THE XUMBERS SOFTWARE END USER LICENSE AGREEMENT
Last Updated July 30, 2020
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY.
YOUR ELECTRONIC ACKNOWLEDGEMENT AND/OR YOUR ACTUAL USE OF THE XUMBERS SOFTWARE (DEFINED BELOW) AND/OR ANY RELATED ITEMS AND DOCUMENTATION INDICATES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”), INCLUDING, IN PARTICULAR, LIMITATIONS ON ACCESS, USE, TRANSFERABILITY, WARRANTY AND LIABILITY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE IN THE SAME MANNER AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. BY ELECTRONICALLY ACCEPTING THIS AGREEMENT OR THROUGH YOUR ACTUAL USE OF THE XUMBERS SOFTWARE, YOU CERTIFY THAT YOU HAVE THE AUTHORITY TO BIND YOURSELF TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU CANNOT USE THE XUMBERS SOFTWARE AND CANNOT EXERCISE ANY OF THE RIGHTS GRANTED HEREUNDER.
THE XUMBERS SOFTWARE IS LICENSED, NOT SOLD. YOU ARE PERMITTED TO COPY, DOWNLOAD, INSTALL AND/OR USE THE XUMBERS SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
This Agreement is made and entered into, as of the Effective Date (defined below), by and between Konvisser Custom Software L.L.C., having its principal offices in Orchard Lake, Michigan ( “Licensor”), and the Licensee (each a “Party” and collectively, the “Parties” to this Agreement).
WHEREAS, Licensor owns rights in and to the (i) software available on the websites https:// xumbers.com and https://xumbers.com/xumbers42, (ii) the iOS app Xumbers42 available on the Apple App Store; and (iii) the Android app Xumbers42 available on the Android App Store, and any and all Updates to such application and all Documentation to any of them (collectively “The Xumbers Software”), including without limitation the text, graphics, source code, object code, game mechanics, game titles, graphical user interface, look and feel, operation structure, taglines, music and audio features, audio-visual effects, and related developments, upgrades, patches and modifications, including all copyrights, patents, trademarks, trade secrets, and intellectual property to it, and any other associated material;
WHEREAS, Licensee desires to license from Licensor, and Licensor desires to license certain rights to use The Xumbers Software, subject to the terms and conditions as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are acknowledged, the Parties, intending to be legally bound, agree as follows:
1.1 ”Documentation” means any online, electronic or printed user guides and other documentation which Licensor makes available which describes the installation, game mechanics, use and/or other aspects of The Xumbers Software.
1.2 “Derivative Work” means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
1.3 ”Effective Date” means the date Licensee accepts this Agreement (including by electronic means and/or use of The Xumbers Software).
1.4 ”Licensee” means the user who downloads, accepts, copies and/or uses The Xumbers Software pursuant to this Agreement.
1.5 ”Term” has the meaning set forth in Section 5.
1.6 ”Trademarks” means (a) the trademarks, trade names, and service marks used by Licensor, whether registered or unregistered; (b) the respective stylistic marks and distinctive logotypes for such trademarks, trade names, and service marks; and (c) such other marks and logos as Licensor may designate from time to time.
1.7 ”Updates” means any modifications, error corrections, bug fixes, new releases, updates and/or any other changes or additions to The Xumbers Software, generally in object code form, that may be made available (for a fee or no fee) by Licensor to Licensee during the Term. Updates may be automatically sent to or installed on Licensee’s device by Licensor, and Licensee expressly consents to Licensor’s right and license to do so.
2. Grant of License; Restrictions
2.2 Restrictions. Licensee acknowledges and agrees that Licensee shall not use The Xumbers Software for any purpose other than for personal non-commercial entertainment or educational purposes, and that Licensee shall use The Xumbers Software in accordance with all applicable laws, rules, and regulations. Except as expressly provided in this Agreement or by law, Licensee shall not, and shall not permit, encourage or assist any third party to:
(a) transmit, distribute, rent, lease, sell, market, license, transfer or commercially exploit in any way all or any portion of The Xumbers Software;
(b) decompile, disassemble or otherwise reverse engineer The Xumbers Software, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, game play mechanics, or techniques used or embodied in The Xumbers Software, except as expressly permitted by applicable law;
(c) modify, translate, or create any Derivative Work based upon The Xumbers Software;
(d) grant a security interest in, assign, sublicense, pledge or otherwise transfer The Xumbers Software, in whole or in part, to any third party whatsoever;
(e) host, provide or develop software or code to intercept, emulate or redirect The Xumbers Software, in any way, including, without limitation, through protocol emulation, tunneling, packet sniffing, modifying or adding components to The Xumbers Software, use of a utility program or any other technique now known or later developed, for any purpose, including, but not limited to, unauthorized access or use remotely and/or over the Internet;
(f) use any bots, software and/or other code or techniques to auto-run or auto-play The Xumbers Software;
(g) intercept, data-mine, or collect in any way any data or information from The Xumbers Software, including without limitation from computer RAM where data about a user, user account, the game environment or other data may be stored;
(h) create, use or maintain any unauthorized connections to The Xumbers Software;
(i) use any bots, patches or cheats designed to modify the game play and/or functionality of The Xumbers Software in any manner;
(j) remove or alter any digital rights management mechanism, or copyright, Trademark, or other proprietary notices, legends, symbols, or labels appearing on or in The Xumbers Software;
(k) perform, or release the results of, benchmark tests or other comparisons of The Xumbers Software with other software or materials; or
(l) use The Xumbers Software for any purpose other than in accordance with the terms and conditions of this Agreement.
2.3 Copies. Licensee may make one copy of The Xumbers Software solely for personal back-up or archival purposes. Additionally, Licensee may copy The Xumbers Software for use on up to three devices owned, possessed or used by Licensee for Licensee’s personal non-commercial educational or entertainment use only.”
2.4 Third Party Technology. Licensee shall be required to obtain and pay for any and all third party services, software, hardware, and firmware necessary for use and implementation of The Xumbers Software.
2.5 Automatic Monitoring/Audits.”
2.5.1 Licensee acknowledges that Licensor reserves the right, at any time and without notice, to monitor compliance with the terms of this Agreement and to otherwise protect its rights in The Xumbers Software by incorporating license management technology into The Xumbers Software and monitoring usage, including, without limitation, time, date, access or other controls, counters, serial numbers, and/or other security devices. The Xumbers Software may also include product activation and other security technology that is designed to prevent the unauthorized access, use and/or copying of The Xumbers Software, or any portions or components thereof, including any violations of this Agreement. This technology may cause Licensee’s device to automatically connect to the Internet, may transmit information about Licensee and the device used to access The Xumbers Software (including personal information) to Licensor, and may prevent uses of The Xumbers Software that are not authorized or permitted pursuant to the terms of this Agreement.
2.5.2 Licensor reserves the right, with reasonable notice, to audit or have audited Licensee’s use of The Xumbers Software to verify compliance with the terms of this Agreement. Such audit shall be at Licensor’s expense unless noncompliance by Licensee is found by the auditor, in which case, Licensee shall reimburse Licensor for the reasonable costs of the audit in addition to payment of all fees necessary to obtain valid licenses or other purchases needed to bring Licensee’s use back into compliance.
2.6 Mobile Usage. The Xumbers Software includes versions designed for mobile content that may be viewed on mobile devices. In order to use The Xumbers Software on a mobile device, you must have a wireless mobile device capable of two-way messaging and wireless service through a participating mobile service provider.
2.8 Licensee Data. Licensee agrees that it shall solely own and be responsible for maintaining copies, backing up, and/or archiving all of Licensee’s data or information which Licensee uses on, in or with The Xumbers Software, and Licensor disclaims any responsibility or ownership with respect thereto.
3. Proprietary Rights. Licensee acknowledges and agrees that Licensor owns all rights in and to The Xumbers Software, including, but not limited to worldwide statutory and common law rights associated with (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations and moral rights; (c) the protection of trade and industrial secrets and confidential information; (d) Trademarks; and (e) divisions, continuations, renewals, Derivative Works, re-issuances and the like of any of the foregoing, now existing or acquired in the future. Licensee further acknowledges and agrees that Licensor shall at all times retain its ownership rights in each and every individual copy of The Xumbers Software and all subsequent copies and modifications of The Xumbers Software, regardless of the form, format or media in or on which the original and other copies may subsequently exist. This Agreement is not a sale of The Xumbers Software, nor is it a transfer of any intellectual or proprietary rights in The Xumbers Software. Licensee assigns and transfers without further consideration to Licensor all of Licensee’s right, title and interest in and to any modifications or Derivative Works of The Xumbers Software created by or for Licensee, regardless whether created in accordance with the terms of this Agreement; such assignment being effective upon creation of such works, and shall include, without limitation, all rights under any intellectual property laws, including patent and copyrights. Licensee shall not take any action to jeopardize, encumber, limit or interfere in any manner with Licensor’s ownership of and rights with respect to The Xumbers Software, or any Derivative Work thereof.
4. Payment Terms
4.1 License Fee. As long as the provisions of this Agreement are complied with by Licensee, there is no license fee for use of and/or access to The Xumbers Software during the Term. Licensor reserves the right to charge an additional or different license fee for use of and/or access to The Xumbers Software (or any services accessed by or through The Xumbers Software) at any time. However, Licensor shall provide Licensee written notice of its intent to charge a license fee at least ten (10) days prior to the implementation of any such license fee. Should Licensee continue to maintain a copy of and/or access or use The Xumbers Software after such date, Licensee shall be subject to and shall pay any and all such license fees. Addons and other in-game purchases are additional fees and not included in the license fee.
4.2 Taxes. Licensee shall be responsible for and shall pay all taxes, duties and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under this Agreement, including interest and penalties thereon (exclusive of taxes on Licensor’s net income) (“Taxes”), irrespective of whether included in any invoice sent to Licensee at any time by Licensor.”
4.3 Expenses. All expenses and costs incurred by Licensee in connection with its activities hereunder, if any, are the sole responsibility of Licensee. Licensee is not entitled to reimbursement from Licensor for any expenses, and Licensee will hold Licensor harmless therefrom.”
4.4 Payment Processing; App Store Terms. Licensee can obtain a license for The Xumbers Software at no charge through the applicable online or other application store (“App Store”). This Agreement and the provision of The Xumbers Software through any App Store is subject to the additional terms and conditions set forth on or in or required by the applicable App Store, including without limitation, Apple’s App Store/iTunes and Google Play, and all such applicable terms and conditions are incorporated by this reference.
5. Term and Termination
5.1 Term. Unless terminated earlier as provided for herein, this Agreement shall commence on the Effective Date and shall continue in effect for as long as Licensor offers or provides The Xumbers Software or when Licensee ceases to comply with the terms of this Agreement, whichever is sooner.
5.2 Termination. Licensor may terminate this License at any time for any reason by providing notice to Licensee. Without any prejudice to any other rights of Licensor, this Agreement will automatically terminate if Licensor ceases offering or providing The Xumbers Software or if Licensee fails to comply with the terms and conditions set forth herein. Licensee may terminate this Agreement at any time by (i) terminating any user account for access to or use of The Xumbers Software and (ii) deleting any and all copies of all Software in Licensee’s possession, custody or control.
5.3 Effect of Termination. Upon termination of this Agreement, including cessation of provision of The Xumbers Software by Licensor, all rights and licenses granted to Licensee hereunder shall immediately cease and Licensee shall cease all use of The Xumbers Software. Upon termination of this Agreement, Licensee shall, at Licensee’s sole expense, delete or destroy all Software (and all copies and extracts thereof) then in Licensee’s possession, custody or Licensee’s control. Licensor shall not be liable to Licensee in any way for any loss or damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Licensor’s termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law or in equity, and shall not be a waiver of or relieve Licensee of any breaches of this Agreement. The provisions of any Section or provision of this Agreement with a continuing obligation or duty, shall survive the expiration or any termination of this Agreement.
6. WARRANTIES / LIMITATION OF LIABILITY
6.1 Licensee Warranty. Licensee represents and warrants to Licensor that (i) Licensee shall be solely responsible for all copying, downloading, access to and/or use of Licensee’s copy/ies of The Xumbers Software; (ii) Licensee has the full authority and right to enter into this Agreement; and (iii) Licensee agrees to take all reasonable steps to protect The Xumbers Software from unauthorized use, illegal reproduction, illicit distribution, or anything else that would violate the terms of this Agreement..
6.2 Disclaimer of Warranties. THE XUMBERS SOFTWARE IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE AND PURSUANT TO APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT AND INTELLECTUAL PROPERTY INDEMNITY, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. LICENSOR DOES NOT WARRANT THAT LICENSEE’S USE OF THE XUMBERS SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE XUMBERS SOFTWARE IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. LICENSEE ACKNOWLEDGES THAT LICENSEE IS RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, INTERNET, WIRELESS CONNECTION, COMPUTER HARDWARE, MOBILE DEVICES, AND ANY OTHER EQUIPMENT OR SERVICE NEEDED TO ACCESS AND USE THE XUMBERS SOFTWARE AND ALL RELATED CHARGES. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR LICENSEE’S USE OF THE XUMBERS SOFTWARE AND LICENSEE’S RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF LICENSOR OR ITS PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS, AGENTS OR THIRD PARTY USERS, WHETHER MADE IN OR ON THE XUMBERS SOFTWARE OR OTHERWISE, SHALL CREATE ANY WARRANTY. LICENSEE’S USE OF THE XUMBERS SOFTWARE IS ENTIRELY AT LICENSEE’S OWN RISK.
6.3 Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE AND PURSUANT TO APPLICABLE LAW, NEITHER LICENSOR NOR ANY OF ITS PARENT, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, SHALL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, WHETHER AN ACTION BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR FINANCIAL LOSS DUE TO (i) THE FAILURE, QUALITY, OR PERFORMANCE OF THE XUMBERS SOFTWARE OR THE ACCESS TO OR USE OF THE XUMBERS SOFTWARE BY LICENSEE; (ii) ANY DAMAGE TO, OR DEGRADATION OR LOSS OF ANY DATA, INFORMATION OR WORK PRODUCT OF LICENSEE; (iii) THIRD PARTY SOFTWARE; (iv) LICENSOR’S PERFORMANCE OF ANY MAINTENANCE OR SUPPORT; OR (v) ANY MATTER BEYOND LICENSOR’S REASONABLE CONTROL. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, therefore, in such jurisdictions such limitations shall not apply.
6.4 Maximum Liability. IN NO EVENT SHALL THE LIABILITY OF LICENSOR FOR ANY AND ALL CLAIMS HEREUNDER BY LICENSEE, REGARDLESS OF THE FORM OF THE ACTION EXCEED THE GREATER OF THE FEES PAID BY LICENSEE TO LICENSOR FOR THE PRECEDING TWELVE (12) MONTH PERIOD FOR ANYTHING RELATED TO THE XUMBERS SOFTWARE OR FIFTY US DOLLARS ($50), WHICHEVER IS GREATER.
6.5 Other. Without limiting the foregoing, Licensor shall have no obligations, responsibilities and/or liabilities for any nonconformance or failure of, or error in, The Xumbers Software including if caused by: (a) use of any attachment, feature, hardware, software or device in connection with The Xumbers Software; (b) or misuse of The Xumbers Software or any use of The Xumbers Software that is not in accordance with this Agreement and/or the Documentation; (c) alteration, modification, or enhancement of The Xumbers Software; or (d) failure to provide a suitable installation or use environment for all or any part of The Xumbers Software.
6.6 Bargained For Limitation. THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION 6 ARE A BARGAINED FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.
7.1 Licensee Indemnification. Licensee agrees to indemnify, hold harmless, and defend Licensor, its parent, subsidiaries, affiliates, licensors, suppliers, advertisers, sponsors and partners, and its and their directors, officers, employees, consultants, agents and representatives, from and against any and all actions, disputes, proceedings, claims, damages, expenses, liabilities, losses and costs, including reasonable fees of attorneys and other professionals, arising out of or relating to third party claims resulting from: (i) any breach or alleged breach of this Agreement by Licensee or its agents or representatives; (ii) any claim against Licensor for personal injury or tangible property damage directly attributable to the willful misconduct or gross negligence of Licensee or its agents or representatives; (iii) the use, operation or combination of The Xumbers Software with non-Licensor software, data, equipment or documentation if liability would have been avoided but for such use, operation, or combination; (iv) use of other than the then-current, unaltered version of The Xumbers Software; (v) Licensee’s activities after Licensor has notified Licensee that Licensor believes such activities may result in infringement; (vi) Licensee’s modifications to or markings on or in The Xumbers Software; (vii) the use of any unauthorized third party software or code; (viii) the use of any of Licensee’s own data, information, devices or materials; and/or (ix) the use of Licensee’s user account for or with The Xumbers Software by any third party or the use by Licensee of a third party’s user account, regardless of whether permitted under this Agreement. Licensor shall have the right, but not the obligation to defend such action or require Licensee to do so, in either case at Licensee’s expense for all costs, fees and damages finally awarded against Licensor in such action or to be paid in settlement of such claim. Licensee shall have the right, at its own expense, to participate in the defense of any such claim through counsel of its own choosing, and shall in any event cooperate reasonably with Licensor in defense of such claim.
8. General Provisions
8.1 Assignment/No Transfer of Software. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Licensee without the prior written consent of Licensor. Licensor may assign, license, delegate or otherwise transfer its rights or obligations to any third party without restriction. Subject to the preceding sentences, the rights and liabilities of the Parties are binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Section 8.1 shall be invalid.
8.3 Usage Restriction. Licensor makes no representation that The Xumbers Software is appropriate or available for use outside the U.S. Those who choose to access or use The Xumbers Software from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. The Xumbers Software is further subject to U.S. export controls. Licensee shall abide by all applicable export and import laws, regulations and restrictions of the United States and its agencies or authorities in Licensee’s use of The Xumbers Software. The Xumbers Software may not be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods or which is subject to other applicable U.S. trade sanctions; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By downloading or using any software, Licensee represents and warrants that Licensee is not located in, under the control of, or a national or resident of any such country or on any such list. Licensor reserves the right to limit the availability of The Xumbers Software and/or the provision of any service, to any person, geographic area or jurisdiction, at any time and in Licensor’s sole discretion, and to limit such Software or services, that Licensor provides. Licensee acknowledges that it is Licensee’s responsibility to comply with any and all export and import laws, regulations and restrictions and that Licensor has no further responsibility after the initial provision of The Xumbers Software to Licensee within or from the U.S.
8.4 No UN Convention on Contracts Applicability. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8.5 Free and Open Source Software. The Xumbers Software may include certain third party code covered by other licenses, as identified in a designated directory within The Xumbers Software or on a designated page of Licensor’s website(s). LICENSEE’S LICENSE TO THIS THIRD PARTY CODE IS SUBJECT TO THE APPLICABLE THIRD PARTY LICENSE, EVEN IF CONTRARY TO THIS AGREEMENT.
8.6 Waiver. The waiver by either Party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
8.7 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
8.8 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the Parties. Neither Party, nor either Party’s agents, have any authority of any kind to bind the other Party in any respect whatsoever.”
8.9 Force Majeure. Neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, error in the coding of electronic files, Internet or other network “brownouts or failures, power failures, novelty of product manufacture or other unanticipated product development problems, third party attach or other actions and acts of civil and military authorities.
8.11 Entire Agreement; Construction. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom. A printed version of this Agreement and of any notices given in electronic form shall be admissible in judicial or administrative proceedings arising out of or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The captions, Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
8.12 Equitable Relief. Licensee acknowledges and agrees that due to the unique nature of this Agreement, there can be no adequate remedy at law to compensate Licensor for Licensee’s breach or threatened breach hereof; resulting in irreparable harm to Licensor that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Licensor shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages or of posting a bond), in addition to whatever remedies it may have at law, hereunder, or otherwise.
8.13 No Third Party Beneficiaries. Except as expressly stated, this Agreement is not intended to confer any benefit on any person or entity not a Party hereto.
8.14 Notices. All notices required or permitted to be given under this Agreement must be in writing and shall be given by personal delivery, registered or certified mail, or Federal Express or other nationally recognized courier service which regularly tracks its packages, if to Company to Konvisser Custom Software, C/O Eric J. Gould, Cohen, Lerner & Rabinovitz, P.C., 26862 Woodward Ave., Suite 200, Royal Oak, MI 48067 and if to you, to the e-mail and/or postal address associated with your correspondence with Company, if any. Notices, if personally delivered, shall be deemed to have been received on the date of delivery; if by registered or certified mail, on the third business day after mailing; if by e-mail, on the second business day after deposit with the service. You may not send any notices under this Section to Company via e-mail.
8.15 Amendment. Licensor reserves the right to make changes to this Agreement at any time, however, Licensor shall provide notification to Licensee of such changes, such as by posting a notification on the Websites or via e-mail. If Licensee continues to download, access and/or use The Xumbers Software after the effective date of such changes, then Licensee shall be deemed to have accepted the changes and agrees to follow and be bound by this Agreement as amended. Upon acceptance, the revised Agreement shall supersede all previous versions of this Agreement. Upon Licensor’s request, Licensee agrees to accept or sign a non-electronic version of this Agreement.
8.16 Statute of Limitations. Any claim or cause of action arising out of or related to this Agreement must be filed within 1 year after such claim or cause of action first arose regardless of any statutes or law to the contrary. In the event any such claim or cause of action is not filed (or if applicable, arbitration commenced) within such 1 year period, such claim or cause of action is forever barred.
Updated: ”July 30, 2020