mobile App (e.g., user manuals, on-line help files).
“Platform Use Data” means any data or information other than Customer Data that is collected by ArmorText as a result of Customer’s or any Registered User’s access to or use of the ArmorText Platform.
“Purchase Order” means a purchase order executed by ArmorText and Customer, which contains information regarding the parties, their respective addresses for notice, the parties’ signatures, fees, and certain other information.
“Scope Limitations” means the limitations on Customer’s use of the ArmorText Platform specified on the Purchase Order, if any.
“Update” means a modification, enhancement, update, upgrade, or other change to any of the ArmorText Client Software or ArmorText Mobile App.
Following the execution of a Purchase Order, ArmorText will provide to Customer access credentials that will allow Customer to log into the ArmorText Helm or otherwise assign Customer’s designated individual as the administrator for Customer’s enterprise account (“Administrator”) to access the administrative functions of the ArmorText Platform. Customer will not provide the access credentials to any third party, and will not, directly or indirectly, permit or allow any unauthorized access to or use of any ArmorText Technology. Customer must set up an Administrator if none is assigned by ArmorText. The initial Administrator is specified in the Purchase Order.
The Administrator will have access to ArmorText Helm, which provides the Administrator with the ability to permit Authorized Users that have downloaded and installed the ArmorText Mobile App on their mobile device, as well as Authorized Users who are using the ArmorText Client Software, to become a registered user under Customer’s enterprise account (“Registered User”). The Administrator will also have the ability to appoint one or more reviewers (“Reviewer”), that have the ability to access, search, and view the messages of Registered Users through ArmorText’s “Vault” feature.
License to ArmorText Client Software.
Subject to the terms and conditions of this Agreement, ArmorText grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to download and install copies of the ArmorText Client Software on Customer’s computer processing units; and use the ArmorText Client Software in accordance with the Documentation; in each case, solely for the purposes of accessing and using the ArmorText Platform.
License to ArmorText Mobile App.
Subject to the terms and conditions of this Agreement, ArmorText grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to download and install copies of the ArmorText Mobile App on Customer’s mobile devices; and use the ArmorText Mobile App in accordance with the Documentation; in each case, solely for the purposes of accessing and using the ArmorText Platform.
Use of the Documentation.
Subject to the terms and conditions of this Agreement, ArmorText grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.2) right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the ArmorText Platform.
ArmorText may provide Customer with Updates to the ArmorText Mobile App and ArmorText Client Software from time to time during the term of this Agreement.
ArmorText will make individual Updates available to Customer at the same time as they are generally made available to ArmorText’s other customers.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the ArmorText Technology; rent, lease, or otherwise permit third parties to use the ArmorText Technology; use the ArmorText Client Software, ArmorText Mobile App, or ArmorText Platform to provide services to third parties (e.g., as a service bureau); nor circumvent or disable any security or other technological features or measures of the ArmorText Technology.
Compliance with Laws.
Customer will use the ArmorText Technology in compliance with all applicable laws and regulations.
Protection against Unauthorized Use.
Customer will be responsible for any use by Registered Users of the ArmorText Technology and for the secure maintenance of log-in credentials for its accounts for ArmorText Helm. Customer will use reasonable efforts to prevent any unauthorized use of the ArmorText Technology and immediately notify ArmorText in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the ArmorText Technology directly or indirectly through Customer, Customer will take all steps reasonably necessary at its expense to terminate the unauthorized use including reasonably cooperating and assisting with any actions taken by ArmorText to terminate such unauthorized use. Customer will cooperate and assist with any actions taken by ArmorText to prevent or terminate unauthorized use of the ArmorText Technology.
Customer agrees to comply with all applicable export and reexport control laws and regulations, including but not limited to the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Specifically, Customer covenants that it shall not — directly or indirectly — sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from ArmorText under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees that it will not provide ArmorText’s Software or access credentials to this Software to any individual or entity prohibited by any applicable export control laws or regulations or to any user in any destination prohibited by such laws or regulations. Customer agrees to indemnify, to the fullest extent permitted by law, ArmorText 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 or cancellation of this Agreement.
Reservation of Rights.
ArmorText grants to Customer a limited right to use the ArmorText Technology under this Agreement. ArmorText reserves to itself all rights to the ArmorText Technology not expressly granted to Customer in accordance with this Agreement. Customer agrees that ArmorText (or its licensors) owns all right, title and interest in and to the ArmorText Technology, and Customer hereby irrevocably assigns to ArmorText any and all rights it may be deemed to have in the ArmorText Technology (other than the rights expressly granted hereunder) and agrees to execute all documents necessary to implement and effect such assignment.
Proprietary Rights Notices.
Customer will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the ArmorText Mobile App or ArmorText Client Software.
Customer is solely responsible for ensuring that its IT systems meet the requirements of the ArmorText Platform during the term of this Agreement.
If Customer provides any feedback to ArmorText concerning the functionality and performance of the ArmorText Client Software, ArmorText Mobile App, or ArmorText Platform (including identifying potential errors and improvements), Customer hereby grants to ArmorText a worldwide, perpetual, irrevocable, royalty free, fully paid-up, transferable, non-exclusive license (with the right to grant sublicenses) in and to the feedback, and ArmorText is free to use the feedback without payment or restriction.
FEES AND PAYMENT
Fees and Payment Terms.
Customer will pay ArmorText the Subscription Fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified on the applicable Purchase Order. Unless otherwise specified in a Purchase Order, Customer will pay all amounts due within 30 days of the date of the applicable invoice. In the event that Customer’s use of the ArmorText Platform exceeds the number of accounts or other limits specified on the Purchase Order, Customer agrees that it will be responsible for paying for one or more additional tiered fees, as applicable, as set forth on the Purchase Order to cover such additional usage. Any such additional tiered fees will be (a) pro-rated for the remaining days in the then-current subscription year; (b) automatically charged to Customer upon Customer exceeding the stated use limits; and (c) thereafter, will be added to the Subscription Fee for the next payment period. Unless otherwise specified on the Purchase Order, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by ArmorText to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
Other than net income taxes imposed on ArmorText, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by ArmorText after all such taxes are paid are equal to the amounts that ArmorText would have been entitled to in accordance with this Agreement the taxes did not exist. Without limiting the generality of the foregoing, all payments by Customer will be made free and clear of, and without reduction for, any withholding taxes. Customer will provide ArmorText with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by ArmorText to establish that such taxes have been paid.
TERM AND TERMINATION
This Agreement will commence upon the Effective Date and continue for the initial term specified on the Purchase Order. This Agreement will automatically renew one year at a time (at ArmorText’s then-current subscription fee rates) unless a party notifies the other party in writing of its intent to not renew this Agreement at least 90 days before the start of a renewal year.
Termination for Material Breach.
Either party may terminate this Agreement if (a) the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days. If Customer fails to timely pay any fees, ArmorText may, without limitation to any of its other rights or remedies, suspend Customer’s access to the ArmorText Helm and ArmorText Platform until it receives all amounts due.
If this Agreement is terminated for any reason, Customer will pay to ArmorText any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, within 10 days of the termination, Customer will provide ArmorText with a written certification signed by an authorized Customer representative certifying that all use of the ArmorText Technology by Customer has been discontinued and that all copies of the ArmorText Client Software, ArmorText Mobile App, and Documentation provided to or otherwise in the possession of Customer have been deleted or destroyed, as applicable, and any Customer Data transmitted through the ArmorText Platform will remain stored in an encrypted form in accordance with Section 11.2 of this Agreement. Except if this Agreement is terminated for Customer’s material breach, ArmorText will assist Customer to facilitate an orderly wind-down or transition of Customer’s use of the ArmorText Platform, including provided Customer with a copy of all Customer Data in a format agreed by the parties.
WARRANTIES AND DISCLAIMER
Each party represents and warrants to the other that: it is duly organized, validly existing and in good standing under the laws of its state of organization; it has full power and authority, and all other rights, licenses and authorizations required, to execute and deliver this Agreement, to perform its obligations set forth herein, and to grant all rights granted herein; this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, AND SOLELY TO THE EXTENT NOT PROHIBITED BY LAW, ARMORTEXT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ARMORTEXT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ARMORTEXT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE ARMORTEXT TECHNOLOGY. ARMORTEXT DOES NOT WARRANT THAT ARMORTEXT TECHNOLOGY IS ERROR-FREE OR THAT OPERATION OF THE ARMORTEXT CLIENT SOFTWARE, ARMORTEXT MOBILE APP, OR ARMORTEXT PLATFORM WILL BE SECURE OR UNINTERRUPTED. ARMORTEXT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE ARMORTEXT CLIENT SOFTWARE, ARMORTEXT MOBILE APP, OR ARMORTEXT PLATFORM IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE ARMORTEXT CLIENT SOFTWARE, ARMORTEXT MOBILE APP, OR ARMORTEXT PLATFORM WILL ALWAYS BE AVAILABLE. ARMORTEXT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE ARMORTEXT CLIENT SOFTWARE, ARMORTEXT MOBILE APP, OR ARMORTEXT PLATFORM.
INTELLECTUAL PROPERTY INFRINGEMENT
Defense of Infringement Claims.
ArmorText will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the ArmorText Technology during the term of this Agreement infringes any third party patent or copyright if: (a) Customer gives ArmorText prompt written notice of the Claim; (b) Customer grants ArmorText full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as ArmorText may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing item contained in the ArmorText Client Software). Customer will not defend or settle any Claim without ArmorText’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but ArmorText will have sole control over the defense and settlement of the Claim.
Indemnification of Infringement Claims.
ArmorText will indemnify Customer from and pay all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 7.1; all out of pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without ArmorText’s consent after ArmorText has accepted defense of the Claim); and all amounts that ArmorText agrees to pay to any third party to settle any Claim under Section 7.1.
Exclusions from Obligations.
ArmorText will have no obligation under this Section 7 for any infringement to the extent that it arises out of or is based upon use of the ArmorText Technology in combination with other products or services if such infringement would not have arisen but for such combination; the ArmorText Technology is provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the ArmorText Technology by Customer for purposes not intended or outside the scope of the license granted to Customer; Customer’s failure to use the ArmorText Technology in accordance with instructions provided by ArmorText, if the infringement would not have occurred but for such failure; or any modification of the ArmorText Technology not made or authorized in writing by ArmorText where such infringement would not have occurred absent such modification.
Mitigation of Infringement Action.
If Customer’s use of the ArmorText Technology is, or in ArmorText’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 7.1, then ArmorText will either: (a) procure the continuing right of Customer to use the ArmorText Technology; (b) replace or modify the ArmorText Technology in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, ArmorText is unable to do either (a) or (b), ArmorText will (c) terminate the licenses with respect to the ArmorText Technology subject to the infringement claim and refund to Customer all unused Subscription Fees pre-paid by Customer.
This Section 7 states ArmorText’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the ArmorText Technology.
Customer will defend ArmorText from any actual or threatened third party Claim arising out of or based upon Customer’s use of the ArmorText Technology (except to the extent ArmorText is required to defend or indemnify Customer under Section 7 for such Claim) or Customer’s breach of any of the provisions of this Agreement. ArmorText will give Customer prompt written notice of the Claim; grant Customer full and complete control over the defense and settlement of the Claim; provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and comply with any settlement or court order made in connection with the Claim. ArmorText will not defend or settle any Claim without Customer’s prior written consent. ArmorText will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim .
Customer will indemnify ArmorText from and pay all damages, costs, and attorneys’ fees finally awarded against ArmorText in any Claim under Section 8.1; all out of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by ArmorText in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim under Section 8.1.
LIMITATIONS OF LIABILITY
Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NO PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
Cap on Liability.
UNDER NO CIRCUMSTANCES WILL ARMORTEXT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO ARMORTEXT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ARMORTEXT TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
“Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. The parties agree that all Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, Confidential Information does not include any information that: was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; is acquired by the receiving party from another source without restriction as to use or disclosure; or is or becomes part of the public domain through no fault or action of the receiving party.
Restricted Use and Nondisclosure.
During and after the term of this Agreement, each party will: use the other party’s Confidential Information solely for the purpose for which it is provided; not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
If the receiving party is required by law or by court order to disclose the disclosing party’s Confidential Information or the terms of this Agreement, the receiving party must (a) give prompt written notice of such requirement before such disclosure (to the extent practicable); (b) assist the disclosing party, at the disclosing party’s expense, in obtaining an order protecting the Confidential Information from public disclosure; and (c) disclose only to the extent legally required.
Return of Materials.
Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
Collection of Platform Use Data.
Customer agrees and acknowledges that the ArmorText Platform automatically logs all user activity conducted on the ArmorText Platform, and ArmorText owns all right, title and interest in and to the Platform Use Data. ArmorText will not publicly disclose any Platform Use Data in a manner that would reasonably likely identify Customer as being the source of such Platform Use Data.
Customer owns all right, title and interest in and to the Customer Data. Customer hereby grants ArmorText a nonexclusive, royalty-free, transferrable, worldwide license (with right to sublicense) to store, process, and otherwise use the Customer Data during the term of this Agreement (and for a reasonable amount of time after the term) in connection with the provision of the ArmorText Platform or as otherwise necessary or helpful to perform its obligations under this Agreement. The parties acknowledge and agree that all Customer Data will be transmitted, stored, and processed by ArmorText in an encrypted state and that ArmorText will not have access to any keys necessary to decrypt the Customer Data.
ArmorText will be and act as an independent contractor of Customer (and not as the agent, representative, partner or joint venturer of Customer) in the performance of this Agreement.
Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that ArmorText may assign this Agreement without the Customer’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of ArmorText’s obligations under this Agreement. For the purposes of this Section 12.2, the term “assignment” is deemed to include any direct or indirect transfer of this Agreement to another entity by way of merger, reorganization, consolidation or sale of all or substantially all of a party’s assets or equity securities in one transaction or a series of related transactions.
ArmorText may utilize a subcontractor or other third party to perform its duties under this Agreement so long as ArmorText remains responsible for all of its obligations under this Agreement and liable to Customer under this Agreement for the acts or omissions of its subcontractors as if they were committed by ArmorText.
Subject to Section 10 regarding confidentiality, Customer will permit ArmorText to issue and publish a press release containing a quotation from a representative of Customer announcing that Customer has subscribed to use the ArmorText Platform and the general context of the intended use. In addition, Customer hereby consents to ArmorText’s display of Customer’s logo on ArmorText’s web site where ArmorText displays the names and logos of its customers.
Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Purchase Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 12.5. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the Commonwealth of Virginia, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Fairfax County, Virginia in connection with any action arising out of or in connection with this Agreement.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the ArmorText Platform under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the ArmorText Platform will immediately terminate.
The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
The following provisions of this Agreement will survive any expiration or earlier termination hereof: Sections 3.8, 3.9, 3.12, 4, 5.3, 6.2, 7, 8, 9, 10, 11, and 12.
This Agreement, including the Purchase Order, is the final and complete expression of the agreement between these parties regarding Customer’s use of the ArmorText Technology. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of ArmorText has any authority to bind ArmorText with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized representative of each party. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any receipt, acceptance, confirmation, correspondence, or otherwise, unless the former party specifically agrees to such provision in a writing signed by an authorized representative of the former party.