Software Subscription Agreement
This Software Subscription Agreement (the “Agreement”) is made and entered into as of the Effective Date by and between LegalPRO Systems, Inc. (“Company”), a Texas corporation having its principal place of business at 12042 Blanco Road, Suite 308, San Antonio, TX 78216, and the Customer. In consideration of the mutual promises and upon the terms and conditions set forth below, Company and Customer agree as follows:
1. PROGRAM LICENSE AND SUPPORT
1.1 Definitions. As used in this Agreement, the following terms shall have the meanings indicated.
a) “Claims” has the meaning set forth in Section 3.3.
b) “Confidential Information” has the meaning set forth in Section 4.2.
c) “Customer” has the meaning set forth in the Order Form.
d) “Customer Data” means all information concerning Customer and its customers that is input to the Programs or generated by the Programs.
e) “Disabling Code” means computer instructions that materially alter, destroy, shut down, or inhibit the operation of computer software, databases, or any related computer environment, including but not limited to other programs’ data storage and computer libraries, programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time upon a specified event, programs that permit unauthorized access to computer software or hardware or databases, programs that purport to do a meaningful function but are designed for a different function, and programs that perform no useful function but utilize substantial computer, telecommunications, memory, or other resources, including without limitation viruses, Trojan horses, time bombs, protect codes, data destruction keys, trap doors, and similar codes or devices.
f) “Documentation” means the user documentation that Company permits Customer to access with the Programs.
g) “Effective Date” has the meaning set forth in the Order Form or Section 2.1, as applicable.
h) “Initial Term” has the meaning set forth in the Order Form.
i) “Intellectual Property Rights” means all rights in the nature of patent, trademark, copyright, trade secret, know-how, and other proprietary rights, including, without limitation, color schemes, screen designs, user interfaces, data structures, organizations and sequences of operation, trade dress, and similar proprietary rights.
j) “License” has the meaning set forth in Section 1.2.
k) “Order Form” means the paper or electronic order form by which Customer has subscribed to use the Programs, which is incorporated herein by reference.
l) “Programs” means the JubileeTM online bankruptcy petition preparation, filing, and case management software, together with all modifications, enhancements, upgrades, patches, and fixes to the same that Company may permit Customer to access under this Agreement.
m) “Specifications” means (1) the Documentation, and (2) any additional specifications for the performance of the Programs that are expressly set forth and identified as such in a written document signed by an authorized representative of Company.
n) “Term” has the meaning set forth in Section 2.1.
o) “Territory” means the United States of America.
1.2 License.
a) License Grant. Subject to and in consideration of Customer’s payment of the license fees described in Section 1.6 and compliance with the terms and conditions of this Agreement, including those set forth in the Order Form, Company hereby grants to Customer, as of the Effective Date, a non-exclusive license in the Territory during the Term of this Agreement to access and use the executable form of the Programs for Customer’s own internal business purposes only (the “License”). Customer shall not have any right to grant a sublicense under this Agreement. The License granted herein shall not be transferable except as expressly authorized herein. Customer acknowledges that Customer’s access to the Programs under the License is on a hosted subscription basis, and Customer shall not be entitled to delivery or possession of any tangible or electronic embodiments of the Programs. Except for payment obligations, which may be waived by Company during any trial period, all use of the Programs by Customer during any trial period shall be subject to the terms and conditions of this Agreement.
b) Restrictions. Customer agrees not to create or attempt to create, by reverse engineering, reverse assembly, reverse compiling, or otherwise, any part of the source code from any Programs or Documentation, or permit any third party to do so. Customer is specifically prohibited from copying, modifying, revising, or using the Programs except as provided in this Agreement or as may be expressly authorized by Company in writing. In no event shall Customer use the Programs in a service bureau capacity for third parties.
c) Property of Company. The Programs are licensed as set forth herein, not sold. Customer acquires only the right to access and use the Programs as specified herein. All right, title, and interest in and to the Programs, the Documentation, and all Intellectual Property Rights associated with the Programs and Documentation, shall at all times remain the property of Company or Company’s licensors.
d) Customer Data. All Customer Data shall belong to Customer. Company shall have a perpetual, non-exclusive, royalty-free, worldwide license to use the Customer Data solely to perform its obligations under this Agreement. If Customer fails to pay any amount when due, Customer will become classified as inactive and Company will cause the Customer Data to become read-only, whereby Customer may be allowed to view existing Customer Data but not allowed to enter any new Customer Data or electronically file any cases. Additionally, this Agreement will automatically terminate after 12 consecutive months of inactivity by Customer. Company may permanently delete all Customer Data following the expiration of 90 days after any termination of this Agreement.
e) Filing Limits, Messaging Limits, and Storage Limits. Company offers several different subscription levels, which come with different limits to the number of cases that may be filed on an annual basis, the number of text messages that may be generated, and the amount of document storage that may be used under the License. Customer’s subscription level and the associated limits are specified in the Order Form. Going over those limits will cause Customer to incur additional fees as per the applicable subscription level. Those additional fees will be charged and due in the next billing cycle. All limits will be reset annually on each anniversary of the Effective Date.
1.3 Technical Support and Maintenance. Subject to and in consideration of Customer’s payment of the license fees described on the Order Form and in Section 1.6, Company will provide the following support and maintenance services to Customer for the Programs during the Term.
a) Telephone assistance. Company shall provide Customer telephone assistance in connection with the Programs, including software error detection and general software support, during the following normal business hours: 8:30 AM - 6:30 PM Central Time, Monday through Friday—except published Company holidays.
b) Maintenance. Maintenance services shall consist of “Error Correction,” and “Updates,” each as defined below. Subject to the limitations set forth in this Agreement, Company agrees to support the current version of the Programs. Company shall have no obligation to provide maintenance services for any Program which has been altered by Customer or any third party without the written consent of Company.
c) Error Correction. Upon written notification from Customer, Company shall attempt to correct documented errors in the Programs that Company can reproduce at its facility. If a reported error has caused the Programs to become inoperable with respect to Customer, Company shall use reasonable commercial efforts (which shall conform to standards generally observed in the industry for similar services) to correct the error or provide a bypass around such error.
d) Updates. “Updates” means any defect corrections, patches, updates, minor modifications, and/or other enhancements to/for the Programs made by or for Company that increases the speed, efficiency, or ease of operation of the Programs, or allows for interoperability with new releases of third party software, or is a minor product improvement (e.g., version 2.0 to 2.1) or maintenance update (e.g., version 2.1 to 2.1a or 2.1.1). Updates to the Programs and/or Documentation shall be deemed part of the Programs and/or Documentation, as applicable, for purposes of the Agreement. Company shall provide to Customer, at no additional cost, access to Updates of the Programs which are developed or published by Company and made globally available to other customers of Company at no additional cost as part of the License.
e) Upgrades Not Included. “Upgrades” means any product upgrades, improvements, new features, successor products, and/or other enhancements to/for the Programs made by or for Company that add additional capabilities to or otherwise materially improve the features or functionality of the Programs. Upgrades include any major product upgrade (e.g., version 1.0 to 2.0). Any Upgrades to the Programs and/or programs other than the Programs developed or acquired by Company are not included in the Agreement and may be offered to Customer at Company’s then current rates.
1.4 Modifications.
a) Unless expressly agreed otherwise in a writing signed by an authorized officer of Company, Customer is specifically prohibited from modifying the Programs.
b) All modifications of the Programs, including without limitation any modifications resulting from or relating to any suggestions or requests from Customer, and all right, title and interest in and to any and all Intellectual Property Rights relating to the same, shall belong exclusively to Company or its licensors. Company shall have the unrestricted right to incorporate any such modifications in general releases of the Programs. Customer agrees to execute and cause persons under its control to execute all lawful documents that may be necessary or desirable to perfect ownership of such modifications and Intellectual Property Rights in Company or its licensors, including but not limited to recordable forms of assignment.
1.5 Training. Except for the assistance provided as part of the support and maintenance services referenced herein, no training is included with this Agreement. Customer may purchase training services from Company separately if mutually agreed by the parties.
1.6 License Fees.
a) Customer shall pay to Company the license fees described in the Order Form plus all applicable taxes. All license fees are due and payable in advance. Except as otherwise provided in the Order Form, payment is due within 30 days after the date of any invoice issued to Customer. By providing payment information (credit card information, bank account information, etc.) to Company, Customer expressly authorizes Company to charge all applicable fees incurred in connection with Customer’s account under this Agreement. Fees will be billed on the Effective Date and each anniversary thereof (for annual accounts). If Customer adds services or features after the Effective Date, additional fees are due at the time of such addition, and Company will pro-rate those fees as needed to coincide with Customer’s normal billing cycle. All fees are non-refundable except as expressly provided in this Agreement. Company may adjust the license fees from time to time, but Company will not raise the license fees more than once per year without giving Customer at least 30 days advance notice.
b) If Customer fails to pay any fees when due and fails to cure such deficiency within fifteen (15) days after receipt of written notice of the same from Company, Customer shall pay to Company interest charges at the rate of ten percent (10%) per annum, or the highest rate allowed by law, whichever is less, on the fees due and unpaid from the date due and payable until paid. In addition to any other remedy that may be available to Company, Company may suspend Customer’s access to the Programs and Documentation during any period in which Customer has failed to pay any fees when due and failed to cure such deficiency within fifteen (15) days after receipt of written notice of the same from Company.
c) Company may work with one or more third parties that handle payment processing. Customer agrees that Company may share any credit card, bank account, and related billing information of Customer with those third parties for the purposes of checking Customer’s credit, servicing Customer’s account, responding to valid legal process, or to establish or protect Company’s rights. Company does not assume any responsibility for any use or disclosure of such information by any such third parties.
2. TERM AND TERMINATION
2.1 Term. Following any applicable trial period, the initial term of this Agreement and the License granted under this Agreement shall commence on the Effective Date and shall be for the term described in the Order Form (the “Initial Term”), unless earlier terminated as provided in this Agreement. Following the Initial Term, this Agreement will automatically renew for successive renewal terms of the same duration as the Initial Term, unless earlier terminated as provided in this Agreement. The Initial Term, together with any renewal terms, is the “Term.” Following any applicable trial period, Customer must either purchase the License or discontinue use of the Programs. The Effective Date will be the 1st or 15th day of the month in which the License is purchased, to be determined by the Company.
2.2 Termination by Customer.
a) Customer may terminate this Agreement at any time for convenience upon delivery of written notice of termination to Company. Company will not give any refunds for any fees paid as of the date of termination.
b) Customer may terminate this Agreement upon delivery of written notice of termination to Company if Company is in breach of the Agreement and fails to cure such breach within 30 days after Company’s receipt of written notice of such breach.
c) Customer may terminate this Agreement upon delivery of written notice to Company if Company: (i) enters into any voluntary or involuntary bankruptcy or receivership proceeding, which proceeding is not dismissed within 90 days after filing; (ii) makes any assignment for the benefit of creditors; or (iii) ceases doing business.
2.3 Termination by Company.
a) Company may terminate this Agreement at any time for convenience by providing Customer with six months prior written notice of termination.
b) Company may terminate this Agreement if Customer is in breach of this Agreement and fails to cure such breach within 30 days after Customer’s receipt of written notice of such breach, except that any failure to pay applicable fees shall be subject to a 15-day rather than a 30-day cure period.
c) Company may terminate this Agreement upon delivery of written notice to Customer if Customer: (i) enters into any voluntary or involuntary bankruptcy or receivership proceeding, which proceeding is not dismissed within 90 days after filing; (ii) makes any assignment for the benefit of creditors; or (iii) ceases doing business.
2.4 Effect of Termination.
a) Upon any termination of this Agreement, Customer shall (i) immediately cease using the Programs and Documentation, and (ii) if requested by Company, certify in writing to Company within thirty (30) days after such termination that Customer has either destroyed, permanently erased, or returned to Company the Programs, all related Documentation, all Confidential Information of Company, and all copies of any of the foregoing in all forms, partial and complete, in all types of media and computer memory and storage, then in Customer’s possession.
b) Upon any termination of this Agreement, Customer may use any available export features provided in the Programs to make a copy of its Customer Data; provided, however, that Company may delete Customer Data as provided in Section 1.2(d).
2.5 Survival. Termination of this Agreement refers to termination of (i) the License and Customer’s right to use the licensed Programs and Documentation, (ii) any applicable maintenance subscription that would otherwise be in force, and (iii) Customer’s obligation to make any further payments of license fees, except as otherwise provided in this Agreement. All other provisions of this Agreement shall survive any termination of this Agreement.
3. WARRANTY, LIMITATION OF LIABILITY, INDEMNIFICATION, AND INSURANCE
3.1 Warranty and Disclaimers.
a) Warranty. Company represents and warrants that
(i) the Programs, as made available to Customer by Company, will perform the functions substantially as described in the Specifications when properly operated on the hardware and operating system designated in the Specifications and, to the Company’s knowledge, will not contain any Disabling Code;
(ii) it has the right to grant the License to use the Programs as set out in this Agreement;
(iii) it will (a) install and maintain industry-standard security measures for Company’s computer systems on which the Programs and Customer Data are hosted, and (b) implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect all Confidential Information and personally identifiable information obtained hereunder from unauthorized access, destruction, use, modification or disclosure.
(iv) Company makes no representation or warranty that the Programs, related systems, or any hosting site cannot or will not be subject to compromise due to security breaches, unauthorized “hacking,” other wrongful acts by third parties, or any cause beyond Company’s reasonable control. Other than as provided in this Agreement, Company does not warrant that the operation of the Programs will be uninterrupted or error-free or that the Programs will satisfy Customer’s requirements. Customer acknowledges that Customer is responsible for providing Internet access in order to access the Programs, and Company does not warrant that the Programs will be available at all times. Company makes no representation or warranty regarding the availability of Internet service outside of Company’s environment, and Company hereby disclaims any and all liability for outages and errors caused by disruptions to or absence of such Internet service, whether inbound or outbound, other than as provided in any applicable Service Level Agreement. Company is not responsible for and specifically disclaims all representations and warranty obligations whatsoever with respect to failures of the Programs caused directly or indirectly by modification of or enhancements to the Programs not supplied by Company, Customer’s negligence or misuse of the Programs, computer hardware or third-party software malfunctions, noncompliant data formats, data input errors, Customer’s failure to follow operating instructions provided by Company, or any other cause beyond Company’s control.
b) Disclaimers. EXCEPT FOR THE EXPRESS TERMS OF THE FOREGOING WARRANTIES, THE PROGRAMS AND DOCUMENTATION ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT ALLOWED BY LAW. CUSTOMER ACKNOWLEDGES THAT THE PROGRAMS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED FOR OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT OR ANY ACTIVITY IN WHICH FAILURE COULD LEAD TO PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, AND COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM ANY SUCH USE. CUSTOMER’S SOLE REMEDY AND COMPANY’S SOLE LIABILITY FOR ANY BREACH OF THE FOREGOING WARRANTIES SHALL BE FOR COMPANY TO UNDERTAKE COMMERCIALLY REASONABLE MEASURES TO ATTEMPT TO CORRECT ANY MATERIAL ERRORS IN THE PROGRAMS OR DOCUMENTATION THAT COMPANY IS ABLE TO REPRODUCE, AND IF SUCH CORRECTION IS NOT REASONABLY POSSIBLE IN COMPANY’S DISCRETION, TO ALLOW CUSTOMER TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE APPLICABLE ACCOUNT TERMINATION PROCEDURES.
3.2 Limitation of Liability.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY CUSTOMER, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, WHETHER OR NOT THE COMPANY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S ENTIRE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF LICENSE FEES PAID TO COMPANY BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. CUSTOMER ACKNOWLEDGES THAT THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE BASED ON, AND THE LICENSE FEES UNDER THIS AGREEMENT WOULD BE GREATER IN THE ABSENCE OF, THE LIMITATIONS DESCRIBED ABOVE.
3.3 Indemnification.
a) Customer agrees to defend, indemnify, and hold harmless Company and its affiliates and each of their partners, members, officers, directors, employees, and agents from and against any third-party claims, demands, liabilities, obligations, damages, costs, judgments, attorneys’ fees, and attachments (collectively, “Claims”) arising or resulting from (i) any breach of this Agreement by Customer; (ii) any negligence, gross negligence, or willful misconduct by Customer or its partners, members, officers, directors, employees, or agents; (iii) any alteration or misuse of the Programs or any other material or information provided to Customer by Company; or (iv) any infringement or violation by Customer of any right of a third party, except as provided in Section 3.3(b).
b) Company agrees to defend, indemnify, and hold harmless Customer and its partners, members, officers, directors, employees, and agents from and against any third-party Claims arising or resulting from any infringement or misappropriation of any U.S. Intellectual Property Rights of a third party caused by the use of the Programs, Documentation, or other material provided by Company as authorized under this Agreement, except as provided in Section 3.3(a).
c) With respect to Claims related to Section 3.3(b), Company shall have no obligation hereunder to the extent any Claims are caused directly or indirectly by modification of or enhancements to the Programs not supplied, authorized in Documentation, or approved by Company, Customer’s negligence or misuse of the Programs, computer hardware or third-party software malfunctions, noncompliant data formats, data input errors, or Customer’s failure to follow operating instructions provided by Company. If a Claim arises under Section 3.3(b), or if in Company’s judgment such a Claim is likely to occur, Company may, in its sole discretion, (i) obtain, at Company’s expense, the right for Customer to continue using the Programs, Documentation, or other material that is the subject of such Claim, or (ii) so long as functionality or performance is not materially negatively impacted, modify the Programs, Documentation, or other material that is the subject of such Claim to be non-infringing, or (iii) provide Customer with a substitute, non-infringing product having substantially the same functionality and performance as the Programs, or (iv) if none of the foregoing options is reasonably practical, terminate the Agreement and refund to Customer within 30 days of termination any prepaid amounts pro-rated for the remainder of the Term. THIS SECTION 3.3 STATES CUSTOMER’S EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY CLAIM BY CUSTOMER AGAINST COMPANY ARISING OUT OF ANY INFRINGEMENT OR OTHER VIOLATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
d) With respect to the indemnification obligations in this Section 3: (i) the indemnified party shall notify the indemnifying party in writing promptly upon learning of any claims for which indemnification may be sought; provided that failure to do so shall not affect the indemnity except to the extent the indemnifying party is prejudiced thereby; (ii) the indemnifying party shall have control of the defense or settlement, provided that the indemnified party shall have the right to participate in such defense or settlement with counsel of their own selection and at their sole expense; (iii) the indemnified party shall reasonably cooperate with the defense; and (iv) the indemnifying party shall not settle the claim or suit without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
4. GENERAL TERMS
4.1 Payments and Taxes. Unless otherwise specified herein, all fees and amounts due to Company under this Agreement shall be in US dollars payable at Company’s address set forth in this Agreement or as otherwise directed by the Company. Other than as expressly stated herein, all such fees are exclusive of, and Customer shall be responsible for, all applicable taxes, duties and assessments.
4.2 Nondisclosure. Except for the terms of this Agreement and Customer Data, which the parties shall perpetually keep confidential, the parties agree, both during the term of this Agreement and for a period of three (3) years after termination of this Agreement: (a) to hold in confidence information which is confidential to the other (“Confidential Information,”) as more fully described below); (b) not to disclose or make each other’s Confidential Information available, in any form, to any third party; and (c) not to use each other’s Confidential Information for any purpose other than as specified in this Agreement. In addition, each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents (who shall be entitled to have access to same only on a need-to-know basis) in violation of any provision of this Agreement. Confidential Information shall include the Programs and Documentation, information related thereto, the Customer Data, all information input to or generated by the Programs, all past, present and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies, and all information clearly marked as confidential, and shall not include information which: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to such access to or the disclosure of same and had not been obtained by such other party either directly or indirectly from the party hereto granting such access or making such disclosure, all of which is properly documented by such other party; (iii) is lawfully disclosed to the other party by a third party having a legal right to so disclose without restriction on such disclosure; (iv) with respect to information that is the same as or substantially identical to the Confidential Information, is entirely independently developed by the other party, which independent development is properly documented by such other party; or (v) is required to be disclosed pursuant to the order of a court or other governmental agency having proper jurisdiction, in which event the party so ordered shall promptly inform the other party of such order to afford the other party an opportunity to prevent or limit such disclosure. Nothing in this Section 4.2 shall be construed as preventing Company from incorporating modifications requested by Customer in general releases of the Programs as provided in Section 1.4.
4.3 Governing Law and Venue. This Agreement is made in accordance with and shall be governed by and construed under the laws of the State of Texas, as applied to agreements executed and performed entirely in Texas by residents of Texas, without giving effect to any rules regarding conflicts of laws, and exclusive jurisdiction and venue for any dispute relating to this Agreement shall be in Bexar County, Texas.
4.4 Severability and Waiver. In the event and to the extent any provision of this Agreement is held to be invalid or unenforceable, the valid and enforceable portions thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver (express or implied) by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. No failure of either party to enforce any provision of this Agreement shall constitute a waiver of such provision.
4.5 Export Administration and Government Regulations. Customer hereby agrees that to the extent prohibited by applicable law, it will not export, directly or indirectly, any of the Programs, related Documentation or technical data (which includes, among other things, any technical information relating to the Programs, written or otherwise), or any product incorporating any Program, related Documentation or Company technical data to any country, or access the Programs or Documentation or such technical data from any country, for which the United States government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
4.6 Entire Agreement. This Agreement together with all Exhibits and Schedules attached hereto constitutes the entire, final, complete and exclusive agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous agreements or representations, written or oral, with respect to the subject matter of this Agreement.
4.7 Notices. Any notice or other communication required or permitted by this Agreement shall be in writing and shall be deemed delivered and effective (a) immediately if delivered personally; or (b) on the first business day following delivery by a nationally recognized overnight courier. Notices shall be sent to the respective addresses specified on the first page hereof and the Order Form or such new address as a party may specify to the other in writing in accordance with this Section 4.7.
4.8 Force Majeure. Company shall not be liable for any delay in performance or any failure in performance hereunder caused in whole or in part by reason of a force majeure event, which shall include any event beyond the control of Company, such as war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot and other acts of civil disobedience, action of a public enemy, failure or delays in transportation, laws, regulations or acts of any national, state or local government (or any agency, subdivision or instrumentality thereof), judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw materials, or third-party machinery or technical failures.
4.9 Assignment. This Agreement is personal to Customer, and Customer shall not have any right to assign this Agreement or any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the Company.
4.10 Arbitration. Any controversy or claim between or among the parties hereto, including but not limited to those arising out of or relating to this Agreement or any agreements or instruments relating hereto or delivered in connection herewith and any claim based on or arising from an alleged tort, shall at the request of any party hereto be determined by binding arbitration conducted in Bexar County, Texas. The parties agree to name as arbitrator a former State District Judge of the State of Texas living in Bexar County. If the parties fail to agree, either one of the parties or both of them may petition the Presiding District Court of Bexar County to name as arbitrator a former State District Judge living in Bexar County of the court’s choosing. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator. The parties agree to be bound by the award of the arbitrator. Judgment upon the arbitration award may be entered in any court having jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party hereto, including the plaintiff, to submit the controversy or claim to arbitration. The parties agree to bear equally the cost of arbitration. In the event an arbitration proceeding is commenced in connection with the enforcement of this Agreement or any instrument or agreement required under this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements incurred in connection with such action or proceeding, as determined by the court or arbitrator(s).
4.11 Waiver of Jury Trial. Subject to the provisions of Section 4.10, and without limiting or waiving the provisions of that section, in the event of litigation each of the parties hereto acknowledges and agrees that it has had an opportunity to consult with legal counsel and that it knowingly and voluntarily waives any right to a trial by jury for any dispute pertaining to or relating in any way to this Agreement, the provisions of any federal, provincial, state or local law, regulation or ordinance notwithstanding.
4.12 Amendments. Company may amend the terms and conditions of this Agreement from time to time. Company will post such amended terms and conditions on the web site at which the Programs are accessible by Customer and will undertake commercially reasonable efforts to notify Customer of such amendments. However, Customer is responsible for periodically reviewing this Agreement as amended and posted on such web site, and Customer’s continued use of the Programs on or after the effective date of any such amendment shall constitute Customer’s acceptance of such amended terms and conditions.
4.13 Subcontractors. Customer acknowledges that Company may use one or more third party subcontractors to perform this Agreement, including without limitation provision of hosting services for the Programs, Documentation, and Customer Data and provision of support and maintenance services as set forth herein.
By clicking on the “I Accept” button, Customer hereby manifests its assent to the terms and conditions of this Agreement by its duly authorized representative.