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Avancir Kit End User License Agreement

THIS IS A BINDING CONTRACT.  BY PLACING AN ORDER FOR AN AVANCIR KIT (DEFINED BELOW), YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”).

 

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

 

This Agreement is a binding agreement between Avancir Software Group LLC, a Delaware limited liability company (“Licensor”) and the person or entity identified on the Order Form as the purchaser of the Avancir Kit (“Licensee”).

Licensee acknowledges that certain affiliates of Licensor (“Licensor Affiliates” which term shall include, without limitation, Atlas RFID Solutions Store, LLC, a Delaware limited liability company) may perform services (including, without limitation, sale of the Avancir Kit through atlasRFIDstore.com, logistical services, shipping, back office services, accounting, billing, and invoicing) on behalf of Licensor in connection with this Agreement and Licensee’s use of the Avancir Kit.  Notwithstanding anything to the contrary: (i) Licensor Affiliates are not a party to this Agreement, (ii) Licensor Affiliates are not third-party beneficiaries of this Agreement, and (iii) Licensee hereby agrees to indemnify, defend, and hold Licensor Affiliates harmless from and against any Losses (defined below) arising out of or related to Actions (defined below) asserted or threatened by, under, or through Licensee or Licensee’s affiliates (including, without limitation, entities under common control with Licensee, Licensee’s direct or indirect parent entities, and Licensee’s direct or indirect subsidiaries (collectively, “Licensee Affiliates”)) against Licensor Affiliates.  To the fullest extent permitted by law, Licensee covenants that it will not pursue or cause or permit any Licensee Affiliate to pursue the prosecution, in any state, federal or foreign court, or before any local, state, federal, or foreign administrative agency or other tribunal, arbitrator, or court of any kind, any charge, claim, judgement, settlement, or action of any kind, nature or character whatsoever (including, without limitation, claims arising under contract, tort (including negligence), strict liability, or otherwise) (collectively, “Actions”) which Licensee or Licensee Affiliates now have, have ever had, or may in the future have against Licensor Affiliates.  Without limiting the generality of the foregoing, nothing in this Agreement shall limit, Licensee hereby accepts and agrees to abide by, and this Agreement hereby incorporates the Terms of Service applicable to use of atlasRFIDstore.com.

 

This Agreement governs: (i) Licensee’s license and use of the Avancir software (“Software”) and (ii) Licensee’s purchase of Hardware (defined below).  The purchased Hardware and licensed Software are referred to herein, collectively, as the “Avancir Kit”.

 

LICENSOR PROVIDES THE AVANCIR KIT SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY [CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE ORDER FORM/[OTHER MEANS PROVIDED FOR ACCEPTANCE]] YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE AVANCIR KIT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

Authorized Users” means Licensee’s employees, agents, and contractors, but shall not include any customers of Licensor.

Documentation”  means Licensor’s user manuals, handbooks, and installation guides relating to the Software provided by Licensor to Licensee either electronically or in hard copy form/end user documentation relating to the Software and further including the description of the Avancir Kit on AtlasRFIDstore.com.

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Fees” means the fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.

Order Form” means the order confirmation provided to Licensee upon purchase of the Avancir Kit.

Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

Third Party” means any Person other than Licensee or Licensor.

                        “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor develops after purchase of the Avancir Kit.

  1. License Grant and Scope. Subject to and conditioned upon Licensee’s compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, non-transferable, license, during the Term and solely by and through its Authorized Users, to use the Avancir Kit, but solely for the purposes described in the Documentation. Licensee shall not copy or reproduce the Software or the Documentation, and if Licensee breaches this obligation, without limiting Licensor’s other remedies under law or at equity, all copies of the Software and/or Documenation made by the Licensee: (i) will be the exclusive property of the Licensor; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
  2. Use of Avancir Kit. Licensee shall:  Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
  3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
    • use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
    • provide any other Person, including any subcontractor, independent contractor, Licensee Affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
    • modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
    • combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
    • reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
    • remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
    • copy the Software or Documentation, in whole or in part;
    • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
    • use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems,
    • use the Software or Documentation in violation of any law, regulation, or rule; or
    • use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
  4. Responsibility for Use of Software; Hardware.
    • Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
    • Software Data. If and to the extent use of the Avancir Kit results in, generates, captures, or otherwise stores or transmits any materials, information or data of any kind (“Software Data”) all such Software Data will be the sole and exclusive property of Licensee. Licensee shall collect, maintain, and safeguard all Software Data in accord with all applicable laws and regulations.  Licensee represents and warrants that: (i) it has the right, power, and authority to use the Software Data without the consent of any third-party, and such use will not violate the rights (including but not limited to intellectual property rights) of any Third Party and (ii) the Software Data will be free from any and all viruses, Trojan horse, self-replicating or other computer instructions that may involuntarily: (1) alter, destroy, inhibit or discontinue effective functioning of the Software and/or the Avancir Kit, (2) erase, destroy, corrupt or modify any data, programs, materials or information, or (3) store any data, programs, materials or information on any computer or server.
    • The term “Hardware” as used in this Agreement means any goods (including, without limitation RFID tags, readers, antennas, and cables, and any electronic equipment related thereto (collectively “RFID Equipment”)) used in connection with the Avancir Kit.  All Hardware will be purchased from Licensor.  Licensee acknowledges that Licensor is not able to provide any services, support, or warranty on any hardware that is not purchased from Licensor.  Licensee shall install and maintain all Hardware in accordance with the system operations manuals or such other specifications as may be provided by Licensor or the Hardware’s manufacturer (even if not provided by Licensor). Licensee warrants that it will not use any Hardware in contravention of any law or regulation. 

LICENSEE FURTHER ACKNOWLEDGES THAT THE AVANCIR KIT MAY NOT FUNCTION IF THE HARDWARE IS NOT PROPERLY INSTALLED OR CONFIGURED.  RFID EQUIPMENT’S PERFORMANCE VARIES IN THE ENVIRONMENT IN WHICH IT IS USED (INCLUDING, WITHOUT LIMITATION THE MATERIALS ON WHICH RFID TAGS ARE APPLIED, READ RANGES, AND READ ORIENTATIONS).  LICENSEE SHALL BE SOLELY RESPONSIBLE FOR INSTALLING AND CONFIGURING RFID EQUIPMENT AND FOR PLACEMENT, APPLICATION, AND THE ENVIRONMENT IN WHICH RFID TAGS WILL BE USED (COLLECTIVELY, “HARDWARE INSTALLATION”).  LICENSOR SHALL HAVE NO LIABILITY OF ANY KIND, AND LICENSEE COVENANTS NOT TO BRING AGAINST LICENSOR ANY ACTION ARISING OUT OF OR RELATING TO HARDWARE INSTALLATION.

  1. Compliance Measures.
    • The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
    • During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement. Licensee shall cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.
    • If Licensee determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then Licensee shall immediately cease and discontinue all use of the Avancir Kit (without limiting Licensor’s right to pursue additional remedies Licensor may have at law or in equity, whether under this Agreement or otherwise).
  2. Maintenance and Support. Licensee acknowledges that Licensor shall have no obligation to provide support services for the Avancir Kit other than directing Licensee to the Documentation.  Licensor shall have no obligation to provide Updates to the Software.  Licensee hereby covenants on behalf of itself and all Licensee Affiliates not to bring any Action alleging Licensor failed to support the Avancir Kit or otherwise provide any services related to the Avancir Kit.  
  3. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
  4. Payment. All sales of the Avancir Kit are final. All Fees are payable in advance in the manner set forth in the Order Form and are non-refundable.
  5. Term and Termination.
    • This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”). If the Order Form indicates that Licensee has purchased the Avancir Kit for a limited trial period, the Term of this Agreement shall expire at the end of such trial period.
    • Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation and by providing Licensor with written notice of such termination.
    • Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15) days after Licensor provides written notice thereof.
    • Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
    • Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation.
  6. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
    • Licensor warrants that, during the Term (the “Warranty Period”): the Software will substantially contain the functionality described in the Documentation, and when properly installed according to the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. Licensee acknowledges that Licensor does not manufacture any Hardware.  Licensor will pass through to Licensee any warranties given by the applicable Hardware’s manufacturer to the extent permitted by the terms and conditions of Licensor’s agreement with the applicable manufacturer.  Licensor will make such pass-through warranty available to Licensee upon Licensee’s written request.  Licensor shall not be liable for any Loss in the event any Hardware manufacturer fails to honor its warranty with respect to the Hardware.  Licensee further acknowledges and agrees all or some portion of the Hardware may not be covered by any manufacturer warranty and that RFID tags, specifically, are not covered by any manufacturer warranty.  As used in this Agreement, “Losses” means all losses, damages, deficiencies, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, reasonable expert fees, and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
    • The warranty set forth in Section 11(a) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:
      • installs or uses the Software on or in connection with any hardware or software not specified in the Documentation;
      • modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
      • misuses the Software, including any use of the Software other than as specified in the Documentation.
    • If, during the Term, any Software covered by the warranty set forth in Section 11(a) fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 11(b) or otherwise by operation of this Agreement (e.g., a performance failure related to Hardware Installation), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either:
      • repair or replace the Avancir Kit, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or
      • refund the Fees paid for the Avancir Kit, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software.

The remedies set forth in this Section 11(c) are Licensee’s sole remedies and Licensor’s sole liability for any Action alleging the Avancir Kit (or any component thereof) fails to perform in accord with the Documentation or is otherwise defective, non-functioning, or non-operational in any way. 

  • EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(A) THE AVANCIR KIT AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF LICENSOR AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE AVANCIR KIT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE AVANCIR KIT WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
    • IN NO EVENT WILL LICENSOR OR LICENSOR AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE, LICENSEE AFFILIATES, OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE AVANCIR KIT; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • IN NO EVENT WILL LICENSOR’S OR LICENSOR AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE AVANCIR KIT.
    • THE LIMITATIONS SET FORTH IN SECTION 12(A) AND SECTION 12(B) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE A MATERIAL PART OF LICENSOR AND LICENSEE’S AGREEMENT AND THAT THE PRICE FOR THE AVANCIR KIT WOULD BE MATERIALLY HIGHER IF SUCH LIMITATIONS WERE NOT INCLUDED IN THIS AGREEMENT.
  2. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
  3. LICENSEE AGREES AND HEREBY DOES GIVE UP ANY RIGHTS TO LITIGATE ACTIONS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY ACTION.  OTHER RIGHTS THAT LICENSEE WOULD HAVE IF LICENSEE WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
    • ANY ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN OR AMONG LICENSOR AND/OR LICENSOR AFFILIATES ON THE ONE HAND AND LICENSEE AND/OR LICENSEE AFFILIATES ON THE OTHER HAND ARISING FROM OR RELATING IN ANY WAY TO THE AVANCIR KIT AND/OR THIS AGREEMENT (a “DISPUTE”) SHALL BE SUBMITTED TO MANDATORY, FINAL AND BINDING ARBITRATION AS DESCRIBED BELOW.
    • The arbitration will be submitted to and administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules then in effect.
    • There shall be one arbitrator, who will be agreed to by the parties within 30 days of receipt by respondent of a copy of the demand for arbitration. If the parties cannot agree on an arbitrator within the time period specified then, at the request of either party, such arbitrator shall be appointed by the AAA. The language of the arbitration shall be English. The place of the arbitration shall be Birmingham, Alabama, U.S.A. The arbitrator shall be an attorney licensed in Alabama with at least ten (10) years of experience.
    • The arbitration shall be the sole and exclusive forum for resolution of any Dispute, and the award shall be in writing, state the reasons for the award and be final and binding. Judgment thereon may be entered in any court of competent jurisdiction.
    • By agreeing to arbitration, the parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the AAA shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the AAA’s orders to that effect. In any such judicial action: (i) each of the parties irrevocably and unconditionally consents to the exclusive jurisdiction and venue of the federal or state courts located in Birmingham, Alabama, U.S.A. (the “Alabama Courts”) for the purpose of any pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings, and to the non-exclusive jurisdiction of such courts for the enforcement of any judgment on any award; (ii) each of the parties irrevocably waives, to the fullest extent they may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any Alabama Courts; and (iii) each of the parties irrevocably consents to service of process by first-class certified mail, return receipt requested, postage prepaid.
    • The prevailing party, as determined by the AAA, shall be entitled to recover its reasonable costs and attorneys’ fees.
    • Except as may be required by law, the parties shall preserve the confidentiality of all aspects of the arbitration, and shall not disclose to a Third Party (other than disclosure to affiliate(s) of a party on a need-to-know basis and such affiliate(s) is/are informed of the confidential nature of such information and is/are instructed to keep such information confidential), all information made known and documents produced in the arbitration not otherwise in the public domain, all evidence and materials created for the purpose of the arbitration, and all awards arising from the arbitration, except, and to the extent that disclosure is required by law or regulation, is required to protect or pursue a legal right or is required to enforce or challenge an award in legal proceedings before a court or other competent judicial authority.
    • Licensee agrees to an arbitration on an individual basis. In any dispute, neither Licensee nor Licensor will be entitled to join or consolidate claims by or against other customers in court or in arbitration or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity.
  4. Licensor’s Mitigation. In the event any Action alleges use of the Avancir Kit in accordance with the terms of this Agreement infringes United States patent or United States copyright or misappropriates trade secrets pursuant to laws of a state in the United States has occurred or in Licensor’s reasonable opinion is likely to occur, Licensor may (but shall not be required to), to (i) procure for Licensee the right to continue using the Avancir Kit, (ii) replace or modify the Avancir Kit so that it becomes non infringing but provide Licensee substantially similar or better capabilities, or (iii) if Avancir reasonably determines that both of the foregoing are technically impracticable or commercially infeasible, immediately terminate both parties’ respective rights and obligations under this Agreement with respect to the infringing component of the Avancir Kit, in which case Licensee shall return to Avancir all copies of such component of the Avancir Kit in its possession or control, and Avancir shall refund to Licensee the applicable amount paid by Licensee for the then-current Term prorated for the portion of the Term through the date of such termination.
  5. Miscellaneous.
    • All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule.
    • In no event shall Licensor be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency, (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances, (viii) shortage of adequate power or transportation facilities, or (ix) shortage or delays in Licensor’s ability to procure Hardware.
    • All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 16(c)).
    • This Agreement, together with the Order Form, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    • Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    • This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    • This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    • All rights, obligations and provisions under this Agreement that, by their terms or nature, are intended to survive termination or expiration of this Agreement shall survive any expiration or termination of this Agreement until the expiration of the applicable statute of limitations or, if shorter, the express survival or warranty period set forth in this Agreement.
  6. Limitations Period. Any Action arising out of or related to breach of this Agreement by Licensor and/or Licensor Affiliates must be made within one (1) year of delivery of the Avancir Kit (the “Limitations Period”).  Licensee and Licensee Affiliates hereby covenant not to bring any such Action after the Limitations Period.