TERMS & CONDITIONS

THESE TERMS & CONDITIONS ARE A LEGAL AGREEMENT BETWEEN YOU AND OWL QUILL INSIGHTS, LLC (THE “LICENSOR”). BY USING THE SOFTWARE (DEFINED BELOW), YOU ARE AGREEING, ON BEHALF OF YOURSELF, AND ON BEHALF OF ANY ENTITY YOU WORK FOR OR REPRESENT (ANY SUCH ENTITY HEREAFTER COLLECTIVELY REFERRED TO AS THE “CUSTOMER”), TO BE BOUND BY THE TERMS HEREOF (THE “AGREEMENT”). TO THE EXTENT YOU WORK FOR OR REPRESENT A COMPANY, YOU FURTHER WARRANT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO ACT ON BEHALF OF, AND TO BIND, SUCH COMPANY. AS A RESULT, ALL REFERENCES TO “YOU” OR “YOUR” CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED TO MEAN YOU, AND IF APPLICABLE, ANY COMPANY YOU WORK FOR OR REPRESENT. CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING OR USING THE SOFTWARE. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT INSTALL OR USE THE SOFTWARE. ANY AMEDNMENT OR ADDENDUM TO THIS AGREEMENT MAY ACCOMPANY THE SOFTWARE.

1. Definitions. When used in this Agreement, the capitalized terms set forth below shall have the following meanings:

“Affiliate” shall mean and refer to, when used with reference to a specified party, any other party that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the specified party.

“Confidential Information” means the Software and the User Materials and, in its most expansive interpretation and usage, all proprietary or confidential information and data that concerns the Software, the User Materials, technology, systems, finances, personnel, operations, or other assets and activities of Licensor, including but not limited to: trade secrets; ideas; processes; formulas; systems; source codes; data programs; other original works of authorship; know-how; improvements; discoveries; developments; designs; inventions; techniques; performance, memory utilization or benchmarking data; marketing plans; training and education materials and sessions; new products; licenses; rates; prices; and costs and customer lists.

“Defects” means bugs or errors in the Software that cause the Software to fail to perform as described in the User Materials. “Defects” does not refer to bugs or errors in the Software caused by Customer or a third party, or any modification or alteration of the Software.

“End-Product” means any financial analysis or model that is generated by using the Software and/or User Material.

“End Users” means Customer’s authorized users of the Software, who shall all be employees of Customer, and as set forth in the Related Agreement attached hereto.

“Government Authority” means any international, supranational, national, federal, provincial, state, regional, municipal or local government, any instrumentality, subdivision, court, commission or other authority thereof, any quasi-governmental or private body exercising any regulatory, rule-making, expropriation, taxing or other governmental or quasi-governmental authority, in each case having jurisdiction or authority over: (a) Licensor and its Affiliates; (b) Customer and its Affiliates; or (c) the assets of the foregoing, referred to in the context in which the term is used.

“Intellectual Property Rights” means all patents, copyrights, trademarks, service marks, trade secrets and all similar and related intellectual property rights protected under any Law.

“Law” means any constitution, charter, statute, treaty, act, law, ordinance, regulation, code, rule, order, decree, permit, certification, approval, judgment, directive, ruling, decision, order, guideline, resolution or declaration of any Government Authority, or any interpretation or application thereof by any such Government Authority.

“Maintenance” means: (a) the creation and delivery to Customer of Minor Upgrades, from time to time and in Licensor’s sole discretion; and (b) the diagnosis of Defects in the Software and instructions as to the correction of such Defects by email, internet, phone or Patch Release.

“Minor Upgrade” means any Software release that includes bug fixes and new features to the Software but does not significantly change the Software.

“Patch Release” means any Software release that only includes bug fixes.

“Related Agreement” means the executed Software License Agreement between Customer and Licensor that, among other matters, addresses specific issues as to the license granted hereunder, including Licensor’s compensation.

“Software” means Licensor’s internet-based application and associated Microsoft Excel-based add-in software that enables users to augment the creation of financial analyses and models, as such software is modified by any Minor Upgrade and/or Patch Release.

“User Materials” means any documentation provided and licensed by Licensor to Customer that, among other things, describes: (a) the Software functionality, capabilities, procedures, Minor Upgrades, Patch Releases, customizations, screens, data and fields; or (b) how to implement and/or use the Software. User Materials may be provided in various forms, including paper, electronic media or in automated format (via the internet or other media.)

2. License. Licensor hereby grants solely to Customer a nonexclusive, non‑transferable, limited use license (without any further right to sublicense, distribute, transfer, transmit or commercially exploit (or attempt to commercially exploit) the Software for any purpose, without the prior written consent of Licensor), for the Term set forth below, for End Users to use the Software and User Materials solely for business purposes, subject to the terms, conditions and restrictions contained in this Agreement, including, without limitation, the following: the total number of End Users accessing the Software shall not exceed the number of End Users identified in this Agreement. Without limiting the generality of the foregoing, Customer shall not (a) permit persons other than End Users to install, access and/or use the Software, or (b) use the Software (or any part thereof) in breach of any applicable Laws, regulations or market conventions. Except for Maintenance services, in no event is Licensor required to provide Customer with any enhancements, updates, or upgrades to the Software; provided that, for the avoidance of doubt, all Maintenance services shall be in Licensor’s sole discretion. Customer represents and warrants to Licensor that there are the specified number of End Users as outlined in the Related Agreement.

3. User Materials. Licensor will provide Customer with an electronic copy of the User Materials after the Effective Date. Customer may make and distribute to End Users as many copies of the User Materials as is reasonably needed to utilize the Software. Under no circumstances may the User Materials be provided or distributed to anyone other than End Users unless otherwise approved in writing by Licensor (email being sufficient).

4. Term Of License. This Agreement, and any license to the Software granted under this Agreement, shall continue from the date hereof until the termination or expiration of the Related Agreement, subject to Licensor’s ability to terminate this Agreement and any license to the Software granted under this Agreement in accordance with the provisions of this Agreement (the “Term”). Licensor is not responsible for obsolescence of the Software that may result from changes in Customer’s requirements or changes in the software technology industry.

5. Fees. Customer understands that the license(s) granted to Customer under this Agreement is/are subject to Licensor receiving from Customer the requisite fees that are due to Licensor from Customer under the terms of the Related Agreement. Customer agrees to pay the fees pursuant to the terms and conditions outlined in the Related Agreement.

6. Taxes & Other Charges. Customer is responsible for all taxes based on or in any way related to this Agreement (excluding Licensor’s income taxes) and/or assessed by any Government Authority and associated with Customer licensing, installation, possession or use of the Software, including any use taxes, sales taxes, and state or local property or excise taxes. Additionally, the License Fees for the Software do not include the following payments or reimbursements for which Customer will be responsible (if applicable): (a) all expenses incurred in connection with this Agreement including but not limited to travel and living expenses, travel incidental expenses, printing costs, communication charges, and courier and postage services; (b) hardware and/or third party software needed to use the Software in connection with this Agreement; (c) any fees imposed upon Licensor by third parties due the action or fault of Customer; and/or (d) any fees earned by Licensor in connection with any Customer onsite trainings excluding an initial Software implementation training. Customer agrees to pay such fees and costs, when the services are rendered and as the expenses are incurred, within five (5) calendar days of being invoiced by Licensor. In no event shall such reimbursements to Licensor be withheld for any reason, including for any offsets or fee disputes.

7. Late Payment Charge. If any payment due to Licensor under this Agreement (including any License Fees), or otherwise owing by Customer to Licensor, is not paid when due, Licensor may, at its option, charge for its additional costs related to such delinquency at a rate of one and one-half percent (1¹/₂%) per month (eighteen percent (18%) per annum) or if such charges exceed such amounts permitted by applicable Law, the highest rate allowed by applicable Law, from the date such payment first became due until the same is paid to Licensor.

8. Maintenance. During the Term, and provided that: (a) Customer has paid the requisite License Fees and/or such other fees or charges that may be due Licensor from Customer under this Agreement; and (b) Customer has complied with the terms and conditions of this Agreement, Licensor shall provide, during normal business hours, reasonable Maintenance to Customer. Such Maintenance will be provided at no additional cost to Customer over and above the License Fees. Customer will supply by email to Licensor a detailed description of any Defect in respect of which Customer requires Maintenance, and the circumstances in which it arose, as soon as Customer become aware of the Defect. Licensor will provide commercially reasonable efforts to address any such Defect. All email, telephone and internet contact with Licensor shall be directed to the email address, telephone number or internet address identified by Licensor in Section 18 hereof.

Maintenance does not include the diagnosis and correction of any Defect resulting from: (a) the improper use, operation or neglect of the Software or the equipment upon which it is run; (b) the modification of the Software or its merger (in whole or in part) with any other software except as approved in writing by Licensor; (c) the failure by Customer to provide necessary remote access for Licensor to implement Minor Upgrades or Patch Releases or recommendations in respect of (or solutions to) Defects previously advised by Licensor; (d) any repair, adjustment, alteration or modification of the Software by any person other than Licensor without Licensor’s prior written consent; (e) the use of the Software for a purpose for which it was not designed; (f) rectification of lost or corrupted data arising for any reason; (g) loss or damage caused directly or indirectly by operator error or omission; (h) a fault in Customer or third party software or applications or any upgrade or new release in respect thereof; or (i) a fault in the equipment or in any other software operating in conjunction with or integrating with the Software.

Licensor reserves the right to cease any and all Maintenance in the event: (a) Customer is delinquent paying the License Fees or any other fee or charge that is due and payable to Licensor under this Agreement; or (b) Customer violates or breaches any of the terms and conditions contained in this Agreement.

Licensor assumes responsibility for versions, Minor Upgrades and Patch Releases of the Software that have been superseded by later versions, Minor Upgrades or Patch Releases of the Software only if Customer provides the necessary remote access. Customer is at sole risk if new versions, Minor Upgrades or Patch Releases cannot be installed and used due to insufficient access.

9. Customer Responsibilities. In addition to Customer’s other obligations, agreements and responsibilities set forth in this Agreement, unless otherwise agreed by Licensor in writing, Customer agrees to be responsible for the following:

   1. selecting and training End Users so they can operate computers, mobile devices and related systems, and so they are familiar with the information that serves as input and output for the Software;

   2. procuring all data transfer devices (e.g., USB sticks) and other hardware, and all related and necessary third-party software, as well as all communications and network services (including all cabling and cabling services) required to utilize the Software locally and/or remotely in accordance with the terms of this Agreement;

   3. all data entry and loading;

   4. establishing and maintaining adequate operational back-up and disaster recovery provisions for Customer data in the event of a defect or malfunction that renders the Software non-operational;

   5. providing Licensor’s personnel with the necessary physical access to Customer facilities, during normal working hours and as otherwise may be required by Licensor to allow Licensor to perform its obligations under this Agreement. Licensor will use reasonable efforts to comply with all reasonable security and safety procedures of which Customer has advised Licensor in writing; and

   6. determining whether the Software will achieve the results that Customer desires.

10. Property Rights. Customer acknowledges that as between Licensor and Customer: (a) Licensor owns the full right, title and interest in and to the Software, the User Materials and any other Confidential Information and all copies thereof (collectively, “Licensor’s Property”), including all associated Intellectual Property Rights, and any and all alterations, adaptations, modifications, changes to the Licensor’s Property or derivative works based thereon, whether created by Customer or Licensor or their respective agents; (b) all right, title and interest in and to the Licensor’s Property and all copies thereof, including all associated Intellectual Property Rights, and any and all alterations, adaptations, modifications, changes to the Licensor’s Property or derivative works based thereon, whether created by Customer or Licensor or their respective agents, are, and shall at all times remain, the exclusive property of Licensor; and (c) Customer shall have no right or interest as to the Licensor’s Property, including any Intellectual Property Rights, or any alterations, adaptations, modifications, changes to the Licensor’s Property or derivative works based thereon whether created by Customer or Licensor or their respective agents, except as a licensee as expressly set forth in this Agreement.

This Agreement does not provide Customer with any title, interest or ownership in or any right to use Licensor’s name, trademarks or logo, or any goodwill now or hereafter associated therewith, all of which title, interest, ownership and goodwill is the property of and shall inure exclusively to the benefit of Licensor.

11. Limitations on Use, Etc. Notwithstanding any other provision of this Agreement, Customer shall not: (a) reproduce, record, videotape, capture in electronic, audio or video form, distribute, transmit, transfer, or disclose, directly or indirectly, in any form, by any means, or for any purpose, the Confidential Information, except Customer may disclose such Confidential Information to Customer employees who need to know such information in the performance of their job if they have been advised of the obligations of confidentiality set forth herein and have agreed to abide by same; (b) disclose or disseminate Confidential Information to any third party; (c) copy, modify, or distribute the Software (electronically or otherwise) or the User Materials, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor in this Agreement, or in a separate written agreement signed by a duly authorized representative of Licensor; (d) use the Software for any purposes in any manner not permitted under this Agreement; (e) decompile, reverse assemble or otherwise reverse engineer the Software; (f) sell, transfer, lease, assign, or sublicense Customer’s Software license without Licensor’s prior written consent and payment of a new License Fee; (g) distribute, transmit, transfer, or disclose, directly or indirectly, in any form, by any means, or for any purpose, any performance, memory utilization or benchmarking data arising from the use of, regarding or otherwise associated with the Software in any way, without the express written consent of Licensor, in its sole discretion; (h) sell, transfer, lease, assign, sublicense, distribute, transmit, transfer, or disclose, directly or indirectly, in any form, by any means, or for any purpose, any End-Product; or (i) take any other action in derogation of Licensor’s Intellectual Property Rights in respect of the Software, User Materials or other Confidential Information.

12. Warranties. Licensor grants Customer a limited warranty that: (a) Licensor possesses all rights and interests in the Software necessary to enter into this Agreement; and (b) Licensor has full authority to execute and perform this Agreement. Licensor does not warrant that the Software will meet Customer requirements, that the operation of the Software will be uninterrupted or error-free, or that all Software errors can be corrected. The Software is provided “AS IS.”

Customer warrants that: (a) Customer’s execution of this Agreement will not violate the terms of any pre-existing agreement(s) between Customer and a third party; (b) Customer has full power and authority and is duly authorized to execute and perform the financial and nonfinancial obligations under this Agreement; and (c) if Customer is anything other than an individual signing on Customer’s own behalf, Customer has taken all of the necessary corporate action(s) in order to authorize and ratify Customer’s execution and delivery of this Agreement and Customer’s performance under the Agreement.

OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 12, LICENSOR DOES NOT MAKE OR PROVIDE ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS TO CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO THE SOFTWARE, THE USER MATERIALS, OR ANY UPGRADES OR RELEASES, INTERFACES, SERVICES OR WORKS OF AUTHORSHIP PROVIDED HEREUNDER, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

LICENSOR PROVIDES NO WARRANTY ON ANY HARDWARE OR THIRD‑PARTY SOFTWARE, AND LICENSOR WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE, THIRD PARTY SERVICES AND/OR HARDWARE.

13. Limitation Of Liability; Exclusion Of Consequential Damages. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL LICENSOR OR ANY OF LICENSOR’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST PROFITS OR REVENUES, LOST DATA OR LOST OPPORTUNITIES, IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE OR ANY HARDWARE, THIRD-PARTY SOFTWARE AND/OR SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF LICENSOR HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES, CONSULTANTS, VENDORS, SUPPLIERS AND AGENTS BE LIABLE, ALONE OR IN THE AGGREGATE, TO CUSTOMER FOR ANY DAMAGES, CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, LOSSES, COSTS, EXPENSES AND/OR LIABILITIES RELATED IN ANY MANNER TO THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO THE LICENSE FEES PAID BY CUSTOMER, REGARDLESS OF WHETHER SUCH LIABILITY ARISES OUT OF BREACH OF CONTRACT, GUARANTEE OR WARRANTY, TORT, PRODUCT LIABILITY, INDEMNITY, CONTRIBUTION, STRICT LIABILITY OR ANY OTHER LEGAL THEORY.

Customer represents and warrants to Licensor that Customer is a sophisticated purchaser and acknowledges and agrees that the allocation of risks in this Agreement is reflected in the License Fees, that Licensor is unable to test the Software under all possible circumstances, that Licensor cannot control the manner in which Customer uses the Software, and that the allocation of risks under this Agreement is reasonable and appropriate under the circumstances.

14. Indemnification. Licensor shall indemnify, defend and hold harmless Customer, its Affiliates and their respective officers, directors, employees, agents, successors and assigns (for purposes of this paragraph collectively referred to as, the “Customer Indemnitees”) from and against all losses, damages, costs or liabilities of any kind (including court costs and reasonable attorneys’ fees) arising from, in connection with or relating to a third party claim that Customer’s use of the Software in accordance with the terms of this Agreement infringes such third party’s Intellectual Property Rights. The foregoing indemnity shall not apply in respect of any claim, loss, damages, or liabilities (or expenses related thereto) resulting or alleging to result from: (a) any combination, operation, or use of the Software with any programs, equipment or hardware not supplied by Licensor; (b) the adaptation or modification of the Software, where such infringement would not have occurred but for such adaptation or modification; (c) the use by Customer of the Software in a manner for which it was not designed or intended or which is not permitted under this Agreement, where such infringement would not have occurred but for such use; and (d) gross negligence, bad faith, or willful misconduct of the Customer or any End User.

If Customer’s use of the Software is subject to the type of infringement claim specified in the preceding paragraph, Licensor may, at its sole option and expense: (a) procure for Customer the right to continue using the Software under the terms of and consistent with the meaning of this Agreement; (b) replace or modify such infringing Software so that it is non-infringing; or (c) if options (a) and (b) cannot be accomplished, then Licensor may terminate Customer’s rights and Licensor’s obligations hereunder with respect to the Software.

Customer shall indemnify, defend and hold harmless Licensor, its Affiliates and their respective officers, directors, employees, agents, successors and assigns (for purposes of this paragraph collectively referred to as the “Licensor Indemnitees” and collectively with Customer Indemnitees, the “Indemnified Person(s)”) from and against all losses, damages, costs or liabilities of any kind (including court costs and reasonable attorneys’ fees) arising from, in connection with or relating to (a) any use or misuse of the Software by Customer or Customer’s employees, and/or (b) any claims of product liability, personal injury (including, but not limited to, death), damage to property or violation of any Laws or regulations caused by Customer or Customer’s employees.

Promptly after receipt by an Indemnified Person of any written claim or notice of any action giving rise to a claim for indemnification by an Indemnified Person, the Indemnified Person shall so notify the indemnifying party and shall provide copies of such claim or any documents relating to the action. No failure to so notify the indemnifying party shall relieve the indemnifying party of its obligations under this Agreement except to the extent that the failure or delay is materially prejudicial to the indemnifying party’s defense of such claim. Within thirty (30) days following receipt of such written notice, but in any event no later than ten (10) days before the deadline for any responsive pleading, the indemnifying party shall notify the Indemnified Person in writing (a “Notice of Assumption of Defense”) if the indemnifying party elects to assume control of the defense and settlement of such claim or action.

If the indemnifying party delivers a Notice of Assumption of Defense with respect to a claim within the required period, the indemnifying party shall have sole control over the defense and settlement of such claim; provided, however, that: (a) the Indemnified Person shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim; (b) the indemnifying party shall obtain the prior written approval of the Indemnified Person, which shall not be unreasonably withheld, before entering into any settlement of such claim or ceasing to defend against such claim; and (c) the Indemnified Person shall cooperate, and at the indemnifying party’s request and expense, assist in such defense. After the indemnifying party has delivered a timely Notice of Assumption of Defense relating to any claim, the indemnifying party shall not be liable to the Indemnified Person for any legal expenses incurred by such Indemnified Person in connection with the defense of such claim; provided that the indemnifying party shall pay for separate counsel for the Indemnified Person to the extent that conflicts or potential conflicts of interest between the parties so require. In addition, the indemnifying party shall not be required to indemnify the Indemnified Person for any amount paid by such Indemnified Person in the settlement of any claim for which the indemnifying party has delivered a timely Notice of Assumption of Defense if such amount was agreed to without the indemnifying party’s prior written consent, which shall not be unreasonably withheld or delayed in the case of monetary claims. If the indemnifying party does not deliver a Notice of Assumption of Defense relating to a claim within the required notice period, the Indemnified Person shall have the right to defend the claim in such a manner as it may deem appropriate, at the indemnifying party’s sole cost and expense, in which case the indemnifying party shall promptly reimburse the Indemnified Person for all such costs and expenses upon written request therefor.

15. Default; Termination. Should Customer fail to carry out any obligation under this Agreement, or otherwise be in breach or violation of or in default under any provision, term, agreement, covenant, representation or warranty under this Agreement, or should Customer file for bankruptcy or protection from Customer’s creditors, Licensor may, at its option, in addition to other available remedies, terminate this Agreement, discontinue any Maintenance services under this Agreement, and/or disable the Software.

16. Effect of Termination. Termination of this Agreement also terminates Customer’s license(s) to the Software and User Materials. Upon termination of this Agreement for any reason, Customer is required to immediately return or destroy, as requested by Licensor, all copies of Confidential Information in Customer possession (whether modified or unmodified). Customer agrees to certify, in writing, Customer’s compliance with such requirement upon request by Licensor. In the event of an early termination of this Agreement for any reason, Licensor has no obligation to return any fees or charges (including License Fees) paid by Customer under the terms of this Agreement, all of which shall be deemed to have been earned at or prior to the date of payment.

17. Rights to Injunctive Relief. Recognizing and acknowledging that any use or disclosure of the Software and/or other Confidential Information by Customer in a manner inconsistent with the provisions of this Agreement may cause Licensor irreparable harm for which other remedies may be inadequate, Customer agrees that Licensor shall have, in addition to all other rights and remedies it may have hereunder or under applicable Law, the right to immediate injunctive and/or other equitable relief from a court of competent jurisdiction as may be necessary and appropriate to prevent any unauthorized use or disclosure of any Software, User Materials and/or other Confidential Information, or other violations of this Agreement (without bond or requirement for proof of actual or likely damages) and that, in connection therewith, Customer shall not oppose such injunction on the grounds that an adequate remedy is available at Law.

18. Notices. All notices or communications required to be given shall be in writing and delivered by email to Customer’s email address specified in the Related Agreement or, for Licensor, to Licensor’s email address specified in the Related Agreement. All notices shall be effective upon delivery.

19. Governing Law, Jurisdiction and Venue. This Agreement is made under, and in all respects shall be interpreted, construed and governed by, and in accordance with, the Laws of the State of New York, without reference to the choice of Law principles thereof (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law). The Parties hereto each consent to the exclusive jurisdiction and venue of any state or federal court within the City of New York, New York for adjudication of any suit, claim, action or other proceeding at Law or in equity relating to this Agreement, or to any transaction contemplated hereby. The Parties hereto each accept, generally and unconditionally, the exclusive jurisdiction and venue of the aforesaid courts and waive any objection as to venue, and any defense of forum non conveniens.

20. Modifications and Waivers. This Agreement may not be modified except by a written agreement signed by authorized representatives of both Parties. A waiver by either Party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the Party waiving its rights. The nonenforcement or waiver of any provision or right under this Agreement shall not constitute or imply a waiver of such provision or right on any other occasions unless expressly so agreed in writing. It is agreed that no custom, usage or other regular practice or method of dealing between the Parties hereto shall be used to modify, supplement or alter in any manner the terms of this Agreement.

21. Relationship of Parties. This Agreement shall not be construed to create any employment, partnership, joint venture or agency relationship between the Parties hereto, or to authorize Customer to enter into any commitment or agreement with any third party that is binding on Licensor.

22. Binding Effect. This Agreement shall be binding upon the Parties’ respective legal representatives, transferees, successors, and permitted assigns. Customer may not, directly or indirectly, sell, assign, sublicense, lease, rent, distribute, or otherwise transfer the license granted hereunder, this Agreement, or any rights or obligations under this Agreement, to any other person or entity, unless Customer first obtains the written consent of Licensor.

23. Force Majeure and Other Performance Delays. Licensor shall not be liable for failure to perform any of its obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, act or threat of terrorism, shortage of materials and/or supplies, strike or labor action, war or threat of military or significant police action, or natural disaster or other cause beyond Licensor’s reasonable control. Customer delays or non-performance shall not excuse or relieve Customer’s obligation to make any payment to Licensor that may be due under this Agreement, regardless of whether or not Customer is using the Software.

24. Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred by such Party.

25. Severability. If any provision of this Agreement is declared invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable Law.

26. Customer Cooperation. Customer consents to the public use by Licensor of Customer’s name and logo as a customer of Licensor.

27. Obligations That Survive Termination. The Parties recognize and agree that the termination, cancellation or expiration of this Agreement does not excuse the Parties from complying with their respective payment, confidentiality, nondisclosure, and non-transfer obligations under this Agreement. Nor does the termination, cancellation or expiration of this Agreement affect any limitations, rights upon default, or provisions regarding litigation or interpretation of this Agreement.

28. Uniform Commercial Code. To the extent the Uniform Commercial Code of any jurisdiction applies to this Agreement, this Agreement shall control where there is a conflict between the Uniform Commercial Code and this Agreement.

29. Ambiguities. Each Party and its counsel have materially participated in the drafting of this Agreement, and consequently the rule of contract interpretation that ambiguities, if any, in the writing be construed against the drafter shall not apply.

30. Export Regulations. Customer acknowledges that the Licensor’s Property and any direct products thereof may be subject to United States export Laws, statutes and regulations, and that Customer will at all times comply with the provisions of such Laws, statutes and regulations, including obtaining any necessary or required licenses. Customer shall not export or re-export or otherwise transmit, directly or indirectly, the Licensor’s Property or any direct products thereof into, or use the Licensor’s Property or any direct products thereof in, any country prohibited or restricted under United States export Laws, statutes or regulations or any other applicable Laws.

31. Remedies. All rights and remedies hereunder for Licensor’s benefit shall be cumulative with and in addition to all other rights and remedies available in Law and in equity.

32. Entire Agreement. Each Party acknowledges that it has read and understood this Agreement and agrees to be bound by its terms, and that this Agreement is the complete and exclusive agreement of the Parties with respect to the Software and the User Materials. This Agreement: (a) contains the entire understanding between the Parties with respect to the subject matter set forth herein, and neither Party is relying on any representations or warranties other than those found in this Agreement; (b) supersedes all prior and contemporaneous negotiations, agreements, contracts, commitments and understandings, both verbal and written, between Customer and Licensor; and (c) does not operate as an acceptance of any conflicting terms or conditions, and shall prevail over any conflicting provisions, of any purchase order, request for proposal, request for information or any other instrument of Customer. Customer understands that the headings used in this Agreement are solely for convenience of reference and are not intended to have any substantive significance in interpreting this Agreement.