LAST UPDATED DATE: DECEMBER 13, 2023
These MASTER SUBSCRIPTION TERMS AND CONDITIONS (the “Subscription Terms”) are entered into by and between AWNING TECHNOLOGIES, INC., a Delaware corporation (“Awning”, “we” or “us”), and the company, organization or other legal entity that has entered into a mutually executed order form that references these Subscription Terms (an “Order Form”, and together with these Subscription Terms, this “Agreement”) with Awning (such entity that has entered into an Order Form is hereinafter referred to as the “Customer”), and govern Customer's access to and use of the Platform (as defined below). Capitalized terms have the definitions set forth herein. Each of Awning and Customer are a “Party” and, collectively, are the “Parties”.
BY ACCEPTING THIS AGREEMENT, BY (I) CHECKING OR CLICKING THE APPROPRIATE ELECTRONIC ACCEPTANCE BOX, (II) EXECUTING AN ORDER FORM, OR (III) ACCESSING OR USING THE PLATFORM IN ANY WAY, YOU (I) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (II) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, (III) REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTAND AND AGREE, ON BEHALF OF YOURSELF AND CUSTOMER, TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE PLATFORM.
PLEASE NOTE THAT THESE SUBSCRIPTION TERMS IS SUBJECT TO CHANGE BY AWNING IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Awning will make a new copy of these Subscription Terms available through the Platform. We will also update the “Last Updated” date on the top of these Subscription Terms. Unless otherwise provided, new terms are effective immediately for new customers of the Platform. If we make material changes to these Subscription Terms, we may (and where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach Customer, such as via email or another manner through the Platform (which may include posting an announcement on the Platform). Awning may require Customer to provide consent to the updated Subscription Terms in a specified manner before further use of the Platform is permitted. IF CUSTOMER DOES NOT AGREE TO ALL OF THE CHANGES AFTER RECEIVING A NOTICE OF SUCH CHANGES, CUSTOMER SHALL STOP ACCESSING THE PLATFORM.
PLEASE READ SECTION 12.8 CAREFULLY AS IT CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN CUSTOMER AND AWNING, INCLUDING AN AGREEMENT TO ARBITRATE THAT REQUIRES (WITH LIMITED EXCEPTIONS) THAT ALL DISPUTES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT BE RESOLVED THROUGH BINDING ARBITRATION.
The following terms, when used in these Subscription Terms, will have the following meanings:
1.1 “Authorized User” means any individual that is an employee of Customer, or a contractor of Customer performing services for Customer, that is authorized by Customer to access and use the Platform.
1.2 “Awning Materials” means the Platform, Support Materials, and any other materials or information delivered or made available by Awning under the Agreement, including instructions, algorithms, artifacts, models, objects, or software that are part of the Platform or used to generate any output from the Platform, together with all updates, upgrades, improvements, enhancements, and modifications to or of the foregoing.
1.3 “Platform” means the Awning software platform, which is to be made available by Awning to Customer on a software-as-a-service basis, including all fixes, updates, and upgrades to the same made available to Customer.
1.4 “Support Materials” means any printed and digital instructions, help files, technical documentation and user manuals that may be made available by Awning to Customer describing the intended operation of the Platform.
1.5 “Usage Limitations” means any usage limitations or restrictions, including, without limitation, quantity limitations, with respect to Customer's use of the Platform set forth in the Order Form.
2.1 Access to the Platform. Subject to the terms and conditions of the Agreement, Awning hereby grants to Customer, during the term of the Agreement, a non-exclusive, non-sublicensable, non-transferable right to access and use, and permit Authorized Users to access and use, the Platform solely for Customer's internal business purposes in accordance with any Usage Limitations, the Agreement, and the Support Materials.
2.2 Customer Accounts; User Accounts. In order to access the Platform, Customer will be required to register an enterprise account with Awning (a “Customer Account”). In addition, Customer will provision a user account for the Platform (a “User Account”) for each Authorized User. A Customer Account may have multiple User Accounts associated with it, and each Customer Account shall have an Authorized User designated with administrative privileges to add, remove, suspend and otherwise manage the User Accounts associated with such Customer Account. User Accounts may only be accessed and used by one Authorized User and may not be shared with any person other than the Authorized User to which the User Account was provisioned. As between Awning and Customer, Customer is responsible for each Authorized User maintaining the confidentiality of any access credentials for the User Account of such Authorized User. Customer is responsible for all actions taken using any User Account provisioned by Customer. Customer will promptly notify Awning if Customer becomes aware of or reasonably suspects that there has been any unauthorized access to any User Account.
2.3 Support Materials. Subject to the terms and conditions of the Agreement, Awning hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license during the term of the Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Support Materials solely in connection with Customer's authorized use of the Platform. Customer will include on any copies it makes of the Support Materials the copyright notices or proprietary legends contained within the same.
2.4 Customer Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, translate, modify, create derivative works of the Awning Materials; (b) copy or reproduce the Awning Materials, except to the extent necessary to exercise the licensed use of the same hereunder; (c) attempt to probe, scan, or test the vulnerability of the Platform, breach the security or authentication measures of the Platform without proper authorization or willfully render any part of the Platform unusable; (d) use or access the Awning Materials to develop a product or service that is competitive with the Awning Materials or engage in competitive analysis or benchmarking with respect to Awning Materials; (e) transfer, distribute, sell, resell, lease, license, sublicense, operate as a service for or on behalf of others, or otherwise assign the Awning Materials or, other than with respect to Authorized Users, offer access to the Awning Materials to a third party; (f) circumvent or interfere with any authentication or security measures of the Platform or interfere with or disrupt the integrity or performance of the Platform; (g) export the Awning Materials or technical data or any copy, portions or direct product thereof 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; (h) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the Platform; or (i) exceed any Usage Limitations or otherwise use the Awning Materials except as expressly permitted hereunder. Customer will notify Awning promptly of any such unauthorized access to or use of the Awning Materials. In addition, in using the Awning Materials or any Customer Content, Customer shall not send any unsolicited or unauthorized communications, or otherwise violate the CAN-SPAM Act or any other anti-spam or similar law.
2.5 Professional Services. The Parties may enter into one or more statements of work for implementation or training services or other professional services to be provided by Awning (“Professional Services”) that references this Agreement, sets forth the details of the Professional Services to be provided hereunder, and the fees to be paid by Customer therefor (any such statement of work, a “SOW”). Subject to Customer's timely payment of all applicable fees, Awning will perform the Professional Services, identified in the Order Form or a SOW in a professional and workmanlike manner materially in accordance with the specifications and schedules therefor set forth in such Order Form or SOW. Except as expressly set forth in the applicable Order Form or SOW, Awning will own and retain all right, title, and interest, including all intellectual property and proprietary rights, in and to any work product or deliverables created in connection with any Professional Services. Nothing in the Agreement shall be understood to prevent Awning from developing similar work product or deliverables for other customers.
3.1 Fees. Customer will pay Awning the fees set forth in the Order Form and SOWs in accordance with the payment terms set forth therein. Except as otherwise specified in the Order Form or the applicable SOW: (a) fees are quoted and payable in United States dollars; and (b) payment will be made by ACH transfer. Except as otherwise set forth in this Agreement or an Order Form or SOW all payment obligations are non-cancelable and fees paid are non-refundable. Awning may, upon notice to Customer, suspend the rights to access the Awning Materials or suspend the license to the Platform immediately upon notice if Customer fails to pay any amounts hereunder past the applicable due date.
3.2 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Awning. Customer will not withhold any taxes from any amounts due to Awning.
4.1 Awning Materials. As between the Parties, Awning exclusively owns all right, title, and interest in and to Confidential Information (as defined below) disclosed to Customer by Awning and the Awning Materials. Except as expressly granted in these Subscription Terms, Awning does not grant to Customer any license or rights (by implication, estoppel, or otherwise) in the Awning Materials. All other rights in and to the Awning Materials are expressly reserved by Awning. Notwithstanding anything herein to the contrary, all rights granted hereunder in and to the Awning Materials are licensed and not sold or transferred. Customer acknowledges that Awning may, but is under no obligation to monitor Customer's use of the Platform.
4.2 Customer Content. As between Awning and Customer, Customer retains all rights, title, and interest in and to any data, texts, email messages, photographs, and other types of works submitted, or made available by Customer or an Authorized User to the Platform and the outputs resulting from the processing of such works by or on the Platform (to the extent of any ownership rights available in such outputs under applicable law), together with any derivative works thereof made by Customer (the “Customer Content”) (provided that, “Customer Content” does not, in any event, include any Awning Materials). Customer hereby grants Awning a non-exclusive, limited license during the term of this Agreement to use Customer Content as necessary to make available the Platform and perform its obligations hereunder. Awning will delete and erase any Customer Content from the Platform within a commercially reasonable amount of time following Customer's request therefor. Awning may, in its discretion, also delete Customer Content from inactive accounts, or otherwise in accordance with its retention and usage policies. Awning will have no liability due to any inability to use the Platform as a result of any Customer Content that was deleted at Customer's request. Notwithstanding anything to the contrary herein, nothing herein limits or restricts Awning's right or ability to use data regarding the performance, availability, usage, integrity and security of the Awning Materials and Customer hereby grants Awning a perpetual, irrevocable unlimited, royalty-free, fully paid up, sublicensable license to use any non-personally identifiable information related to users' interactions with the Platform as well as Customer Content in a de-identified form to operate and improve Awning's products and services, including for the purpose of tuning or training artificial intelligence algorithms and models. For the avoidance of doubt, Awning will not provide any Customer Content to other customers of Awning.
5.1 Definition. “Confidential Information” means, with respect to each Party (as the “Disclosing Party”), any information disclosed by or on behalf of the Disclosing Party to the other Party (as the “Receiving Party”) that is either designated as confidential or proprietary at the time of disclosure or should be reasonably understood to be confidential in light of the nature of the information or the circumstances surrounding its disclosure and: (a) with respect to Customer as Disclosing Party, “Confidential Information” includes the Customer Content; (b) with respect to Awning as Disclosing Party, “Confidential Information” includes the Awning Materials; and (c) with respect to each Party as the Disclosing Party, “Confidential Information” includes the terms and conditions of this Agreement.
5.2 Confidentiality. Receiving Party will use the Confidential Information solely to perform its obligations and exercise its rights under the Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the Disclosing Party's prior written consent, except as otherwise permitted hereunder. However, Receiving Party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives (collectively, “Representatives”) who have a need to know and are legally bound to keep such information confidential by confidentiality obligations with respect to the Confidential Information of the Disclosing Party consistent with those of this Agreement (provided that the Receiving Party shall be responsible for any actions of its Representatives that would breach this Section 5.2 if such action were taken by Receiving Party); and (b) as required by law (in which case the Receiving Party will provide the Disclosing Party with prior written notification thereof, will provide the Disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law; and provided further that any information so disclosed shall retain its confidentiality protections for all other purposes).
5.3 No Personally Identifiable Information. Unless expressly set forth in the Order Form, the Parties do not intend for Customer to provide any personally identifiable information (as defined under applicable privacy laws) in connection with Customer's use of the Platform, other than the limited information required for the provisioning of User Accounts. To the extent the Parties agree that Customer will provide any other personally identifiable information in connection with its use of the Platform, the Parties will agree in good faith with respect to terms governing the processing of such personally identifiable information unless otherwise set forth in the Order Form.
5.4 Feedback. Customer may from time to time provide Awning suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”). Customer hereby grants Awning a perpetual, irrevocable unlimited, royalty-free, fully paid up, sublicensable license to freely use, exercise, and exploit any such Feedback in connection with Awning's business, products, and services.
Awning will: (a) make the Platform available to Customer at least 99% of the time, excluding scheduled maintenance and downtime beyond the control of Awning, measured on a collective, rolling 6-month basis; (b) prepare and implement a disaster recovery plan intended to restore service within 24 hours after any interruption of the Platform; (c) provide Customer with technical support by email at support@awning.ai; and (d) implement commercially reasonable measures designed to secure the Platform against unauthorized access to or alteration of Customer Content on the Platform; provided that Customer is solely responsible for maintaining the security and operability of any systems and devices used to access the Platform ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of all Customer Content submitted to the Platform.
7.1 Generally. Customer acknowledges and agrees that the Platform uses, integrates, or is hosted on certain technology that are provided or made available by third parties (“Third Party Technology”), including large language model artificial intelligence algorithms (each an “LLM”), and that Customer Content will be shared with such third parties in order to provide the Platform and the features and functionality thereof. Awning selects third party LLMs used in the provision of the Platform that are provided pursuant to policies: (a) protecting Customer Content in a manner substantially consistent with the terms of this Agreement; (b) that the provider will not use Customer Content to train the LLM; and (c) that acknowledge the user's ownership of outputs from the LLM's processing of prompts.
7.2 Third Party Accounts. Customer or Authorized Users may be permitted to connect their account on a Third Party Technology (any such account, a “Third Party Account”). If Customer or an Authorized User connects any Third Party Account with the Platform, then: (a) Customer represents and warrants that they have all necessary rights to connect the Third Party Account to the Platform and to permit Awning to access the Third Party Account in accordance with this Agreement; and (b) Awning may access and store any information, data, software code, and/or other materials accessible to the Platform through such Third Party Account as Customer Content hereunder. Customer is solely responsible for any Third Party Technology for which Customer, or an Authorized User chooses to connect a Third Party Account to the Platform. Customer's and Authorized Users' relationship with the providers of such Third Party Technology for which a Third Party Account is connected to the Platform is governed solely by Customer's agreement with such third party service provider, and Awning is not liable for: (i) any action or inaction by such third party service provider; (ii) Awning's possession or use as Customer Content of any data or information that may be provided to it by such third party service providers in violation of the settings in such Third Party Account; or (iii) any inability to access or use any Customer Content as a result of any cancellation or loss of or inability to access or use any Third Party Account.
8.1 Term. The term of the Agreement will commence on the date Customer first checks or clicks the appropriate electronic acceptance box or first accesses and uses the Platform, whichever occurs first (the “Effective Date”) and will continue for the duration of the 'Order Term' set forth in the Order Form (the “Initial Term”). Upon expiration of the Initial Term, the term of this Agreement will automatically renew for consecutive and successive renewal terms equal to the length of the Initial Term or such other duration as set forth in the Order Form (each a “Renewal Term”), unless either Party provides the other Party with written notice of non-renewal at least 60 days prior to the end of the then-current Initial Term or Renewal Term. Awning reserves the right to increase the fees payable under the Order Form effective at the start of the next applicable Renewal Term, by providing written notice of such increase to Customer at least ninety (90) days prior to the end of the then-current term.
8.2 Termination. Each Party may terminate the Agreement upon written notice to the other Party if: (a) the other Party commits any material breach of the Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach; or (b) the other Party undergoes a liquidation, commencement of dissolution proceedings, or an assignment of substantially all its assets for the benefit of creditors.
8.3 Survival. Upon termination or expiration of the Agreement: (a) all licenses and other rights and obligations will immediately terminate except that Sections 1, 2.4, 3, 4, 5, 8.3, 9.1, 10, 11, and 12 (other than 12.1) will survive indefinitely; and (b) Customer will immediately: (i) cease all use of the Awning Materials, (ii) promptly erase all copies of the Awning Materials in Customer's possession, and (iii) certify in writing that it has complied with the foregoing (i) and (ii).
9.1 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (a) THE ACCURACY, SUFFICIENCY, AND USEFULNESS OF ANY RESULTS PROVIDED BY THE PLATFORM IS DEPENDENT ON THE QUALITY OF THE CUSTOMER CONTENT PROVIDED AND AUTHORIZED USERS' REVIEW AND VERIFICATION OF ALL CUSTOMER CONTENT AND, AWNING MAKES NO REPRESENTATION, WARRANTY, OR COVENANT WITH RESPECT TO THE ACCURACY OR EFFECTIVENESS OF THE PLATFORM, THE AWNING MATERIALS, OR RESULTS OR CONTENT GENERATED THEREFROM OR ANY DECISION OR ACTION TAKEN BY CUSTOMER AS A RESULT OF ANY OF THE FOREGOING; (b) AWNING IS NOT THE PROVIDER OF ANY THIRD PARTY TECHNOLOGY OR RESPONSIBLE FOR ANY THIRD PARTY TECHNOLOGY, AND AWNING HEREBY DISCLAIMS AND WILL HAVE NO LIABILITY HEREUNDER RESUTING FROM OR WITH RESPECT TO THE OPERATION, MAINTENANCE, FUNCTION, FAILURE, OR SECURITY OF ANY THIRD PARTY TECHNOLOGY OR ANY ACT OR OMISSION OF ANY PROVIDER OF ANY THIRD PARTY TECHNOLOGY.
9.2 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH AWNING WHERE CUSTOMER IS PERMITTED ACCESS TO BETA PRODUCTS, FEATURES OR SUPPORT MATERIALS THAT HAVE NOT BEEN COMMERCIALLY RELEASED (COLLECTIVELY, “BETA PRODUCTS”). THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, AWNING DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE BETA PRODUCTS. CUSTOMER OR AWNING MAY TERMINATE CUSTOMER'S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
10.1 Indemnity by Awning. Awning will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret (“Third Party Claim”) and will indemnify Customer for any damages finally awarded against Customer in connection with any such Third Party Claim (or any settlement approved by Awning); provided that: (a) Customer will promptly notify Awning of such Third Party Claim; (b) Awning will have the sole and exclusive authority to defend and/or settle any such Third Party Claim (provided that Awning may not settle any Third Party Claim without Customer's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability); and (c) Customer reasonably cooperates with Awning in connection therewith. If the use of the Platform by Customer has become, or in Awning's opinion is likely to become, the subject of any claim of infringement, Awning may at its option and expense: (i) procure for Customer the right to continue using the Platform as set forth hereunder; (ii) replace or modify the Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the Agreement, and provide a pro rata refund of any prepaid and unexpended fees. Awning will have no liability or obligation with respect to any Third Party Claim to the extent such Third Party Claim is caused by: (A) use of the Awning Materials by Customer other than as expressly permitted under this Agreement; (B) use of the Awning Materials by Customer in violation of this Agreement, or any applicable law, including the CAN_SPAM Act; (C) modification of the Awning Materials by any party other than Awning or a third party on Awning's behalf; (D) Customer's Confidential Information, including Customer Content; (E) the combination, operation or use of the Awning Materials with other applications, portions of applications, product(s), or services, including Third Party Technology, where the Platform would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Awning's sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
10.2 Indemnification by Customer. Customer will defend Awning against any Excluded Claim made or brought against Awning by a third party, and Customer will indemnify Awning for any damages finally awarded against Awning in connection with any such Excluded Claim (or any settlement approved by Customer); provided that: (a) Awning will promptly notify Customer of such Excluded Claim; (b) Customer will have the sole and exclusive authority to defend and/or settle any such Excluded Claim (provided that Customer may not settle any Excluded Claim without Awning's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Awning of all liability); and (c) Awning reasonably cooperates with Customer in connection therewith.
EXCEPT FOR LIABILITY ARISING OUT OF A PARTY'S OBLIGATIONS UNDER SECTIONS 2.4 OR 5.2 UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THE AGREEMENT FOR: (a) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (b) EXCLUDING CUSTOMER'S PAYMENT OBLIGATIONS, ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE ORDER FORM AND APPLICABLE SOWS DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
12.1 Publicity. Customer agrees that Awning may refer to Customer's name and trademarks in Awning's marketing materials and website. Awning will not use Customer's name or trademarks in any other publicity without Customer's prior written consent (which may be by email).
12.2 Assignment; Delegation. Neither Party hereto may assign or otherwise transfer the Agreement, in whole or in part, without the other Party's prior written consent, except that either Party may assign the Agreement without consent to a successor to all or substantially all of its assets or business related to the Agreement. Upon a change of control or other acquisition of Customer, Customer's right to use the Platform will be limited to that number of users that were permitted to use the Platform immediately prior to such change of control or acquisition. Any attempted assignment, delegation, or transfer by either Party in violation hereof will be null and void. Subject to the foregoing, the Agreement will be binding on the Parties and their permitted successors and assigns.
12.3 Amendment; Waiver. No amendment or modification to the Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both Parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision.
12.4 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment, or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein will give rise or is intended to give rise to any rights of any kind to any third parties.
12.5 Compliance with Law. Customer warrants that its use of the Awning Materials will comply in all respects with all applicable laws in connection with the Agreement, including without limitation the U.S. Export Administration Regulations and sanctions regulations administered by the U.S. Treasury Department.
12.6 Unenforceability. If a court of competent jurisdiction determines that any provision of the Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of the Agreement will remain in full force and effect and bind the Parties according to its terms.
12.7 Governing Law. The Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
12.8 Arbitration. Awning and Customer agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. A Party who intends to seek arbitration must first send a written notice of the dispute to the other Party. The Parties will use good faith efforts to resolve the dispute directly, but if the Parties do not reach an agreement to do so within 30 days after the notice is received, either Party may commence an arbitration proceeding. The arbitration will be confidential and conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in San Francisco, California. If the Parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The arbitrator's decision will be final and binding on both Parties. Notwithstanding the foregoing, this Section 12.8 will not prohibit either party from seeking injunctive or other equitable relief in a court of competent jurisdiction.
12.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
12.10 Entire Agreement. The Agreement, including all exhibits, attachments, and Order Forms, which are hereby incorporated by reference into and form a part of the Agreement, comprises the entire agreement between Customer and Awning with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Awning, its agents or employees will create a warranty or in any way increase the scope of the warranties in the Agreement. In the event of a conflict between the Subscription Terms and the terms and conditions of the Order Form or an SOW, the Subscription Terms will control.
12.11 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations, other than any obligations to make payments hereunder, due to causes beyond its reasonable control, including earthquake, flood, pandemic, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), any failure of Third Party Technology, or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
12.12 Government Terms. The Platform shall constitute “commercial” computer software. Government technical data and software rights related to the Platform include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Awning to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.