PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE PRODUCT(S) AND DOCUMENTATION TO WHICH THIS AGREEEMNT RELATES. BY ACCEPTING THIS AGREEMENT, INCLUDING BY INSTALLING OR USING THE PRODUCT(S), YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND ACKOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE, AND PROMPTLY RETURN THE PRODUCT(S), DOCUMENTATION, AND ALL COPIES THEREOF TO THE SUPPLIER FROM WHICH IT WAS ACQUIRED FOR A FULL REFUND OF THE LICENSE FEES. IF THE ETHOSIQ SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK “DISAGREE/DECLINE”. FOR ETHOSIQ SOFTWARE INCLUDED WITH YOUR PURCHASE OF 3RD PARTY SOFTWARE OR HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.
1. Grant of License.
1.1. For purposes of this EthosIQ End User Software License Agreement (Agreement), “ethosIQ” refers to ethosIQ, LLC and “you” or “Licensee” refers to the individual installing or using the Product(s), if you are acting as an individual on your own behalf; otherwise, “you” or “Licensee” means the business or other entity for which you are obtaining the Product(s) (Defined below) and that will exercise the rights granted under this Agreement. Subject to the terms and conditions contained in this End User License Agreement, including all exhibits, Orders (as defined below) and License Addenda (as defined below) (collectively, this “Agreement”), and the payment of all applicable license fees, ethosIQ grants you a non-exclusive, non-transferable, personal, limited license (without the right to sublicense) to use the Software product(s) and functionalities (each individually a “Product”), for which valid control codes have been issued by ethosIQ, identified in (i) the written or electronic order document, form or invoice provided or accepted by ethosIQ (each an “Order”) or (ii) the installation procedure, solely for your internal business purposes and in accordance with the terms and conditions of this Agreement. The ethosIQ software (including any content), documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the “Product”) is licensed, not sold, to you by ethosIQ for use only under the terms of this License, and ethosIQ reserves all rights not expressly granted to you. Any update, patch, solution pack, service pack, value-add pack, hotfix, workaround, prepackaged module and/or new release, version, or enhancement issued to Licensee by ethosIQ relating to the Product (each an “Update”) replaces part or all of a Product or Update previously licensed to Licensee and shall terminate such previously licensed Product or Update to the extent replaced by the Update. Each Update shall be subject to the terms and conditions of the license agreement accompanying the Update or, if no license agreement accompanies the Product, to the terms and conditions of this Agreement. In addition, and subject to the terms and conditions contained herein, ethosIQ grants Licensee a non-exclusive, non-transferable, limited, personal license (without the right to sublicense) to use the written technical materials and end user instructions including all updates and versions thereof released by ethosIQ and associated with the Product, if any, distributed with the Product (the “Documentation”).
1.2. By virtue of this Agreement, Licensee acquires only the non–exclusive right to use the Product and does not acquire any rights of ownership to (i) the Product, (ii) any Documentation provided therewith or (iii) the media, if any, upon which the Product and Documentation are embodied. ethosIQ and/or its licensors shall at all times retain all right, title, and interest in the Product, the Documentation, and any media provided therewith. Except for the license rights expressly granted herein, this Agreement grants no additional express or implied license, right or interest in the Product or in any copyright, patent, trade secret, trademark, invention or other intellectual property rights of ethosIQ, its affiliates or their licensors. ethosIQ reserves all rights not expressly granted to Licensee in this Agreement.
1.3. The term of the license is set forth in Exhibit A, unless otherwise terminated in accordance with the terms of this Agreement.
1.4. Licensee agrees to pay the applicable fees as set forth in the Order. Licensee further agrees to pay any applicable transportation charges, value-added taxes or other applicable taxes, tariffs or withholding taxes which the relevant authorities require to pay. All fees are exclusive of any such taxes or tariffs unless expressly stated in the Order.
Product Will Time Out After Thirty Days if Licensor Not Paid. Upon issuance of an appropriate Order to purchase Product, a Temporary Software License Key will be sent to Licensee as soon as possible. This key will time out and stop the Product from functioning after thirty (30) days. Provided no amount due to the Licensor for the Product in question is outstanding, and the Licensee is not in default under the terms of this Agreement, a Permanent Software License Key will be sent to the Licensee before the temporary key expires.
1.5. Shipping terms for Product(s) shipped on physical media is free on board (“FOB”) shipping point. For Product(s) shipped via electronic delivery, delivery is deemed complete, FOB shipping point, when the Product(s) is/are made
available at the electronic software download (“ESD”) site specified by ethosIQ and Licensee is e-mailed or otherwise issued a password to access and download the Product(s).
2. License Restrictions.
2.1 Licensee’s use of the Product and Documentation is limited to internal use within Licensee’s organization. The Product and Documentation may not be used by affiliated parties of Licensee unless specifically authorized in Exhibit A. Use shall be in accordance with the provisions of and limitations set forth in this Agreement, including Exhibit A hereto, and the additional terms, if any, set forth in any Order or additional agreement executed by ethosIQ and Licensee in connection with this Agreement which specifically states the terms thereof shall be in addition to or in lieu of any of the terms set forth herein (each a “License Addendum” and collectively, the “License Addenda”).
2.2. The license model for the Product is set forth in the Order and described in Exhibit A. Third party rights and any additional licensing restrictions are set forth or referenced in Exhibit A.
2.3. Licensee shall not copy (except as provided in Section 7.2 hereof), disassemble, reverse engineer, decompile, modify or create derivative works of the Product and the Documentation to the extent that such restriction is not prohibited by applicable law.
2.4. Licensee may not sublicense, sell, encumber, outsource, or grant any other rights in the Product and/or the Documentation, to allow the Product or Documentation to be possessed by another party.
2.5. Licensee may use the Product to provide business intelligence services to third parties on a hosted basis, but only to the extent that such third parties’ use of, or access to, the data generated by such services is within the scope of Licensee’s business purpose.
2.6. The Product, including technical data, may be subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee shall not directly or indirectly export or re-export the Product, or any direct product thereof, without first obtaining ethosIQ’s written approval. Licensee agrees to comply strictly with all regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import the Product. If subject to U.S. export control laws, the Product may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Table of Denial Orders as amended from time to time, or any other list distributed by the United States government setting forth individuals or entities to which distribution of the Product would be prohibited by United States law.
2.7. Licensee shall be solely responsible for identifying and complying with all laws of any jurisdiction outside of the United States and its territories regarding the use of the Product and any technical data supplied by ethosIQ. Licensee agrees to obtain all licenses, permits or approvals required by any government at Licensee’s sole cost and expense. Licensee’s obligations under this Section 2.7 shall survive termination for any reason whatsoever.
2.8. If the Product is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government’s rights in the Product will be only as set forth herein. The Product and related Documentation 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product and such Documentation with only those rights set forth herein. Contract/Manufacturer is: ethosIQ, LLC 17121 West Rd. Suite 201, Houston, Texas 77095.
2.9. Licensee may not assign this Agreement nor any of its respective rights or obligations hereunder, in whole or in part (including by operation of law), without the prior written consent of the Licensor provided, however, that the Licensee may assign this Agreement, in whole or in part, to any successor in interest by operation of law, or pursuant to a merger, corporate reorganization, or sale of all or substantially all of Licensee’s business as a going concern without such consent. Any prohibited assignment shall be null and void. Notwithstanding the foregoing, this Agreement shall inure to the benefit of successors and permitted assigns.
3. Installation and Use
3.1. You may install and use the Software only in the configuration and for the number of licenses acquired by you. In order to exercise your rights to the Software under this License Agreement you must activate your copy of the Software in the manner described during the installation procedure. You may also store or install one(1) backup copy of the Software for archival and disaster recovery purposes. One (1) License for the Software may not be shared for use on different computers or servers. ethosIQ may control the number and type of licenses and the use of the Software by key codes. If a serial number, password, license key or other security device is provided to you for use with the Software, you may not share or transfer such security device with or to any other user of the Software or any other third party. Any other use of the Software by any third party, except as provided in this Agreement, is strictly forbidden and is a breach of this Agreement.
4. Consent to use of data
4.1. You agree that ethosIQ and its authorized representatives may collect and use technical information you provide as a part of support services related to the Software and Product[s].
5. Limited Warranty.
5.1. ethosIQ warrants that, for a period of ninety (90) days from either the date of the initial shipment, install or availability for download from an ethosIQ website of the Product, whichever occurs first (the “Warranty Period”),
(i) the Product will conform in all material respects to the Documentation and (ii) the media, if any, on which the Product is recorded will be free from defects in materials and that the Product is properly recorded on the media. As the sole and exclusive remedy for physically defective media (such as the diskettes, cartridges, CD-ROMs, DVDs or magnetic tapes), ethosIQ will replace it free of charge if claimed during the Warranty Period. As the sole and exclusive remedy for any failure of the Product to materially conform to the Documentation, ethosIQ shall repair or replace the Product if such failure is reported during the Warranty Period or, if ethosIQ, at its discretion, reasonably determines that such remedy is not economically or technically feasible, this Agreement and the licenses granted hereunder will terminate and ethosIQ or its supplier (as applicable) shall provide a full refund of the license fee paid with respect to the particular Product. The above warranties do not cover Updates, generic non-configured solution packs, any Product provided on an evaluation basis, or defects to the Product due to accident, abuse, service, alteration, modification or improper installation or configuration by Licensee, its personnel or any third party.
5.2. ethosIQ does not warrant that the functions of the Product will meet Licensee’s requirements or that operation of the Product will be uninterrupted or error free. Licensee assumes responsibility for selecting the Product to achieve its intended results and for the use and results obtained from the Product. All warranties also are hereby disclaimed in the event that the Product is not properly set up and configured to appropriately process applicable business information.
5.3. THE LIMITED WARRANTY SPECIFIED IN SECTION 5.1 SETS FORTH ALL WARRANTIES AND REPRESENTATIONS PROVIDED TO LICENSEE WITH RESPECT TO THE PRODUCT AND ANY SERVICES AND UPDATES PROVIDED HEREUNDER, AND SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY ETHOSIQ AND NOT ITS LICENSORS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ETHOSIQ, ITS LICENSORS AND THEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO THE PRODUCT, OR ANY SERVICES OR UPDATES PROVIDED UNDER THIS AGREEMENT. ANY UPDATES OR SERVICES DELIVERED HEREUNDER ARE DELIVERED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT WITH RESPECT TO THE PRODUCT, OR ANY SERVICES AND UPDATES PROVIDED UNDER THIS AGREEMENT ARE DISCLAIMED. WITHOUT LIMITING THE BROAD APPLICATION OF THE FOREGOING, ALL WARRANTIES ARE HEREBY DISCLAIMED IN THE EVENT THAT THE PRODUCT IS NOT PROPERLY SET UP AND CONFIGURED TO APPROPRIATELY PROCESS APPLICABLE BUSINESS INFORMATION. Further, the Product is not fault tolerant and is not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance (including, without limitation, the design, construction, operation or maintenance of any nuclear facility; direct life support machines; weapon systems; or control of aircraft, air traffic, aircraft navigation or aircraft communications), in which the failure of the Product could lead directly or indirectly to death, personal injury or severe physical or environmental damage. Without limiting the scope of the disclaimers set forth herein, ethosIQ for itself and on behalf of its licensors and their respective suppliers, disclaims any express or implied warranty of fitness for any such high risk uses.
6. Intellectual Property Ownership and Indemnity.
6.1. You acknowledge and agree that ethosIQ is the owner of all intellectual property rights in: (a) the Product; and (b) all amendments, enhancements and modifications of the Product, including any executed by ethosIQ or as a result of collaboration with you, you further acknowledge and agree that ethosIQ is not bound by any duty of confidentiality with respect to any such amendments, enhancements or modifications of the Product.
6.2. Subject to the above Section 6.1, ethosIQ will defend, indemnify and hold Licensee harmless against any and all costs and reasonable expenses finally awarded by a court or agreed to in settlement which directly result from any third party claim based on an allegation that a Product infringes either a valid (a) United States patent or (b) copyright of a country that is a party to the Agreement for Trade Related Aspects of Intellectual Property Rights (“TRIPS”) but only if ethosIQ is notified promptly in writing of such claim and given sole control of the defense of any such claim and all negotiations for its settlement or compromise. Licensee agrees to reasonably cooperate with ethosIQ in the defense, settlement or compromise of any such claim. In the event that a final injunction is obtained against Licensee’s use of the Product, if ethosIQ reasonably believes that Licensee’s use of the Products could be so enjoined, or if in ethosIQ’s opinion the Product is likely to become the subject of a successful claim of such infringement, ethosIQ shall, at its option and expense,
(i) procure for Licensee the right to continue using the Product as provided in this Agreement, (ii) modify or require replacement of the Product that Licensee is then currently using so that the Product becomes non- infringing (so long as the functionality of the Products is substantially similar) or, in the event neither of the previous two options are commercially reasonable for ethosIQ, (iii) terminate this Agreement and the rights granted hereunder and refund to Licensee the amount paid to ethosIQ for the Product less an amount for depreciation determined on a straight-line five-year depreciation basis with a commencement date as of the respective shipment date of the applicable copies of the Product. Notwithstanding the foregoing, ethosIQ shall have no liability for a claim to the extent based on (A) the use by Licensee of the Product more than thirty (30) days after ethosIQ has notified Licensee of (i), (ii) or (iii), above or (B) the version of the Product used by Licensee is not the current release version of the Product.
6.3. Notwithstanding the foregoing, ethosIQ shall have no liability to Licensee under this Section 6 to the extent that any infringement or claim thereof is based upon (i) the combination, operation or use of a Product in combination with equipment or software not supplied by ethosIQ hereunder where the Product would itself not be infringing, (ii) Licensee’s non-compliance with designs, specifications or instructions provided by ethosIQ to Licensee, (iii) use of a Product in an application or environment for which it was not designed or not contemplated under this Agreement, (iv) modifications of a Product by anyone other than ethosIQ where the unmodified version of the Product would not be infringing, or (v) use by users or affiliated parties of Licensee not permitted by this Agreement.
6.4. THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF ETHOSIQ AND THE SOLE AND EXCLUSIVE REMEDY OF LICENSEE WITH RESPECT TO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT BY ETHOSIQ OF ANY INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS IN RESPECT OF THE PRODUCT OR ITS USE. ETHOS IQ WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES OR CLAIMS FOR LOSS OF PROFIT AS DETAILED IN SECTION 8 OF THIS AGREEMENT.
6.5. any affiliated party of Licensee is specifically authorized in writing and as a term of this Agreement to use the Product pursuant to Section 2.1 hereof and Exhibit A, Licensee shall defend, indemnify and hold ethosIQ harmless for all acts and omissions of such affiliated party.
7. Confidentiality; Notices.
7.1. Licensee acknowledges that the Products, including all source and/or object code and all parts and aspects thereof, and any Updates, modifications, translations, localizations, or other derivative works thereof, in whatever form, whether or not marked as confidential, the Documentation and any other documentation or materials provided with or related to the Product to the extent that such Documentation or other documentation is marked “Confidential” (collectively, the “Confidential Information”), are the valuable proprietary and trade secret information of ethosIQ and/or its licensors and suppliers. Licensee shall (i) limit use and disclosure of the Confidential Information to its employees and its consultants who are authorized pursuant to this Agreement to use the Products and who agree to be bound by the terms of this Agreement or are otherwise bound to a confidentiality agreement containing substantially similar terms; (ii) not provide or disclose any of the Confidential Information to another party; and (iii) treat the Confidential Information with the same degree of care to avoid disclosure to any third party as is used with respect to Licensee’s information of like importance which is to be kept secret, but with no less than reasonable care. The foregoing obligations shall be in addition to any obligations set forth in any separate confidentiality agreement between ethosIQ and Licensee.
7.2. Licensee agrees, under penalty of license termination but not exclusive of any other remedies, not to cause or permit the copying of the Product for any purpose other than expressly set forth herein. Licensee may copy the Documentation solely for the purpose of facilitating Licensee’s use of the Product in accordance with, and subject to, the terms and conditions of this Agreement. Licensee agrees not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Product.
7.3. Benchmark results for the Product may not be disclosed or published without the written consent of ethosIQ.
7.4. Licensee acknowledges that in the event of a breach or threat of breach of this Section 7, money damages will not be adequate. Therefore, in addition to any other legal or equitable remedies, ethosIQ shall be entitled to seek injunctive or similar equitable relief against such breach or threat of breach.
7.5. All notices and requests in connection with this Agreement to be sent to ethosIQ shall be given in writing and shall be sent by hand delivery, overnight courier or certified mail with proof of delivery to the following address (or, if ethosIQ has listed another main address on ethosIQ’s website (“Updated ethosIQ Address”), to such Updated ethosIQ Address): ethosIQ 17121 West Rd. Suite 201 Houston, Texas ; Attention General Counsel. All notices and requests in connection with this Agreement to be sent to Licensee shall be given in writing and shall be sent by hand delivery, overnight courier or certified mail with proof of delivery to the address first set forth in the Order. Either party may change its address for receipt of notices upon written notice to the other party, and notices shall be deemed given on the day of receipt or the date evidenced on the proof of delivery, whichever is earlier.
8. Limitation of Liability.
8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF ETHOSIQ, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCT, UPDATE AND/OR SERVICES SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY LICENSEE FOR SUCH PRODUCT, UPDATE AND/OR SERVICES. ETHOSIQ’S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING THE PRODUCT, ANY UPDATE, OR ANY PORTION THEREOF, OR AS A RESULT OF ANY SERVICES RELATING THERETO. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL ETHOSIQ, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, ANY UPDATE, OR ANY PORTION THEREOF, OR ANY SERVICES, EVEN IF ETHOSIQ, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EACH EXCLUSION OR LIMITATION IS INTENDED TO BE A SEPARATE AND THEREFORE SEVERABLE EXCLUSION.
9. Audit Rights.
9.1. ethosIQ may install, enable and utilize automated license tracking, management and/or enforcement solutions with the Products, which Licensee may not disrupt or alter. Licensee shall maintain books and records in connection with this Agreement and the use of the Products and any Updates and/or services provided hereunder. Such books and records shall include at a minimum the number of licenses purchased and being used by Licensee. At its expense and with reasonable written notice to Licensee, ethosIQ or a third party appointed by ethosIQ may audit the books, records, and if necessary, the systems on which the Product or any Update is installed for the sole purpose of ensuring compliance with the terms of this Agreement. ethosIQ shall have the right to conduct follow-up audits as necessary. All audits shall be conducted during regular business hours at Licensee’s offices and shall not interfere unreasonably with Licensee’s activities. ethosIQ shall treat all such records and books as confidential information. If any audit reveals that Licensee has underpaid license or support fees, Licensee shall be invoiced for all such underpaid fees based on ethosIQ list price in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the fees previously paid by Licensee, then Licensee shall also pay ethosIQ’s reasonable costs of conducting the audit and enforcement of this Agreement.
10.1. ethosIQ may terminate this Agreement by written notice at any time if Licensee defaults in the performance of any provision of this Agreement and fails to cure such default to the satisfaction of ethosIQ within fifteen (15) days after such notice. This remedy shall not be exclusive and shall be in addition to any other remedies which ethosIQ may have under this Agreement or otherwise.
10.2. Any purported transfer or assignment of this Agreement or the licenses granted hereunder by Licensee or other action by Licensee in contravention of Section 2.9 above or any purported transfer or assignment of this Agreement or the licenses granted hereunder as a result of Licensee’s bankruptcy, insolvency, or liquidation or as a result of an assignment of Licensee’s assets for the benefit of creditors shall be void and this Agreement and the licenses granted hereunder shall thereupon automatically terminate without further notice or action by ethosIQ.
10.2. Within ten (10) days of the date of expiration or termination of this Agreement and/or any of the licenses granted hereunder, Licensee shall return all copies of the Products, including all Updates, and related Documentation to ethosIQ or, if requested by ethosIQ, destroy such Products, Updates and Documentation and certify in writing to such return or destruction.
11.1. Support and Maintenance. In all situations other than where you have licensed the Product on a subscription basis (as defined in Exhibit A), if ethosIQ offers support for the Product, and if Licensee orders and pays for such support, such support shall be provided in accordance with ethosIQ’s then current and applicable support policies. Where you have licensed and paid for use of the Product on a subscription basis, the support provided to you with such subscription-based use of the Product shall be in accordance with ethosIQ’s then current and applicable support policies.
11.2. Complete Agreement. THIS AGREEMENT, INCLUDING ANY EXHIBITS AND ANY LICENSE ADDENDUM(S) AND ORDER DOCUMENTS AS DEFINED HEREIN, CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCT AND SUPERSEDES ANY OTHER AGREEMENT, PROPOSAL, COMMUNICATION OR ADVERTISING, ORAL OR WRITTEN, SIGNED OR UNSIGNED, WITH RESPECT TO THE PRODUCT. To the extent there are any terms and conditions contained in Licensee’s purchase order or other documentation supplied by Licensee such terms and conditions shall be deemed to be stricken and the terms and conditions of this Agreement shall govern. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
11.3. Administrative. For administrative convenience, ethosIQ invoices may be issued by a local affiliate of ethosIQ.
11.4. English. This Agreement has been drawn up in English at the express wish of the parties. Este Acuerdo ha sido redactado en Inglés por deseo expreso de las partes. Le présent contrat a été rédigé en anglais à la demande expresse des parties. Any translation of this Agreement is done for local requirements and, in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern.
11.5. Governing Law and Venue. Except as otherwise expressly set forth herein, this Agreement is governed by the laws of Texas, without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal, state, local or foreign laws, regulations or conventions. Any dispute shall be brought in Houston, Texas in either state or federal court.
11.6. Modification. This Agreement may not be modified or amended except in a writing executed by both ethosIQ and Licensee.
11.7. Waiver. Failure or delay on the part of ethosIQ to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or of the same type of default on future occasions.
11.8. Disclaimer of UN Convention on Contracts. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
11.9. Local Law. If the Product is acquired outside United States, local law may apply.