MASTER SUBSCRIPTION AGREEMENT
This license agreement (“Agreement”) is an agreement between you (“You”) and EXACTLOGIX, INC., an Illinois corporation doing business as AccuLynx.com (referred to as “AccuLynx”), governing the use of the AccuLynx web-based software and mobile application, and any revisions and updates to such software or mobile application products (collectively, the “Software”). The term “Software,” as used in this Agreement, includes any software, data, reports, and other instructional materials provided with the AccuLynx software or mobile applicable, or generated by the AccuLynx software or mobile application. BY SIGNING THIS AGREEMENT AND/OR BY ACCESSING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THIS AGREEMENT SHALL GOVERN YOUR ONGOING USE OF THE SOFTWARE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE THE SOFTWARE. UNLESS YOU HAVE ANOTHER AGREEMENT DIRECTLY WITH ACCULYNX THAT CONTROLS AND ALTERS YOUR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO YOU, EFFECTIVE AS OF YOUR ACCEPTANCE OF THIS AGREEMENT OR YOUR ACCESS OR USE OF ALL OR ANY PORTION OF THE SOFTWARE.
1. Ownership and License.
1.1 Ownership of Software. The Software is owned by AccuLynx and/or its third-party licensors (certain features may be derived from third-party open source contributors and are subject to additional license terms regarding use of open source code). The Software is protected by U.S. and international copyright law. AccuLynx and its licensors shall retain all title to and interest in the Software, including without limitation all related patent, copyright, trademark, and other intellectual property rights, whether in the source code, the object code, screen displays, logos, promotional materials, or otherwise. No rights are granted to You hereunder other than as expressly set forth herein.
1.2 Grant of License. During the Term (as defined herein) of this Agreement, AccuLynx grants You one nonexclusive, nontransferable, worldwide User license per subscription purchased by You for a User (as defined below) to connect to and access the Software pursuant to the terms and conditions of this Agreement.
1.3 User Subscriptions; Prohibition on Sharing of User Licenses. “User” shall mean an individual who is authorized by You to use the Software, for whom a subscription to use the Software has been purchased, and who has been supplied with a user identification and password by You (or by AccuLynx at Your request). Users may include without limitation Your owners, employees, consultants, contractors and agents. User licenses are for designated Users and may not be shared or used by more than one User, but a User may be reassigned to a new User replacing a former User who no longer requires use of the Software. The license or licenses granted herein are purchased as User subscriptions and You shall not allow the Software to be accessed by more than the number of Users for whom subscriptions have been purchased. Additional User licenses may be added during any 30-day period at the same pricing as that for the pre-existing subscriptions and the term of the additional User licenses shall be coterminous with the expiration of the license Term then in effect.
1.4 Your responsibilities.
1.4.1 You shall not (and shall not permit any User, owner, employee, independent contractor, agent, or other third party to) copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Software in order to ascertain, derive, or appropriate for any reason or purpose, the object code, source code or source listings for the Software or any other trade secret information or process contained in the Software without the prior express written consent of AccuLynx. You shall not (and shall not permit any User, owner, employee, independent contractor, agent, or other third party to) create derivative works based on the Software; copy, frame or mirror any part or content of the Software, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; access the Software in order to build a competitive product or service; or copy any features, functions or graphics of the Software without the prior express written consent of AccuLynx.
1.4.2 You shall not (and shall not permit any User, owner, employee, independent contractor, agent, or other third party to) alter or remove any notices, graphics or text contained on or in the Software; or modify the Software in any form, without the express written consent of AccuLynx. Any modifications you make to the Software will remain the property of AccuLynx and/or its licensor(s).
1.4.3 You shall not make the Software available to any third party other than Users; You shall not sell, resell, rent or lease the Software or any right to access or use the Software; You shall not use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious materials, material in violation of third-party privacy rights, or malicious code of any kind; You shall not interfere with or disrupt the integrity or performance of the Software or third-party data contained therein; and You shall not attempt to gain unauthorized access to the Software or its related systems or networks.
1.4.4 You are responsible for maintaining the security of Your User identifications and passwords, You agree to prevent sharing of Your User identifications and passwords and to prevent unauthorized access to or use of the Software, and You further agree not to post any User identification or password on any Web site or computer accessible to the public. You agree to assume responsibility for the results of any unauthorized access or misuse of any of Your User identifications or passwords and to notify AccuLynx immediately of any such unauthorized access or misuse.
1.4.5 You acknowledge that the Software and all of its components are trade secrets of AccuLynx and You agree not to (and not to permit any User, owner, employee, independent contractor, agent, or other third party to) disclose such trade secrets without AccuLynx’s prior written consent.
1.4.6 You shall be responsible for Users’ compliance with this Agreement, be solely responsible for the accuracy, quality, integrity, and legality of Your data and of the means by which you acquired Your data, and use the Software only in accordance with this Agreement and applicable laws and government regulations.
1.5 Third-Party Materials. The Software may include or display software, content, data or other materials, including related documentation, that are owned by persons or entities other than AccuLynx and that are provided to You on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses can be found here:
The applicable Third-Party Licenses are accessible via links therefrom. You are bound by and shall comply with all Third-Party Licenses, and AccuLynx is not responsible for Your and your authorized User’s compliance with all Third-Party Licenses or for any activities or responsibilities of any Third Party providers. Any breach by You or your authorized User of any Third-Party License is also a breach of this Agreement.
1.6 Right to Modify or Discontinue Software. AccuLynx reserves the right at any time and from time to time to modify or discontinue the availability of, temporarily or permanently, the Software (or any part thereof, including any Third-Party Licenses) with or without notice. You agree that AccuLynx shall not be liable to You or to any third party for any modification, suspension or discontinuance of the availability of the Software. AccuLynx’s rights under this Section 1.6 include, but are not limited to, the right to temporarily discontinue the availability of the Software on any day in order to implement Software maintenance and upgrades. You agree that AccuLynx shall not be liable to You or to any third party for any modification, suspension or discontinuance of the availability of the Software. Notwithstanding, AccuLynx will make reasonable efforts to attempt to respond to Your reasonable requests for support services. Such requests may be made by You during normal business hours (central standard time) by utilizing the following help line number: 608-473-3800. AccuLynx reserves the right, at its sole discretion, to change the hours of operation of such help line and makes no representations or warranties with respect to the response time of AccuLynx or the effectiveness of the support services provided, if any.
1.7 Use and Ownership of Suggestions. AccuLynx shall have the unrestricted right to use or act upon any suggestion, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Software. AccuLynx shall have, and You hereby grant AccuLynx, a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Software.
2. Fees, Term and Termination.
2.1 Duration of Term of Agreement. The “Term” of this Agreement shall commence upon your acceptance of this Agreement and shall continue until all User licenses granted in accordance with this Agreement have expired or been terminated.
2.2 Duration of Term of User Licenses. The term of each User license shall begin upon the date that a User Identification is activated for that User. The term of each User license shall end upon AccuLynx’s receipt of notice of your termination of any given User license or licenses pursuant to Section 2.12, or upon AccuLynx’s termination of the User license or this Agreement pursuant to Section 2.13.
2.4 Billing Information; Automatic Charge on Initial Payment Date. You will be required to submit credit card and billing information to a third-party payment processing vendor of AccuLynx and your credit card will be billed the fee agreed to in the Subscription Agreement (as defined below). A list of all credit card billing services utilized by AccuLynx, if any, can be found here:
The applicable terms and conditions are accessible via links therefrom. You are bound by and shall comply with all such terms and conditions, and AccuLynx is not responsible for Your and your authorized User’s compliance with all such terms and conditions, or for the actions, or breach of any obligations, of the third party payment processing vendor. Any breach by You or your authorized User of any such terms and conditions is also a breach of this Agreement. AccuLynx will bill Your credit card according to the terms of the Subscription Agreement. AccuLynx may assess an implementation charge for access to and use of the Software, which is non-refundable.
2.5 Payment of Ongoing Fees. During the Term of this Agreement, You shall pay AccuLynx the fees, and in the manner set, forth in the subscription agreement filled out and submitted by You or on Your behalf, and accepted by AccuLynx, for Your purchase of the license for the Software granted under this Agreement (“Subscription Agreement”) and are non-refundable, except as may be expressly set forth herein. Any renewal of the license hereunder shall not be effective until the fees for such renewal have been paid in full.
2.6 Fee Changes. AccuLynx reserves the right to change the monthly license fee per User subscription and/or the fee for additional file storage prospectively upon 30-days’ notice posted on the AccuLynx Web site and upon written notice to you via email. Your credit card will be billed automatically as of the date such notice is provided by AccuLynx. You shall continue to provide AccuLynx, through its third-party vendor, with valid and updated credit card, billing, and contact information. If Your payment at any time fails, You will be granted a 2-day grace period, during which period three additional attempts will be made to bill your credit card. If these additional attempts are unsuccessful, Your account will deactivated on the third day after payment failure.
2.7 Retroactive Billing. In the event that AccuLynx discovers that You have allowed sharing of User accounts or unauthorized access to User accounts by persons other than the assigned User, or that you have allowed the Software to be accessed by more than the number of Users for whom subscriptions have been purchased, then You agree that AccuLynx may automatically charge your credit card for an amount equal to (a) the number of 30-day periods that have passed between date of Your acceptance of this Agreement, and AccuLynx’s discovery of the unauthorized access or use, multiplied by (b) a number of additional User subscriptions equal to the number of unauthorized users that You have allowed to access or use the Software, multiplied by (c) the then-prevailing monthly license fee per User on the date of AccuLynx’s discovery of the unauthorized access or use. If AccuLynx fails to bill for licensed fees or services provided in accordance with the Subscription Agreement, it may retroactively bill You for such licenses or services received by You within twelve months of having provided the license or services to You.
2.8 Billing Disputes. You acknowledge and agree that You are required to notify AccuLynx of any dispute with regard to an amount billed under the terms of this Agreement or Your Subscription Agreement by written notice in accordance with Paragraph 9.6 within ninety (90) days of the date of the billing. Failure to do so shall constitute an admission of the validity of the billing, Your liability therefor, and a waiver of any claims You may have related thereto.
2.9 Credit Card Authorization. You hereby authorize AccuLynx to charge Your credit card as provided in this Agreement, including without limitation Sections 2.4, 2.5, 2.6 and 2.7. If You do not authorize AccuLynx to charge Your credit card as provided in this Agreement, do not sign this agreement or access or use any portion of the Software.
2.10 Taxes. Unless otherwise stated, the fees charged by AccuLynx do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. In the event that AccuLynx incurs the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount shall be invoiced to and paid by You, unless You provide AccuLynx with a valid tax exemption certificate authorized by the appropriate taxing authority.
2.11 Termination by You. Upon written notice to AccuLynx, You may terminate any or all of Your User licenses to access and use the Software at any time with no cancellation fee.
2.12 Termination by AccuLynx. AccuLynx may terminate this Agreement or any User licenses granted herein:
2.12.1 Upon notice without right to cure if You use, transfer, or disclose any of the Software, AccuLynx trade secrets, or other proprietary information of AccuLynx, or any copy or modification thereof, in violation of this Agreement;
2.12.2 Immediately, without the necessity of notice or demand, if You become the subject of any bankruptcy or insolvency proceeding which is not stayed or dismissed within thirty (30) days after the commencement thereof;
2.12.3 Upon Your failure to make payments when due as set forth in Section 2.5, 2.6 and 2.7.
2.12.4 Upon fifteen (15) calendar days written notice or demand (which may by transmitted by mail, overnight courier, e-mail, or fax) if You have breached any other material provision of this Agreement and such breach is not fully cured within such 15-day period.
2.12.5 Upon thirty (30) calendar days written notice, with or without cause.
2.13 Access to Software and Data Upon Termination. Upon termination of any User license granted herein, Your right to access and use of the Software shall immediately cease with respect to that User. Upon termination of this Agreement or all User licenses granted herein, Your right to access and use of the Software shall immediately cease in its entirety. Within ten (10) business days after termination, AccuLynx will archive Your data for a period of one year from termination. If You reactivate Your account by re-subscribing to AccuLynx (and permitted by AccuLynx) AccuLynx reserves the right to charge You a fee for allowing you to access your archived data. After the one year data storage period post termination is over, AccuLynx shall have no obligation to maintain, store or provide any of Your information and data and may delete such data.
2.14 Remedies. Termination of this Agreement or any User license granted herein shall not limit the remedies otherwise available to either party, including injunctive relief.
3. DISCLAIMER OF WARRANTIES. BY ACCEPTING THE AGREEMENT, YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING. IF YOU DO NOT AGREE TO THE FOLLOWING THEN DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE ANY PORTION OF THE SOFTWARE:
3.1 YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCULYNX EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES SET FORTH IN THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
3.2 ACCULYNX MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
3.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
3.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACCULYNX OR THROUGH OR FROM THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
3.5 A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SOFTWARE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SOFTWARE. IMMEDIATELY DISCONTINUE USE OF THE SOFTWARE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SOFTWARE: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT OR CONVULSIONS.
4. LIMITATION OF LIABILITY AND DAMAGES. BY ACCEPTING THE AGREEMENT, YOU INDICATE THAT YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING. IF YOU DO NOT AGREE TO THE FOLLOWING THEN DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE ANY PORTION OF THE SOFTWARE:
4.1 ACCULYNX AND ITS THIRD-PARTY LICENSORS SHALL NOT BE LIABLE FOR, NOR SHALL YOU MAKE ANY CLAIM FOR (WHETHER BASED ON CONTRACT, TORT, STRICT OR STATUTORY LIABILITY, NEGLIGENCE OR OTHERWISE), ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF ACCULYNX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR SAVINGS; LOSS OF USE OF THE SOFTWARE; LOSS OF GOODWILL, DATA OR OTHER INTANGIBLE LOSSES; COST OF CAPITAL; COST OF SUBSTITUTE SERVICES OR FACILITIES; DOWNTIME COSTS OR DAMAGES; AND EXPENSES ARISING OUT OF THIRD-PARTY CLAIMS; ANY OF WHICH RESULT FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN ITS USE OF THE SOFTWARE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
4.2 IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF WARRANTIES STATED HEREIN OR THE LIMITATION OF LIABILITY STATED IN THE PRECEDING SECTION 4.1, THEN YOU EXPRESSLY AGREE THAT IN NO EVENT WILL ACCULYNX’S LIABILITY FOR ANY CLAIM OR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER TO THE DATE THAT SUCH CLAIM IS ASSERTED, OR WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF (a) $500,000 OR (b) THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY IN THIS AGREEMENT, YOU AGREE THAT IN NO EVENT SHALL YOU HAVE OR ASSERT A RIGHT OF SETOFF AGAINST ACCULYNX.
4.3 The provisions of this Agreement allocate the risks between You and AccuLynx. AccuLynx’s pricing reflects this allocation of risk and the limitations of liability specified herein.
You agree to indemnify and hold AccuLynx and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party (including without limitation claims for infringement) due to or arising out of data You submit, post, transmit or otherwise make available through the Software, Your use of the Software, Your connection to the Software, Your violation of this Agreement, or Your violation of any rights of another.
6. Right to Audit Compliance.
AccuLynx shall have the right to conduct, or direct an independent accounting firm to conduct, during normal business hours and no more than once during any calendar year, an audit of Your relevant records to verify Your compliance with the terms of this Agreement. This provision does not limit our right to monitor our server logs for accesses made by You or any User, or access using any User identification or password issued to You or to any User, to the Software or any other on-line features offered by AccuLynx or its affiliates, or to investigate any conduct AccuLynx believes may be a breach of the licensing terms or may be otherwise threatening to the integrity of AccuLynx’s products or services.
7. Trademarks and Servicemarks.
The “AccuLynx” and AccuLynx logo trademarks and service marks and other AccuLynx logos and product and service names are trademarks of AccuLynx (the “AccuLynx Marks”). Without the prior written permission of AccuLynx, You agree not to display or use in any manner the AccuLynx Marks.
8. Injunctive Relief.
Each party acknowledges that any violation by that party of its covenants in this Agreement (if any) relating to intellectual property rights, confidential or proprietary information, or trade secrets would result in damage to the other party that is largely intangible but nonetheless real, and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give the other party the right to a court-ordered injunction or other appropriate order to specifically enforce those covenants. The party against whom any such injunction is entered agrees to pay to the other party any reasonable expenses, including but not limited to attorneys’ fees, incurred in obtaining such specific enforcement (in addition to any other relief to which the other party may be entitled).
9. General Provisions.
9.1 Attorney’s Fees. In the event any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, AccuLynx shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorneys’ fees, incurred thereby.
9.2 Compliance with Export and Import Laws. You shall comply with all then-current export and import laws and regulations of the United States and such other government as are applicable to the Software. You hereby certify that You will not directly or indirectly export, re-export, or transship the Software or related information, media, or products in violation of United States laws and regulations.
9.3 Assignment; Binding Agreement. You may not assign this Agreement or any User license granted or created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of AccuLynx. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their affiliates, their respective successors and permitted assigns.
9.4 Relationship of Parties. The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever. AccuLynx may use Your plain text name to list You as a customer of AccuLynx.
9.5 No Third-Party Beneficiaries. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties, their affiliates and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on other persons.
9.6 Notice. All notices under this Agreement shall be in writing and shall be delivered to the address notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile, or by e-mail. Notice shall be deemed to have been given upon (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by e-mail. Notices to AccuLynx shall be addressed to the attention of its President. Notices to You will be directed to the most recent contact information that You have provided to AccuLynx in writing.
9.7 No Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided to AccuLynx herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
9.8 Severability; Blue-Penciling. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court or interpreted so as best to accomplish the objectives of the original provisions to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
9.9 Survival. The obligations of the parties under this Agreement that by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
9.10 Force Majeure. Except for payment defaults, neither party shall be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by force majeure or any cause beyond its reasonable control, including without limitation labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, utility or transmission failures, war, riot, or governmental action not the fault of the nonperforming party.
9.11 Federal Government End Use Provisions. If You are the United States Government or any contractor thereof, all licenses granted hereunder are subject to the following: (i) for acquisition by or on behalf of civilian agencies, as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; (ii) for acquisition by or on behalf of units of the Department of Defense (“DOD”), as necessary to obtain protection as “commercial computer software” and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-1 through 227.7202-4 of the DOD F.A.R. Supplement and its successors.
9.12 Choice of Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Illinois in the United States, without regard to its conflict of laws provisions. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
9.13 Jurisdiction; Venue. The federal courts of the United States in the Northern District of Illinois, Western Division, and the state courts of the State of Illinois in Winnebago County, Illinois, shall have exclusive jurisdiction and venue to enforce this Agreement or to otherwise adjudicate any dispute arising out of, or relating to, this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
9.14 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
9.15 Headings. The section headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.