ORCA MASTER LICENSE AGREEMENT
TERMS AND CONDITIONS
These Terms and Conditions, together with any Orders, and any other materials attached or incorporated by reference, constitute the entire agreement (the “Agreement”) between Trifectix, Inc. (dba Orca), having its principal place of business at 715 Discovery Blvd., Suite 411, Cedar Park, TX 78613 (“Orca”) and the customer specified in the Order (“Customer”), and apply to the Orca software product set forth in the Order, including code, object code, scripts, files, and any software-related files or code as made available by Orca, and any subsequent update Customer receives of the foregoing, together with any included documentation (collectively, the “Software”).
This Agreement is divided into three parts: Part I: Terms and Conditions Applicable to Trial Licenses; Part II: Terms and Conditions Applicable to Software Licenses; and Part III: General Terms and Conditions. ALL RIGHTS GRANTED TO CUSTOMER UNDER PART II WILL BE SUBJECT TO PAYMENT OF APPLICABLE FEES.
PART I: TERMS AND CONDITIONS APPLICABLE TO TRIAL LICENSES
- Trial License. Customer may enter into a Trial License (as defined below) for the Software subject to the terms and conditions of this Agreement by placing an order (“Trial Order”). Pursuant to the Trial Order, Orca hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive, royalty-free license to use the Software for the number of Managed Instances (defined below) set forth in a Trial Order in accordance with the accompanying documentation solely for Customer’s internal evaluation purposes (“Trial License”) for a period defined in the Trial Order and commencing on the effective date of the Trial Order (“Trial Period”). Once the Trial Period has expired, Customer will have the option to continue use of the Software through a purchased Subscription License or Perpetual License (both as defined below), otherwise the Trial License will expire and this Agreement will terminate and the terms of Part III, Section 9 (Term and Termination) below will apply with respect to such termination.
- Warranty Disclaimer. DURING THE TRIAL PERIOD, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
- Limitation of Remedies and Damages. DURING THE TRIAL PERIOD, NEITHER ORCA NOR ITS THIRD PARTY LICENSORS WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THE SOFTWARE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (a) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (b) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. NOTHING IN THIS PART I WILL LIMIT ORCA’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ORCA’S NEGLIGENCE OR ORCA’S LIABILITY FOR FRAUD. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY. NOTHING IN THIS AGREEMENT WILL LIMIT ORCA’S LIABILITY FOR (i) FRAUD OR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ORCA’S NEGLIGENCE OR (ii) WITH RESPECT TO ORCA’S OBLIGATIONS UNDER PART III, SECTION 5 (INDEMNIFICATION) BELOW. The provisions of this Agreement allocate the risks between Customer and Orca. Orca’s pricing reflects this allocation of risk and the limitations of liability specified herein
PART II: TERMS AND CONDITIONS APPLICABLE TO
- Applicability. The terms and conditions of this Part II will supersede the terms and conditions of Part I for Customer’s Orders of Subscription Licenses and/or Perpetual Licenses, and the terms and conditions of Part II will continue to apply.
- Orders. Customer will place orders for Subscription Licenses and/or Perpetual Licenses pursuant to a mutually executed order form between the parties (each, an “Order”).
- License Grant.
(a) If Customer has elected to license the Software for a limited subscription term, then subject to the terms and conditions of this Agreement, Orca grants Customer a non-sublicensable, non-transferable, non-exclusive license (“Subscription License”) for a limited term as set forth on the Order (“Subscription Term”) to use the Software provided hereunder for internal use only in accordance with the documentation provided with the Software for the number of Managed Instances set forth in an Order. Other license rights, terms and restrictions specified in the applicable Order are incorporated by reference into this Section 3. In the case of multiple Orders for Subscription Licenses with potentially overlapping Subscription Terms, Orca may adjust subsequent Orders to be coterminous with the initial Subscription License Order and pro-rate Subscription License Fees accordingly.
(b) If Customer has elected to license the Software for a perpetual term, then subject to the terms and conditions of this Agreement, Orca grants Customer a non-sublicensable, non-transferable, non-exclusive license (“Perpetual License”) for a perpetual term as set forth on the Order (“Perpetual Term”) to use the Software provided hereunder for internal use only in accordance with the documentation provided with the Software for the number of Managed Instances set forth in an Order. Other license rights, terms and restrictions specified in the applicable Order are incorporated by reference into this Section 3.
(a) All rights granted to Customer and obligations of Orca under this Part II will be subject to payment of applicable fees due upon the effective date of the Order (“Fees”). If an executed Order contains different payment terms, then those terms will apply. Except as set forth in Section 5 (Limited Warranty) of this Part II and Section 5 (Indemnification) of Part III below, all Fees due hereunder are nonrefundable. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Customer will pay all such taxes and duties, except for taxes payable on Orca’s net income. Except for invoices disputed in good faith, all past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law, beginning as of 15 days after the applicable due date.
(b) If at any time Customer is delinquent (including during any grace periods) in the payment of Fees or if Orca or any third party payment processor working on behalf of Orca cannot charge Customer’s credit card or other payment method for any reason, Orca may, in its sole discretion, terminate any Software licenses and other services related to such unpaid Fees. Customer expressly agrees that Orca and/or Orca’s third party payment processor is permitted to bill Customer for the applicable Fees, any applicable tax and any other charges Customer may incur in connection with the Software and services under this Agreement, and the Fees will be charged to Customer’s credit card or other payment method designated on Customer’s initial registration (as updated by Customer from time to time) with Orca. If Customer has a balance due on any account, Customer agrees that Orca and/or its third party payment processor may charge such unpaid fees to Customer’s credit card or other payment method or otherwise bill Customer for such unpaid Fees. Customer will pay all costs (including attorneys’ fees) incurred by Orca in collecting any unpaid Fees from Customer.
(c) Customer’s information collected by Orca or any third party payment processor working on behalf of Orca may include, without limitation, Customer’s credit card billing information. Orca or any third party payment processor working on behalf of Orca will use this financial information, including Customer’s name, address, and other information to bill Customer for use of the Software and services licensed and purchased under this Agreement. By making a purchase, or engaging in any other kind of activity or transaction that uses financial information on Orca’s website, Customer consents to Orca’s provision of Customer’s financial information to Orca’s service providers and to such third parties as Orca determines necessary to support and process Customer’s activities and transactions, as well as to Customer’s credit card issuer for its purposes. These third parties may include the credit card companies, data processing companies and banking institutions used to process and support Customer’s transactions or activities.
- Limited Warranty. Orca warrants for a period of 90 days from the earlier of (a) Customer’s download of the Software from Orca’s website or (b) the delivery to Customer of a download link for the Software and accompanying password or ID, if any (“Warranty Period”) that the Software will materially conform to Orca’s then-current user documentation for such Software. This warranty covers only problems reported to Orca during the Warranty Period. Any liability of Orca for a breach of the foregoing warranty will be limited exclusively to Software repair or replacement or, if repair or replacement is commercially impractical, refund of the Subscription License Fees or Perpetual License Fees, as applicable, paid for the Software. EXCEPT FOR THE FOREGOING, ALL SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, ORCA DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED.
- Limitation of Remedies and Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NEITHER ORCA NOR ITS THIRD PARTY SUPPLIERS WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (a) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO ORCA BY CUSTOMER WITH RESPECT TO THE SOFTWARE DURING THE SIX MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE, (b) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (c) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES; (d) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (e) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY. NOTHING IN THIS AGREEMENT WILL LIMIT ORCA’S LIABILITY FOR (i) FRAUD OR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ORCA’S NEGLIGENCE OR (ii) WITH RESPECT TO ORCA’S OBLIGATIONS UNDER SECTION 5 (INDEMNIFICATION) Part III BELOW. The provisions of this Agreement allocate the risks between Customer and Orca. Orca’s pricing reflects this allocation of risk and the limitations of liability specified herein.
- Support and Maintenance. Orca will provide Software support and maintenance services to Customer in accordance with Orca’s then-current standard Software Support and Maintenance Program (“Standard Support”), set forth at www.orcaconfig.com/support-terms during Orca’s business hours (a) at no additional charge for Subscription Licenses during the applicable Subscription Term, and (b) at Orca’s then-current annual rates for Perpetual Licenses. Premium Software Support and Maintenance (“Premium Support”) is available at an extra charge. Orca’s current Premium Support Program terms and conditions are available upon request. Standard Support and Premium Support are together referred to as “Support Services”. For each Perpetual License (i) Customer must purchase at least one year of Standard Support that will commence on the same date as the commencement of the corresponding Perpetual License, and (ii) if after the initial year of Support Services Customer elects to continue purchasing Support Services for the Perpetual Licenses, then Support Services must be purchased with respect to all of the Perpetual Licenses previously purchased by Customer and all Perpetual Licenses must be enrolled at the same level of Support Services. Orca may, where appropriate, prorate the annual Support Services fees so that Support Services for all licensed Software is renewable on the same date, even if all licensed Software was not ordered at the same time.
PART III: GENERAL TERMS AND CONDITIONS
- Managed Instance. Except when managing databases or WebSphere Application Server, the term “Managed Instance” means a single operating system, including but not limited to a fail over operating system, or a virtual (or otherwise emulated) operating system, on which the Software is installed. In the case of managing databases, a “Managed Instance” means a database schema. In the case of WebSphere Application Server, a “Managed Instance” means a configured java virtual machine (JVM).
(a) Each party acknowledges on its own behalf and on behalf of its officers, directors, employees, agents and consultants, and those of its affiliates (“Personnel”), that, during the term of this Agreement, it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) confidential and proprietary information relating to the Disclosing Party (“Proprietary Information”). The Software and the documentation and other business, technical and financial information disclosed by Orca to Customer will be considered Orca’s Proprietary Information. Business, technical and financial information disclosed by Customer to Orca will be considered Customer’s Proprietary Information. Proprietary Information will not include information that: (i) becomes public without breach of this Agreement by the Receiving Party or its Personnel, (ii) was previously and rightfully in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality, (iii) becomes known to the Receiving Party from a third party without restriction on use or disclosure and without a breach of a confidentiality obligation by such third party, and otherwise not in violation of the Disclosing Party’s rights, or (iv) was developed by the Receiving Party independently of, and without use or reference to, the Disclosing Party’s Proprietary Information. The Receiving Party will only permit access to Proprietary Information to those of its Personnel (A) who require access thereto for a purpose authorized by the Agreement and (B) who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.
(b) During and after the term of this Agreement, the Receiving Party will (i) hold the Disclosing Party’s Proprietary Information in confidence and use the same degree of care to protect the Disclosing Party’s Proprietary Information as it uses for its own Proprietary Information of like importance but in no event using less than a reasonable standard of care, (ii) not divulge any such Proprietary Information or any information derived therefrom to any third person except as authorized hereunder, (iii) not make any use of such Proprietary Information except to carry out its rights and obligations under this Agreement, and (iv) not copy (except as necessary to carry out its rights and obligations under this Agreement). During the term of this Agreement and for three years after its termination, neither party will disclose to any third party the specific terms of this Agreement (including any Orders) without first obtaining the written consent of the other party.
(c) The Receiving Party may disclose Proprietary Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; to the extent allowed by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party the opportunity to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement (i) on a confidential basis to legal or financial advisors, (ii) pursuant to a registration report or exhibits thereto required to be filed with the Securities and Exchange Commission, listing agency or any state securities commission, or any other associated filings, or (iii) on a confidential basis in connection with any financing transaction or due diligence inquiry.
- Restrictions. Except for one copy made solely for back-up purposes, Customer may not copy the Software. Customer must reproduce and include the copyright notice and any other notices that appear on the original Software on any copies and any media therefore. Customer will not (and will not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Software by any means whatsoever; (b) remove any Software identification, copyright or other notices; (c) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software to or for the benefit of third parties; (d) modify, incorporate into or with other software or create a derivative work of any part of the Software; (e) disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; or (e) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If Customer is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, and any related documentation of any kind, including technical data, licensed under this Agreement, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies. The Software and documentation licensed in this Agreement are commercial computer software and commercial computer software documentation. The use of the Software licensed under this Agreement is further restricted in accordance with the terms of this Agreement, or any modification thereto. The Software is licensed on the open market at market prices, and was developed entirely at private expense and without the use of any U.S. Government funds. Contractor/Manufacturer is Orca, Inc., 715 Discovery Blvd., Suite 411, Cedar Park, Texas 78613.
- Ownership. Customer’s rights in the Software will be limited to those expressly granted in this Agreement. Orca reserves all rights and licenses in and to the Software not expressly granted to Customer under this Agreement. The Software is licensed, not sold.
(a) Orca will defend, at its expense, any action brought against Customer to the extent that it is based upon a claim that the Software, as provided by Orca to Customer under this Agreement and used within the scope of this Agreement, infringes any third party copyright or trade secret or any U.S. patent, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by Orca in settlement, provided that Customer: (i) promptly notifies Orca in writing of the claim, (ii) grants Orca control of the defense and settlement of the claim, and (iii) provides Orca with assistance, information and authority reasonably requested by Orca for the defense and settlement of the claim. Customer may engage counsel of its choice at its own expense. Orca will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld), nor will Customer settle any such action without the written consent of Orca (which consent will not be unreasonably withheld).
(b) If Customer’s use of any of the Software hereunder is, or in Orca’s opinion is likely to be, enjoined due to the type of infringement specified in Section 5(a) above, or if a claim is brought against Customer due to the type of infringement specified in Section 5(a) above, then Orca may, at its sole option and expense: (i) procure for Customer the right to continue using such Software under the terms of this Agreement, or (ii) replace or modify such Software so that it is non-infringing and substantially equivalent or better in function to the enjoined Software, or (iii) if options (i) and (ii) above cannot be accomplished despite Orca’s commercially reasonable efforts, then Orca may terminate the Subscription License or the Perpetual License at issue and (A) if a Subscription License is at issue, then Orca will refund to Customer a pro-rata amount of the pre-paid Subscription License Fees for such Software corresponding to the portion of the then-current Subscription Term for such Software after the date of such termination; or (B) if a Perpetual License is at issue, then Orca will refund to Customer the unamortized portion of the Perpetual License Fees paid hereunder for such Software, based upon a straight-line three year depreciation commencing as of the date such Perpetual License was granted to Customer.
(c) Notwithstanding the terms of Section 5(a) above, Orca will have no liability for any infringement claim of any kind to the extent it results from: (i) software, equipment, devices, processes or materials not supplied by Orca, (ii) modification or alteration of the Software by Customer or any third party, without Orca’s express written authorization and direct supervision, (iii) the combination, operation or use of any Software supplied hereunder with equipment, devices or software not supplied by Orca to the extent such a claim would have been avoided if the Software were not used in such combination, (iv) Customer’s continuing such allegedly infringing activity after being informed by Orca and provided, at no additional charge, with modifications that would have avoided the alleged infringement, (v) Customer’s use of such Software in breach of this Agreement, or (vi) Customer’s use of the Software after the termination of the applicable Subscription Term or this Agreement.
(d) THE FOREGOING PROVISIONS OF THIS SECTION 5 SET FORTH ORCA’S SOLE LIABILITY AND OBLIGATIONS, AND CUSTOMER’S SOLE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE.
- High Risk Activities. The Software provided hereunder is not designed, manufactured or intended for use or resale in, or for incorporation into products or services used in, on-line control equipment in hazardous environments or high risk applications regarding fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, mass transit, patient care activities, or weapons systems, or in any other inherently dangerous applications in which the failure of the Software could lead directly to death, personal injury, or severe physical, property or environmental damage (“High Risk Activities”). Orca and its licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.
- Assignment. Except in connection with a change of control, change in majority ownership or the sale of all or substantially all of the assets of Customer, Customer will not assign or transfer any of Customer’s rights or obligations under this Agreement without the prior written consent of Orca. Any attempted assignment in violation of this section will be void. Orca may at any time and without Customer’s consent assign all or a portion of its rights and duties under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Open Source Licenses. Any open source software provided hereunder will be provided pursuant to such open source software license terms and conditions. The license terms associated with open source software require that Orca provide copyright and license information to Customer. A list of the open source software included in the Software or otherwise provided to Customer and applicable license terms is available at http://www.orcaconfig.com/open-source/. Any provisions in this Agreement which differ from any open source software license are offered by Orca alone and not by any other party. In no event will the third party open source providers be liable for any special, direct, indirect, or consequential damages or any damages resulting from loss of use, data, or profits, whether in an action of contract, negligence, or other tortious action, arising out of or in connection with the use or performance of the open source software even if Orca or these providers have been advised of the possibility of such damages and whether or not such losses or damages are foreseeable.
- Term and Termination. This Agreement is effective from the date Customer signed the Trial Order or the Order and will remain in force until terminated. The term of this Agreement with respect to a Trial License is the Trial Period specified in the Trial Order. With respect to a Subscription License under Part II above, the term of the Agreement will be for the agreed upon Subscription Term as set forth in the applicable Order. With respect to a Perpetual License under Part II above, the term of the Agreement will be a Perpetual Term. Unless otherwise set forth in an Order, or unless Customer provides at least 30 days’ advance written notice to Orca that Customer does not want to renew the Subscription Term, the Subscription Term will automatically renew at then-current Fees for the period of time equal to the original Subscription Term and Orca will charge Customer’s credit card for such renewal. If Orca is not able to charge Customer’s credit card for such renewal for any reason, then, Orca may terminate this Agreement without notice. Either party may terminate this Agreement immediately upon delivery of written notice for cause if the other party commits a breach of this Agreement including, but not limited to, non-payment and has not remedied such breach within 30 days of receipt of notice of such breach from the non-breaching party. Upon termination of this Agreement: (a) each party will promptly (within 15 days after termination) return to the other party or, at the other party’s request, destroy, such other party’s Proprietary Information in its possession or control and all copies and portions thereof, in all forms and types of media, and provide such other party with an officer’s written certification, certifying to its compliance with the foregoing, and (b) Customer will destroy all copies of the Software and documentation, and upon request, Customer will provide Orca with an officer’s written certification, certifying to its compliance with the foregoing. Except as otherwise expressly stated herein (i) termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party, and (ii) the rights and remedies of the parties to this Agreement are cumulative and not alternative. Part I Sections 2 and 3, Part II Sections 4, 5 and 6, and Part III Sections 1 – 11 of this Agreement will survive any termination hereof.
- Records and Inspection. Customer will conduct such internal audits as are reasonably required to verify continuing full compliance with this Agreement and maintain records with respect to any use restrictions (numbers of Managed Instances, etc.) under the applicable Order. Upon Orca’s request from time to time, as specified by Orca, Customer will either certify compliance with any use restrictions (numbers of Managed Instances, etc.) under the applicable Order, or allow Orca or its third party auditors to audit the number of Software copies made, used and/or deployed by Customer including, without limitation, compliance with any use restrictions (numbers of Managed Instances, etc.) under applicable Orders. If Orca notifies Customer that Orca will audit Customer’s use of the Software, then (a) the audit will take place during Customer’s regular business hours, (b) the auditors will not unreasonably interfere with the normal course of business, (c) the auditors will preserve the confidentiality of confidential information in accordance with applicable professional standards, and (d) the audit will be conducted at a mutually agreeable time only after reasonable prior notice of not less than 10 business days. Any such audit will not be conducted more than once per year unless Orca has reason to believe that Customer has made, used and/or deployed copies of the Software for which Customer has not paid applicable Fees. If a Customer self-certification or an audit discloses an underpayment of Fees, then Customer will promptly remit the amount of the underpayment of Fees and interest for past due amounts. Any such audit will be conducted at Orca’s expense unless an audit reveals an underpayment by Customer which exceeds 10% of the amount due by Customer in the period that is audited (which will not be less than a six-month period), in which event Customer will also reimburse Orca for the reasonable cost of the audit. This Section will survive for two years after termination of this Agreement.
- Miscellaneous. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of law provisions thereof and the parties hereby submit to exclusive jurisdiction and venue in the United States Federal District Courts located in Texas or any of the state courts located in Texas. Each party hereby agrees and consents to the personal and exclusive jurisdiction of said courts over it as to all such actions and further waives any claim that such action is brought in an improper or inconvenient forum. This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods. This Agreement, including all Orders and referenced documents, sets forth the entire understanding and agreement between Customer and Orca with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of the party granting such waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. The express waiver by either party of any provision of this Agreement will not constitute a waiver of any future obligation to comply with such provision. Any modifications of this Agreement must be in writing and signed by both parties hereto. For all purposes of this Agreement, each party will be and act as an independent contractor and not as partner, joint venturer, or agent of the other and will not bind nor attempt to bind the other to any contract. Any notice required or permitted hereunder will be in writing and will be deemed to have been effectively given: (a) immediately upon personal delivery or facsimile transmission to the parties to be notified, (b) one business day after deposit with a commercial overnight courier with tracking capabilities, or (c) three days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth in the related electronic order. If any provision in this Agreement is held invalid or unenforceable, then that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected. Neither party will be liable for any breach, or delay in performance, of its obligations under the Agreement if, and to the extent that the breach or delay is caused by an act of God, act of government, war, riot, civil disorder or act of terrorism, labor disputes, or other cause beyond its reasonable control. Any pre-printed, additional or conflicting terms stated on purchase orders or acknowledgements of Customer will be void and of no effect. English is the controlling language of this Agreement.