WHEREAS, Mission Focus is the entire legal and beneficial owner of the Licensed Software (as defined herein), and desires to license the Software to Licensee; and WHEREAS, the Licensee desires to obtain a license to use the Licensed Software for its internal purposes, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Capitalized terms shall have the meanings set forth or referred to in this Section, or in the Section in which they first appear in the Agreement.
“Action” means any third-party claim, suit, action or proceeding alleging that the Licensed Software infringes or misappropriates any patent, patent application issued or published on or before the Effective Date, copyright or trademark of that third party.
“Authorized Users” means those employees, contractors, and other designees of the Licensee who are authorized by the Licensee to use the Licensed Software.
“Confidential Information” means all nonpublic or proprietary information treated as confidential by a Party, including all:
(a) information concerning a Party’s past, present and future business affairs including finances, products, services, organizational structure, internal practices, forecasts and sales;
(b) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how and other confidential intellectual property;
(c) designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing;
(d) any third-party confidential information included with, or incorporated in, any information provided by a Party; and
(e) all Notes prepared by or for a Party or its Representatives that contain, reflect or are derived from, in whole or in part, any of the foregoing. Except as required by applicable federal, state or local law or regulation, “Confidential Information” shall not include information that, at the time of disclosure:
(1) is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by the receiving Party or any of its Representatives;
(2) is, or thereafter becomes, available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
(3) was known by or in the possession of the receiving Party or its Representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the disclosing Party; or
(4) was or is independently developed by the receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing Party’s Confidential Information.
“Controlled Technology” has the meaning set forth in Section 5.
“Documentation” means user manuals, technical manuals and any other materials provided by Mission Focus, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Licensed Software.
“Intellectual Property Rights” means all
(a) patents, patent disclosures and inventions (whether patentable or not),
(b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith,
(c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases,
(d) trade secrets, know and other confidential information, and
(e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.
“Legal Order” has the meaning set forth in Section 11.2.
“Licensed Software” means the SemApp, together with any Maintenance Releases provided to the Licensee pursuant to this Agreement.
“Loss or Losses” means damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including outside attorneys’ fees, resulting from any Action that is subject to indemnification under Section 14.
“New Version” means any new version of the Licensed Software that Mission Focus may from time to time introduce and market generally as a distinct licensed product, and which Mission Focus may make available to the Licensee at an additional cost under a separate written agreement.
“Notes” means any notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations or other materials, in printed, electronic or other form.
“Open-Source Components” means any open-source, freeware, shareware or other software having similar licensing or distribution models by which it is subject to license agreement or other enforceable requirements or restrictions, including under any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that conforms to a standard definition set by the Open Source Initiative.
“Permitted Use” means use of the Licensed Software by an Authorized User for the benefit of the Licensee in the ordinary course of its internal operations.
“Representatives” means a Party’s and its successors’ and permitted assigns’ affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
“Site” means the single geographic location, mutually agreed to by the Parties.
2. License Grant.
Mission Focus hereby grants to the Licensee a non-exclusive, non- transferable, limited, perpetual license to use the Licensed Software and Documentation at the Site solely in accordance with the terms and conditions of this Agreement.
3. Scope of Use.
The Licensee shall be permitted to install, use and run the Licensed Software on Licensee’s network only within the Site for an unlimited number of nodes for use by its Authorized Users.
3.2 Permitted Use.
The Licensee shall use the Licensed Software solely for its Permitted Use, except as otherwise expressly provided in this Agreement.
4. Use Restrictions.
The Licensee shall not, and shall not permit any Representatives or third parties to, in any manner:
4.1 modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Licensed Software;
4.2 reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part, except as and only to the extent this restriction is prohibited by law or, with respect to Open-Source Components included in the Licensed Software, under the applicable open-source software license agreements governing the use of these components;
4.3 remove, disable, or otherwise create or implement any workaround to, any security features contained in the Licensed Software;
4.4 remove, delete or alter any trademarks, copyright notices or other Intellectual Property Rights notices of Mission Focus or its licensors, if any, from the Licensed Software;
4.5 copy the Licensed Software, in whole or in part, except that the Licensee may make a reasonable number of copies of the Licensed Software solely for testing, disaster recovery or archival purposes. Any copy of the Licensed Software made by the Licensee:
(a) shall remain the exclusive property of Mission Focus;
(b) be subject to the terms and conditions of this Agreement; and
(c) must include all copyright or other Intellectual Property Rights notices contained in the original;
4.6 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Licensed Software available to any third party for any reason;
4.7 use the Licensed Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
(a) power generation systems;
(b) aircraft navigation or communication systems, air traffic control systems or any other transport management systems;
(c) safety-critical applications, including medical or life-support systems, vehicle operation applications and any police, fire or other safety response systems; and
4.8 use the Licensed Software in violation of any federal, state or local law, regulation or rule; or
4.9 use the Licensed Software for purposes of competitive analysis of the Licensed Software, the development of a competing software product or service or any other purpose that is to Mission Focus’s commercial disadvantage.
5. Export Regulation.
The Licensed Software, Documentation and any related technical data, and products utilizing the Licensed Software, Documentation, or such technical data (collectively, “Controlled Technology”) may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, and shall not permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to a jurisdiction or country to which the export, re- export or release of any Controlled Technology is prohibited by applicable federal law, regulation or rule. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting or re-exporting any Controlled Technology.
6. Open-Source Licenses.
The Licensed Software includes Open-Source Components licensed under an Apache License, a copy of which can be found at www.apache.org/licenses/LICENSE-2.0.html (“Open-Source License(s)”). Any use of the Open-Source Components by the Licensee shall be governed by, and subject to, the terms and conditions of the Open-Source License(s). On written request to Mission Focus, Mission Focus shall provide the Licensee with a complete, machine-readable copy of the source code for such Open-Source Components in accordance with the terms of the Open-Source License(s) at no cost to the Licensee.
Mission Focus shall deliver one copy of the Licensed Software electronically/on tangible media or by other means, in Mission Focus’s sole discretion, to the Licensee upon receipt of the final purchase order from Licensee. Risk of loss of any tangible media on which the Licensed Software is delivered shall pass to the Licensee upon delivery.
8.1 License Fees.
In consideration of the rights granted to the Licensee under this Agreement, the Licensee shall pay to Mission Focus the one-time fee of one million and seven hundred and seventy-nine thousand, and one hundred and fifty dollars ($1,779,150) in accordance with the terms of this Section 8. If the Licensee wishes to purchase any subsequent versions of the Licensed Software, the Licensee shall pay the then-current license fees that the Licensee charges for the Licensed Software during the applicable Renewal Term. The License Fee does not include any maintenance services, which shall be the subject of a separate agreement.
8.2 Payment Terms.
The Licensee shall pay 100% of the license fees due and owing under this Agreement within forty-five (45) days of the Effective Date. All payments hereunder shall be in US dollars and made by check or wire transfer.
8.3 Late Payment.
Late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law (which Mission Focus does not waive by the exercise of any rights hereunder), Mission Focus shall be entitled to suspend the Licensee’s use of the Licensed Software if the Licensee fails to pay any amount when due hereunder and such failure continues for sixty (60) days following written notice thereof.
The Licensee shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the Licensee hereunder; provided, that, in no event shall the Licensee pay or be responsible for any taxes imposed on, or with respect to, Mission Focus’s income, revenues, gross receipts, personnel or real or personal property or other assets.
For twelve (12) months, Mission Focus shall provide the Licensee with all Maintenance Releases (including updated Documentation) that Mission Focus may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases, upon being provided by Mission Focus to the Licensee hereunder, shall be deemed Licensed Software subject to all applicable terms and conditions in this Agreement. The Licensee shall install all Maintenance Releases as soon as practicable after receipt. The Licensee shall not have any right hereunder to receive any New Versions of the Licensed Software that Mission Focus may, in its sole discretion, release from time to time. The Licensee may license any New Version at Mission Focus’s then- current list price and subject to a separate license agreement, provided that the Licensee is in compliance with the terms and conditions of this Agreement.
The Licensee acknowledges and agrees that the Licensed Software is being licensed, not sold, to the Licensee by Mission Focus. The Licensee further acknowledges and agrees that it shall not acquire any ownership interest in the Licensed Software under this Agreement, and that Mission Focus and its licensor reserve and shall retain their entire right, title and interest in and to the Licensed Software and all Intellectual Property Rights arising out of or relating to the Licensed Software except as expressly granted to the Licensee in this Agreement. The Licensee shall promptly notify Mission Focus if the Licensee becomes aware of any possible third-party infringement of Mission Focus’s Intellectual Property Rights arising out of or relating to the Licensed Software and fully cooperate with Mission Focus in any legal action taken by Mission Focus against third parties to enforce its Intellectual Property Rights. The Licensee shall use efforts to the efforts Licensee uses to protect its own intellectual property to safeguard the Licensed Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
11.1 Receiving Party Obligations.
Each Party acknowledges and agrees that they each may gain access to or become familiar with the other Party’s Confidential Information. Except as set forth in Section 11.2, each Party, as the receiving Party of the other Party’s Confidential Information, shall:
(a) protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(b) not use the disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement, or otherwise in any manner to the Disclosing Party’s detriment;
(c) not disclose any such Confidential Information to any person or entity, except to the receiving Party’s Representatives who (1) need to know the Confidential Information to assist the receiving Party, or act on its behalf, in relation to the Purpose or to exercise its rights under the Agreement; (2) are informed by the receiving Party of the confidential nature of the Confidential Information; and (3) are subject to confidentiality duties or obligations to the receiving Party that are no less restrictive than the terms and conditions of this Agreement; and
(d) be responsible for any breach of this Agreement caused by any of its Representatives.
11.2 Required Disclosure.
The receiving Party may disclose the disclosing Party’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), provided that the receiving Party shall first make commercially reasonable efforts to provide the disclosing Party with:
(a) prompt written notice of such requirement so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
12. Term; Termination.
This Agreement may be terminated upon written notice:
(a) by Mission Focus, if the Licensee fails to pay any amount when due hereunder and such failure continues for sixty (60) days after the Licensee’s receipt of written notice of nonpayment;
(b) by Mission Focus, if the Licensee commits a material breach of any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Licensee within thirty (30) days after the Licensee’s receipt of written notice of such breach;
(c) by the Licensee, if Mission Focus commits a material breach of any warranty set forth and such breach is not cured by Mission Focus.
12.2 Effect of Termination.
The expiration or termination of this Agreement, for any reason, shall not release either Party from any liability to the other Party, including any payment obligation, that has already accrued hereunder. On the termination of this Agreement, for any reason, the Licensee shall:
(a) immediately discontinue use of the Licensed Software;
(b) within fifteen (15) days, destroy, delete or uninstall all copies of the Licensed Software, Documentation and all materials containing Mission Focus’s Confidential Information. This requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials; and
(c) within fifteen (15) days, certify in writing to Mission Focus that all such copies and materials have been destroyed, deleted and/or uninstalled, and that Licensee’s use of the Licensed Software has been discontinued.
The provisions of Section 4 through Section 6, Section 8, and Section 10 through Section 19 shall survive the termination of this Agreement for any reason, provided that with respect to Section 11, each Party’s obligations under this Section 12.3, shall survive the termination of this Agreement for a period of two (2) years from the date of such expiration or termination, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
13. Representations and Warranties.
13.1 Mutual Representations.
Each Party represents to the other Party that it:
(a) is an entity duly organized and validly existing under the laws of its jurisdiction of organization;
(b) is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; and
(c) has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.
THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND THE MISSION FOCUS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE (INCLUDING ALL OPEN-SOURCE COMPONENTS), DOCUMENTATION, MEDIA AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO THE LICENSEE UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MISSION FOCUS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
14.1 Indemnification Obligation.
Mission Focus shall indemnify, defend and hold harmless the Licensee and its Representatives from and against any Action arising in the United States that is brought against the Licensee and all related Losses that are awarded against the Licensee in a final judgment, provided that Mission Focus shall not be obligated to indemnify the Licensee or any of its Representatives in any Action or for any Losses incurred in relation to, arising out of or resulting from, in whole or in part:
(a) any combination of the Licensed Software with any hardware, system or other software not provided or authorized in writing by Mission Focus, if such infringement would not have occurred but for such combination;
(b) any modification of the Licensed Software not provided or authorized in writing by Mission Focus, or the Licensee’s or any third party’s negligence, abuse, misapplication or misuse of the Licensed Software, if such infringement would not have occurred but for such modification, neglect or misuse;
(c) the Licensee’s use of the Licensed Software outside of the Site;
(d) any Action relating to the use of any Open-Source Components included in the Licensed Software;
(e) any breach by the Licensee of its obligations set forth in this Agreement; or
(f) any events or circumstances outside of Mission Focus’s commercially reasonable control (including any third-party hardware or software bugs, defects or malfunctions).
If the Licensed Software, or any part of the Licensed Software, becomes, or in Mission Focus’s opinion is likely to become, subject to an infringement claim, Mission Focus may, at its sole option and expense, take any of the following steps to avoid or mitigate any potential Losses:
(a) notify the Licensee in writing to cease using all or a part of the Licensed Software, in which case the Licensee shall immediately cease such use on receipt of Mission Focus’s notice;
(b) obtain the right for the Licensee to continue to use the Licensed Software;
(c) modify or replace the Licensed Software with functionally equivalent software (which replacement software shall be deemed Licensed Software under this Agreement) that Mission Focus believes to be non-infringing; and/or
(d) immediately terminate this Agreement on written notice to the Licensee.
14.3 Licensee Obligations; Control of Defense.
If the Licensee receives notice or otherwise becomes aware of the commencement or threatened commencement of any Action for which indemnity may be sought under this Section 14.3, the Licensee shall promptly provide Mission Focus with written notice of such Action. On receipt of such notice, Mission Focus shall be entitled to, at its sole option, assume the control of the defense, appeal or settlement of such Action. The Licensee shall fully cooperate with Mission Focus in connection therewith. The Licensee shall be entitled at any time to employ separate counsel to represent the Licensee, but if the defense, appeal or settlement of such Action has been assumed by Mission Focus, any separate counsel employed by the Licensee shall be at the Licensee’s sole expense. The Licensee shall not settle any Action without Mission Focus’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
14.4 Sole Remedy.
THIS Section 14 SETS FORTH MISSION FOCUS’ SOLE LIABILITY AND ENTIRE OBLIGATION AND THE LICENSEE’S EXCLUSIVE REMEDY FOR ANY ACTION THAT IS BROUGHT AGAINST THE LICENSEE.
15. Limitation of Liability.
15.1 No Consequential or Indirect Damages.
IN NO EVENT WILL MISSION FOCUS OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 Maximum Liability.
IN NO EVENT WILL MISSION FOCUS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
16. Governing Law; Jurisdiction.
This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the Commonwealth of Virginia. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Commonwealth of Virginia in each case located in the County of Arlington, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Licensee shall not withhold payment of any fees owing under this Agreement by reason of any set- off of any claim or dispute with Mission Focus, whether relating to the quality or performance of the Licensed Software or otherwise.
17. Waiver of Jury Trial.
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby and recognize that such waivers are enforceable under Virginia law.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given:
(a) when delivered by hand (with written confirmation of receipt);
(b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
(c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by a Party from time to time in accordance with this Section 18).
19.1 Force Majeure.
Excepting only Licensee’s payment obligations under this Agreement, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond such Party’s reasonable control.
19.2 Further Assurances.
Each Party shall, on the reasonable request and at the sole cost and expense of the other Party, take, execute, acknowledge, and deliver all such further acts, documents and instruments necessary to give full effect to this Agreement.
19.3 Relationship of the Parties.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
Neither Party shall use the other Party’s trademarks, service marks, trade names, logos, symbols or brand names, or otherwise issue or release any announcement, statement, press release or other publicity or marketing materials relating to the existence or subject matter of this Agreement, or the relationship between the Parties, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
19.5 Entire Agreement.
This Agreement, together with all exhibits attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the Exhibits to this Agreement, the term, provisions and conditions contained in the body of this Agreement shall prevail. In no event shall the provisions of any purchase order or any associated documentation used by the Licensee, constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of Mission Focus to object to any purchase order or associated documentation.
The Licensee shall not assign any of its rights hereunder without the prior written consent of Mission Focus. Any purported assignment in violation of this Section 19.6 shall be null and void. No assignment shall relieve the Licensee of any of its obligations hereunder.
19.7 No Third-party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19.10 Attorneys’ Fees.
In the event that either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable third party or outside attorneys’ fees and expenses and court costs.
For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.