HEADLIGHT TECHNOLOGIES, INC. LICENSE AGREEMENT
NOTICE: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT BEFORE CLICKING “I AGREE TO THE TERMS & CONDITIONS” ON THE LOG-IN PAGE. CLICKING “I AGREE TO THE TERMS & CONDITIONS” ON THE LOG-IN PAGE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS LICENSE, DO NOT CLICK “I AGREE TO THE TERMS & CONDITIONS” ON THE LOG-IN PAGE.
HeadLight Technologies, Inc. has developed and is the owner of a certain web-based software as a service application (the “Service,” as further defined below), which it provides as part of its Headlight system. HeadLight Technologies, Inc. enters into agreements with third party organizations (which may include state and local governmental agencies, departments and authorities, as well as private businesses (each an “Organization”)) that authorizes certain employees and contractors of the relevant Organization to use the Service for purposes of managing and inspecting the Organization’s construction, environmental, maintenance, infrastructure, and similar projects (collectively, “Projects”). Among other things, the Service permits users to create, use, access and transmit reports and other information and content (“Project Data”) regarding Projects (“Project Data”), thereby allowing Projects to be managed and supervised more efficiently.
THIS HEADLIGHT TECHNOLOGIES, INC. LICENSE AGREEMENT (“Agreement”) is a legal agreement between you (“User”) and HeadLight Technologies, Inc. (“HeadLight”), and governs your use of the Service. The terms of this Agreement also apply to any updates, supplements, and/or support services (if any) for the Service, unless other terms accompany those items. If so, those terms apply.
By clicking “I AGREE TO THE TERMS & CONDITIONS” ON THE LOG-IN PAGE, you agree to be bound by the terms of this Agreement. If you accept the TermS of this agreement, you have the following rights and responsibilities:
- Definitions. In addition to any other defined terms set forth herein, the following capitalized terms will have the meanings set forth below:
1.1. “Project Data” means all data, reports, images, notes, drawings, sketches and other content regarding a Project that is** **uploaded to, stored on, processed using, transmitted through, or otherwise accessed using the Service by or on behalf of User or by any person or application or automated system using User’s User Account (defined below).
1.2. “Documentation” means the documentation produced and supplied by HeadLight to User and/or made available on the Service specifying how the Service should be used.
1.3. “Intellectual Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents and industrial property rights; (e) other proprietary rights in intellectual property of every kind and nature; (f) all registrations, renewals, extensions, continuations, divisions, or reissues of, and applications for, any of the rights referred to in clauses (a) through (e) above; and (g) rights to require information be kept confidential.
1.4. “Permitted Purpose” means the use of the Service by Authorized Users in connection with Projects.**
1.5. “Service” means HeadLight’s proprietary software as a service web application that is owned and operated by HeadLight and/or its licensors, and that is made available for use by User pursuant to the terms and conditions of this Agreement.
1.6. “Term” shall have the meaning set forth in Section 10.1 below.
1.7. “Upgrades” means new versions of, and updates to, the Service, whether for the purpose of fixing an error, bug or other issue in the Service or enhancing the functionality of the Service.
- Organization Agreement.
2.1 Authorized User. User’s use of the Service is as a result of an agreement entered into between the relevant Organization and HeadLight (the “Organization Agreement”) which, among other things, authorizes certain employees and/or contractors designated by the Organization to access and use the Service (“Authorized Users”). Accordingly, the Service is for use by Authorized Users only. User acknowledges and agrees that User would not be permitted to use the Service except for User’s status as an Authorized User, and User represents and warrants to HeadLight that User is, and shall at all times during the Term remain, an Authorized User. User further acknowledges and agrees that User’s obligation to maintain User’s status as an Authorized User is, in addition to any and all other forms of consideration between the parties, sufficient consideration to support the parties’ mutual obligations and responsibilities under this Agreement.
2.2 Interpretation. With respect to any obligations or responsibilities owed by HeadLight to the relevant Organization under the Organization Agreement, this Agreement shall at all times be construed and interpreted consistently with the terms and conditions of the Organization Agreement, provided that, in the event of a direct conflict between the terms of this Agreement and the terms of the Organization Agreement, the terms and conditions of the Organization Agreement shall control.
3.1 During the Term and subject to the terms and conditions of this Agreement, including without limitation, the restrictions and prohibitions set forth in this Section 3, HeadLight hereby grants to User a nonexclusive, nontransferrable (except as authorized herein), nonsublicensable, limited and terminable license to: (a) access and use the Service solely for the Permitted Purpose via any standard web browser and in strict accordance with the Documentation; and (b) download a copy of any Documentation made available through the Service, solely in connection with User’s use of the Service for the Permitted Purpose.
3.2 User agrees that the license rights granted in Section 3.1 above are subject to the following limitations (in addition to any other limitations or restrictions set forth in this Agreement):
(a). User hereby acknowledges and agrees that: (i) the Service contains proprietary Intellectual Property Rights that are protected by applicable laws; and (ii) HeadLight, its licensors and/or other third parties own the Intellectual Property Rights contained in the Service. User shall not take any action in connection with the Service in violation of or that is inconsistent or contrary to HeadLight’s and/or its licensors’ proprietary rights in the Service;
(b). User agrees that: (i) it will not, either directly or indirectly, take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Service, or otherwise access or attempt to access any portion of the Service which User is not authorized to access; and (ii) it will use reasonable care in maintaining the confidential nature of all non-public Intellectual Property Rights in the Service and/or other Confidential Information;
(c). User may make copies of the Documentation as reasonably necessary for User to use the Service for the Permitted Purpose. User agrees that it will retain all trademark notices, copyright notices, other proprietary notices and other legends contained in or on the Documentation and on all copies thereof and may not remove, obscure or alter any of the foregoing. User may not otherwise copy, alter, modify or make derivative works of the Documentation in any other manner;
(d). User is prohibited, either directly or indirectly, from copying, selling, licensing, distributing, transferring, modifying, adapting, translating, creating derivative works of or from, disassembling, decompiling, reverse engineering or otherwise attempting in any way to determine how the Service works, including without limitation, by attempting to derive any source code from the Service or any functions or features of the Service;
(e) User shall not rent, lease, assign, time-share, or transfer any rights to use the Service, pledge as security or otherwise encumber any such rights, or otherwise permit third parties to display, use, or access the Service without the prior written consent of HeadLight;
(f) User shall not use the Service and/or the Documentation for any purpose: (i) that infringes any Intellectual Property Rights or other proprietary rights or rights of publicity or privacy; (ii) that violates any law, statute, ordinance or regulation; (iii) that is defamatory, libelous, unlawfully threatening or unlawfully harassing; or (iv) other than the Permitted Purpose or as otherwise expressly authorized herein.
(g) User may not use the Service in any manner that could damage, disable, overburden, or impair the Service (or any servers or networks connected to thereto), nor may User use the Service in any manner that could interfere with any other party’s use and enjoyment of the Service (or any servers or networks connected thereto).
- Use of the Service.
4.1 Project Data. In accessing and/or using the Service, User may store, access, process and/or transmit certain Project Data. User hereby acknowledges and agrees that the following terms and conditions shall apply to Project Data (in addition to any other terms and conditions applicable to the Project Data set forth elsewhere in this Agreement):
(a). User shall be solely responsible for its day-to-day use of and access to the Service, including without limitation, the accuracy and inputting of any and all Project Data transmitted, accessed, processed and/or stored through the Service. Neither HeadLight nor the Service (or any service or system associated therewith) alters or modifies Project Data in any way, other than changes or modifications to the Project Data necessary for the Service to store, transmit, provide access to, or otherwise transmit such Project Data. As such, User acknowledges and agrees that if there are any defects, errors, or inaccuracies in the Project Data, User and not HeadLight shall be solely responsible for any such defects, errors, or inaccuracies, and HeadLight shall have no liability to User or to any third party with respect to any such defects, errors, or inaccuracies.
(b). User hereby grants to HeadLight, in addition to any other rights that HeadLight may have in such Project Data as set forth in the Organization Agreement, a non-exclusive license to use, reproduce, transmit, and host the Project Data solely in connection with HeadLight’s operation, maintenance and provision of the Service to User hereunder.
4.2. Compliance with Documentation. User agrees to use the Service in compliance with any instructions or restrictions set forth in the Documentation.
4.3. Availability. It is understood that HeadLight may host the Project Data on computer servers owned or controlled by third parties and User consents to such hosting. HeadLight shall use reasonable commercial efforts to ensure the availability of the Service and the accessibility of the Project Data on an uninterrupted basis. However, HeadLight does not guarantee that the availability of the Service and/or the Project Data will be uninterrupted or that the operation of the Service will be error-free, and User acknowledges and agrees that the Service and/or the Project Data may at times be unavailable and/or inaccessible as a result of, among other things, maintenance, changes, or outages, both planned and unplanned (collectively, “Downtime”). HeadLight’s sole obligation with respect to such Downtime shall be to use reasonable commercial efforts to restore the availability and/or accessibility of the Service and/or the Project Data, and HeadLight shall have no other liability or obligations to User or to any other third party with respect to the unavailability and/or inaccessibility of the Service and/or any Project Data.
4.4. Hosting. HeadLight shall use commercially reasonable measures to operate the hosting environment for the Project Data, defined to mean the Service, and the corresponding server hardware, disk storage, data transfer rates, server operating systems, databases, web server programs, and other associated components. HeadLight will use reasonable commercial efforts to provide a high level of network and physical security for the Project Data according to generally accepted Internet security standards and protocols.
4.5. User Account. HeadLight will make available the Service to User by establishing an account for User on the Service (“User Account”), and by providing to User log-in details for User’s User Account (collectively, “User Information”). User agrees to maintain the confidentiality of its User Information and further agrees to accept responsibility for any and all actions or activities that are taken or that may occur in connection with the use of User’s User Information. If at any time User learns that its User Account has been accessed or used without User’s authorization (or if at any time User has reason to believe that its User Account has been accessed or used without User’s authorization or is at risk of being accessed or used without User’s authorization, including without limitation, by the loss or disclosure of User’s User Information), User agrees to promptly notify HeadLight of any such unauthorized use or access. HeadLight reserves the right to modify or otherwise alter User’s User Information in its sole and absolute discretion.**
4.6. User Obligations. In using the Service, User acknowledges and agrees that:
(a). Except as otherwise agreed to by HeadLight and the relevant Organization, User and/or the Organization shall be responsible for determining and assessing its own internal computing, Internet service provider, and/or private lease line and software needs. User acknowledges and agrees that additional third party services, computer software and/or hardware may be required to access and/or use the Service and except as otherwise agreed to by HeadLight and the relevant Organization, User shall be solely responsible, at its cost, for obtaining and/or acquiring such additional third party services, computer hardware or software, which may include, without limitation, Internet service and equipment to provide Internet service, computers, network and other devices and systems requirements. In the event User enters into any agreements with third parties for any such services, computer software and/or hardware, User agrees to comply with any such agreements when using the Service.
(b). User will follow all standard practices, policies and procedures as provided by HeadLight, if any, whether as part of the Documentation or otherwise, when accessing and using the Service.
(c). The Service is a Project management and inspection tool only. The Service does not provide any construction, environmental, maintenance, infrastructure, project management, legal, regulatory, or other advice or recommendations with respect to the Project Data and/or the Project at issue. User shall be solely responsible for obtaining its own construction, environmental, maintenance, infrastructure, project management, legal, regulatory, or other advice or recommendations with respect to the Project Data and/or Project at issue, and for having the necessary knowledge, skill and experience to know when such advice or recommendations are necessary and/or appropriate, and to implement any such advice or recommendations.
5.1. Definition of Confidential Information. User acknowledges and agrees that in accessing and/or using the Service, User may be exposed to the Confidential Information (as defined herein) of HeadLight. “Confidential Information” means any oral, written, graphic, or machine-readable information of HeadLight, including, but not limited to, business plans, marketing and sales information, financial and technical information, trade secrets, inventions, improvements, developments, know-how, works of authorship and other innovations of any kind, ideas, data, techniques, programs, systems, and processes, regardless of whether or not any of the foregoing are eligible for patent, copyright, trademark, trade secret or other legal protection.
5.2. Nondisclosure of Confidential Information. User agrees that Confidential Information shall be used only for the purpose of exercising User’s rights and privileges under this Agreement and for no other purpose. User shall not disclose or distribute Confidential Information to any third party except as expressly authorized herein or without the prior written authorization of HeadLight. User shall, in particular, hold Confidential Information in confidence and User shall take all measures reasonably necessary to prevent Confidential Information from falling into the public domain. User shall promptly notify HeadLight of any unauthorized use or disclosure of Confidential Information and shall assist HeadLight in every reasonable way to retrieve the Confidential Information that was improperly used or disclosed.
5.3. Exceptions. The confidentiality obligations imposed by this Agreement shall not apply to: (a) information that becomes part of the public domain through lawful means and without breach of any confidentiality obligation; (b) information subsequently and rightfully received by User from third parties without any obligation of confidentiality; (c) information that was known to and reduced to writing by User before the Effective Date of this Agreement; (d) information that is independently developed by User without use of or reference to any Confidential Information; and (e) information required to be disclosed by compulsory judicial or administrative process or by law or regulation; provided that if Confidential Information is required to be disclosed, User shall first give HeadLight notice and shall provide such information as may reasonably be necessary to enable HeadLight to take action to protect its interests.**
5.4. Return of Confidential Information. Upon the expiration or termination of this Agreement or at the request of HeadLight, User shall promptly return or destroy all items and materials, including any copies, in its possession, custody, or control which contain Confidential Information. The confidentiality obligations set forth in this Section shall expire five (5) years following the expiration or termination of this Agreement, except for Confidential Information which constitutes the trade secret information of HeadLight, in which case, the confidentiality obligations set forth in this Section shall continue for so long as such information remains a trade secret of HeadLight.
- Maintenance; Upgrades. HeadLight may provide the following services with respect to the Service:
6.1. Support and Maintenance. HeadLight may, but is not obligated to, provide maintenance and support services with respect to the Service. Such maintenance and support services shall be provided by HeadLight under the terms and conditions associated with such maintenance and support services, if any.
6.2. Upgrades. HeadLight may, but is not obligated to, develop and implement Upgrades to the Service. In the event HeadLight develops and/or releases Upgrades during the Term, such Upgrades shall be subject to the terms and conditions of this Agreement.**
- Representations and Warranties.
7.1. General Representations and Warranties. Each party represents and warrants to the other that: (a) the entering into of this Agreement and the performance of such party’s obligations under this Agreement will not: (i) result in a breach of or constitute a default under any of the terms and/or provisions of any agreement, whether written or oral, to which it is a party; (ii) conflict with such party’s charter documents; (iii) violate any law, judgment or order to which such party is subject; or (iv) require the consent, authorization or approval of any person, including but not limited to, any governmental body; (b) it has the right and full power and authority to enter into this Agreement and to perform all of its obligations under this Agreement; and (c) this Agreement creates legal, valid and binding obligations on it and is enforceable against it in accordance with its terms. User further represents and warrants that to the extent User is a contractor of the relevant Organization and is using the Service on behalf of any company or organization, User is entering into this Agreement on behalf of such company or organization, is authorized to enter into this Agreement on the organization or company’s behalf, and is authorized to bind such company or organization to the terms and conditions of this Agreement.
7.2. User Representations and Warranties. User represents and warrants to HeadLight that in compiling and/or collecting the Project Data and/or by posting, storing, accessing or transmitting such Project Data via the Service, User has not and will not: (a)** **infringe any Intellectual Property Rights or other proprietary rights of any third party or rights of publicity or privacy of any third party; or (b) violate any law, statute, ordinance or regulation.
7.3. Disclaimer. THE SERVICE AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND WITH ALL FAULTS. PAVIA DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE IN CONNECTION WITH THE SERVICE AND/OR THE DOCUMENTATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, AND/OR NON-INFRINGEMENT, IN ADDITION TO ANY OTHER REPRESENTATIONS AND/OR WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PAVIA NOR ANY SUPPLIER OR LICENSOR OF PAVIA REPRESENTS OR WARRANTS THE CORRECTNESS OR ACCURACY OF THE SERVICE, THAT THE SERVICE WILL MEET USER’S PARTICULAR NEEDS OR REQUIREMENTS, OR THAT THE PERFORMANCE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, INCLUDING WITHOUT LIMITATION, FREE FROM LOSS OF DATA. USER ACKNOWLEDGES AND AGREES THAT: (A) COMPLEX SOFTWARE IS NEVER WHOLLY FREE FROM DEFECTS, ERRORS OR BUGS; PAVIA GIVES NO WARRANTY OR REPRESENTATION THAT THE SERVICE WILL BE WHOLLY FREE FROM SUCH DEFECTS, ERRORS OR BUGS; AND PAVIA WILL HAVE NO OBLIGATION OR RESPONSIBILITY TO CORRECT, FIX OR REPAIR ANY SUCH DEFECTS, ERRORS OR BUGS; (B) PAVIA WILL NOT AND DOES NOT PURPORT TO PROVIDE ANY CONSTRUCTION, ENVIRONMENTAL, MAINTENANCE, INFRASTRUCTURE, PROJECT MANAGEMENT, LEGAL, REGULATORY, OR OTHER ADVICE OR RECOMMENDATIONS WITH RESPECT TO THE PROJECT DATA AND/OR THE PROJECT UNDER THIS AGREEMENT OR IN RELATION TO THE SERVICE; AND (C) PAVIA IS NOT RESPONSIBLE FOR USER’S DAY-TO-DAY USE AND OPERATION OF THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, ERRORS, OR INACCURACIES IN ANY PROJECT DATA TRANSMITTED, ACCESSED, PROCESSED AND/OR STORED THROUGH OR USING THE SERVICE. ALL RISKS ASSOCIATED WITH THE USE OF THE SERVICE AND/OR THE PROJECT DATA, INCLUDING WITHOUT LIMITATION, THE TRANSMITTING, ACCESSING, PROCESSING AND/OR STORAGE OF THE PROJECT DATA, ARE SOLELY WITH USER.
- Indemnity. User shall indemnify, defend and hold harmless HeadLight, its licensors, successors, assigns, affiliates and related companies, and its and their officers, directors, employees, and agents for, from and against any and all losses, expenses, costs (including reasonable attorneys’ fees and legal costs), liabilities, and damages of any kind or nature arising out of or relating to: (a) the negligence or more willful misconduct of User, its employees, agents or representatives; (b) a breach by User of this Agreement, including without limitation, its representations and warranties set forth in Section 7 above; (c) the unauthorized use or misuse of the Service, including without limitation, any use by User of the Service in violation or breach of this Agreement or contrary to or in violation of the Documentation; or (d) the Project Data. Notwithstanding this Section 8, HeadLight will have the right, but not the obligation, to immediately assume sole responsibility and control over the defense of any claims for which User owes indemnity hereunder and User acknowledges and agrees that HeadLight’s exercise of such responsibility and control shall not relieve User of its indemnity obligations set forth in this Section 8.**
- Limitation of Liability. IN NO EVENT SHALL PAVIA BE LIABLE TO USER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOSS OF DATA OR EQUIPMENT DOWNTIME, EVEN IF PAVIA HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE THEORY OF LIABILITY UNDER WHICH ANY SUCH DAMAGES ARE SOUGHT. IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON PAVIA UNDER THIS AGREEMENT FOR ANY REASON WHATSOEVER, THE AGGREGATE AMOUNTS PAYABLE BY PAVIA BY REASON THEREOF SHALL NOT EXCEED THE TOTAL AMOUNT OF \$50 USD. User acknowledges that the foregoing limitations are an essential element of the Agreement and that in the absence of such limitations the terms set forth in this Agreement would be substantially different.**
- **Term and Termination.
10.1. Term. This Agreement shall commence as of date on which User initially accesses the Service using User’s User Information and clicks “I AGREE TO THE TERMS & CONDITIONS” on the log-in page for the Service (the “Effective Date”), and shall continue in effect until terminated as set forth in this Section 10 (the “Term.”)**
10.2. Termination. This Agreement may be terminated as follows:**
(a). By HeadLight, for any reason or no reason, by providing thirty (30) days’ notice to User.
(b). By HeadLight, upon notice to User effective immediately, in the event User no longer qualifies as an Authorized User.
(c). By HeadLight: (a) upon the breach by User of any of the provisions of Section 3.2, Section 4, or Section 5, if such breach is not cured to HeadLight’s satisfaction within one (1) day after the date HeadLight provides notice thereof to User; or (b) upon the breach by User of any other term, provision, covenant, representation or warranty set forth in this Agreement if the breach remains uncured for a period of thirty (30) calendar days after the date HeadLight provides notice thereof to User.
10.3 Upon the expiration or termination of this Agreement, all terms and conditions of this Agreement will cease to have effect and User shall have no further rights to access and/or use the Service, provided that:**
(a). The termination or expiration of this Agreement will not release any party from any obligation that matured prior to the effective date of such expiration or termination.
(b). All terms and conditions of this Agreement that by their express terms, nature, sense or context are intended to survive the termination or expiration of this Agreement shall survive such termination or expiration. For purposes of clarity, the parties intend that the following provisions survive the termination or expiration of this Agreement: Section 1; Section 5; Section 7; Section 8; Section 9; Section 10; Section 11; Section 12; and Section 13.
- Intellectual Property Rights.
11.1. Ownership. The Service is licensed and not sold. User acknowledges and agrees that all right, title and interest in the Service, the Documentation, and any Confidential Information is and shall remain the sole and exclusive property of HeadLight. Subject to the limited license rights granted to User pursuant to Section 3 above, HeadLight retains and reserves all rights, title and interest (including all Intellectual Property Rights) in and to the Service, the Documentation, and any Confidential Information, and no other right, title or interest is granted by HeadLight to User hereunder, whether by implication, estoppel or otherwise. User acknowledges and agrees that by granting the license rights granted to User pursuant to Section 3 above, HeadLight does not in any way grant any interest to User in any Intellectual Property Rights in or arising out of (now or in the future) the Service, the Documentation, and any Confidential Information.
11.2. Other Rights. The license rights granted in Section 3 above provide a limited license for the Service and the Documentation only. User acknowledges and agrees that it may need licenses or services from third parties to fully use the Service, and further agrees that HeadLight has no obligation to provide notice of or acquire such licenses or services on User’s behalf.
11.3. Notification. User shall promptly inform HeadLight of any misuse, unauthorized use, infringement or misappropriation of the Service, the Documentation, or any Confidential Information of which User becomes aware. User acknowledges and agrees that HeadLight shall have the sole and exclusive right to enforce and/or defend its Intellectual Property Rights in the foregoing and User shall cooperate with HeadLight in such enforcement or defense efforts, as reasonably requested by HeadLight and at HeadLight’s expense.
- Export Restrictions; Governmental Rights.
12.1. Export Restrictions. User acknowledges and agrees that the Service and/or the Documentation may be subject to governmental export, import and/or use controls. User shall not export, re-export, import, use or transfer the Service and/or the Documentation except in compliance with the laws and regulations of the countries and/or territories from which the Service and/or the Documentation is being exported or to which the Service and/or the Documentation is being imported. At a minimum, the Service and/or the Documentation shall not be used in or exported to: (a) any country subject to U.N. Security Council embargo or action; (b) countries subject to U.S. economic sanctions and embargoes; or (c) persons or entities prohibited from receiving U.S. exports or items or material originating from the U.S.
12.2. Government Rights. The Service and the Documentation constitute “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and/or “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1, 227.7202-3, and 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are, to the extent applicable, being licensed to U.S. Government end users, if any: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement. This clause, consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202 is in lieu of, and supersedes, any other Federal Acquisition Regulation (“FAR”), Defense Federal Acquisition Regulation Supplement (“DFARS”) or other clause or provision that addresses U.S. Government rights in computer software, technical data or computer software documentation.
13.1. Entire Agreement. This Agreement represents the entire understanding of the parties as of the Effective Date with respect to the subject matter hereof, and supersedes all prior agreements, negotiations, understandings, representations, statements, and writings between the parties relating thereto. No modification, alteration, waiver, or change in any of the terms of this Agreement shall be valid or binding upon the parties hereto unless made in writing and duly executed by each of the parties hereto; provided that, HeadLight may revise the terms and conditions of this Agreement as it sees fit in its sole and absolute discretion. In the event of any such revision, HeadLight will post the date of such revision on the log-in page displaying this Agreement or otherwise inform User of such revision, and such revised version shall be enforceable against User in the event User thereafter accesses the Service using User’s User Information and clicks “I AGREE TO THE TERMS & CONDITIONS” on the log-in page for the Service after the date of such revision. User agrees to periodically review the log-in page on which this Agreement is displayed for revisions to this Agreement.
13.2. Assignment of Agreement. Neither this Agreement nor any interest herein is assignable or delegable by User without the prior written consent of HeadLight. Any attempted assignment or transfer by User without the prior written consent of HeadLight shall be null and void, and at HeadLight’s option, forthwith terminate and cancel this Agreement.
13.3. Relationship of Parties. Nothing herein contained shall be deemed to create an agency, joint venture or partnership relationship between the parties hereto. It is understood and agreed that User is not, by reason of this Agreement or anything herein contained, constituted or appointed the agent or representative of HeadLight for any purpose whatsoever, nor shall anything herein contained be deemed or construed as granting to User any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of HeadLight, or to bind HeadLight in any way or manner whatsoever.
13.4. Governing Law. This Agreement shall be controlled by and construed under the laws of the State of Washington, USA (excluding its conflicts of laws principles) and not under the United Nations Convention on Contracts for the International Sales of Goods. Any dispute arising under this Agreement shall be litigated in a state or federal court located in King County, Washington, USA. The parties hereby expressly agree to the personal jurisdiction of such courts over them and waive any claim that such forum is an inconvenient forum.
13.5. Notices. All notices or other communications that are required or permitted hereunder shall be in writing and, if sent to HeadLight, sent by prepaid overnight courier, sent by certified or registered mail, or sent by email or by facsimile transmission, to the address set forth below or to such other address as is subsequently specified by HeadLight in writing:
If sent to User, such notices or other communications shall be sent to the current email address held on hand by HeadLight for User. Any such communications (to either party) shall be deemed to have been given when delivered if personally delivered, on the business day after dispatch if sent by overnight courier, on the fourth (4^th^) business day following the date of certified or registered mailing if sent by certified or registered mail; or on the date of sending or transmission if sent by email or by facsimile transmission.
13.6. Remedies. User acknowledges and agrees that a breach of this Agreement by User will result in immediate, irreparable and continuing damage to HeadLight for which there will be no adequate remedy at law; and agrees that in the event of any such breach or violation or any threatened or intended breach or violation of this Agreement, HeadLight, its successors and assigns, will be entitled to temporary, preliminary and permanent injunctive relief and/or restraining orders enjoining and restraining such breach or violation or such threatened or intended breach or violation and/or other equitable relief (without needing to post any bond or other security) in addition to such other and further relief as provided for at law and in equity.
13.7. Product of Negotiation. This Agreement is the product of the negotiation of the parties. For convenience, this Agreement has been drafted initially in substantial part by legal counsel for one of the parties, but by agreement of the parties, this Agreement will be deemed to have been drafted by all parties jointly, and any ambiguity herein will not be construed for or against any party by virtue of the identity of the drafter or otherwise.
13.8. No Third-Party Beneficiaries. The parties do not intend to confer any right or remedy on any third party.
13.9. Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
13.10. Attorneys’ Fees. If any arbitration, action, suit or proceeding is instituted to interpret, enforce, or rescind this Agreement, or otherwise in connection with the subject matter of this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs, and expenses of every kind incurred in connection with the arbitration, action, suit or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
13.11. Waiver. The failure of any party hereto to insist upon strict performance of any provision of this Agreement or to exercise any right hereunder will not constitute a waiver of that provision or right.