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THIS ON-PREMISE HOSTING AGREEMENT (“Agreement”) is entered into by and between ASI Datamyte Inc., a Minnesota corporation, 2800 Campus Drive, Suite 60, Plymouth, Minnesota, USA 55441 (“ASI”), and the customer or client ASI’s Confirmation of the specific purchase order (“Customer”). This Agreement is effective as of the date of the applicable Confirmation (the “Effective Date”). ASI and Customer are individually as a “Party” and collectively the “Parties.”
NOW, THEREFORE, in consideration of the above premises, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Definitions.
“Access” means an event in which an Authorized User logs on to a Licensed Software application using an authorized Login.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Aggregated Data” has the meaning set forth in Section 10.5.
“ASI IP” has the meaning set forth in Section 2.4.
“Authorized User” means an individual employed or retained by Customer who has been identified to ASI and given a password or other credentials or permission to Access the Licensed Software pursuant to this Agreement.
“Credentials” has the meaning set forth in Section 3.2.
“Confirmation” means that specific confirmation by ASI of a corresponding purchase order from a Customer.
“Customer Data” the content, records and data that is entered, added to, altered or manipulated by Authorized Users through interfaces to the Licensed Software and uploaded and stored in a Customer database.
“Documentation” means user guides, manuals, handbooks, and other documents related to the Licensed Software that ASI may also provide to Customer during the term of this Agreement.
“Feedback” has the meaning set forth in Section 10.4.
“Force Majeure Event” has the meaning set forth in Section 13.12.
“Hosting Environment” has the meaning set forth in Section 5.
“Implementation Fee” has the meaning set forth in Section 7.1.
“Initial Term” has the meaning set forth in Section 8.1.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensed Software” means the Digital Clipboard software modules.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any updates, upgrade, release, or other adaptation or modification of the Licensed Software, including any updated Documentation, that ASI may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, bug fixes, patches, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Licensed Software, but does not include any New Version.
“New Version” means any new version of the Licensed Software that ASI may from time to time introduce and market generally as a distinct licensed product (as may be indicated by ASI’s designation thereof), and which ASI may make available to Customer at an additional cost under a separate written agreement.
“Renewal Term” has the meaning set forth in Section 8.1.
“Subscription Fees” has the meaning set forth in Section 7.1.
“Suspension” has the meaning set forth in Section 2.5.
“Suspension Date” has the meaning set forth in Section 8.4.
“Taxes” has the meaning set forth in Section 7.3.
2. Access and Use.
2.1. Authorization. In consideration for, and conditioned upon, timely payment of all fees and compliance with all other terms and conditions set forth in this Agreement, ASI authorizes Customer and its Authorized Users to access and use the Licensed Software and the Documentation during the Term of this Agreement for its own internal business purposes.
2.2. Authorized Users. The authorization granted under this Agreement shall allow Customer to provide access to the Licensed Software for Customer’s employees solely for the number of users listed in the applicable Confirmation (“Authorized User”). The total number of Authorized Users will not exceed the number set forth in the Confirmation, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of any fees payable hereunder. ASI will provide Customer with the necessary number of user names and passwords (or provide the opportunity to create user names and passwords) to allow Customer, through its Authorized Users, to access the Licensed Software.
2.3. Use Restrictions. Customer and its Authorized Users shall not use the Licensed Software for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Licensed Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Licensed Software, in whole or in part; (iv) remove any proprietary notices from the Licensed Software or Documentation; (v) knowingly interfere with the operation of the Licensed Software or other computers or network connections; (vi) use the Licensed Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vii) bypass or breach any security device or protection used for or contained in the Licensed Software; (viii) use the Licensed Software for purposes of: (A) benchmarking or competitive analysis of the Licensed Software; (B) developing, using, or providing a competing software product or service; or (C) any other purpose that is to ASI’s detriment or commercial disadvantage; (ix) use the Licensed Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or (x) use the Licensed Software or Documentation in any manner or for any purpose or application not expressly permitted by this Agreement or Documentation.
2.4. Reservation of Rights. ASI reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants or transfers, by implication, waiver, estoppel, or otherwise, to Customer or any third-party any intellectual property rights or other right, title, or interest in or to the Licensed Software, the Documentation, or related trademarks, copyrights, patents, trade secrets, confidential information, or other intellectual property of ASI (collectively “ASI IP”).
2.5. Suspension. Notwithstanding anything to the contrary in this Agreement, ASI may temporarily suspend Customer’s and Authorized Users’ access to any portion or all of the Licensed Software if: (i) ASI reasonably determines that (A) there is a threat or attack on any of the Licensed Software or other ASI IP; (B) Customer’s or any Authorized User’s actions or use of the or Licensed Software disrupts or poses a security risk to the ASI IP or to any other customer or vendor of ASI; (C) Customer, or any Authorized User, is using the ASI IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) ASI’s provision of the Licensed Software or other services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of ASI has suspended or terminated ASI’s access to or use of any third-party services or products required to enable Customer to access the Licensed Software; or (iii) in accordance with Section 8.4 (any such suspension described in subclause (i), (ii), or (iii), a “Suspension”). ASI shall use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Licensed Software following any Suspension. ASI shall use commercially reasonable efforts to resume providing access to the Licensed Software as soon as reasonably possible after the event giving rise to the Suspension is cured. ASI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Suspension.
2.6. Security Measures. The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software. Customer acknowledges and agrees that: (i) ASI may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce ASI rights, including all Intellectual Property Rights, in and to the Licensed Software; (ii) ASI may deny any individual access to or use of the Licensed Software if ASI, in its sole discretion, believes that person’s use of the Licensed Software would violate any provision of this Agreement, regardless of whether Customer designated that person as an Authorized User; and (iii) ASI and its representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Customer’s computers, systems and software, that ASI may gather periodically to improve the performance of the Licensed Software or develop Maintenance Releases.
3. Customer Responsibilities.
3.1. General. Customer is responsible and liable for all uses of the Licensed Software, Documentation, or other services provided by ASI resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, (i) Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer; and (ii) Customer shall be solely responsible for any and all activities made under Customer’s account that are a result of Customer’s negligence, including, but not limited to, exceeding the agreed-upon number of Authorized Users. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Licensed Software, and shall cause Authorized Users to comply with such provisions.
3.2. Security Responsibility. Customer is responsible for maintaining the security of its own computer systems and Hosting Environment and the confidentiality of the user names, password(s), or other access credentials assigned to, or selected by, Customer and its Authorized Users (the “Credentials”). Customer, on behalf of itself and its Authorized Users, agrees that the Credentials shall not be shared with anyone. Customer agrees to immediately notify ASI if a password is lost, stolen, disclosed to an unauthorized third-party, or has otherwise been compromised.
3.3. Third-Party Products. ASI may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and may include applicable flow-through provisions referred. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer shall inform ASI of such refusal and should not install or use such Third-Party Products.
3.4. Equipment. Customer shall be solely responsible for providing, maintaining, securing, and ensuring all hardware, software, electrical and other physical requirements for Customer’s use of the Licensed Software, including, without limitation, telecommunications, Internet access connections, Web browsers or other equipment, programs and services required to access and use the Licensed Software. Customer is responsible for maintaining regular data backups or redundant data archives and appropriate security policies and protocols for its computer systems and the Hosting Environment.
Maintenance Releases. During the Term, ASI may provide Customer with Maintenance Releases (including updated Documentation) that ASI may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases provided by ASI to Customer are deemed Licensed Customer will install all Maintenance Releases as soon as possible after receipt. Customer does not have any right hereunder to receive any New Versions of the Licensed Software that ASI may, in its sole discretion, release from time to time.
4. Services.
4.1. Customer Services. Notwithstanding the terms of the Service Subscription Agreement, Customer will install the Licensed Software, host the Licensed Software, store Customer Data on the Customer’s servers and provide Customer Access to the Licensed Software and Customer Data on its own premises and using (i) servers and equipment that are solely owned, or otherwise controlled, and maintained by Customer; and (ii) the services of its own employees.
4.2. Service Maintenance. Customer is responsible for maintaining and securing the Hosting Environment, so that the services operate properly. Such maintenance services may include, but are not limited to: updates, bug fixes, enhancements, new releases, new versions, repairs to the Hosting Environment, maintenance of the Hosting Environment, security and integrity, confidentiality, and privacy.
4.3. ASI Service Support. In the event Customer requires ASI’s support services, including services required due to errors or failures with the Licensed Software, Customer will compensate ASI for such support services. Payment is due thirty (30) days after invoice date without deduction or offset of any kind. Interest shall accrue and be payable at the rate of one and one half percent (1.5%) per month with respect to past due payments until paid. Failure by Customer to make payment within sixty days (60) of invoice date will result in the suspension of Customer’s use of the Licensed Software until payment is received. All sales, use, excise or other taxes payable with respect to the usage fees shall be paid by Customer.
5. Hosting Environment. Customer is responsible for providing, maintaining, and supporting all servers, server software, hosting platforms, storage space, telecommunications connectivity and equipment, and other hardware, software, technology, and other materials Customer uses or otherwise should use to provide access to as part of Customer’s use of the Licensed Software (collectively, the “Hosting Environment”).
6. Licenses. ASI hereby grants to Customer the following license, subject to the following restrictions and otherwise subject to the terms of this Agreement:
6.1. Licensed Software. ASI hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited, personal license to allow Authorized Users to use the Licensed Software. Customer’s rights in the Licensed Software are limited to the limited license expressly granted in this Section 6.1. ASI reserves all rights and licenses in and to the Licensed Software not expressly granted to Customer under this Agreement. ASI further reserves the right to revoke any license if Customer violates the terms of this Agreement.
6.2. License Restrictions. Unless otherwise provide for in this Agreement, Customer may not nor permit any third party or Authorized User to: (i) copy, sublicense or distribute the Licensed Software or permit its use by any third party; (ii) modify, translate or otherwise create derivative works of the Licensed Software; (iii) interfere with, disassemble, decompile or reverse engineer the object code or the source code of the Licensed Software; (iv) modify, disable, circumvent, avoid, bypass, remove, deactivate, impair or otherwise interfere with features of the Licensed Software that enforce license restrictions or limit or report technical or statistical information regarding the Licensed Software or its use to ASI; (v) publish, or otherwise make available to any third party, any benchmark testing information or results; (vi) export or re-export the Licensed Software outside of the United States of America (unless such activity is authorized in writing and is not in violation of any United States export Laws); or (vii) rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Licensed Software to any third party, and Customer may not permit any third party to have access to or use the functionality of the Licensed Software.
7. Fees and Payment.
7.1. Fees. Customer agrees to pay ASI for the Licensed Software and other services (which may include “Subscription Fees” or “Service Support Compensation”) at the rates currently in effect and invoiced by ASI. ASI will issue an initial invoice as the implementation fee (the “Implementation Fee”). THE IMPLEMENTATION FEE IS NONREFUNDABLE. The term “Fees” shall collectively refer to the Implementation Fee, Subscription Fees, and Service Support Compensation. ASI will issue additional invoices annually for the Subscription Fees and Service Support Compensation.
7.2. Payment. ASI will issue invoices annually for the services rendered. Customer will pay all invoiced Fees within thirty (30) days after the invoice date. All amounts payable to ASI under this Agreement shall be paid by Customer to ASI in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
7.3. Disputes and Overdue Invoices. Customer must notify ASI, in writing, of any disputed amounts within fifteen (15) days of the invoice date or Customer hereby waives said dispute. ASI may assess a service charge of one and one half percent (1.5%) interest compounded monthly for all amounts past due by at least thirty (30) days. Further, Customer will reimburse ASI for ASI’s costs or expenses incurred in collecting any late payments or interest, and which include without limitation attorneys’ fees, collection costs, and court costs. CUSTOMER HEREBY UNDERSTANDS AND AGREES THAT PAYMENT OF FEES IS NECESSARY FOR ACCESS TO THE LICENSED SOFTWARE, AND FAILURE TO REMIT PAYMENT AS SET FORTH UNDER THIS AGREEMENT SHALL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.
7.4. Taxes. ASI’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases. If ASI has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, ASI will invoice Customer and Customer will pay that amount unless Customer provides ASI with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.5. Audit Right. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. ASI may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid ASI with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
8. Term and Termination.
8.1. Term. This Agreement shall remain in effect for a period of three (3) years following the Effective Date (the “Initial Term”) and will automatically renew for successive three (3) year periods (the “Renewal Term”) unless this Agreement is terminated in accordance with Section 8.2.
8.2. Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement, and such breach is not cured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. The date of such termination will be the date of expiration of the thirty (30) day period if such material breach has not been cured. Notwithstanding anything to the contrary, ASI may terminate the License and refund any pro-rata amount of pre-paid, refundable Fees upon sixty (60) days notice to Customer. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
8.3. Effect of Termination. Upon termination of this Agreement for any reason, Customer shall pay all amounts owed to ASI prior to the effective date of termination, within thirty (30) days of the effective date of termination, provided however that no genuine dispute between Customer and ASI exists regarding services provided or amounts owed. UPON THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE ACCESS GRANTED TO CUSTOMER UNDER THIS AGREEMENT CEASES AND CUSTOMER IS NO LONGER AUTHORIZED TO ACCESS THE LICENSED SOFTWARE FOR ANY PURPOSE. CUSTOMER FURTHER AGREES THAT CUSTOMER’S ACCESS OF ASI’S LICENSED SOFTWARE FOLLOWING THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT IS WITHOUT AUTHORIZATION. In the event ASI terminates this Agreement as a result of Section 8.2, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term, Initial Term or Renewal Term, will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of ASI’s invoice therefor.
8.4. Access to Software and Services. If Customer fails to pay any fees due under this Agreement, ASI may suspend Customer’s access to the Licensed Software after fifteen (15) days’ written notice to Customer (the “Suspension Date”). Notwithstanding ASI’s right to terminate this Agreement in accordance with this Agreement, Customer will have thirty (30) days from the Suspension Date to cure the breach and pay ASI all amounts owed to ASI to reinstate access to the Licensed Software. After the expiration of the thirty (30) day period, if Customer has not paid all fees due under this Agreement, ASI may terminate this Agreement and destroy or request the Customer’s destruction all copies of Customer’s Data within ninety (90) days from the Suspension Date.
8.5. Survival. Notwithstanding the termination of this Agreement, the Parties shall be required to carry out any provision hereof that contemplates performance subsequent to such termination, and such termination shall not affect any liability or other obligation that has accrued prior to such termination, including, but not limited to, any liability for loss or damage on account of a prior breach. Without limiting the generality of the foregoing, the Parties specifically agree that the rights and duties contemplated in Sections 2.3, 6.2, 7 and 10-13 shall survive termination or expiration of this Agreement.
9. Support. ASI will provide Customer with the service support. Certain levels of support and training services may require additional fees, which will be invoiced by ASI to Customer.
10. Confidential Information and Intellectual Property.
10.1. Intellectual Property. Customer acknowledges and agrees that ASI exclusively owns all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation or techniques that ASI provides under this Agreement, including without limitation any Licensed Software or Documentation, and that no title to the Licensed Software or any other ASI IP shall pass, or be deemed to pass, to Customer under this Agreement.
10.2. Confidential Information. The term “Confidential Information” shall include, but is not limited to the source code for the Licensed Software, underlying methods and processes of operation, whether patented or not, documentation, cost and pricing information, and any other information or documentation designated as confidential, or that Customer knows or should have reason to know that such information or documentation is confidential. Neither ASI, nor any Third Party Provider nor Customer will use any Confidential Information of the other except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing party. Each party will use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but in no circumstances less than reasonable care. None of the parties shall disclose any other party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such information to effect the intent of this Agreement.
10.3. Non-Disclosure and Non-Use. Neither Party shall make Confidential Information available in any form to any person other than its employees, authorized manufacturers, or authorized contractors whose job performance requires access and who have agreed to the same obligations of confidentiality set forth in this Agreement. Notwithstanding the foregoing, Customer shall not make ASI’s Confidential Information available to any of ASI’s competitors including any person or entity. Customer shall take appropriate action to protect the confidentiality of Confidential Information and ensure that any person permitted access does not disclose or use Confidential Information except as permitted by this Agreement. Customer shall give ASI immediate written notice of any unauthorized disclosure or use of the Confidential Information as soon as Customer learns or becomes aware of such unauthorized disclosure or use.
10.4. Feedback. If Customer or any of its Authorized Users, employees or contractors sends or transmits any communications or materials to ASI by mail, email, telephone, or otherwise, suggesting or recommending changes to the ASI IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), ASI is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to ASI on Customer’s behalf, and on behalf of its Authorized Users, employees, contractors and/or agents, all right, title, and interest in, and ASI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although ASI is not required to use any Feedback.
10.5. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, ASI may monitor Customer’s use of the Software and collect and compile data and information related to Customer’s use of the Software that is used by ASI in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Data”). As between ASI and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by ASI. Customer acknowledges that ASI may compile Aggregated Data based on Customer Data input into the Software. Customer agrees that ASI may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable Laws.
11. Indemnification. Customer shall indemnify, hold harmless, and, at ASI’s option, defend ASI from and against any Losses resulting from any Action based on, related to, or arising out of Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Licensed Software in a manner not authorized by this Agreement or Documentation; (iii) use of the Licensed Software in combination with data, software, hardware, equipment, or technology not provided by ASI or authorized by ASI in writing; (iv) inaccurate, mis-entered, or otherwise incorrect data provided, or entered into any database or system, by Customer or at Customer’s direction; (v) modifications to the Software not made by ASI; (vi) Hosting Environment; or (vii) use of any version other than the most current version of the Licensed Software or Documentation. Customer may not settle any Action against ASI unless ASI consents to such settlement in writing; and further, ASI will have the right, at its option, to defend itself against any such Action or to participate in the defense thereof by counsel of its own choice, but which expenses, costs, and fees (including attorneys’ fees) will be subject to Customer’s indemnification obligations under this Section 11.
12. Limitations and Disclaimers.
12.1. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, ASI AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THE LICENSED SOFTWARE “AS IS WITH ALL FAULTS” WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND ASI HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED SOFTWARE WHETHER EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY. ASI DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE LICENSED SOFTWARE, THE AVAILABILITY OF THE USER CONTENT, THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET ALL OF CUSTOMER REQUIREMENTS, THAT THE LICENSED SOFTWARE IS FREE OF VIRUSES, THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED, OR THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ASI OR AN ASI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY.
12.2. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, OR AFFILIATES BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOST TIME, LOST SAVINGS, LOSS OF DATA, DAMAGED DATA, INACCURATE DATA, FAILURE OF TELECOMMUNICATION SERVICES, LOST CONFIDENTIAL OR OTHER INFORMATION, OR FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (TORT, CONTRACT OR OTHERWISE) AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. IN NO EVENT SHALL ASI’S TOTAL LIABILITY FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF MONIES PAID FOR CUSTOMER’S ACCESS TO THE LICENSED SOFTWARE AND RECEIVED BY ASI IN THE 12 MONTHS PRECEDING THE EVENT CAUSING THE ACTION, LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ANY LIMITATION OF CUSTOMER’S LIABILITY WILL NOT APPLY TO ASI’S LOSSES RELATED TO OR ARISING FROM THE CUSTOMER’S VIOLATIONS OF ASI’S INTELLECTUAL PROPERTY RIGHTS IN THE LICENSED SOFTWARE, DOCUMENTATION, OR ASI IP, INCLUDING WITHOUT LIMITATION SECTIONS 2.3, 6.2, 10, or 13.7.
12.3. Harm to Customer. Customer shall remain responsible for fixing any harm that comes to its Hosting Environment or interrupts Customer’s use of the Licensed Software, even in the event Customer determines that ASI’s code was the basis for such harm.
13. Miscellaneous.
13.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, excluding its principles of conflicts of laws. Any action related to this Agreement or its subject matter shall be brought and maintained exclusively in the state or federal courts located in the state of Minnesota.
13.2. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when personally delivered, sent by facsimile or overnight express delivery, or mailed by first class United States mail, postage prepaid, return receipt requested. Notices, demands and communications to the parties will, unless another address is specified in writing, be sent to the principal executive office of the other Party.
13.3. Binding Effect. This Agreement and all the provisions hereof are binding upon and inure to the benefit of the parties and their respective heirs or legal representatives, successors and permitted assigns.
13.4. Interpretation. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision, or part thereof, of this Agreement is held to be prohibited or invalid under applicable law, that provision will be ineffective only to the extent of the prohibition or invalidity, without invalidating the remainder of the provision or the remaining provisions of this Agreement.
13.5. Severability. If any provisions of this Agreement shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof, which shall be construed as if such illegal and unenforceable provisions or provision had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose of this Agreement.
13.6. Assignment. Customer may not assign its rights or obligations under this Agreement without ASI’s written consent provided, however, that Customer may assign its rights and obligations, in whole only, without such consent to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. ASI may freely assign its rights and obligations, in whole only, to another party without the consent of Customer.
13.7. Export Regulation. The Licensed Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Licensed Software to, or make the Licensed Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. Customer shall comply with all applicable Laws.
13.8. Successors and Assigns. This Agreement is binding upon the Parties and each Party’s respective successors and permitted assigns.
13.9. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties; and, neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
13.10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.11. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.12. Force Majeure. In no event will ASI be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond ASI’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 90 days or more. In the event of any failure or delay caused by a Force Majeure Event, ASI will give notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
13.13. Counterparts. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same instrument.
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