Setsail terms
**WARNING**BY CLICKING ON THE “ACCEPT” BUTTON, OR BY EXECUTING AN ORDER FORM WITH SETSAIL TECHNOLOGIES, INC. (“SETSAIL”), YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE AGREEMENT CONSISTING OF YOUR ORDER FORM, THIS PARAGRAPH, AND THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) WITH RESPECT TO THE “SERVICES (DEFINED BELOW). PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S ACCESS TO OR USE OF THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE FOREGOING, YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU CONTINUE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1) Access and Use.
a) Provision of Access. Subject to Customer’s full compliance with all terms and conditions of this Agreement, SetSail hereby grants Customer a non-exclusive, non-transferable license to access and use the services specified on the Order Form (the “Services”) during the Term (defined below), solely by Authorized Users, for Customer’s internal use and in accordance with SetSail’s user manuals and guides provided by SetSail to Customer (“Documentation”). SetSail will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. SetSail may in its sole discretion modify, enhance or otherwise change the Services, provided that such changes do not materially limit or adversely affect the Services provided to Customer hereunder.
b) Use Restrictions. Customer will not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, Documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Services or Software, in whole or in part; (iii) use or access the Services or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in this Agreement; (iv) rent, lease, lend, sell (or re-sell), license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Software; (v) remove any product identification, proprietary, copyright or other notices from the Services or Software; (v) use the Services or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (vi) use the Software as part of an activity that can be perceived as threatening, harassing, anti-competitive, misleading, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable; (vii) use the Software in connection with any individual credit, employment or insurance decisions, or to create or contribute to a “Consumer Report” as set forth in the U.S. Fair Credit Reporting Act; (viii) use the Software to develop a business offering that competes with the Software; (ix) or (x) permit any third party to do any of the foregoing.
c) Use Responsibilities. Customer will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify SetSail of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use. Customer will use the Services for lawful purposes only and in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, such as the General Data Protection Regulation, mass email, spam, consumer protection, unfair competition and false advertising, international communications, export laws and the transmission of technical or personal data laws). Customer will obtain all permissions and consents required by SetSail for the use of Customer information in connection with the performance of the Software.
d) Reservation of Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services, the Documentation, and any and all intellectual property related thereto (the “SetSail IP”). For the avoidance of doubt, SetSail IP does not include Customer Data.
e) Suspension. Notwithstanding anything to the contrary in this Agreement, SetSail may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Services if:
i) SetSail reasonably determines that (A) there is a threat or attack on any of the SetSail IP; (B) Customer’s or any Authorized End User’s use of the SetSail IP disrupts or poses a security risk to the SetSail IP or to any other customer or vendor of SetSail; (C) Customer, or any Authorized End User, is using the SetSail IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) SetSail’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law;
ii) any vendor of SetSail has suspended or terminated SetSail’s access to or use of any third-party services or products required to enable Customer to access the Services; or
iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). SetSail will use commercially reasonable efforts to provide prior notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. SetSail will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SetSail will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2) Customer Data.
For purposes of this Agreement, “Customer Data” will mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer will retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not SetSail, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. SetSail will use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. SetSail is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to SetSail’s gross negligence or wilful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. In the event and to the extent that Customer is a processor of Personal Data (as defined in the DPA) that is subject to certain Data Protection Laws (as defined in the DPA), the EU Data Processing Addendum located at setsail.co/dpa (the “DPA”) is hereby included and incorporated into this Agreement.
3) Customer Responsibilities.[1]
a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, including all acts and omissions of Authorized Users. Customer will make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and will cause Authorized Users to comply with such provisions.
b) Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third Party Services”). SetSail is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. SetSail does not make any representations or warranties with respect to Third Party Services or any third party SetSails. Any exchange of data or other interaction between Customer and a third party SetSail is solely between Customer and such third party SetSail and is governed by such third party’s terms and conditions.
4) Fees and Payment.
a) Fees. Customer will pay SetSail the fees (“Fees”) as set forth in Order Form without offset or deduction. Customer will make all payments hereunder in US dollars on or before the due date set forth in Order Form. If Customer fails to make any payment when due, without limiting SetSail’s other rights and remedies: (i) SetSail may charge interest on the past due amount at the rate of 1.0% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer will reimburse SetSail for all costs incurred by SetSail in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, SetSail may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on SetSail’s income.
5) Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party will not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. SetSail may use Customer Data to (a) provide the Services to Customer and perform this Agreement; (b) to provide Customer with such data in an aggregated and anonymized form that does not disclose Customer Data or Confidential Information of Customer; and (c) to use such aggregated and anonymized data to test, improve, and provide SetSail products and services . If Customer or any of its employees or contractors sends or transmits any communications or materials to SetSail by mail, email, telephone, or otherwise, suggesting or recommending changes to the SetSail IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), SetSail is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. On the expiration or termination of the Agreement, the receiving Party will promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6) Warranties and Disclaimers.
a) Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
b) SetSail. SetSail warrants that it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, other than code intentionally included by SetSail for purposes of accessing and/or suspending access to the Software as authorized herein and/or providing maintenance and support.
c) Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5(B), THE SetSail IP IS PROVIDED “AS IS” AND SetSail HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SetSail SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5(B), SetSail MAKES NO WARRANTY OF ANY KIND THAT THE SetSail IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
7) Indemnification.
a) SetSail Indemnification. SetSail will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services infringes or misappropriates such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies SetSail in writing of the claim, cooperates with SetSail, and allows SetSail sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit SetSail, at SetSail’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If SetSail determines that neither alternative is reasonably available, SetSail may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 7(a) will not apply with respect to portions or components of the Services (A) not created by SetSail, including but not limited to Customer Data or Third-Party Services, (B) that are modified by anyone other than SetSail where the alleged infringement relates to such modification, (C) combined with other products, processes or materials where the alleged infringement relates to such combination, (D) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (E) where Customer’s use thereof is not strictly in accordance with this Agreement and all related documentation.
b) Customer Indemnification. Customer will indemnify, hold harmless, and, at SetSail’s option, defend SetSail from and against any Losses resulting from any Third-Party Claim that the Customer Data infringes or misappropriates such third party’s intellectual property rights, or any Claims excluded from indemnity obligation in Section 6(a) above, or otherwise from Customer’s or any Authorized User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against SetSail unless SetSail consents to such settlement, and further provided that SetSail will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
c) Sole Remedy. THIS SECTION 6 SETS FORTH CUSTOMER’S SOLE REMEDIES AND SetSail’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8) Limitations of Liability.
a) Indirect Liabilities. IN NO EVENT WILL SetSail BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SetSail WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
b) Direct Liability. IN NO EVENT WILL SetSail’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SetSail UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
c) Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 8 WILL NOT LIMIT SetSail’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 7(A) OR DAMAGES ARISING OUT OF SetSail’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5.
9) Term and Termination.
a) Term. The Initial Term of this Agreement will commence upon the date of the first Order Form, and unless earlier terminated in accordance herewith, will continue until the later of (i) the expiration of all Order Form terms or (ii) 5 years. The Initial Term of this Agreement is set forth on the Order Form. The Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
b) Termination for breach. In addition to any other express termination right set forth in this Agreement: (i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days (or 10 days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately discontinue use of the SetSail IP and, without limiting Customer’s obligations under Section 5, Customer will delete, destroy, or return all copies of the SetSail IP and certify in writing to the SetSail that the SetSail IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund, provided however that upon termination, to the extent there are any unused Incentive Budget Fees, SetSail will refund to Customer such amount.
d) Survival. This Section 9(e) and Sections 4, 5, 6(c), 7, 8, and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
10) Miscellaneous.
a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
b) Publicity. SetSail may use Customer’s name and logo to identify Customer as SetSail’s customer on its website and in other marketing materials.
c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Subject to change pursuant to this Section: SetSail’s physical and email addresses for notices are:
Physical Address: SetSail Technologies, Inc.,
548 Market Street,
Suite 55554, San Francisco, CA
Legal Notice Email Address: legal@setsail.co
InfoSec Notice Email Address: security@setsail.co
Privacy Notice Email Address: privacy@setsail.co
d) Force Majeure. In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
e) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
h) Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
i) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
j) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 1(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
l) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
