Terms of Service

END USER LICENSE AGREEMENT (EULA)

THIS LICENSE AGREEMENT (“Agreement”) is dated as of the Effective Date set forth in the (“Effective Date), by and between Lone Star Synergistx, d/b/a Synergistx (“Licensor” or “Synergistx”), PO Box 131475 Spring, TX 77393, and the entity identified on the cover sheet hereof (“Licensee”) (each a “Party” and collectively the “Parties”). 

Recitals

WHEREAS, Licensor has developed a proprietary System for creating training materials and “short cut” materials to simplify use of complex word processing and other software systems (“MySource” or“ResourceDeployment” or the “System”); and

WHEREAS, Licensor wishes to engage Licensor’s services to develop such materials for Licensee’s use, and to obtain a license to use the materials so developed, according to the terms and conditions of this Agreement, to which Licensor is agreeable;

Witnesseth

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the sufficiency of which are hereby acknowledged and confessed, the Parties agree as follows:

1. License
   1. Grant of License. Subject strictly to the terms and conditions of this Agreement, including but not limited to full and timely payment of all amounts due hereunder and compliance with the provisions hereof related to Licensor’s intellectual property rights, Licensor hereby grants to Licensee and Licensee accepts a limited, non-exclusive, non-transferable right to use the System within the United States for the Term (as defined below) of this Agreement, by only valid and current employees as identified by a list of employees provided by Licensee or by a code provided by the Licensor to the Licensee.
   2. Restrictions. This license is solely for internal use by the original Licensee. Licensee agrees that it shall not itself or through any third party, directly or indirectly rent, host, sub-license, transfer, lease, or provide, in whole or in part, the use of the System including but not limited to materials developed for Licensee in connection therewith, or otherwise use, copy, or make derivative works from the materials except as expressly permitted herein.
   3. Use by Affiliates. Corporate Affiliates (as used herein) of Licensee will be permitted to use the System pursuant to this license, provided that (i) Licensee includes on the Cover Sheet the identities of Affiliates which will be using the System pursuant to this Agreement, the number of end users associated with each Affiliate, and the IP addresses from which the System will be used; (ii) each such Affiliate will be deemed to have agreed to the terms and conditions of this Agreement, and to have committed to comply with them accordingly; (iii) as used herein, the term “Licensee” shall be deemed to apply to each such Affiliate as if it had executed this Agreement as Licensee; and (iv) Licensee remains jointly and severally liable with each such Affiliate for such Affiliates’ full and timely compliance with the terms and conditions of this Agreement. As used herein, “Affiliate” means any entity whose controlling interest is owned by, or under common control with, Licensor
   4. End Users and IP Addresses. Licensee will be solely responsible for controlling its end users’ access to and use of the System, including (but not limited to) ensuring that each end user’s access is immediately deactivated once s/he is no longer accessing or using the System under Licensee’s authority, and that each such end user complies with the restrictions on use of the System, Licensee’s Confidential Information, or Licensee’s Intellectual Property Rights as set forth in this Agreement. Licensee will be similarly responsible for insuring that all IP addresses or user logins from which it purports to access the System are properly identified in the Cover Sheet, and for promptly notifying Licensor if those IP addresses ever cease to be associated with Licensee. The same requirements apply to those users accessing the System via user IDs and passwords.
   5. Artificial Intelligence Features. The Services may include one or more artificial intelligence (“AI” or “AI Coach”) features that leverage machine-learning functionality (“AI Features”), which Licensee may actively enable at Licensee’s choosing by. By enabling the AI Features, Licensee acknowledges that Licensor may access Licensee Data submitted to the Services, as indicated in the Agreement for the purpose of improving and training Licensor services and features that are similar or related to the Services purchased by Licensee, and Licensee instructs Licensor to process its Licensee Data for such purpose. Licensor retains all ownership in and to all System performance data, machine learning algorithms within the AI Features, as well as the aggregated results of such machine learning through the AI Features based on Licensee Data (collectively, “Machine Learning Data”). Any language in the Agreement restricting Licensor’s retention, use, and disclosure of Confidential Information and Licensee Data will not apply to Machine Learning Data.
2. Fees and Payment.
   • Fees for the license granted hereunder are set for on the Cover Sheet, and shall be due and payable as set forth therein.  Licensee acknowledges that the System will not be made available to Licensee unless and until the fees are paid as due, and may be discontinued immediately without notice if fees are not paid as due.  Amounts not paid when due shall bear interest at the rate of one and a half percent per month or the highest rate allowed by law, whichever is less, from the date due until paid.  Licensee shall be responsible for all taxes, duties, or similar charges which may be assessed or charged in respect of this Agreement or any transaction contemplated hereby, except for taxes on Licensor’s net income.
3. Intellectual Property Rights and Ownership.
   1. Definition. “Intellectual Property Rights” shall mean copyrights, authors’ rights, trademarks, trade names, know-how, trade secrets, moral rights, patent rights, and all other intellectual property rights that may exist now and/or hereafter come into existence and all rights of enforcement, renewal and extension thereof, past, present and future in all media now known or hereafter developed, regardless of whether such rights arise under U.S. or international intellectual property, unfair competition or trade secret laws and all derivative works of the foregoing.
   2. Ownership. Licensor reserves all rights not expressly granted in this Agreement. Licensor retains sole and exclusive ownership of the System and all Intellectual Property Rights in, to and/or embodied in or associated with the System, together with all copies and derivative works thereof (whether developed by Licensor or any other person or entity). As a condition of entry into this Agreement, Licensee agrees not to challenge or contest the validity or enforceability of such Intellectual Property Rights, or Licensor’s ownership therein.
   3. Intellectual Property Indemnification. Licensor agrees to indemnify and hold Licensee harmless from and against any and all losses, liabilities, costs and expenses (including attorneys’ fees and costs), which result from, arise in connection with or are related to any claim that the System infringes any Intellectual Property Rights of a third party; provided, however, that Licensee provides Licensor with (i) prompt written notice of such claim or action, (ii) sole control and authority over the defense or settlement of such claim or action, and (iii) reasonable, complete, and timely assistance to defend and/or settle any such claim or action. In the event that any of the System or related services are, or in Licensor’s sole opinion are likely to become the subject of a claim of infringement or violation of any proprietary right of any third party, then Licensor shall, in its sole discretion and at its sole option and expense, (i) modify such System and/or services so that they become non-infringing, (ii) replace the System and/or services with non-infringing products and services as functionally similar as practicable and reasonably acceptable to Licensee, (iii) obtain a license from the enjoining party to permit Licensee to continue its rights as set forth in this Agreement, or (iv) if the foregoing alternatives are not reasonably available to Licensor, terminate this Agreement and Licensor’s obligations hereunder and refund to Licensee any pre-paid license fees on a pro-rata basis based on a three (3) year depreciation period. THE FOREGOING PROVISIONS STATE THE EXCLUSIVE REMEDY OF LICENSEE AND THE ENTIRE LIABILITY AND OBLIGATIONS OF LICENSOR AND ITS EMPLOYEES, REPRESENTATIVES, OR AFFILIATES WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF THIRD PARTY PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
   4. Exceptions. Notwithstanding the foregoing, Licensor shall have no liability or indemnification obligations whatsoever under the above section to the extent that any such claim or action that arises from any of the following events: (i) the combination, operation, incorporation or use of the System with any third party technology products (including devices, parts or software) not provided by Licensor or not expressly consented to in advance by Licensor, (ii) use of the System in a manner that is inconsistent with instructions or limitations provided by Licensor, (iii) use of the System in a manner that breaches this Agreement, or (iv) any modification, alteration or change to the System after Licensor has made it available to Licensee, unless such modification, alteration or change was made or expressly approved in writing by Licensor.
4. Confidential Information.
   1. Definition. “Confidential Information” shall include (with respect to Licensor) all materials provided with or developed through the System or in connection with this Agreement, and (with respect to either Party) financial and technical information, nonpublic work requirements or work rules, and other information which at the time of disclosure is designated as confidential, or would be understood by the Parties, exercising reasonable business judgment, to be confidential. Confidential Information shall also include the pricing included in this Agreement. Confidential Information shall not be deemed to include information if: (i) it was already known to the receiving party prior to the date of this Agreement as established by documentary evidence; (ii) it is in or has become generally known in the industry through no fault of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; or (iv) it is required to be disclosed pursuant to final binding order of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information has been given reasonable notice of the pendency of such an order and the opportunity to contest it.
   2. Obligations. The receiving party shall hold the disclosing party’s Confidential Information in strictest confidence, shall use it only for the purposes as set forth in this Agreement, and shall not disclose it to any third party without the prior written consent of the disclosing party (except as expressly permitted hereunder). Each party shall protect the Confidential Information disclosed to it by the other party with at least the same degree of care as it normally exercises to protect its own confidential and/or proprietary information and shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Upon the expiration or termination of this Agreement, each party shall promptly return or destroy all Confidential Information received from the other party. If it cannot practicably be returned, an officer of the receiving party will certify in writing to the disclosing party that it has been destroyed, provided however that each party may retain one (1) archival copy solely for proof purposes, held under secure conditions in a location apart from normal business activities.
   3. Remedies. Any breach of the provisions contained in the section above shall be deemed as a material breach of this Agreement, which may cause irreparable harm and injury to the non-breaching party, the degree of which may be difficult to ascertain. Accordingly, the non-breaching party shall have the right to seek an immediate injunction enjoining any further breach of the provisions of this Section, as well as the right to pursue any and all other rights and remedies available at law or in equity.
   4. Exceptions. Notwithstanding the above, each party may disclose the disclosing party’s Confidential Information to the receiving party’s employees, consultants, accountants and advisors, finance sources, and/or contractors on a need-to-know basis, or in connection with an actual or proposed merger, acquisition or similar transaction, provided it is protected as described above. It may also be disclosed in response to subpoena or other compulsory process, provided the disclosing party is given prior, reasonable notice so that it may take appropriate steps to protect the Confidential Information.
   5. Specific Understanding and Commitment. Licensee expressly understands and acknowledges that Licensor may re-use materials which it develops for further development of the System or deployment elsewhere. Accordingly, notwithstanding any other provision of this or any other agreement, Licensee agrees to advise Licensor specifically and in writing of any work rules or other requirements which Licensee wishes Licensor to apply in the development of materials for it, and which are confidential and proprietary to Licensee and Licensee’s business, and are not to be incorporated otherwise into the System. Absent such advice, Licensor will be entitled to presume that any materials it develops may be incorporated within the System and re-used elsewhere without obligation to Licensee or otherwise.
5. Licensee’s Indemnification of Licensor.
   • LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INSURERS, AND ALL PERSONS IN PRIVITY WITH ANY OF THE FOREGOING FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, COSTS, CLAIMS, DAMAGES, SETTLEMENTS, JUDGMENTS AND AWARDS, AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES (COLLECTIVELY “CLAIMS”), ARISING DIRECTLY OR INDIRECTLY FROM WHICH RESULT FROM, ARISE IN CONNECTION WITH OR ARE RELATED IN ANY WAY TO ANY BREACH BY LICENSEE OF ITS OBLIGATIONS, REPRESENTATIONS AND WARRANTIES AS SET FORTH HEREIN, OR THE CONDUCT OF LICENSEE’S BUSINESS OR OPERATIONS EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE THE DIRECT RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LICENSOR OR ITS AGENTS OR EMPLOYEES.
6. Limited Warranty.
   1. Limited Warranty. Licensor warrants that for a period of thirty (30) days from the date the System becomes available for Licensee’s use, the System shall perform substantially in accordance with Licensor’s published documentation specific to it. Licensor makes no warranty with respect to the System after the said thirty (30) day period. LICENSOR MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS LIMITED WARRANTY. LICENSOR HEREBY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SYSTEM OR ASSOCIATED MATERIALS WILL SATISFY LICENSEE’S REQUIREMENTS, OR THAT THEY WILL BE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY ASSOCIATED SOFTWARE WILL BE BUG-FREE OR UNINTERRUPTED.
   2. Exclusive Remedies. SUBJECT TO LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE, IF ANY OF THE SYSTEM FAILS TO COMPLY WITH THE WARRANTY SET FORTH ABOVE, LICENSOR’S EXCLUSIVE LIABILITY, AND THE EXCLUSIVE REMEDY OF LICENSEE AND ANY END USERS SHALL BE, AT LICENSOR’S OPTION, REPAIR, REPLACEMENT, OR TERMINATION OF THIS AGREEMENT AND REFUND OF THE FEES PAID FOR THE DEFECTIVE PRODUCTS OR SERVICES, SUBJECT TO THE RESTRICTIONS SET FORTH HEREIN. SUCH WARRANTY SHALL BE VOID AND INAPPLICABLE IF FAILURE IS (i) CAUSED IN WHOLE OR IN PART BY ITS USE OR OPERATION OTHER THAN AS RECOMMENDED BY LICENSOR, OR (ii) IF THE SYSTEM OR ANY RELATED COMPONENT HAS BEEN MODIFIED, ALTERED OR CHANGED BY ANY PERSON OTHER THAN LICENSOR.
7. Limitation of Liability
   1. Limitation. SUBJECT TO LICENSOR’S INDEMNIFICATION OBLIGATIONS SET FORTH IN ABOVE, NEITHER LICENSOR NOR ANY OF ITS SUPPLIERS, EMPLOYEES, AGENTS OR REPRESENTATIVES WHO HAVE BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PRODUCTS AND SERVICES, SHALL BE LIABLE FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE (ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF LICENSOR OR ANY OF ITS EMPLOYEES, AGENTS OR REPRESENTATIVES ARISING OUT OR RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, UNDER ANY THEORY, EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE HEREUNDER. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
   2. Time Limit. Except with respect to claims relating to protection of Licensor’s Intellectual Property Rights or Confidential Information, any claim arising under or relating to this Agreement or the relationship between the Parties must be brought within one (1) year after it accrues.
   3. Waiver of AI Liability. The Licensee hereby agrees to hold Synergistx harmless and hereby waives any and all claims arising from AI’s duties under this Agreement, including negligence and including gross negligence, on the part of AI, its staff, directors, officers, owners or independent contractors in relation to any duties or obligations undertaken by AI pursuant to this Agreement. This waiver of AI’s liability is intended to be as broad and inclusive as permitted by law, and if any portion thereof is held invalid, the remaining portion shall remain valid and in effect notwithstanding the invalidated portion. Should AI, notwithstanding this paragraph, be subject to an award of damages under this contract, the Licensor agrees that such damages shall not exceed the fees paid by the Licensee to AI pursuant to this Agreement for period starting with the Effective Date.
8. Term and Termination.
   1. Term.  This Agreement and the license granted herein shall be effective for one (1) calendar year, beginning on the Effective Date (the “Term”). If Licensee “holds over” beyond the termination or expiration date, it may be deemed, at Licensor’s election, either to have accepted a further one-year license and the corresponding license fee will become due and payable as of the termination or expiration date, or to owe a portion of the license fee which corresponds to the time it has held over..
   2. Termination. Either Party may, by written notice to the other Party, terminate this Agreement effective immediately if:
   1. the other Party is in material breach of any term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after the other Party’s receipt of written notice of such breach, provided that if the breach is non-payment, the cure period shall be ten (10) days;
   2. Licensee commits a material breach of any provision of this Agreement related to protection of Licensor’s Intellectual Property Rights or Confidential Information; or
   3. the other Party (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes assignment for the benefit creditors, or becomes subject to control or a trustee, receiver or similar authority, or (iii) becomes subject to any voluntary or involuntary bankruptcy or insolvency proceeding under federal or state statutes
   3. Events upon Termination. Upon expiration or termination of this Agreement, (i) any fees or charges incurred through the Effective Date of termination shall become immediately due and payable, (ii) Licensee agrees immediately to cease use of the System including but not limited to all related materials, and (iii) Licensee agrees immediately to return to Licensor or destroy all originals and all copies of any associated materials or, to the extent such materials exist only digitally, to delete irrevocably all such materials and to certify to Licensor in writing that it has done so. Under no circumstances may Licensee continue to use the System or any portion thereof beyond the Term of this Agreement or at any time when Licensee is not in compliance with this Agreement in all material respects. Licensor may terminate access to the System immediately upon expiration or termination hereof. Except as expressly set forth herein, no termination for any reason shall entitle Licensee to a refund of any portion of the fees paid under or pursuant to this Agreement. In the event of any termination by either party in accordance with the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on the account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either party. Termination shall not, however, relieve either party of any obligations incurred prior to the termination, including, without limitation, Licensee’s obligation to pay Licensor for any fees or expenses accrued prior to the Effective Date of such termination.
9. Export.
   This License restricts the software for use in the United States of America and may not be exported. Licensee shall not export or re-export the Software or the Documentation without the prior written consent of Licensor and without the appropriate United States and foreign government licenses. Licensee shall comply and shall at Licensor’s request, provide to Licensor written evidence of such compliance with any and all applicable export laws, restrictions and regulations.
10. U.S. Government Restricted Rights.
    • The System comprises “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and C.F.R. 222.7202-1 through 222.7202-4, all U.S. Government End Users acquire the System with only those rights set forth herein.
11. Miscellaneous.
    1. Entire Agreement.  This Agreement constitutes the entire agreement between the Parties relating to its subject matter.  All prior or contemporaneous negotiations, proposals, conditions, representations, and warranties, including past dealings and industry customs, are subsumed in this Agreement.  Any changes to this Agreement must be agreed to in writing by both Parties.  The provisions contained in the recitals are contractual in nature. 
    2. Governing Law and Venue.  This Agreement shall be construed, and the legal relations between the Parties hereto shall be determined, in accordance with the substantive laws of the United States and the State of Texas, excluding its conflicts of law principles.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any action arising under this Agreement or relating directly or indirectly to the relationship between the Parties or any of their respective agents, employees or representatives shall be heard in the state or federal courts located in Harris County, Texas and in no other location, and the Parties irrevocably agree to submit to the exclusive personal jurisdiction of such courts including all attorney and legal fees awarded in said judgment.
    3. Dispute Resolution.  The Parties shall initially attempt to resolve any dispute by escalating the dispute within their organizations and endeavor to resolve such dispute amicably by negotiation.  The Parties agree that a breach of the promises set forth in this Agreement would cause irreparable damages and that in the event of such breach, both Parties shall have, in addition to any and all remedies of law, or by this Agreement, the right to seek an injunction, specific performance or other equitable relief, to prevent such breach, before a court of competent jurisdiction. Both Parties agree that any action resulting from its breach of this Agreement, the prevailing party may recover, in addition to such other remedies as to which it may be entitled, its attorneys’ fees and expenses and other costs and expenses of the litigation, such as expert witness fees.
    4. No Waiver.  No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the party to be bound.  No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement.
    5. Severability.  If any provision in this Agreement is determined to be invalid, unlawful or unenforceable, that provision shall be construed, limited, modified, or if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability (in which event another provision, as similar as practicable to the severed provision while still being valid and enforceable, will be deemed substituted in its stead); and the other provisions of this Agreement shall remain unaffected.
    6. Force Majeure. Each Party shall be excused from performance and shall not be liable for any delay in whole or in part, caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors. These contingencies include, but are not limited to, power failure, failure of hosting services or other critical third party providers to perform as agreed, terrorism, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms hereof, accident, fire, explosion, flood, severe weather, any act of God, or shortage of labor, fuel or materials.
    7. Nonsolicitation.  Neither party shall solicit, in any capacity whatsoever, any of the other party’s employees involved in this Agreement for a period of twelve (12) months from the termination hereof, without the express written consent of the other party. This provision shall not restrict the right of either party to solicit or recruit generally in the media, and shall not prohibit either party from hiring an employee of the other who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.
    8. Assignment.  Neither this Agreement nor any of the rights hereunder is assignable by Licensee without Licensor’s prior written consent.  Licensor may assign or otherwise transfer its rights and obligations to any successor or assignee (whether by purchase of stock or assets, merger, operation of law or otherwise).
    9. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class certified mail, return receipt requested, (iii) sent by an internationally recognized overnight courier, or (iv) sent as an attachment to an electronic-mail transmission, in each case properly posted and fully prepaid to the appropriate address set forth below. Either Party may change its address for notice by notice to the other Party given in accordance with this section. Notices shall be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service or transmission via electronic mail, provided in each case that delivery in fact is affected.
    10. Counterparts; Fax Signatures. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The Parties agree that facsimile signatures shall be binding.
    11. Interpretation; Headings. No party shall be deemed the drafter of this Agreement; the Agreement shall be deemed to have been jointly prepared by the Parties. If this Agreement is ever construed, whether by a court or by an arbitrator, such court or arbitrator shall not construe this Agreement or any provision hereof against any party as the drafter. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this EULA will remain in full force and effect.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed, effective as of the Effective Date.