Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent by email (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next Business Day, if sent after the addressee’s normal business hours.
16.5. Headings.
The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
16.6. Entire Agreement.
These Terms, together with the Proposal, constitute the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in these Terms and the Proposal, these Terms govern. These Terms may not be modified except in writing and signed (including via electronic signatures) by authorized representatives of the Parties.
16.7. Force Majeure.
In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing these Terms, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) national or regional emergency; and (vii) a communication line failure; power failure or failure of the computer equipment on non-Licensor developed software. Either Party may terminate these Terms if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more.
16.8. Affected Party Obligations.
In the event of any failure or delay caused by a Force Majeure Event, we will give prompt notice to you stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.9. No Third-Party Beneficiaries.
These Terms are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
16.10. Amendment and Modification; Waiver.
No amendment to or modification of or rescission, termination, or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of these Terms and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
16.11. Severability.
If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify these Terms to effect the original intent of the Parties 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.
16.12. Governing Law; Submission to Jurisdiction.
These Terms are governed by and construed in accordance with the internal laws of the State of Colorado 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 Colorado. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Colorado in each case located in the city of [CITY] and County of Eagle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
16.13. Waiver of Jury Trial.
Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
16.14. Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5.7, Section 15, Section 10 of these Terms would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, 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.
16.15. Assignment.
You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Proposals) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you give us prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the Parties’ permitted successors and assigns.
16.16. Binding Arbitration.
In the event of any dispute between you and us regarding these Terms and/or any Products, each Party agrees to first send the other Party a notice of dispute, which is a written statement setting forth the name, address and contact information of the Party giving the notice, the facts giving rise to the dispute and the relief requested. The Parties agree to attempt to resolve any dispute through informal negotiation within 30 days from the date that the notice of dispute is sent. If the Parties are unable to resolve a dispute by negotiation, you agree that disputes must be resolved through binding arbitration rather than by a court, provided that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration and court review of an arbitration award is limited. It is important that you understand that the arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at [email protected] with “Arbitration Request” in the subject line. You may also contact us by mail at [mailing address & Attn: name/title]
16.17. Class Action Waiver.
You agree to arbitrate with us only in your sole capacity and not as a representative or member of a class or in any consolidated or representative proceeding. As such, your claims may not be joined with any other claims and there shall be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. For certain claims, like violations of these Terms or breaches of intellectual property obligations, we reserve the right to seek injunctive relief in a court of competent jurisdiction. All arbitrations shall be initiated at the AAA in Denver, CO.
