1. Definitions. The following capitalized terms have the meanings set forth below:
1.1. “Affiliates” means any entity or person which a Party controls, controls such Party, or is under common control with a Party, directly or indirectly, but only so long as such control exists. As used above, “control” means (I) beneficial ownership of more than fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities, or (ii) more than a fifty percent (50%) interest in the net assets or profits of a partnership or other business organization without voting securities.
1.2. “Annual Actual Usage” refers to the average number of Chargeable Lines, Nodes, and/or Data Volume in each one-year period. The number of Chargeable Lines and/or Nodes is measured each week for 52 weeks and the number of Chargeable Lines and/or Nodes an for each of the 52 weeks is aggregated and then divided by 52. Data Volume is measured on a quarterly basis and shall be re-set at the beginning of each year.
1.3. “Authorized User” means an employee of the Customer or an individual contractor hired directly by Customer solely when working at Customer’s premises, which employee or individual contractor is given access to the SaaS Solution. The total number, and the concurrent number, of Authorized Users are limited as specified in the applicable order Form.
1.4. “Customer Data” means all electronic data or information submitted by Customer to the SaaS-services.
1.5. “Data Volume” means the quantity of uncompressed, raw machine, process or product data, in bytes, transferred and loaded into the Software for purpose of analysis, received as files or extracts from existing databases, all as specified in the applicable Order Form.
1.6. “Documentation” means the operating instructions and user manuals for the Software Service, as well as other similar items that explain the capabilities and operation of the Software Service, and regardless of the medium in which made available.
1.7. “Hosting Provider” means Cloud Infrastructure Provider for hosting Software or Nodes, like Amazon Web Services, Inc. Google Cloud Platform or Microsoft Azure.
1.8. “Intellectual Property” means patents (including patent applications, reissues, divisions, continuations and extensions thereof), utility models, copyrights, design rights, database rights, moral rights, trade secrets, applications for any of the foregoing and any other intellectual or proprietary rights or protection existing under the laws of any country or bi-lateral or multi-lateral international treaty regime.
1.9. “Line” refers to an assessment/test line (single, contiguous line of equipment used to assess and/or test electronic equipment) using the Software Service.
1.10. “Node” refers to a node (unit of equipment/VM/cloud service used to assess or test customer infrastructure elements) using the Software Service. The total number of licensed Nodes is a specific Line is limited as specified in the applicable Order Form.
1.11. “Object Code” means software in machine-readable and executable form resulting from compilation or assembly of Source Code, which is readable by machines, but is not generally readable by humans without reverse assembly, reverse compiling or reverse engineering.
1.12. “SaaS Solution” means the service platform and infrastructure, including the Software Service, Documentation and third party hardware and software as described in the SOW, all as hosted by the Hosting Provider and made available through the Internet for remote access and use by the Customer.
1.13. “Software” means the Object Code version of the Humanize software programs, as set forth in the applicable Order Form, as may be amended or supplemented from time to time by the parties in writing, including all copies thereof. The Software includes all updates and upgrades, error corrections, or enhancements of such Software that are provided at no additional charge as part of Support and Maintenance Services.
1.14. “Software Service” means the cloud-based, software-as-a-service version of the Software, to which Humanize grants Customer access under the terms and conditions of this Agreement.
1.15. “Source Code” means software in human-readable, high-level language form, which when compiled or assembled becomes Object Code.
1.16. “Subscription Term” means the term, commencing as of the Start Date, during which the Customer is granted access to the Software Service, as set forth in the applicable Order Form.
2. Right to Use. Subject to the provisions set forth in this Agreement (and in particular Customer’s payment obligations), Humanize hereby grants to Customer a limited, nonexclusive, worldwide, nontransferable (except as otherwise explicitly provided herein below) right to use, during the Subscription Term, solely to access and use (and permit Authorized Users to access and use) the Software Service and Documentation for up to (but not exceeding) the total number of subscribed Nodes and/or Data Volume, all for Customer’s internal business purposes only. Humanize reserves all rights in and to the Software Service and Documentation not expressly granted herein.
2.1. Restrictions. The license granted under Section 2 is conditional on Customer’s compliance with the following restrictions:
(a) Customer shall not, and shall ensure that each Authorized User does not: (i) disclose, provide access to, sublicense, rent, lease, distribute, sell, or transfer the SaaS Solution, or any part thereof (or any related user names or passwords) to any third party, including without limitation to any Customer assembly and testing except as otherwise expressly provided in this Agreement; (ii) reverse engineer, reverse assemble, decompile or disassemble all or any portion of the SaaS Solution, or any part thereof, or otherwise attempt to reconstruct or discover any source code or underlying ideas or algorithms of the SaaS Solution, or any part thereof, including but not limited to the Software Service by any means whatsoever; (iii) circumvent, disable, or otherwise interfere with security-related features of the SaaS Solution, or features that enforce limitations on the use thereof, or otherwise interfere with the integrity or proper operation of the SaaS Solution; (iv) copy, modify, translate, adapt, create derivative works of, publicly perform or publicly display the SaaS Solution, or any part thereof; (v) use any automated means to access or use the SaaS Solution other than the authorized equipment specified in the Order Form (if any) (vi) use or offer the SaaS Solution or any part thereof as part of a service bureau or timesharing arrangement, or use the SaaS Solution in any unlawful manner or for any deceptive, unethical, or unlawful purpose; (vii) use the SaaS Solution or any part thereof, including but not limited to the Software Service to develop a product or service that competes with the SaaS Solution or any part thereof; or (viii) disclose or publish the results of the SaaS Solution, including any benchmark or evaluation test of the SaaS Solution (other than results limited to a specific issue, such as, by way of example, an email alert, and provided that such disclosures are made within an electronic file attached to an email), without Humanize’s prior express written consent, which may be withheld for any reason whatsoever.
(b) Customer shall not remove or alter any copyright notices, proprietary information notices or restricted rights notices contained in the SaaS Solution or any portion thereof, including but not limited to the Software Service.
3. Customer Data. Customer hereby grants to Humanize a limited, non-exclusive, non-transferable license to use, upload, display, copy and store Customer Data for the term of this Agreement for the purpose of providing the SaaS Solution under this Agreement. Customer agrees that it shall have sole responsibility and liability for: (i) acquiring any and all authorization(s) necessary for use of Customer Data as contemplated by this Agreement; and (ii) ensuring that Customer Data does not infringe or violate the privacy rights or Intellectual Property rights of any third party. Subject to the foregoing, Customer shall retain exclusive ownership of Customer Data.
4. Support. As of the Start Date and for the duration of the Subscription Term, Humanize shall provide Customer with the Support and Maintenance Services described in the Support and Maintenance Terms attached to the Order Form at the “Standard” level of service. In addition, Humanize shall provide such other support and maintenance services as may be agreed upon by the Parties in a separately executed statement of work.
5. Security and Privacy Levels. The security and privacy levels of Customer’s data and files shall be as described in the Order Form. For clarity, Customer may temporarily suspend Humanize’s access to the Customer’s network (required in order for Humanize to provide the SaaS Solution) in the event Customer has reasonable grounds to believe that the security of its networks is threatened or compromised or to protect data or computer systems in case of emergencies (collectively, “Data Breach”). In the event of such suspension or intended suspension, Customer shall so notify Humanize promptly in writing. Upon receipt of such notice, Humanize will cooperate with Customer on a 24x7 basis in the provision of Support Services in order to assist Customer to address the Data Breach.
6. Data Privacy. Customer hereby agrees that the Software Service may collect and communicate certain software, hardware, and use information (which may in some circumstances include certain personal data of users, including names or email address) to Humanize, its Affiliates or its service providers’ servers for the purposes of (i) checking for and performing any updates; (ii) ensuring that Customer have complied and are complying with the terms and conditions of this Agreement (iii) Humanize’s internal product development; and (iv) providing usage reporting to Customer. The information collected and communicated does not include any proprietary application data. Humanize will not provide any of the information to any third party except as required by law or legal process or to enforce compliance with the terms in this Agreement. It shall be clarified that information collected by the Software Service as set forth in this section shall not be part of the Customer Data. Customer may be authorized to assign the right to use the Software Service to an employee or third-party contractor (“Authorized User”) within the parameters of this Agreement. Customer is solely responsible for informing its Authorized Users of the purposes for which and the circumstances under which information (including certain personal information of such Authorized Users) is processed, for obtaining any necessary consent or permission, and otherwise for complying with applicable privacy laws and regulations with respect to those Authorized Users. For further details on how Humanize and its Affiliates process data, please see the Humanize Privacy Statement at https://www.humanize.security/privacy-policy.
7. Ownership Rights. Each Party shall retain ownership of all of its Intellectual Property rights in existence prior to entering into this Agreement. Neither Party grants to the other Party any license under its Intellectual Property rights, except as otherwise expressly provided herein. Each Party shall retain all of its right, title and interest in and to its preexisting confidential information (which, in the case of Humanize, shall include the Software Service and Documentation, as well as any derivatives and improvements, of or to the foregoing (regardless of inventorship or authorship)), including all of its Intellectual Property rights related thereto, and to each whole or partial copy thereof, including any modifications, derivative works, enhancements or improvements thereof made by either Party. Any modifications, derivative works, enhancements or improvements made to the Software Service or Documentation by Humanize or anyone acting under Humanize’s written approval shall be deemed part of the Software Service and Documentation (as applicable) and rights thereto will be granted to Customer under the terms of this Section.
8. Confidentiality. Each party (“Discloser”) may disclose certain information to the other party (“Recipient”) related to or in order to perform under this Agreement (the “Authorized Purpose”). “Confidential Information” means all documents, records, or other written or electronic materials received by one Party from the other relating to this Agreement and marked as “confidential” or which a reasonable person would recognize as confidential or proprietary considering the nature of the information and/or the circumstances of disclosure. Recipient agrees throughout the term of this Agreement and for a period of three (3) years thereafter, not to: (a) use Discloser’s Confidential Information for any purpose, other than for the Authorized Purpose; (b) disclose Discloser’s Confidential Information to any third party, except to Recipient’s, its Affiliates’ and their sub-contractors’ employees who (i) have a legitimate “need to know” to accomplish the Authorized Purpose, and (ii) are obligated to protect such Confidential Information pursuant to terms and conditions no less protective of Discloser than those contained in this Agreement; and/or (c) reverse engineer, decompile, disassemble or otherwise analyze the underlying ideas or structure of Discloser’s Confidential Information. Recipient shall protect Discloser’s Confidential Information as required hereunder using the same degree of care, but no less than a reasonable degree of care, as Recipient uses to protect its own confidential information of a like nature. For clarity, Customer agrees to treat the Software Service and Documentation as Humanize’s proprietary and confidential information hereunder. The obligations set forth in this Section shall not apply to information that can be proved by substantive evidence that: (a) was already known to the Recipient without any prior obligation of confidentiality; (b) is or becomes available to the public or otherwise part of the public domain without breach of this Agreement; (c) is rightfully received at any time by the Recipient from a third party without an obligation of confidentiality; (d) is disclosed by the disclosing Party to a third party without an obligation of confidentiality; or (e) is independently developed by the Recipient. Upon termination of this Agreement, or otherwise upon written request by a Party, the other Party shall return (or, if instructed by the requesting Party, permanently delete and certify same in writing) all confidential and/or proprietary information of the requesting Party (including any copies or summaries thereof).
9. Representations and Warranties.
9.1. By Humanize. Humanize represents and warrants that: (a) it has all right and authority to enter into this Agreement and to grant the rights and perform the obligations set forth herein; (b) entering into and performing under this Agreement will not violate any other agreement to which Humanize is a party; (c) for a period of thirty (30) days following the Start Date, the Software Service will conform in all material respects to the functional specifications set out in the Documentation and applicable portions of the Order Form;. Any warranty claim must be brought within the aforesaid 30-day period and in writing (accompanied by reasonable detail), and will be subject to the Software Service: (A) having been properly used by Customer; and (B) not having been modified by persons other than Humanize. Customer’s sole and exclusive remedy, and Humanize’s sole and exclusive obligation and liability, for a warranty claim under this subsection will be for Humanize to make commercially reasonable efforts to provide an enhancement remedying the defects; Provided, however, that Humanize determines in good faith that the defect is not due to any misuse, abuse, neglect, negligence, or unauthorized repair of the Software Service. Any enhancement provided as part of the foregoing remedy will not re-commence the warranty period and is warranted for the remainder of the warranty period as then in effect.
9.2. By Customer. Customer represents and warrants that: (a) it has all right and authority to enter into this Agreement and to perform the obligations set forth herein; and (b) entering into and performing under this Agreement will not violate any other agreement to which Customer is a party or by which it is bound.
9.3. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION AND TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, HUMANIZE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING, OR RELATING TO, THE SAAS SOLUTION, OR ANY PORTION THEREOF, OR ANY SUPPORT OR OTHER SERVICES PROVIDED TO CUSTOMER HEREUNDER. HUMANIZE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY OTHER WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OF TRADE OR PRACTICE.
10.1. Indemnification by Humanize. Humanize shall defend, indemnify and hold harmless Customer from any amounts finally awarded against or imposed upon Customer by a court (or otherwise agreed in settlement) under any third party demand or claim made against the Customer alleging that Customer’s use of the Software in accordance with this Agreement infringes third party’s Intellectual Property rights (a "Claim"), as well as for any out-of-pocket legal expenses (including reasonably attorney’s fees) reasonably incurred by Customer under the Claim. As a condition to such defense and indemnification, Customer will provide Humanize with written notice of the claim, reasonable assistance, at Humanize’s request and expense, in the defense of same, and provide all reasonably requested information that Customer possesses about the claim. Humanize shall have sole authority to control any litigation relating to such claim and disposition of any such claim. Notwithstanding anything to the contrary herein, Humanize shall not enter into any compromise or settlement to the extent that such settlement imposes a monetary obligation on Customer without Customer’s prior written consent, which shall not be unreasonably withheld. Customer may employ counsel at its own expense to assist it with respect to any such claim.
10.2. Humanize Efforts. If the licensed use of the Software Service becomes the subject of an infringement claim, Humanize shall promptly obtain such licenses, or make such replacements or modifications, as are necessary for Customer to continue its licensed use of the Software Service without infringement. If Humanize, in its sole opinion, is unable to achieve either of the foregoing within thirty (30) days (or such longer period as reasonably determined by Customer) after the finding of infringement by a Court or the award by a Court of an injunction, as applicable, Humanize shall promptly provide Customer with a pro rata refund of the fees paid by Customer based on the remaining License Term. Nothing in this paragraph shall limit any other remedy of the Customer.
10.3. Exceptions. Notwithstanding anything in this Agreement to the contrary, Humanize will have no liability or obligation under this Agreement, including without limitation under this Section, with respect to any claim, damage or loss arising from: (i) a modification to the Software Service (or any derivative works thereof) not made by Humanize or with Humanize’s written approval, to the extent such infringement would have been avoided in the absence of such modification; (ii) the combination or use of Software Service (or any derivative works thereof) in a manner that is not intended by this Agreement, to the extent the infringement would not have occurred absent such combination or use; or (iii) use of the Software with equipment not authorized by Humanize.
11. Term and Termination.
11.1. Term. Unless earlier terminated as set forth below or extended upon mutual agreement of the parties, the term of this Agreement shall be for the period set forth in the applicable Order Form. Customer (and its affiliates’, if applicable) terms and conditions of purchase, if any, set forth in each relevant purchase order issued by Customer in connection with this Agreement are hereby waived and rendered null and void.
11.2. Termination for Breach. Without prejudice to any other right or remedy which may be available to it, either Party may terminate this Agreement by giving (a) written notice in the event that the other Party commits a material breach of this Agreement and such breach is capable of remedy, fails to cure such breach within such sixty (60) days of receiving written notice thereof from the non- reaching Party; or (b) where such breach is not capable of remedy, thirty (30) days written notice.
11.4. Other Termination Rights. In addition, either Party may terminate this Agreement by delivering written notice to the other Party upon the occurrence of any of the following events: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations.
11.5. Survival. Upon termination or expiration of this Agreement for any reason, the Subscription Term shall be deemed terminated and the license granted hereunder shall terminate and Customer’s use of the Software Service shall cease. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes. Notwithstanding the foregoing, termination or expiration of this Agreement shall not relieve Customer of its payment obligations to Humanize that are outstanding on the Start Date of termination or expiration.
11.6. Return of Customer Data. Upon Customer’s request within ten (10) business days after the Start Date of termination or any expiry of the term, Humanize will return all Customer Data by making available to Customer for downloading a file (within ten (10) business days of such availability) of all Customer Data in its possession. After such ten (10) business day period, Humanize shall have no right to maintain or process and transfer any Customer Data and shall thereafter delete all Customer Data in its system or otherwise in its possession or under its control.
12. Limitation of Liability.
12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, LICENSORS, DISTRIBUTORS, OR SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES ARISING FROM LOST PROFITS, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, OR LOST OR CORRUPTED DATA OR SOFTWARE.
12.2. IN NO EVENT WILL EITHER PARTY’S CUMULATIVE TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED (A) THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO HUMANIZE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT, OR SERIES OF EVENTS, AS THE CASE MAY BE, GIVING RISE TO SUCH LIABILITY.
12.3. THE LIMITATIONS SPECIFIED IN THIS SECTION 12 SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.4. THE EXCLUSIONS AND LIMITATION IN THIS SECTION (LIMITATION OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF EITHER PARTY OR ITS AFFILIATES, LICENSORS, DISTRIBUTORS, OR SUPPLIERS HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; (C) REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE NEGLIGENCE OF EITHER PARTY OR OTHERS; AND (D) REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
12.5. LIMITATION PERIOD. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM ARISING FROM AND/OR CONCERNING THIS AGREEMENT AND/OR ITS SUBJECT MATTER BROUGHT MORE THAN TWO YEARS AFTER THE OCCURRENCE CAUSING THE LOSS AND/OR DAMAGE GIVING RISE TO SUCH CLAIM (REGARDLESS OF WHETHER SUCH OCCURRENCE WAS DISCOVERABLE AT THE TIME.
13. Fees, Payments and Audit.
13.1. Fees. Customer will pay Humanize the fees set out in the applicable Order Form, in accordance with the payment terms set forth below, which fees are inclusive of the annual Software Service fees payable during the applicable Subscription Term for the number of subscribed Nodes and/or Data Volume (as specified in the applicable Order Form), and Humanize’s provision of support and maintenance services at the “Standard” level of service (described in the SLA throughout the Subscription Term. Fees for additional services, if applicable, will be as stated in the applicable statement of work, as Appendix D to this Agreement, or as stated in an agreed purchase Order Form if not stated in Appendix D or agreed statement of work. All fees payable hereunder will be priced and settled in US Dollars unless otherwise agreed in the Order Form. Undisputed overdue amounts shall accrue interest as of the due date at the rate of one percent (1%) per month or the maximum amount allowed by law, whichever is less. In addition, interest at the foregoing rate will accrue from the original due date as to disputed amounts to the extent it is later determined that such amounts were in fact due and payable.
13.2. Payment Terms. Fees are payable annually in advance and are invoiced and due as set forth in the applicable Order Form. All fees payable under this Agreement are non-refundable and non-cancellable.
13.3. True-Up. Prior to the end of each year of the Term under the Order Form, Humanize shall determine the Annual Actual Usage of Chargeable Lines and/or Nodes and perform a true up calculation. In the event that the Annual Actual Usage of Chargeable Lines and/or Nodes for such prior year is greater than the number of subscriptions for which the Customer was invoiced by Humanize for that year, Humanize shall invoice Customer the excess between the Annual Actual Usage of Chargeable Lines and/or Nodes used and number of subscriptions for which Customer was invoiced in said prior year. Such true up shall also be performed following expiration of the Term (in respect of the year immediately prior).
13.4. Audit. Customer shall maintain in the ordinary course of business appropriate records in connection with this Agreement throughout the term of this Agreement and for at least two (2) years thereafter. Customer agrees that Humanize may audit such records to determine Customer’s compliance with this Agreement. Any such audit shall be at Humanize’s expense, require reasonable notice and be performed during Customer’s normal business hours. If an audit reveals underpayments of fees due pursuant to this Agreement, then Customer shall immediately pay Humanize such underpayments, together with the costs reasonably incurred by Humanize in connection with the audit and obtaining compliance with this subsection. Annual Actual Usage of Data Volume shall be audited quarterly, and Customer shall be invoiced for any Data Volume overload on a quarterly basis.
(a) All sums payable under or pursuant to this Agreement are exclusive of VAT (including any other similar sales or purchase tax or duty levied by any other jurisdiction), if any, unless otherwise provided in Humanize’s Quote. All sums payable under this Agreement shall be paid free and clear of any deductions, set offs or withholdings. Where deductions or withholdings are required to be made by law, the paying party shall be obliged to pay such amount as will, after the deduction or withholding has been made, leave the party entitled to payment with the same amount as it would have been entitled to receive in the absence of such requirement to make a deduction or withholding (provided that if the paid party subsequently receives credit for such deduction or withholding, then the paid party shall pay back to the paying party an amount equal to such credit up to the amount previously paid by the paying party).
(b) Customer shall reimburse Humanize, or pay directly to the appropriate tax authority, or timely issue a valid tax exemption certificate, for sales or use taxes legally imposed upon the transactions arising out of this Agreement. Humanize agrees to cooperate in a reasonable manner with Customer for the purpose of minimizing all taxes that are to be paid directly or indirectly by Customer. Humanize shall bear and pay all federal, state, and local taxes based upon or measured by its net income.
15. General Provisions.
15.1. Assignment. Neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, and any purported assignment without such consent will be null and void. Notwithstanding the foregoing, any transfer or assignment of this Agreement or any rights or obligations hereunder as a result of a merger, sale, transfer or disposition of the majority of a Party’s voting stock or all or substantially all of its assets relating to the subject matter of this Agreement shall not require the consent of the non-assigning Party, provided that the assignee agrees to be bound by the terms of this Agreement and to perform any and all of the assigning Party’s obligations under this Agreement. Subject to the foregoing, the rights and liabilities of the Parties under this Agreement will bind and benefit the Parties’ respective successors and permitted assigns.
15.2. Force Majeure. Neither Party shall be responsible or liable for failures of its obligations under this Agreement to the extent that such failure is due to causes beyond such Party’s control, which may include, but is not limited to, acts of God, war, terrorism, acts of any government or agency thereof, fire, explosion, epidemic, quarantine restrictions, strikes, delivery services, telecommunication providers, lockouts, embargoes, severe weather conditions, delay in transportation, or delay of supplier or subcontractors.
15.3. Notices. All notices required or permitted under this Agreement shall be made in writing and shall be sent by personal delivery, reputable overnight courier service (e.g., FedEx, UPS, DHL, etc.) or by registered or certified mail, return receipt requested, addressed to the other Party at the address set forth above. The date of such notice shall be deemed to be the day it is delivered, if delivered personally or by courier, or five (5) days after date of dispatch, if mailed.
15.4. Other Activities. Each Party reserves the right to be engaged in, solely or jointly with third parties, marketing, development, or other activities with respect to technologies or products which are competitive with technologies or products purchased, used or implemented in conjunction with this Agreement and the relationship between the Parties hereunder shall not prevent any such activities by either Party, subject, always, to the confidentiality obligations provided herein.
15.5. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the California, USA, exclusive of any provisions of the United Nations Convention on the International Sale of Goods, and without regard to principles of conflicts of law. The non-exclusive venue for all actions under this Agreement will be in the courts located in California, USA. and the parties irrevocably agree to submit to the jurisdiction of such courts and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court that has competent jurisdiction.
15.6. Relationship of the Parties. In the performance of this Agreement, Humanize is acting as an independent contractor, and neither Humanize nor its employees are the servants, agents, or employees of Customer. Customer will not interfere in Humanize’s engagement of its employees or its assignment of its employees to perform Services for Customer. Neither Party has the right to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other Party without the other Party’s written consent. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership or association between Humanize and Customer.
15.7. Non-Waiver. The failure of either Party at any time to require performance by the other Party of any provision hereof shall not affect in any way, or act as a waiver of, the right to require the other Party to perform in accordance with this Agreement at any other time, nor shall the waiver of either Party of a breach of a provision of this Agreement be held or taken to be a waiver of the provision itself.
15.8. Severability. If any term of this Agreement is held to be invalid or unenforceable for any reason, the remainder of the provisions shall continue in full force and effect, and the Parties shall substitute a valid provision with the same intent and economic effect.
15.9. Headings. The paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph, or in any way affect such agreements.
15.10. Publicity. Customer shall assist Humanize to publish certain mutually acceptable press release(s) or other communications. Each party agrees that it shall not publish or cause to be disseminated through any press release, public statement, or marketing or selling effort any information that relates to the other party or this Agreement without the prior written approval of the other party.
15.11. Export Control. Each Party shall comply with all applicable export and import control laws and regulations including but not limited to the US Export Administration Regulations (including prohibited party lists issued by other federal governments), catch-all regulations and all national and international embargoes. Each Party further agrees that it will not knowingly transfer, divert, export or re-export, directly or indirectly, any product, software, including software source code, or technology restricted by such regulations or by other applicable national regulations, received from the other Party under this Agreement, or any direct product of such software or technical data to any person, firm, entity, country or destination to which such transfer, diversion, export or re-export is restricted or prohibited, without obtaining prior written authorization from the applicable competent government authorities to the extent required by those laws.
15.12. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. Faxed signatures shall have the same legal affect as original signatures.
15.13. Entire Agreement. This Agreement contains the Parties’ entire understanding with respect to the matters contained herein and supersedes any prior oral or written understandings with respect to the subject matter hereof. There are no promises, covenants or undertakings other than those set forth herein and therein. This Agreement may not be modified except by a writing signed by both Parties. In the event of a conflict or inconsistency between the terms of the main body of this Agreement and the Order Form, then, the former shall prevail, unless (and in such a case, solely to the extent that) the Order Form or this Agreement expressly states otherwise.
15.14. U.S. Government Rights. The Software is a “commercial item” developed exclusively at private expense, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined or used in the applicable U.S. acquisition regulations. If Customer is an agency, department, or other entity of the United States Government, the Software is licensed hereunder (i) only as a commercial item and (ii) with only those rights as are granted to all other Customers pursuant to the terms and conditions of this Agreement. Customer agrees not to use, duplicate, or disclose the Software in any way not expressly permitted by this Agreement. Nothing in this Agreement requires Humanize to produce or furnish technical data for or to Customer.
15.15. Trade Compliance. Software is, and Third Party Software may be, subject to control under the U.S. Export Administration Regulations (15 CFR Part 730 et. seq.), other applicable U.S. export control laws and regulations, and applicable global export control laws and regulations, including, for products exported from the European Union, the Regulation (EU) 2021/821 of the European Parliament and of the Council. Customer represent and warrant that it is not ineligible or otherwise restricted by US or applicable law to receive any copies of the Software or Third Party Software. Humanize reserves the right not to ship or permit downloading of the Software ordered or otherwise fulfill an Order Form for licenses and/or subscriptions if, at any time, Humanize believes that such shipment or downloading of such Software, Third Party Software or other fulfillment may violate U.S. or other applicable export control laws. Customer agrees that it will not export, re-export, or transfer any Software or Third Party Software in violation of any U.S. and applicable global export control laws and that it will not export, re-export, or transfer the Software or Third Party Software by any means to (i) any person or entity on OFAC’s List of Specially Designated Nationals or on BIS’s Denied Persons List, Entity List, or Unverified List, or any other applicable restricted party list or (ii) any prohibited destination, entity, or individual without the required export licenses or authorizations from the U.S. Government or other applicable export licensing authority.
15.16. Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.