SOFTWARE LICENSE AGREEMENT FOR AWS
Bridgeworks, Inc. (“Bridgeworks”) offers a version of the WANrockIT™ software defined protocol accelerator (“WANrockIT”) for use by customers of Amazon® Web Services (“AWS”).
You have completed an order through the AWS Marketplace (the “Marketplace”) to access WANrockIT through AWS or to install and use WANrockIT through AWS (whether completed online or in another form accepted by Bridgeworks, an “Order”).
This WANrockIT™ SOFTWARE LICENSE AGREEMENT FOR AWS (this “Agreement”) forms a binding legal agreement by and between Bridgeworks and you, or if you are entering into this Agreement on behalf of another entity or organization, that entity or organization (in either case, “Licensee”). This Agreement is made as of the earliest date you click to “Accept” this Agreement or first download, install, operate, or otherwise access or use WANrockIT (the “Effective Date”).
PLEASE CAREFULLY READ THIS AGREEMENT. This Agreement establishes the terms and conditions under which Bridgeworks is willing to provide Licensee with a limited right to access and use the version of WANrockIT set forth in each Order under this Agreement (the “Software”) for Licensee’s own internal business purposes through the AWS account designated by Licensee in connection with each Order (Licensee’s “Account”). Bridgeworks is willing to make available the Software to Licensee on the condition that Licensee agrees to be bound by the terms and conditions of this Agreement.
This Agreement, together with Orders entered into hereunder (all of which are incorporated in and made a part of this Agreement), constitutes the complete and exclusive agreement between the parties regarding the subject matter hereof and cancels and supersedes all other agreements and understandings, whether written or oral, between the parties regarding the subject matter of this Agreement. All Software provided by or on behalf of Bridgeworks will be governed solely by the terms of this Agreement. Any terms on any invoice, purchase order, acknowledgement, or similar document submitted by Licensee to Bridgeworks will have no force or effect over, and are expressly excluded from, this Agreement.
The parties, intending to be legally bound, hereby agree as follows:
DEFINITIONS AND CONSTRUCTION. All capitalized terms used in this Agreement and defined in the context
in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States. English (as commonly interpreted in the United States) shall be the language used in all written communications between the parties pursuant to this Agreement, including all notices, reports, consents, authorizations and approvals under this Agreement. To the extent this Agreement or any such document is required to be translated into any other language, Licensee shall pay all the costs of such translation. To the extent any ambiguity or inconsistency exists between an Engli sh version of any written document and a version in any other language, the English (as interpreted in the United States) version of such document shall prevail.
TERM. The term of this Agreement will begin on the Effective Date and will continue for the period specified in
the initial Order placed under this Agreement. The term of this Agreement may be extended as set forth in any subsequent Order placed under this Agreement. In all cases, the term of this Agreement will continue until terminated as set forth in Section 13.
GRANT OF RIGHTS AND RESTRICTIONS.
Grant of Rights. During the term of this Agreement, and conditioned expressly upon compliance by
Licensee with the terms and conditions of this Agreement, Bridgeworks grants to Licensee a non-exclusive, personal, non-transferable, non-sublicensable, limited right solely to: (a) install and configure the number of instances of the Software set forth in each Order, in object code form, through the Licensee designated Account, in accordance with the documentation and specifications provided by Bridgeworks accompanying the Software (“Documentation”); and (b) operate each permitted instance of the Software through Licensee’s Account, for Licensee’s own internal business purposes, in accordance with all applicable Documentation, in compliance with all limitations set forth herein and in the Order applicable to the Software.
AWS Restrictions. This Agreement is in addition to any other terms and conditions applicable to
Licensee’s access to AWS or Licensee’s designated Account (“AWS Terms”). The AWS Terms will continue to govern and control Licensee’s use of and access to AWS and the services provided through AWS and Licensee’s designated Account, provided that this Agreement will control in all respects with regard to the Software and Licensee’s rights with respect to access and use of the Software. Licensee will comply at all times with all AWS Terms applicable to Licensee. Licensee acknowledges that the rights granted to Licensee under this Agreement are strictly limited to access and use of the Software by Licensee through Licensee’s designated Account on AWS. Any access to or use of the Software other than through Licensee’s designated Account (including through any other AWS account or outside of AWS) is strictly prohibited. Licensee covenants and agrees that Licensee’s Account will remain owned or controlled solely by Licensee throughout the term of this Agreement. Bridgeworks is not responsible for any aspect of any service offered or provided by AWS or through Licensee’s designated Account (or any failure thereof).
Additional Restrictions. Licensee acknowledges that the Software comprises the valuable proprietary
and confidential information of Bridgeworks. Licensee will use the Software only as expressly permitted by the terms of the license granted under this Agreement and will not otherwise access or utilize the Software or Documentation in any manner. The Software (including its structure, organization, and source code) constitutes valuable intellectual property of Bridgeworks. As an express condition on the license granted under Section 3.1, Licensee will not, and will not permit any user of any Software or any other third party to: (a) install or use the Software other than within operating environments for the Software recommended by Bridgeworks; (b) modify, adapt, alter, translate, or create derivative works from the Software; (c) use or merge the Software or any component or element thereof with other software not provided by Bridgeworks; (d) sublicense or otherwise transfer the Software or any of Licensee’s rights in the Software to any third party; (e) distribute, sell, lease, rent, lend, loan, transfer or otherwise provide or make available the Software or the use thereof to any third party, including, without limitation, providing outsourcing, service bureau, hosting, application service provider, or on-line services to third parties; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or method of operation of the Software; (g) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Software or the functionality of the Software; or (h) access or use the Software in any manner, except as expressly provided in this Agreement. Notwithstanding the foregoing, Licensee may make 1 copy of the Software solely for back-up purposes to replace the original copy and use such copy to restore the installation of the original copy of the Software in accordance with the terms of this Agreement only if the original copy is damaged or destroyed. Licensee will not remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in the Software or on any copies. The limitations in this Section apply equally to Licensee’s use of the Software, in whole or in part, including any component or portion thereof.
Third Party Code. The Software may contain or include software code owned or provided by third-
party licensors of Bridgeworks (“Third-Party Code”). For any Third-Party Code indicated to be subject to the terms of a third party software license (a “Third-Party License”), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement. All other Third Party Code distributed to Licensee by Bridgeworks may be used only under the terms of this Agreement. Nothing in this Agreement limits Licensee’s rights under, or grants rights to Licensee that supersede, the terms of any applicable Third-Party License.
SOFTWARE ACTIVATION AND OPERATION. The Software may contain functionality for enabling activation of
the Software, disabling access to or use of the Software following the end of an applicable term, or limiting operation of the Software to the restrictions and performance limits applicable to the Software under this Agreement (“Performance Limits”). Licensee agrees to take such actions as are set forth in the Documentation or are otherwise directed by AWS or Bridgeworks to activate the Software. Licensee agrees to use and access to the Software solely within the Performance Limits applicable to Licensee. Licensee will also take such precautions necessary to avoid any interruption or loss that may occur due to any disablement of the Software or any limitation on the operation of any portion of the Software to within the applicable Performance Limits. BRIDGEWORKS WILL NOT BE LIABLE FOR ANY FAILURE BY LICENSEE TO TAKE ANY OF THE FOREGOING ACTIONS OR FOR ANY INABILITY TO USE OR ACCESS ANY SOFTWARE DUE TO ANY FAILURE TO ACCOMPLISH THE FOREGOING.
SUPPORT. Subject to the terms and conditions of this Agreement, during the term of this Agreement Bridgeworks
shall provide Licensee with the standard level of support services included in the then-current Bridgeworks support program for the Software (“Support”). Bridgeworks may update the terms of Bridgeworks support program for the Software upon 90 days notice to Licensee. Licensee may purchase additional support for the Software by entering into an
Order under this Agreement for additional or upgraded Support or by entering into a separate agreement with Bridgeworks.
ADDITIONAL SERVICES. As may be set forth in an Order under this Agreement or upon the request of Licensee
(and agreement by Bridgeworks), Bridgeworks will provide Licensee with additional training, consulting, or professional services relating to the Software. Unless set forth in the applicable Order or otherwise agreed to in writing by the parties, all such additional services will be charged to (and payable by) Licensee at Bridgeworks’ then-current rates (and terms) for such services.
7. FEES AND PAYMENT. The fees payable by Licensee under this Agreement (“Fees”) will be as set forth in connection with each Order under this Agreement. Licensee will pay all Fees when due. All Fees will be due and payable as stated in each applicable Order. All Fees and any other amounts due under this Agreement will be payable in U.S. Dollars. All Fees and any other amounts paid under this Agreement are non-refundable once paid. All Fees are exclusive of, and Licensee will be responsible for payment of, all taxes, assessments, fees, or other charges of any kind, including, any value-added tax (VAT), stamp (or other similar) tax, social security (or local equivalent), or income tax, required by applicable law, but excluding any tax based solely on the net income of AWS or Bridgeworks, that may be imposed on either party by way of this Agreement or any amounts paid by Licensee under this Agreement. If any amounts should remain unpaid when due, such amounts will be subject to a charge of the lesser of 1.5% per month or the applicable legal maximum. Late charges are intended as liquidated damages, and reasonable estimates of the amounts necessary to compensate Bridgeworks for costs and losses associated with delays in payment, and not as a penalty.
OWNERSHIP. Licensee acknowledges that the Software is licensed, not sold, to Licensee for use solely as
expressly set forth in this Agreement. Bridgeworks and its licensors will retain all right, title, and interest in and to the Software and any additions, improvements, updates, extensions, or modifications thereto which may be developed or otherwise acquired by either party (whether or not contemplated by or made in conjunction with this Agreement), as well as all intellectual property and proprietary rights therein and relating thereto throughout the world, including all copyrights, trademarks, trade secrets, patents (and patent applications), moral rights, and other rights protecting data, information or intangible property throughout the world. Except for the limited rights expressly granted under Section 3.1, Licensee will have and receive no right, title, or interest (whether by implication, estoppel, or otherwise) in or to the Software or any intellectual property rights therein or thereto. Bridgeworks and its licensors retain all rights, title, and interest in and to any and all trademarks and logos of Bridgeworks and its licensors displayed on or in the Software and no right or license is granted to Licensee to use them separate from the right to use the Software under this Agreement. Licensee agrees never to challenge or contest Bridgeworks' and its licensor’s ownership of the Software.
GENERAL WARRANTIES. Each party represents and warrants to the other party that: (1) such party has full power
and authority to enter into this Agreement and to perform its obligations under this Agreement; (2) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; (3) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (4) such party will comply (and in the case of Licensee, will ensure that all Authorized Users, employees and contractors of Licensee comply) with all laws, rules, and regulations applicable to such party, this Agreement, and all Software (and in the case of Licensee, AWS, Licensee’s designated Account, and all services offered or provided by AWS or through Licensee’s designated Account).
DISCLAIMER. BRIDGEWORKS DOES NOT WARRANT THAT THE OPERATION OF ANY SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE. BRIDGEWORKS DOES NOT WARRANT THAT FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY LICENSEE OR THAT THE SOFTWARE WILL MEET THE OF REQUIREMENTS OF LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY RESULTS OBTAINED FROM THE USE OR OPERATION THEREOF ARE PROVIDED BY BRIDGEWORKS “AS IS” AND BRIDGEWORKS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING THE SOFTWARE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SOFTWARE IS NOT DESIGNED, INTENDED, OR WARRANTED FOR USE IN HAZARDOUS ENVIRONMENTS OR ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING, WITHOUT LIMITATION, NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT SYSTEMS, MEDICAL DIAGNOSTIC SYSTEMS, OR ANY OTHER APPLICATION WHERE THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. LICENSEE ASSUMES ALL RISK OF USE IN SUCH
APPLICATIONS AND BRIDGEWORKS AND ITS SUPPLIERS DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY AND ALL DAMAGES THAT MAY BE INCURRED DUE TO THE USE OF THE SOFTWARE IN SUCH APPLICATIONS.
Infringement of the Software.
If Licensee has entered into an Order specifying a term of 12 or more months, Bridgeworks shall
indemnify, defend, and hold harmless Licensee and its officers, directors, employees, representatives and agents (collectively, “Licensee Indemnitees”) from and against any third party claim or action brought against a Licensee Indemnitee to the extent such claim or action shows that the use or operation of the current release of the Software or the immediately preceding release of the Software by Licensee in accordance with this Agreement infringes or misappropriates any third party copyright, trademark, or trade secret or that Bridgeworks knowingly infringed any third party U.S. patent in the development of the Software. Provided that Licensee complies with the conditions stated in this Section 11, Bridgeworks shall pay all settlements entered into and damages awarded against any Licensee Indemnitee (including reasonable attorneys’ fees) to the extent based on such a claim or action.
If the Software becomes, or if Bridgeworks believes that the Software is likely to become, the
subject of a claim of infringement or misappropriation, Bridgeworks may, in its sole discretion, replace or modify the Software, procure for Licensee the right to continue using the Software, or terminate this Agreement and require Licensee to immediately return the Software to Bridgeworks. In the case of any such termination, Bridgeworks will refund to Licensee any pre-paid portion of any Fees. Bridgeworks shall not be liable for any costs or expenses incurred by Licensee in connection with any claim of infringement or misappropriation without Bridgeworks’ prior written authorization.
Bridgeworks shall have no obligation under this Section 11.1 as to any claim or action arising out
of or related to any Exclusion. THIS SECTION 11.1 STATES BRIDGEWORKS’ ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS OR ACTIONS RELATING TO OR ARISING OUT OF THE SOFTWARE.
Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Bridgeworks and its
officers, directors, employees, representatives and agents (collectively, “Bridgeworks Indemnitees”) from and against any claim or action brought against, or any damage, loss, or liability suffered by, a Bridgeworks Indemnitee, and Licensee shall pay all settlements entered into and damages awarded against any Bridgeworks Indemnitee (including reasonable attorneys’ fees), arising from or relating to: (a) AWS, Licensee’s designated Account, or any service offered or provided by AWS or through Licensee’s designated Account (or any failure thereof); (b) any breach by Licensee or an Authorized User of this Agreement; (c) from any action or inaction of Licensee resulting in an Exclusion; or (d) any Licensee Data.
Conditions on Indemnification. The obligations of each party under this Section 11 are conditioned on
the other party: (a) giving such party prompt written notice of any claim or allegation covered by this Section 11; (b) providing such party with sole control over the defense or settlement of any such claim; and (c) providing such party with reasonable assistance (at the expense of such party) in defending or settling the claim.
LIMITATION OF LIABILITY. IN NO EVENT WILL BRIDGEWORKS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY
FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, ANY RESULTS OBTAINED FROM THE SOFTWARE, OR THE USE OR INABILITY TO USE THE SOFTWARE OR ANY RESULTS OBTAINED FROM THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY LOST, CORRUPTED OR ALTERED DATA, LOSS OF USE OF DATA, RECOVERY OF DATA, LOSS OR INTERRUPTION OF BUSINESS, OR LOSS OF PROFITS OR REVENUE). THE FOREGOING LIMITATION WILL APPLY EVEN IF BRIDGEWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. THE RIGHTS OF LICENSEE AS STATED IN THIS AGREEMENT ARE EXCLUSIVE REMEDIES. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF BRIDGEWORKS RELATING TO THIS AGREEMENT, THE SOFTWARE, ANY RESULTS OBTAINED FROM THE SOFTWARE, OR THE USE OR INABILITY TO USE THE SOFTWARE OR THE RESULTS OBTAINED FROM THE SOFTWARE, EXCEED THE FEES RECEIVED BY BRIDGEWORKS FROM LICENSEE FOR THE SOFTWARE UNDER THIS AGREEMENT IN THE 3 MONTH PERIOD EXCEEDING THE EVENTS GIVING RISE TO THE LIABILITY. IN STATES OR JURISDICTIONS WHERE THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, BRIDGEWORKS’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Termination for Convenience. Following the initial term, either party may terminate this Agreement for
any reason or no reason on 90 days prior notice to the other party.
Termination for Cause. Either party may terminate this Agreement, or any Order hereunder, effective
immediately upon written notice to the other party if such party materially breaches any term of this Agreement or such Order in any manner (including, in the case of a breach by Licensee of any requirement to make payment of any Fees or other amounts due under this Agreement or any Order) and fails to cure such breach within 30 days following notice thereof from the non-breaching party. Bridgeworks may additionally terminate this Agreement immediately if Licensee becomes bankrupt or insolvent or avails itself of legislation designed to benefit insolvent debtors.
Effect of Termination. Expiration or termination of this Agreement or any Order for any reason will not
relieve the parties of any rights or obligations accruing prior to such expiration or termination. Upon expiration or termination of this Agreement all rights and licenses to all Software granted to Licensee under this Agreement (including all Orders) will cease. Upon expiration or termination of an Order, that Order and all rights and licenses to the Software subject to that Order granted to Licensee under this Agreement and that Order will cease. All other Orders and the rights and licenses to the Software granted to Licensee under this Agreement and those other Orders will remain in effect (unless separately terminated). Upon expiration or termination of this Agreement or any Order for any reason: (a) Licensee will promptly discontinue all use of the Software subject to this Agreement or that Order, erase all copies of that Software from the device(s) on which it has been installed, and return or, at the option of Bridgeworks, destroy all copies of that Software in Licensee’s possession or control; (b) Bridgeworks may immediately cease providing all Support and other Services subject to the Order; (c) all fees and any other charges owed by Licensee under this Agreement or that Order prior to such expiration or termination will become due and payable; and (d) Bridgeworks may disable the Software or access by Licensee to the Software. The rights and obligations of each party under the following Sections will survive expiration or termination of this Agreement for any reason: 1, 7, 8, 10, 11, 12, 13, 14, 15, 20, 21, and 22. At the request of Bridgeworks, Licensee will certify in writing to Bridgeworks that Licensee has fully complied with the requirements of this Section.
REPORTING AND AUDIT. During the term of this Agreement, Licensee shall: (1) keep current, complete and
accurate records concerning the usage of all Software; (2) provide copies of such records to Bridgeworks upon 5 business days’ written notice, for the purpose of verifying compliance with the terms of this Agreement and the applicable Performance Limits; and (3) allow Bridgeworks access (whether physical or remote) to the devices on which the Software is installed as reasonably requested by Bridgeworks to verify that Licensee’s use is within the Performance Limits. Licensee consents to all such monitoring and to the use by Bridgeworks of all data and information collected through such monitoring. Licensee agrees not to alter or modify any data or information collected or produced through such monitoring (or any files containing any such data or information).
DATA. Licensee is solely responsible and liable for and assumes all risks associated with all data, information
U. S. GOVERNMENT END USERS. The Software is a "commercial item" as that term is defined in 48 C.F.R.
2.101, consisting of "commercial computer software" and "commercial computer 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 Software with only those rights set forth therein and in this Agreement, and do not acquire any other right, title or interest, express, implied or otherwise, in or to the Software.
TRANSFER. Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned or
delegated by Licensee in whole or in part (by operation of law or otherwise) without the prior written approval of Bridgeworks. For the purposes of this Section, any change of control of Licensee will be deemed an assignment. Any attempted assignment or transfer by Licensee in violation of the foregoing is null and void. Bridgeworks may assign this Agreement, and any of its rights or obligations hereunder, effective upon notice to Licensee.
NOTICE. All notices, consents, authorizations, and approvals to be given by a party under this Agreement will be
in writing and will either be via: (1) hand-delivery; (2) Federal Express (or a comparable overnight mail service); (3) facsimile transmission (provided that an original copy of a transmission will be delivered by some other means permitted by this Section); or (4) certified mail, return receipt requested, to the other party at its respective addresses or telephone/fax number set forth above. In addition, any notice, consent, authorization, or approval required or permitted to be given or delivered by Bridgeworks under this Agreement may be provided to Licensee at the email address provided by Licensee in connection with any Order or Licensee’s designated Account. All notices will be effective upon receipt (or when delivery is refused) or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.
EXPORT. Licensee understands that the Software contains encryption technology that may require an export
license from the U.S. government. Licensee will comply with all export and import control laws, rules, and regulations applicable to the use of the Software under this Agreement. Licensee will obtain all licenses, permits, and approvals required by the U.S. government or any other government and will comply with all applicable laws, rules, policies and procedures of the applicable government and other competent authorities. Licensee will not export or re-export the Software without all such required licenses, permits, and approvals of the U.S. government or any other government. Licensee will defend, indemnify, and hold harmless Bridgeworks from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Bridgeworks as a result of any violation of such laws, rules, or regulations by Licensee or any of its agents or employees.
DISPUTE RESOLUTION. The parties will attempt to resolve any disputes, controversies, or claims arising under,
out of, or relating to this Agreement (“Disputes”) via good faith negotiations between each party, involving such levels of management as are required to resolve such Dispute. Any Dispute that cannot be resolved through good faith negotiations between the parties will be settled exclusively through binding arbitration as follows. If within 10 business days the parties are unable to resolve any Dispute, either party may submit the Dispute for final settlement through binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted in the English language in Denver, Colorado, U.S.A. or such other location as may be designated by Bridgeworks. The award of the arbitrator(s) will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator(s). The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
CHOICE OF LAWS. This Agreement and any arbitration our court proceeding hereunder will be governed by the
laws of the State of Colorado (USA), without regard to or application of conflicts of law rules or principles. Subject to Section 20, the Federal and State Courts having jurisdiction over matters arising in Denver, Colorado (USA) will have sole and exclusive jurisdiction over any disputes arising under or relating to this Agreement and the parties hereby irrevocably submit to the personal jurisdiction of such courts. The parties expressly exclude (as may be applicable) the application of the United Nations Convention on the International Sale of Goods.
GENERAL. The parties are independent contractors under this Agreement. Nothing in this Agreement creates the
relationship of joint venturers, principal and agent, licensor and licensee, or employer and employee between the parties. This Agreement will not be modified except by a subsequently dated written amendment or exhibit signed by both parties or by their duly authorized representatives. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. The parties acknowledge and agree that monetary damages may be inadequate to compensate either party for a breach of this Agreement and that nothing in this Agreement will limit either party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. If any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing party in such proceeding or lawsuit will be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The
failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. No term of this Agreement will be construed to confer any rights to a third-party beneficiary and this Agreement will inure only to the benefit of, and be binding upon, Bridgeworks, Licensee, and their valid successors and assigns. The words “include,” “includes” and “including” means “include,” “includes,” or “including,” in each case, “without limitation.” This Agreement may be consummated in one or more counterparts, duplicate originals, or electronic image versions, each of which will be deemed an original, and all of which together will constitute one and the same instrument.
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