UpMetrics | Terms of Use

SPORTUP, INC. DBA/ UPMETRICS
​
SAAS AGREEMENT
This SAAS (Software As A Service) Agreement (this "Agreement") is a binding contract between you ("Client," "you," or "your") and SportUp, Inc., a Delaware Corporation doing business as "UpMetrics" with offices located at 300 Brannan St., Suite 504, San Francisco, CA 94107 ("Provider," "we," or "us"). This Agreement governs your access to and use of the System (as defined below). Provider and Client may be referred to herein collectively as the "Parties" or individually as a "Party." 
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ["I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SOFTWARE AS A SERVICE TO WHICH THIS AGREEMENT APPLIES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE SOFTWARE AS A SERVICE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. 
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE "I DECLINE" BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.

1. Definitions.
   1. "Aggregated Statistics" means data and information related to Client’s use of the System that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the System.
   2. "Authorized User" means Client’s employees, Clients, contractors, and agents (i) who are authorized by Client to access and use the System under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the System has been purchased hereunder.
   3. "Client Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, including Client’s trade names, trademarks, logos, and trade styles, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through, or for use in connection with, the System. 
   4. "Documentation" includes Provider's user manuals, handbooks, trainings, guides and Help Center content, relating to the System which Provider provides to Client either electronically or in hard copy form.
   5. "Provider IP" means the System,  the Documentation, and any and all intellectual property provided to Clients or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP, includes, in tangible or intangible form, all improvements, inventions, original works of authorship, developments, discoveries, ideas, designs, technologies, know-how, work product, information, concepts, materials, methods, processes, disclosures, software, code, content, data, information, domain names, applications, registrations, Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Client’s access to or use of the System, and any other intellectual property and all modifications, improvements, and derivative works thereof and thereto, but does not include Client Data.
   6. "System" means Provider's UpMetrics Lite self-serviced system described on Provider's website;  "System" does not mean or include any other version of Provider's UpMetrics systems.

 

1. Access and Use. 
   1. Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 13.7) right to access and use the System during the Term of this Agreement, solely for use by Authorized Users in accordance with the terms and conditions herein.. Provider shall provide to Client the necessary passwords and network links or connections to allow Client to access the System. The total number of Authorized Users will not exceed one (1), except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
   2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.7) license to use the Documentation during the Term solely for Client's internal business purposes in connection with its use of the System.
   3. Use Restrictions. Client shall not use the System for any purposes beyond the scope of the access granted in this Agreement. Client 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 System or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the System or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the System, in whole or in part; (iv) remove any proprietary notices from the System or Documentation; or (v) use the System 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.
   4. Reservation of Rights. Provider reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
   5. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Client's and any Authorized End User's access to any portion or all of the System if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Client's or any Authorized End User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other client or vendor of Provider; (C) Client, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Client 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) Provider's provision of the System to Client or any Authorized End User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Client to access the System; or (iii) in accordance with Section 4.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the System following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the System as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension. 
   6. Aggregated Statistics.  Notwithstanding anything to the contrary in this Agreement, Provider may compile Aggregated Statistics. As between Provider and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Client acknowledges that Provider may compile Aggregated Statistics based on Client Data input into the Services. Client agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Client or Client's Confidential Information.
2. Client Responsibilities. 

. Client is responsible and liable for all uses of the System and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client 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 Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the System, and shall cause Authorized Users to comply with such provisions.

1. Fees and Payment. 
   1. Fees. Provider shall not charge Client any fees for use of the System prior to January 1, 2021.  By no later than such date and each anniversary of such date thereafter, Client shall pay Provider an annual fee (the “Annual Fee”) of $588 (which amount shall be subject to annual increase as Provider shall notify client prior to the due date thereof). Client shall make all payments hereunder in US dollars by credit card, using such payment system as Provider shall establish prior to January 1, 2021. 
   2. Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Provider's income.
2. Independent Contractor.

5.1     Relationship. Provider’s relationship with Client will be that of an independent contractor and not that of an employee. Provider shall be solely responsible for determining the method, details and means of making the System available to Provider. Provider may, at Provider’s own expense, employ or engage the services of such employees, subcontractors, partners or agents, as Provider deems necessary to operate and manage the System (collectively, "Provider Personnel"). Provider Personnel are not and shall not be employees of Client. 
5.2     Authority. Provider and Provider Personnel shall have no authority to enter into contracts that bind Client or create obligations on the part of Client without the prior written authorization of Client. Provider and Provider Personnel shall not be eligible for any Client employee benefits and, to the extent Provider or Provider Personnel would otherwise be eligible for any Client employee benefits but for the express terms of this Agreement, Provider (on behalf of itself and Provider Personnel) hereby expressly declines to participate in such Client employee benefits.
5.3     Compliance. Provider shall have full responsibility for applicable withholding taxes for all fees and compensation paid to Provider or Provider Personnel under this Agreement, and for compliance with all applicable labor and employment requirements applicable to Provider Personnel, including (without limitation) payroll withholding, labor and employment laws, state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements, and shall indemnify, defend and hold Client harmless from any liability for, or assessment of, any claims or penalties with respect to the preceding.

1. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that  whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
2. Intellectual Property Ownership; Feedback.
   1. Provider IP. Client acknowledges that, as between Client and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Except as permitted by the license granted in Section 2:  (i), Client shall not: (A) distribute, sell, lease, assign, license, convey, disclose or in any other way transfer any Provider IP to any third party; (B) reproduce, modify or use any Provider IP; or (C) to the maximum extent enforceable pursuant to applicable law, reverse engineer, disassemble or otherwise de-compile any portion of Provider IP; and (ii) no license or right is granted by Provider to Client directly or by implication, estoppel or otherwise.
   2. Client Data. Provider acknowledges that, as between Provider and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Provider: (a) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Provider to provide the Services to Client; (b) a non-exclusive, royalty-free, worldwide license to use and display solely in connection with a searchable database or system to be created by Provider which permits third party donors to search for and contact organizations eligible to receive donations, provided that the Client Data for such use shall be limited to Client's name, address, contact information, description of nonprofit purpose and activities, and such other information that Client shall make publicly available on the System; and (c) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics. Provider may list Client’s name and logo on Provider’s website.
   3. Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, through the System, such as the platform, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Provider on Client's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider 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 Provider is not required to use any Feedback.
3. Representations; Warranty Disclaimer.
   1. Duly Authorized. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of incorporation or organization; (ii) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (iii) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the party; and (iv) when executed and delivered by such party, this Agreement shall constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
   2. Warranty Disclaimer. THE SYSTEM IS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 
4. Indemnification. 
   1. Provider Indemnification. 
      1. Provider shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Client resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the System, or any use of the System in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Client promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. 
      2. If such a claim is made or appears possible, Client agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the System, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. 
      3. This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the System in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the System not made by Provider; or (C) Client Data; or (D) Third-Party Products. 
   2. Client Indemnification. Client shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Client's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the System in a manner not authorized by this Agreement; (iii) use of the System in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the System not made by Provider, provided that Client may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 
   3. Sole Remedy. THIS SECTION 9.3 SETS FORTH CLIENTS SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.   
5. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE IMMEDIATE PRIOR YEAR.
6. Term and Termination.
   1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect until December 31, 2020.  This Agreement will automatically terminate on January 1, 2021 unless Client shall have paid the Annual Fee by such date. The term of this Agreement shall be extended through the end of each calendar year starting after December 31, 2020 for which Client shall have paid the Annual Fee prior to the start of such calendar year.
   2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. Provider may terminate this Agreement, effective on five days' advance notice to Client;
      2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party  breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured fifteen (15) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      
      

either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.

1. 1. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the System and, without limiting Client's obligations under Section 5, Client shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Client's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund. 
   2. Survival. This Section 11.4 (Survival) and Sections 4-9, inclusively (Fees and Payment; Independent Contractor; Confidentiality; Intellectual Property; Representations; Warranty Disclaimer; Indemnification), Section 10 (Limitations of Liability), Section 11 (Term and Termination), Section 12 (Arbitration) and Section 13 (Miscellaneous) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
2. Arbitration. Any controversy between the parties arising out of this Agreement shall be submitted to the Judicial Arbitration and Mediation Services for arbitration in San Francisco, California, using one arbitrator.  The costs of the arbitration, including any administration fees, the arbitrator's fee, and costs for the use of facilities during the hearings, shall be borne equally by the parties to the arbitration.  The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement nor to grant any remedy which is either prohibited by the terms of this Agreement, or not available in a court of law. If any arbitration or action should be commenced to enforce, or otherwise with respect to, any of the terms or conditions of this Agreement, the prevailing party shall be entitled to recover from the other party, in addition to any and all other relief to which the prevailing party may be entitled, all of the prevailing party's reasonable attorney fees relating to legal services provided in advance or connection with any arbitration or legal proceedings.
3. Miscellaneous. 
   1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
   2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon personal delivery to the other party to be notified; (ii)  for senders and recipients in the United States, five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (iii) by facsimile upon confirmation of receipt on a business day or if sent on a day other than a business day, then receipt shall be deemed to occur on the next day that is a business day, or (iv) for senders and recipients in the United States one (1) business day (or for a sender or recipient outside of the United States, two (2) business days) after deposit with a nationally recognized overnight courier, specifying next day, or two (2) day, as applicable, delivery, with written verification of receipt.  All communications shall be sent to the respective parties at the addresses set forth on the signature pages attached hereto or at such other addresses as shall be specified by notice given in accordance with this Section 13.2.
   3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond either Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
   4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) 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 and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
   5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
   6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California  without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
   7. Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider.. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 
   8. Export Regulation. The System utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the System or the underlying software or technology to, or make the System or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the System or the underlying software or technology available outside the US. 
   9. US Government Rights. Each of the Documentation and the software components that constitute the System is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the System and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
   10. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Client, Section 2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.