USING THE SAMPLE CONTRACT PROJECT SCENARIO BELOW;

Address this contractual Analysis

A. Briefly explain your interpretation of how intellectual property is addressed within the contract, and justify your interpretation with specific examples.

B. Briefly explain your interpretation of how indemnification is addressed within the contract, and justify your interpretation with specific examples.

C. Briefly explain your interpretation of how source code escrow is addressed within the contract, and justify your interpretation with specific examples.

D. Briefly explain your interpretation of how warranties are addressed within the contract, and justify your interpretation with specific examples.

E. Briefly explain your interpretation of how maintenance is addressed within the contract, and justify your interpretation with specific examples.

Project Scenario

Software License, Customization, and Maintenance Agreement

This Software License, Customization, and Maintenance Agreement (this "Agreement") is entered into as of ___________, 20__ (the "Effective Date") by and between ____________, a ___________ ("Vendor"), and ______________, a _________ ("Customer").

RECITALS

Vendor provides a software application known as ___________, and the parties have agreed that Vendor will provide such software to Customer and also modify it to fit certain requirements of Customer. The parties have also agreed that Vendor will provide maintenance and support services related to the software. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, including those outlined on Attachments A and B (which are incorporated into this Agreement by this reference), the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.

TERMS AND CONDITIONS

1.DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1."Customization Services" means such Vendor services as are set forth in Attachment A.

1.2."Deliverable" means any software or other deliverable created pursuant to Customization Services, in object code format.

1.3."Documentation" means the Software's standard user manual.

1.4."Go-Live" refers to the earlier of (a) Acceptance of the final Deliverable pursuant to Attachment A or (b) Customer's first use of the Software in production.

1.5."License Term" is defined in Subsection 13.1(a) below.

1.6."Maintenance Term" is defined in Subsection 13.1(b) below.

1.7."Software" means Vendor's _______________ software, in object code format.

1.8."Specifications" means: (a) for the Software, before Go-Live, Vendor's standard specifications set forth in the then current Documentation and at __________; (b) for each Deliverable, such specifications and requirements as are listed in Attachment A; and (c) for the Software, after Go-Live, the requirements of Subsection 1.4(a) above as modified by Subsection 1.4(b) above.

1.9."Upgrade" means a new versions, updates, or upgrades of the Software, in object code format.

1.10."User" means an employee or contractor of Customer.

2.LICENSES & DELIVERY.

2.1.License. Vendor hereby grants Customer a nonexclusive license to reproduce and use the Software solely for Customer's internal business purposes, provided: (a) Customer may give no more than __ concurrent Users access to the Software; and (b) Customer complies with the restrictions set forth in Section 2.2 below.

2.2.Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software's source code.

2.3.Delivery. Vendor will provide the Software and Documentation to Customer, through a reasonable system of electronic download, within _____ days of the Effective Date.

2.4.Documentation: Upon delivery of the Software, Vendor will also deliver __ copies of the Documentation. Vendor will revise the Documentation as reasonably necessary in response to changes to the Software made pursuant to Section __ below and promptly deliver electronic copies of such revisions, without further charge. Such revisions will constitute "Documentation" as of delivery to Customer. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software.

3.CUSTOMIZATION SERVICES.

3.1.Provision of Customization Services. Vendor will provide the Customization Services, and Customer will provide such assistance and cooperation as are necessary or convenient to facilitate the Customization Services or are called for in Attachment A.

3.2.Deliverables.

(a)Acceptance & Rejection. Each Deliverable, and the Software itself upon incorporation of the final Deliverable, will be considered accepted ("Acceptance") (i) when Customer provides Vendor written notice of acceptance or (ii) ___ days after delivery, if Customer has not first provided Vendor with written notice of rejection. Customer may reject a Deliverable or the final Software only in the event that it materially deviates from its Specifications and only via written notice setting forth the nature of such deviation. In the event of such rejection, Vendor will correct the deviation and redeliver the Deliverable or final Software within ___ days. After redelivery pursuant to the previous sentence, the parties will again follow the acceptance procedures set forth in this Subsection 3.2(a).

(b)Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element of the Software and will thereafter be subject to this Agreement's terms regarding the Software, including without limitation license, warranty, and indemnity terms.

4.MAINTENANCE.

4.1.Provision of Maintenance. During each Maintenance Term, Vendor will exercise commercially reasonable efforts promptly to correct any failure of the Software to perform according to its Specifications ("Maintenance").

4.2.Upgrades. During each Maintenance Term, Vendor will provide Customer with copies of all Upgrades, without additional charge, promptly after commercial release. Upon delivery to Customer, each Upgrade will constitute an element of the Software and will thereafter be subject to this Agreement's terms regarding Software, including without limitation license, warranty, and indemnity terms.

5.FEES & REIMBURSEMENT.

5.1.Fees. Customer will pay Vendor as follows:

(a)For the licenses granted in Section 2.1 above, $___________ ("License Fees") per License Term, with each payment due __ days before the start of such License Term;

(b)For Maintenance (as defined in Section 4.1), $__________ ("Maintenance Fees") per Maintenance Term, with each payment due __ days before the start of such Maintenance Term; and

(c)For Customization Services, such fees as are set forth in Attachment A ("Customization Services Fees"). Customer will also reimburse such expenses as Vendor reasonably incurs in provision of Customization Services, subject to the provisions of Attachment A.

5.2.Invoices. Payment against all invoices will be due within 30 days thereof.

5.3.Fees for Renewed Terms. Vendor may increase the License Fee and/or Maintenance Fee by an amount not to exceed Licensor's prevailing prices to its customers generally for such products or services, not to exceed the rate of increase of the Consumer Price Index plus ___%, for each renewed License Term or Maintenance Term (pursuant to Section 13.1 below), provided Vendor gives Customer written notice of such increase ___ or longer before the end of the applicable current License Term or Maintenance Term. ("Consumer Price Index" refers to the United States Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers, All U.S. Cities Average, published by the Bureau of Labor Statistics of the United States Department of Labor, or such successor index, appropriately converted to an equivalent reference base, as will be published by the Bureau of Labor Statistics.) No new License Term or Maintenance Term will go into effect before payment of the applicable License Fees or Maintenance Fees.

6.IP & FEEDBACK.

6.1.IP Rights in the Software. Vendor retains all right, title, and interest in and to the Documentation and Software, including without limitation Deliverables and Upgrades, except to the extent of the limited licenses specifically set forth in Section 2.1 (Licenses), the last sentence of Section 2.4 (Documentation) above, and Section 9.3 (Escrow License) below. Customer recognizes that the Software and its components are protected by copyright and other laws.

6.2.Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or Users provide to Vendor, and nothing in this Agreement or in the parties' dealings arising out of or related to this Agreement will restrict Vendor's right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 (Confidential Information) below, Feedback will not be considered Customer's Confidential Information. ("Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Vendor's products or services.)

7.CONFIDENTIAL INFORMATION.

7.1.Confidential Information Defined. "Confidential Information" refers to the following one party to this Agreement ("Discloser") discloses to the other ("Recipient"): (a) any document Discloser marks "Confidential"; (b) any information Discloser orally designates as "Confidential" at the time of disclosure, provided Discloser confirms such designation in writing within __ business days; (c) any source code disclosed by Vendor and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser's valuable trade secrets.

7.2.Nondisclosure. Recipient will not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the "Purpose"). Recipient: (a) will not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third party without Discloser's prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention.

7.3.Injunction. Recipient agrees that breach of this Article 7 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.4.Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.2 above (Nondisclosure) will terminate ___________ after the date of disclosure; provided that such obligations related to Confidential Information constituting Discloser's trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

7.5.Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

7.6.Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

(a)IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b)USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

8.SOFTWARE AUDIT. During the Term of this Agreement and at any time during the _________ thereafter, Vendor may audit Customer's use of Software on ___ days' advance written notice. Customer will cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of Software. Such audit will not unreasonably interfere with Customer's business activities. If Vendor discovers unauthorized use, reproduction, distribution, or other exploitation of Software, in excess of ___% of the copies or fees that would have applied to authorized exploitation, Customer will reimburse Vendor for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Vendor may have. Vendor may not conduct an audit more than once per year. Customer's books and records disclosed pursuant to an audit will be considered Customer's Confidential Information pursuant to Article 7 above unless Customer informs Vendor to the contrary in writing.

9.SOURCE CODE ESCROW.

9.1.Escrow Agreement. Concurrent with execution of this Agreement, the parties will execute a third-party escrow agreement in the form attached hereto as Attachment B (the "Escrow Agreement"), in conjunction with ______________________ (the "Escrow Agent").

9.2.Deposit & Verification.

(a)Deposit. Within ___ business days of the Effective Date, Vendor will deposit with the Escrow Agent, pursuant to the procedures of the Escrow Agreement, the source code for the Software, as well as the Documentation and names and contact information for each author or other creator of the Software. Promptly after Acceptance of any Deliverable or delivery of any Upgrade, Vendor will deposit updated source code, Documentation, names, and contact information with the Escrow Agent. ("Deposit Material" refers to material required to be deposited pursuant to this Subsection 9.2(a).).

(b)Verification. At Customer's request and expense, the Escrow Agent may at any time verify the Deposit Material, including without limitation by compiling source code, comparing it to the Software, and reviewing the completeness and accuracy of any and all material. In the event that the Deposit Material does not conform to the requirements of Subsection 9.2(a) above: (i) Vendor will promptly deposit conforming Deposit Material; and (ii) Vendor will pay the Escrow Agent for subsequent verification of the new Deposit Material. Any breach of the provisions of Subsection 9.2(b)(i) above will constitute material breach of this Agreement, and no further payments will be due from Customer until such breach is cured, in addition to such other remedies as Customer may have.

9.3.Escrow License. Vendor hereby grants Customer a license to use, reproduce, and create derivative works from the Deposit Material, provided Customer may not distribute or sublicense the Deposit Material or make any use of it whatsoever except for such internal use as is necessary to maintain and support the Software. Copies of the Deposit Material created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Deposit Material itself. The Deposit Material constitutes Confidential Information of Vendor pursuant to Article 7 (Confidential Information) above (provided no provision of Article 7 calling for return of Confidential Information before termination of this Agreement or of the applicable License Term will apply to the Deposit Material).

9.4.Escrow Release Conditions. The term "Release Conditions," as used in the Escrow Agreement, refers to any of the following: (a) material breach by Vendor of Section 4.1 (Provision of Maintenance) above, if such breach remains uncured ___ or more business days after Customer's written notice; (b) any failure of Vendor to function as a going concern; (c) appointment, application for, or consent to a receiver, trustee, or other custodian for Vendor or its assets; (d) Vendor becomes insolvent or unable to pay its debts as they mature in the ordinary course or makes an assignment for the benefit of creditors; (e) Vendor is liquidated or dissolved; or (f) any proceedings are commenced with regard to Vendor under any bankruptcy, insolvency, or debtor's relief law, and such proceedings are not dismissed within 60 days.

10.REPRESENTATIONS & WARRANTIES.

10.1.From Vendor.

(a)Re Function. Vendor represents and warrants that, during the _________ period following Go-Live, the Software will perform materially as described in its Specifications.

(b)Re Viruses. Vendor represents and warrants that the Software and any media used to distribute it contain no viruses or other computer instructions or technological means intended to disrupt, damage, or interfere with the use of computers or related systems.

(c)Re IP Rights in the Software. Subject to the next sentence, Vendor represents and warrants that the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor's representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections 11.1(a) through 11.1(e) below. In the event of a breach of the warranty in this Subsection 10.1(c), Vendor, at its own expense, will promptly take the following actions: (i) secure for Customer the right to continue using the Software; (ii) replace or modify the Software to make it noninfringing, provided such modification or replacement will not materially degrade any functionality listed in the Specifications; or (iii) refund __% of the licensee fee paid for the Software for every month remaining in the License Term following the date after which Customer is required to cease operation of the Software. In conjunction with Customer's right to terminate for breach where applicable and the provisions of Section 11.1 below (Indemnification From Vendor), the preceding sentence states Vendor's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Subsection 10.1(c) and for potential or actual intellectual property infringement by the Software.

(d)Re Customization Services. Vendor represents and warrants that all Customization Services will be performed in a professional and workmanlike manner.

10.2.From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

10.3.Warranty Disclaimers. Except for the express warranties in Section 10.1 above, VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Vendor does not warrant that the Software will perform without error or that it will run without immaterial interruption. Vendor provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Vendor, unless Vendor approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation.

11.INDEMNIFICATION.

11.1.From Vendor. Vendor will defend and indemnify Customer and Customer's Associates (as defined below in Section 11.3) against any "Indemnified Claim," meaning any third-party claim, suit, or proceeding arising out of, related to, or alleging infringement of any patent, copyright, trade secret, or other intellectual property right by the Software. Vendor's obligations set forth in this Section 11.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer's breach of this Agreement; (b) revisions to the Software made without Vendor's written consent; (c) Customer's failure to incorporate Upgrades that would have avoided the alleged infringement, provided Vendor offered such Upgrades without charges not otherwise required pursuant to this Agreement; (d) Vendor's modification of Software in compliance with specifications provided by Customer, including without limitation Deliverables to the extent created based on such specifications, provided the exception in this Subsection 11.1(d) does not apply if the alleged infringement results from the Vendor's method of implementing Customer's specifications, rather than as an inevitable result of implementing such specifications; or (e) use of the Software in combination with hardware or software not provided by Vendor, unless the Documentation or Specifications refers to a combination with such hardware or software (without directing the user not to perform such a combination).

11.2.From Customer. Customer will indemnify and defend Vendor and Vendor's Associates (as defined below in Section 11.3) against any "Indemnified Claim," meaning any third-party claim, suit, or proceeding arising out of, related to, or alleging the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees.

11.3.Litigation & Additional Terms. The obligations of the indemnifying party ("Indemnitor") pursuant to Section 11.1 or 11.2 above: (a) include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor's expense and payment of judgments; and (b) will be excused to the extent that the other contracting party's ("Indemnified Party's") or any of such Indemnified Party's Associates' failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (As used in this Article 11, a party's "Associates" are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)

12.LIMITATION OF LIABILITY.

12.1.Dollar Cap. VENDOR'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $______.

12.2.Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

12.3.Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 12 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 12, Vendor's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor's liability limits and other rights set forth in this Article 12 apply likewise to Vendor's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

12.4.Exceptions to Limitation of Liability. Sections 12.1 (Dollar Cap) and 12.2 (Exclusion of Consequential Damages) above do not apply to: (a) claims pursuant to any provision of this Agreement calling for liquidated damages; (b) claims pursuant to Article 11 above (Indemnification); or (c) claims for attorneys' fees and other litigation recoverable by the prevailing party in any action.

13.Term & Termination.

13.1.Term. This Agreement will continue until terminated by either party as specifically authorized herein.

(a)License Term. "License Term" refers to the ___ period following the Effective Date. The License Term will renew automatically for a period of the same duration unless Customer gives written notice of its intent not to renew ____ days before the end of the current License Term. After the _______ [2nd, 3rd, 4th . . .] renewal of the License Term, Vendor may refuse further renewal by written notice _____ days before the next renewal date.

(b)Maintenance Term. "Maintenance Term" refers to the _______ period following Go-Live. The Maintenance Term will renew automatically for a period of the same duration unless Customer gives written notice of its intent not to renew ____ days before the end of the current Maintenance Term. After the _______ [2nd, 3rd, 4th . . .] renewal of the Maintenance Term, Vendor may refuse further renewal by written notice _____ days before the next renewal date.

13.2.Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice, effective in 30 days unless the other party first cures such breach.

13.3.Termination for Convenience. Customer may terminate this Agreement for convenience at any time before Go-Live upon __ days' advanced written notice. On the date of such termination, Customer will pay Vendor an early termination fee of __ % of the fees for Customization Services not yet performed.

13.4.Effects of Termination. Upon termination of this Agreement or License Term, Customer will cease all use of the Software and delete, destroy, or return all copies of the Software, Documentation, and Deposit Material (as defined in Subsection 9.2(a) above) in its possession or control. The following will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Software Rights) 6 (IP & Feedback), 7 (Confidential Information), 8 (Software Audit), 10.3 (Warranty Disclaimers), 11 (Indemnification), and 12 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

14.MISCELLANEOUS.

14.1.Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer.

14.2.Users. Customer is responsible and liable for the acts and omissions of Users related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Customer's own acts and omissions.

14.3.Notices. Notices pursuant to this Agreement will be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For Vendor: _______________________. For Customer: _________________.

14.4.Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.

14.5.Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other's express written consent. Except to the extent forbidden in this Section 14.5, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.

14.6.Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

14.7.No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

14.8.Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Vendor. Customer will not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software.

14.9.Bankruptcy Rights. The rights and licenses granted to Customer in Section 2.1 (License), the last sentence of Section 2.4 (Documentation), and Section 9.3 (Escrow License) above (collectively, the "License Provisions") are licenses to "intellectual property" rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Vendor is subject to any proceeding under the United States Bankruptcy Code, and Vendor as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions to the maximum extent permitted by law. This Section 14.9 will not be construed to limit or restrict any right or remedy not set forth in this Section 14.9, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.

14.10.Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of ____________, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of __________ [city or county], _________ [state]. This Section 14.10 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

14.11.Conflicts. In the event of any conflict between Attachment A or Attachment B and this main body of this Agreement, this main body will govern.

14.12.Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

14.13.Technology Export. Customer will not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

14.14.Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

14.15.Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

14.16.Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.