License Agreement

LICENSE AGREEMENT TERMS AND CONDITIONS

ZeroNines® Technology, Inc. (“ZeroNines”) licenses ZeroNines’ downloadable ZERODOWN® software (as well as any updates ZeroNines may choose to furnish from time to time) and documentation (the software and documentation are referred to herein as the “Software”) to licensee (“Licensee”) only on the condition that Licensee accepts all of the terms in this License Agreement (the “Agreement”).

BY USE OF THE KEY PROVIDED, CLICKING “I AGREE”, DOWNLOADING THE SOFTWARE AND/OR USING THE SOFTWARE, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT.

1.0 DEFINITIONS.

When used in this Agreement, the capitalized terms listed below shall have the following meanings:

1.1 “Code” shall mean computer instructions.

1.1.1 “Object Code” shall mean Code, substantially or entirely in binary form, which is intended to be directly executable by a computer after suitable processing but without the intervening steps of compilation or assembly.

1.1.2 “Source Code” shall mean Code, other than Object Code, and related system documentation, comments and procedural Code such as job control language, which may be printed out or displayed in human readable form.

1.2 “Confidential Information” shall mean all materials that are, (1) are identified in writing as being as being confidential, or (2) by reason of their very nature or their use hereunder, would cause a person reasonably familiar with information technology businesses to believe they are confidential. For purposes of this Agreement, Confidential Information shall include, without limitation, the Licensed Software; those portions of the Documentation not intended for public release; non-public information about any of ZeroNines’ Intellectual Property Rights; operating and cost data; sales and pricing data; marketing, financial and other business plans; know-how; technology; inventions; lines of research and development, both previously undertaken and in process or planned, and the results thereof; identities of customers; third party proprietary information licensed to or in the possession of the parties; and special customer requirements. “Confidential Information” does not include information that is or becomes generally known to the public through no breach of a confidentiality obligation.

1.3 “Documentation” shall mean the materials provided by ZeroNines to Licensee, whether provided in hardcopy or electronic form, including not but limited to, reference guides, end-user, and installation manuals that describe the operation of the Licensed Software.

1.4 “Effective Date” is the date on which Licensee clicks “I Agree” and thereby enters into this Agreement.

1.5 “Intellectual Property Rights” shall mean any patents, patent applications, copyright, know-how, trade secrets, moral rights or other intellectual property rights.

1.6 “License Fee” shall mean the fee for the Licensed Software paid by Licensee to ZeroNines, or to ZeroNines’ authorized seller, and as specified in the applicable Sales Documentation for license of the Licensed Software.

1.7 “Licensed Software” shall mean the Object Code version of the ZeroNines ZERODOWN® software programs, as more specifically identified on the Sales Documentation, and any related Documentation, including any Release or Version supplied by ZeroNines under this Agreement.

1.8 “Licensee” shall mean that entity identified as the “Licensee” on the Sales Documentation, together with its affiliates, successors and assigns as permitted hereunder.

1.9 “Release” shall mean a version of the Licensed Software and/or related Documentation that improves performance or adds functionality and could be offered to customers for an additional charge, and is identified by the numeral to the left of the decimal point (e.g., 1.0). For example, Release 2.0 would be more current than Release 1.0.

1.10 “Sales Documentation” shall mean the documentation sent by email from ZeroNines to Licensee, which shall describe, inter alia, the License Fee, the maintenance term and the number of Web Apps and Zones for which the Licensed Software is licensed to Licensee. The Sales Documentation shall be made a part of this Agreement.

1.11 “User” shall means an individual using, or authorized to use, the Licensed Software.  A User must be an employee, temporary employee or contractor of Licensee who is authorized and named by Licensee to use the Licensed Software, and who is legally obligated, through written contract or by reason of his or her relationship to the Licensee, to comply with the Licensee’s obligations under this Agreement, and who is bound by a written confidentiality or non-disclosure agreement no less restrictive than the terms hereof.

1.12 “Version” shall mean an update of a Release that has incorporated incidental changes and is identified by the first numeral to the right of the decimal point (e.g., 1.1). For example, Version 2.2 would be more current than Version 2.1.

1.13 “Web App” shall mean a unique software program or application with which the Licensed Software is permitted to be used under this License Agreement.

1.14 “Zone” shall mean a unique server location from which the Licensed Software is permitted to be used under this License Agreement.

2.0  LICENSE TERMS.

The following license grant is subject to Licensee’s compliance with the terms of this Agreement, including without limitation, Sections 6.0, “Commercial Terms”, and 12.0, “Term and Termination.”

2.1 Internal Use License.  ZeroNines grants to Licensee a nonexclusive, nontransferable, and non-sublicensable license under its Intellectual Property Rights to install the Licensed Software on networked CPUs owned or controlled by Licensee, and to use, execute, display and perform the Licensed Software solely for Licensee’s internal business use. Use of the Licensed Software will be limited to the Web Apps and Zones as specified in the Sales Documentation.

2.2 Ownership. Except for any third party materials that may be provided with the Licensed Software, ZeroNines owns and shall own all right, title and interest, including title to its Intellectual Property Rights, in the Licensed Software. The Licensed Software is licensed to Licensee under this Agreement, not sold.

2.3 Additional Obligations and Restrictions. Licensee agrees:

(a) to allow only Users, as defined herein, to have access to and use the Licensed Software, and only for purposes in accordance with this Agreement;

(b) to use the Licensed Software only in accordance with the applicable Documentation, Sales Documentation and terms of this Agreement;

(c) to include on any copy of the Licensed Software all Intellectual Property Rights notices that are contained in such Licensed Software as provided by ZeroNines;

(d) to remove all copies of the Licensed Software from any computer that Licensee divests itself from;

(e) not to modify, reverse engineer, reverse compile or otherwise disassemble the Object Code of, or otherwise determine the Source Code for, the Licensed Software, except as may be specifically permitted hereunder without the possibility of contractual waiver;

(f) not to prepare or have prepared a Derivative Work of the Licensed Software;

(g) not to sell, license, sublicense, lend, lease, distribute or otherwise transfer the Licensed Software to any third party;

(h) not to make or have made any copies of the Licensed Software except as necessary in furtherance of Licensee’s rights and obligations under this Agreement;

(i) not to store the Licensed Software on any computer, network or server that can be accessed by other than a User, as defined herein;

(j) to destroy all outdated copies of a prior Release or Version of the Licensed Software;

(k) to protect the Licensed Software from any use, reproduction, publication, distribution or disclosure not specifically authorized by this Agreement.

(l) at ZeroNines’ request, to provide feedback to ZeroNines, by telephone or other electronic means, on the performance of the Licensed Software as needed to assist ZeroNines in implementing bug fixes and performance improvements to the Licensed Software.

2.4 Compliance.  Licensee understands and agrees that ZeroNines may monitor Licensee’s use of the Licensed Software, either through functionality built into the Licensed Software or otherwise, for the sole purpose of insuring compliance with this Agreement. ZeroNines will not access Licensee’s personal or business data in the process of such monitoring.

3.0 DELIVERY.  ZeroNines shall provide the Licensed Software and Documentation to Licensee by electronic delivery. Licensee shall be solely responsible for the installation of the Licensed Software, and any new Release or Version provided hereunder.

4.0 PROFESSIONAL SERVICES.  ZeroNines may provide professional services to Licensee in conjunction with this Agreement as mutually agreed upon by the parties. Such professional services may include training, installation, porting, custom development, etc., and shall be performed under the terms and conditions of a Professional Services Agreement executed by the parties. Work Orders executed by the parties under the Professional Services Agreement shall specify the scope of the professional services to be performed and the rates therefor.

5.0 SUPPORT SERVICES.

Subject to payment of the License Fee and the applicable support fees (“Support Fee”), ZeroNines will provide support for Licensee’s internal use of the Licensed Software (“Support Services”) for the time period specified in the Sales Documentation and in accordance with ZeroNines’ then-current support policies. Such policies may specify a third party to provide first-level support. The Support Fee for the first 12-month period following the Effective Date is included in the License Fee. For each 12-month period thereafter the Support Fee shall be eighteen percent (18%) of the License Fee, payable in advance. Except as may be otherwise provided in the Sales Documentation, ZeroNines may change the Support Fee for any upcoming 12-month support period by notice to Licensee at least thirty (30) days in advance of such support period.

6.0  COMMERCIAL TERMS.

6.1  Fees. All payments the License Fees, Support Fees, or other fees hereunder shall be in U.S. dollars and are non-refundable. Licensee agrees to pay in full any ZeroNines invoice for amounts due under this Agreement within thirty (30) days after the applicable invoice date.

6.2 Audits. Licensee shall maintain complete and accurate accounting records and other documentation to support Licensee’s compliance with this Agreement. Licensee’s records shall, at a minimum, include a description of all Users and systems on which the Licensed Software is running. Upon ZeroNines’ written request, Licensee agrees to promptly make such records and related documentation available to ZeroNines or a certified public accounting firm chosen and compensated by ZeroNines at a mutually agreed upon time and location during Licensee’s normal business hours for the purpose of auditing Licensee’s compliance with this Agreement. If an audit determines an underpayment of License Fees, or otherwise determines Licensee’s noncompliance with the terms and conditions of this Agreement, Licensee will promptly reimburse ZeroNines for any reasonable costs that it has incurred in performing such audit, in addition to any payment and interest amounts due ZeroNines under this Agreement.

6.3 Interest. Interest shall accrue on any overdue payment required to be paid under this Agreement until the time that payment in full has been received by ZeroNines. The interest rate shall be an annual rate equal to three (3) percentage points above the prime interest rate quoted by the head office of Citibank, N.A., New York, at the close of banking on the date a payment is due, or on the first business day after that date if such date falls on a non-business day, provided, however, that in no event shall this interest rate exceed the maximum legal rate where a claim for interest is being asserted.

6.4 Taxes. Licensee is liable for payments of any and all sales, use, value added, excise, withholding and similar taxes on payments under this Agreement (excluding taxes on ZeroNines’ net income), as well as property taxes, if any, on all Licensed Software and copies thereof licensed hereunder. Licensee shall not, under any circumstances, deduct any taxes for which it is responsible from any payment due and payable in accordance with Section 6.1 above.

7.0  LIMITED WARRANTY.

ZeroNines warrants that:

(a) The Licensed Software, when used as permitted under this Agreement and in accordance with the Documentation, will perform substantially in compliance with the Documentation for a period of sixty (60) days from the date the Licensed Software is first received by Licensee. ZeroNines does not warrant that use of the Licensed Software will meet Licensee’s requirements or that its operation will be uninterrupted or error free. ZeroNines’ sole obligation and liability for breach of this warranty shall be, at ZeroNines’ option and expense, to either (i) promptly replace the Licensed Software; or (ii) make commercially reasonable efforts to correct any reproducible error in the Licensed Software to place it in conformance with the Documentation; or (iii) if ZeroNines determines that it is unable to correct the error, refund to Licensee the fees actually paid by Licensee. In the event of a refund of fees, this Agreement and the rights licensed to Licensee hereunder will terminate.  ZeroNines shall have no liability for warranty claims regarding performance of the Licensed Software after the sixty (60) day period described above.

(b) The warranties set forth in this Section 7.0 are not applicable to claims arising out of: (i) alterations or modifications to the Licensed Software made by Licensee or anyone other than ZeroNines; (ii) Use of outdated Versions or Releases; (iii) malfunctions of Licensee’s computer systems; or (iv) combination, operation, or use of the Licensed Software with equipment, devices, or software not supplied by ZeroNines or approved by ZeroNines in the Documentation.

(c) EXCEPT AS SET FORTH EXPLICITLY HEREIN, ZERONINES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE LICENSED SOFTWARE AND DOCUMENTATION, EITHER EXPRESS OR IMPLIED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ZERONINES HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

8.0 INDEMNIFICATION.

8.1 ZeroNines Indemnity. ZeroNines shall defend and pay all damages, costs and attorneys’ fees finally awarded against Licensee in connection with any third party claim or suit brought against Licensee to the extent that such claim or suit is based on a claim that Licensee’s authorized use of the  Licensed Software in accordance with the terms of this Agreement infringes a United States patent issued as of the Effective Date, or a United States copyright, trademark or trade secret; provided that, Licensee notifies ZeroNines in writing of any such claim or suit promptly after Licensee first learns of it, and cooperates fully with ZeroNines, at ZeroNines’ expense, in connection with the defense thereof. ZeroNines shall have sole control of any such suit (including, without limitation, the right to settle on behalf of Licensee). If, as a result of any such claim, Licensee is enjoined from using the Licensed Software, or if ZeroNines believes that Licensee is likely to become the subject of such a claim, ZeroNines, at its option and expense, may (i) procure the right for Licensee to continue to use such software, (ii) replace or modify such software so as to make it non-infringing or (iii) in the event that, in ZeroNines’ sole discretion, (i) or (ii) are not commercially practicable, terminate this Agreement and refund to Licensee any payments of License Fees for the Licensed Software prorated based on a 10-year amortization period. Notwithstanding the foregoing provisions of this Section 8.0, ZeroNines will have no liability for any infringement claim of any kind to the extent it is based on (a) a modification of the Licensed Software other than those provided to Licensee by ZeroNines; (b) the use of the Licensed Software in combination with any product not intended by ZeroNines to be combined with such Deliverable; or (c) the use of the Licensed Software not in accordance with the Documentation. The foregoing states ZeroNines’ sole obligation, and Licensee’s sole remedy for any claim of infringement.

8.2 Licensee Indemnity. Licensee shall defend and indemnify and pay all damages, costs and attorneys’ fees awarded against ZeroNines in connection with any claim or suit brought against ZeroNines to the extent that such claim or suit is based on or otherwise results from (i) any of the events described in (a), (b), and (c) of Section 8.1 above; (ii) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Licensee relating to the Licensed Software; or (iii) any breach by Licensee of the terms and condition of this Agreement, including ZeroNines’ Intellectual Property Rights; provided that ZeroNines notifies Licensee in writing of any such claim or suit promptly after ZeroNines first learns of it, and cooperates fully with Licensee, at Licensee’s expense, in connection with the defense thereof. The person executing this click-wrap Agreement represents and warrants that he or she is an employee or agent of Licensee and has the full right, power and authority to enter into this Agreement on behalf of Licensee, that this Agreement has been duly authorized by Licensee, and that this Agreement will constitute the legal, valid and binding obligation of Licensee, enforceable against Licensee in accordance with its terms.  Licensee hereby agrees to indemnify and hold ZeroNines harmless from any and all claims, damages, losses and expenses (including, without limitation, attorneys’ fees) arising from any breach of this representation and warranty. LICENSEE AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY ZERONINES AGAINST ANY DAMAGES LICENSEE MAY SUFFER, OR ANY CLAIM BROUGHT BY A THIRD-PARTY, AS A RESULT OF LICENSEE’S USE OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO A CLAIM THAT LICENSEE’S USE VIOLATES ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW, RULE, REGULATION OR ORDER.

9.0  LIMITATION OF LIABILITY.

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ZERONINES OR ITS LICENSORS BE LIABLE TO LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF ZERONINES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ZERONINES DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL RUN UNINTERRUPTED OR ERROR-FREE, NOR THAT CERTAIN RESULTS MAY BE OBTAINED BY LICENSEE IN CONNECTION THEREWITH.  ANY BUSINESS DECISION MADE BY LICENSEE BASED UPON THE LICENSED SOFTWARE, OR ANY DATA OR INFORMATION GENERATED FROM SYSTEMS IMPLEMENTING THE LICENSED SOFTWARE, SHALL BE THE SOLE DECISION OF THE LICENSEE, AND ZERONINES WILL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR SUCH DECISION, THE IMPACTS OF SUCH DECISION, OR THE FINANCIAL IMPACTS THEREOF.  ZERONINES SPECIFICALLY DISCLAIMS ALL LIABILITY ARISING FROM (I) THE OPERATION OF ANY LICENSEE INFORMATION TECHNOLOGY OR INTERNET SITE, INCLUDING BUT NOT LIMITED TO LIABILITY ARISING FROM ONLINE COMMERCIAL TRANSACTIONS AND BREACHES OF SECURITY OR PRIVACY, AND (II) USE OF THE LICENSED SOFTWARE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THEIR FAILURE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE. IN NO EVENT SHALL ZERONINES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE LICENSE FEES ACTUALLY PAID BY LICENSEE PURSUANT TO THIS AGREEMENT.

10.0  CONFIDENTIALITY.

10.1 Licensee acknowledges and agrees that any Confidential Information of ZeroNines disclosed to Licensee hereunder shall be held in strict confidence in perpetuity by Licensee, and not disclosed to any third party.

10.2 Licensee represents, warrants and covenants to ZeroNines that Licensee has, or will have prior to any disclosure of information, written agreements in force with its employees and contractors to protect the Confidential Information of ZeroNines hereunder.

11.0 Publicity.

11.1 Neither party may announce the terms of this Agreement. Licensee agrees that ZeroNines may use Licensee’s name in its customer lists and marketing-related materials during the term of this Agreement, and that ZeroNines may identify Licensee as a customer on ZeroNines’ website. Licensee grants ZeroNines a limited license to use Licensee’s logo on ZeroNines’ website, subject to any requirements for such use that are submitted to ZeroNines in writing. Licensee agrees to participate in ZeroNines’ marketing programs, including a two-page case study for release at conferences, at least three (3) reference calls with ZeroNines prospects per year, and at least one (1) site visit with ZeroNines prospects per year.

12.0  TERM AND TERMINATION.

12.1 Term of Agreement. This Agreement shall be effective as of the Effective Date, and shall continue until terminated by either party in accordance with this Section 12.

12.2 Termination by Licensee. Licensee may terminate this Agreement upon thirty (30) days written notice to ZeroNines.

12.3 Termination by ZeroNines. Notwithstanding anything to the contrary, ZeroNines may terminate this Agreement immediately upon written notice, at ZeroNines’ sole discretion, for the following reasons:

12.3.1 Licensee becomes insolvent in any voluntary or involuntary bankruptcy proceeding or any other proceeding concerning insolvency, dissolution, cessation of operations, reorganization of indebtedness or the like and the proceeding is not terminated within sixty (60) days; or

12.3.2 Licensee makes use of the Licensed Software other than as specified in Section 2.0, “License Terms”; or

12.3.3 ZeroNines reasonably believes Licensee has, or has attempted to, reverse engineer, decompile or disassemble the Object Code of the Licensed Software provided under this Agreement; or

12.3.4 Licensee, in any other way, violates any of ZeroNines’ Intellectual Property Rights, or breaches its obligation to hold in confidence any confidential information.

12.4  Termination Effect. Upon termination or expiration of this Agreement for any reason, (i) any amounts owed to ZeroNines under this Agreement before such termination or expiration will be immediately due and payable, and (ii) Licensee will immediately cease using the Licensed Software and promptly destroy or return to ZeroNines all copies of such software, ZeroNines’ Confidential Information, and the Documentation.

13.0  GENERAL PROVISIONS.

13.1 Relationship. The relationship between the parties will be that of independent contractors. Nothing contained herein will be construed to imply a joint venture, principal or agent relationship, or other joint relationship, and neither party will have the rights, power or authority to create any obligation, express or implied, on behalf of the other.

13.2 Dispute Resolution. Except as provided in Section 13.10 in connection with a breach or threatened breach of the parties’ Intellectual Property Rights, in the event of any dispute under this Agreement, the parties expressly agree to attempt to resolve the dispute between the appropriate officers of each party before seeking judicial relief.

13.3 Governing Law; Jurisdiction. This Agreement will be governed in all respects by the substantive laws of the State of Colorado, United States of America, exclusive of its conflicts of laws rules. All disputes arising under or otherwise involving this Agreement shall be subject to the sole and exclusive jurisdiction of the state and federal courts located in Colorado, and both parties hereby submit to the personal jurisdiction of such courts. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

13.4 Attorneys’ Fees. In the event any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.

13.5 Assignment.  Licensee shall not assign any of its rights or obligations under this Agreement without ZeroNines’ prior written approval.

13.6 Waiver. Failure by any party to enforce any of its rights under this Agreement will not be deemed a waiver of any right which that party has under this Agreement.

13.7 Severability. If any term or provision of this Agreement is found to be invalid, illegal or unenforceable, it shall be construed or modified so as to be valid, legal and enforceable if possible as consistent with the parties’ intent, and the validity, legality or enforceability of the remaining terms and provisions will not in any way be affected or impaired thereby.

13.8 Export Compliance; Restricted Rights. Licensee agrees to comply strictly with all applicable U.S. and foreign export and import laws and regulations. Licensed Software may not be downloaded, or otherwise exported or re-exported into, or to a national or resident of, any country to which the U.S. has embargoed goods or (ii) any country on the U.S. Treasury Department’s list of Specifically Designated Nations or the U.S. Commerce Department’s Table of Denial Orders. Licensee hereby agrees to indemnify and hold ZeroNines harmless from and against any losses, damages, penalties or causes of action resulting from a violation of this Section. Any Licensee Product distributed by Licensee to or on behalf of the United States of America, its agencies and/or instrumentalities will be subject to the following: The Licensed Software have been developed entirely at private expense and are provided to licensee as “Commercial Computer Software” or “restricted computer software”. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in subparagraph I (1) (ii) of the Rights in Technical Data and Computer Software clauses in DFARS 252.227-7013 or as set forth in subparagraph I (1) and (2) of the Commercial Computer Software—Restricted Rights clauses at FAR 52.227-19, as applicable. The manufacturer is ZeroNines Technology, Inc., 450 East Happy Canyon Rd., Castle Rock, CO 80104.

13.9 Notices. Except as specifically provided herein, all notices required hereunder will be in writing and will be given by personal delivery, email, national overnight courier service, or by U.S. mail, certified or registered, postage prepaid, return receipt requested, to the parties at their respective addresses set forth above or in the Sales Documentation, or to any party at such other addresses as will be specified in writing by such party to the other parties in accordance with the terms and conditions of this Section. All notices will be deemed effective upon delivery, as evidenced by written receipt thereof.

13.10 Injunctive Relief. It is expressly agreed that a violation of the provisions of this Agreement relating to the protection of Confidential Information and Intellectual Property Rights will cause irreparable harm to the party whose rights are not protected, and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, such party will be entitled to an injunction or other equitable remedies in all legal proceedings in the event of any such threatened or actual violation.

13.11 Force Majeure. Except for the payment of monies due under this Agreement, neither party will be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communications, computer or utility failures, or casualties; provided that the delayed party: (i) gives the other party prompt written notice of such cause and (ii) uses its reasonable efforts to correct such failure or delay in its performance. The delayed party’s time for performance or cure under this Section 13.11 will be extended for a period equal to the duration of the cause or sixty (60) days, whichever is less.

13.12 Non-Solicitation.  During the term of this Agreement, and for a period of twelve (12) months after the termination hereof, neither party shall (without the prior written consent of the other) solicit the employment or services of any employee or contractor of the other party, or engage in the employment of, or contract for services with, such person, whether as an employee or consultant.

13.13 Survival. Any right or obligation that by its nature survives will survive any termination or expiration of this Agreement.

13.14 Entire Agreement; Amendment. This Agreement, including the Sales Documentation, reflects the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior and contemporaneous understanding or agreements between the parties, whether written or oral. This Agreement will not be amended, altered or changed except by written agreement signed by both parties. This Agreement may be executed electronically, and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. Any Licensee-issued purchase order shall be for convenience only, and its terms shall be inapplicable to the agreement of the parties hereunder.