CONCEPT3D
4830-3679-4282 v1
Last Revised 5/1/2023
GENERAL TERMS AND CONDITIONS
These Terms and Conditions (the “Agreement”) govern your (“Licensee”) use of any
Concept3D, Inc. (“C3D”), or any Localist Corporation, a wholly-owned subsidiary of C3D
(“Localist”) products or services and this Agreement supplements any Software as a Service
Agreement (“SAAS”), Professional Services Agreement (“PSA”), or order form (“Order Form,
and together with the SAAS, PSA, and any exhibits thereto, an “Order”) between you and
Licensor. This Agreement is solely between you and the party, Localist or C3D, that has
countersigned the applicable Order (the “Licensor”) and in no circumstances shall the agreement
be between a party not specifically named and on behalf of which an Order has been properly
executed. References to the Agreement shall refer to this Agreement together with the Order, as
applicable.
1. DEFINITIONS.
“Effective Date” means the date upon which the Agreement is fully executed.
“Licensee Materials” means all images, content, data, software, creative works, and other materials that are provided by Licensee to Licensor.
“Documentation” shall mean the specifications, user guides and other materials for the
Software made available by Licensor to Licensee in written or electronic form.
“Fees” means the amounts payable hereunder as more particularly described on the
attached Order..
“Services” means any services provided by Licensor to Licensee under an Order.
“Software” means the computer program(s) listed on Order, including Deliverables (as
defined in the Order), if any, and updates, enhancements, translations, modifications and
derivatives of the Software as may be supplied by Licensor during the Term.
“Standard Enhancement” means any enhancement of the hosted program or revision to the
Documentation that Licensor makes on its own initiative and that Licensor makes available to its
customers generally, without charge.
“Term” means the calendar period specified in the Order and renewal periods as
subsequently elected by and paid for by Licensee as shall be specified in writing between the
parties hereto.
“Unsupported Activity” means any activity relating to the drafting, planning, development, or
implementation of any materials, documents, policies, procedures, guidelines, guidance, or
standards relating to any one of the following: (1) emergencies, including without limitation, any
natural or man-made disaster, building evacuation routes, medical emergency response plans,
first-responder access, police access, fire department access, or medical access; (2) design or
construction activities; (3) determining compliance with any Federal or state law, including without
limitation, the Americans with Disabilities Act, 42 U.S.C. §12101, et seq. (“ADA”); (4) use of the
Software on any kiosk, touch screen or public computing station; or (4) the dissemination to any
third party of any information relating to the foregoing.
2. USAGE/TITLE/FEES.
(a) Licensee may use the Software during the Term only as set forth herein and on
any Order.
(b) Licensee may not: (i) rent, loan, transfer or re-license the Software or
Documentation or any portion thereof; (ii) make copies, translations or derivative works of the
Software or Documentation; (iii) reverse engineer the Software, except as expressly permitted by
applicable law, or create from it any work, whether in tangible or intangible form, that constitutes a
“derivative work” within the meaning of the definition set forth in Section 101 of the U.S. Copyright
Act; or (iv) communicate or reveal the Software or Documentation to any third party.
(c) Trade name or trademarks used with the Software, and any licenses and rights
granted hereunder may not be distributed, sold, sub-licensed, or otherwise made available or
transferred, in whole or in part, to any third party without the prior written consent of Licensor.
Licensee shall not remove or alter any legends, copyright or trade secret notices from Software or
Documentation.
(d) Title to the Software and any copies thereof, including all copies of the
Documentation whether in electronic, or printed form and all proprietary rights therein shall at all
times remain with Licensor.
(e) Licensee shall continue to own all right, title and interest (including copyrights) in
and to all Licensee Materials. Licensee hereby grants to Licensor a perpetual, nonexclusive,
transferable, worldwide, royalty-free, fully paid-up, irrevocable license to use, publish, perform,
reproduce, display, and prepare derivative works of all Licensee Materials.
3. UNAUTHORIZED USE/UNSUPPORTED ACTIVITY.
(a) Licensee agrees to notify Licensor immediately of the unauthorized possession,
use, or knowledge of any component of the Software to which Licensee is given access under
this Agreement and of other information made available to Licensee under this Agreement, by
any person or organization not authorized by this Agreement to have such possession, use or
knowledge. Licensee will promptly furnish full details of such possession, use or knowledge to
Licensor, will assist in preventing the recurrence of such possession, use or knowledge, and will
cooperate with Licensor in any litigation against third parties deemed necessary by Licensor to
protect its proprietary rights. Licensee’s compliance with this Section shall not be construed in
any way as a waiver of any right by Licensor to recover damages or obtain other relief against
Licensee for any act or omission which may have resulted in the unauthorized possession, use or
disclosure.
(b) Licensee expressly acknowledges and agrees that: (1) the Software has not been
designed to support any Unsupported Activity; and (2) Licensee is solely responsible for the
accuracy of any Licensee Materials supplied to Licensor. Licensee hereby expressly disclaims
and releases Licensor from any and all claims, damages, or liabilities whatsoever arising from or
relating to Licensee’s use of the Software for any Unsupported Activity. Licensee hereby
expressly agrees to indemnify and hold harmless Licensor from any and all claims, damages, or
liabilities whatsoever arising from or relating to Licensee’s use of the Software for any
Unsupported Activity, including without limitation, any attorneys’ fees or costs incurred by
Licensor in connection therewith.
(c) The Software has been designed for use with personal computers and hand held
devices. Licensor does not represent or warrant that the Software will function as intended or be
ADA compliant when used on any other devices, including kiosks or public computing stations.
Such use is an Unsupported Activity as provided herein.
4. TERMINATION/DEFAULT.
(a) This Agreement shall terminate at any time during the Term upon the failure of
Licensee to observe or perform any of the material covenants, terms and conditions of this
Agreement where such non-performance is not fully remedied by Licensee within thirty (30) days
after written notice by Licensor (other than as specified in subsection (c)).
(b) The failure of Licensee to pay Licensor any amounts due hereunder in a timely
manner, if such delinquency is not corrected within ten (10) days of Licensor’s demand, will cause
all remaining amounts due and to become during the Term to become immediately due and
payable and, at the discretion of Licensor, shall be grounds for termination of this Agreement.
(c) Termination of this Agreement under this Section 4 shall be in addition to, and not
a waiver of, any remedy at law or in equity. In the event of any termination, Licensee shall
immediately cease to use the Software, and shall return all Documentation to Licensor. On the
effective date of any termination or expiration of this Agreement, all amounts then owed by
Licensee to Licensor automatically will become immediately due and payable, even if later
payment dates had been mutually agreed upon by the parties. Subsection (a) provides for
expiration of this Agreement, and Subsections 4 (b) and (c) are the only permitted grounds for
termination of this Agreement. Licensee shall not have the right to terminate this Agreement for
convenience or unilaterally by returning the Software and Documentation for a reason other than
expiration or permitted termination of the Agreement.
5. WARRANTIES. Licensor warrants that during the term of the Agreement, the Software
shall materially conform to the specifications set forth in the Documentation. In the event of any
non-conformance of such Software to the specifications, Licensee shall promptly so notify
Licensor and provide Licensor with information that allows Licensor to investigate the claimed
error. Licensor’s sole obligation and Licensee’s exclusive remedy under this warranty shall be
limited to Licensor using commercially reasonable efforts to promptly correct such defects or, in
Licensor’s sole discretion, terminating this Agreement and refunding any prepaid license fee paid
by Licensee. Licensor’s warranty obligations shall be void if the Software is modified by anyone
other than Licensor. THE FOREGOING WARRANTY IS GIVEN IN LIEU OF, AND LICENSOR
HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEMS INTEGRATION AND
NONINFRINGEMENT. LICENSEE EXPRESSLY ACKNOWLEDGES THAT BECAUSE OF THE COMPLEX
NATURE OF COMPUTER SOFTWARE, LICENSOR CANNOT AND DOES NOT WARRANT THAT THE OPERATION
OF THE SOFTWARE WILL BE WITHOUT INTERRUPTION OR ERROR-FREE.
6. INDEMNIFICATION.
(a) Licensor shall, at its own expense, defend or at its option settle any claim, suit or
proceeding brought against Licensee as a result of infringement of any United States patent,
trademark, trade secret, or copyright of any third party, by virtue of Licensee’s use of any of the
Software pursuant to the terms of this Agreement. Licensor shall indemnify Licensee against any
costs, expenses or damages finally awarded in such action, provided that Licensee promptly
notifies Licensor in writing of the action and provided, further, that Licensee permits Licensor full
authority to defend or settle the action and cooperates and provides all available information,
assistance and authority to enable Licensor to do so.
(b) If the Software is, or in Licensor’s opinion is likely to become, the subject of a
claim, suit or proceeding for the infringement of any propriety rights, Licensor may (i) procure for
Licensee, at no cost to Licensee, the right to continue usage of the Software, (ii) replace or
modify the Software to make it non-infringing, at no cost to Licensee, or (iii) if the right to continue
usage cannot be procured for Licensee for a cost not exceeding the amounts paid or to be paid
hereunder by Licensee or the Software cannot reasonably be modified to make it non-infringing,
terminate the license of such Software, remove the Software and grant Licensee refund of any
prepaid license fees.
(c) Licensor shall not have any liability for any claim, suit or proceeding for the
infringement of any propriety rights based on the (i) usage of other than the then latest release of
the Software from Licensor, if such infringement could have been avoided by the usage of the latest release of Software and such latest version has been made commercially available, or (ii) usage or combination of the Software with software or other materials not manufactured by
Licensor if such infringement could have been avoided without such use or combination.
(d) Licensee shall, at its own expense, indemnify, defend and hold harmless Licensor
from and against any claim, loss, liability or demand (including reasonable attorneys’ fees) arising
out of or in connection with any claim that the Licensee Materials infringe or misappropriate any
intellectual property or proprietary rights of any party.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE
LIABLE FOR ANY LOSS OF REVENUES, PROFITS, OTHER ECONOMIC LOSS OR
GOODWILL OR OTHER INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY
KIND, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO
THE TERMS OF THIS AGREEMENT OR ANY OF THE ATTACHMENTS HERETO, OR
RESULTING FROM THE FURNISHING, PERFORMANCE, DELAY IN DELIVERY, OR USE OR
LOSS OF USE OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO LICENSEE
HEREUNDER, WHETHER RESULTING FROM BREACH OF CONTRACT, BREACH OF
WARRANTY, OR TORT, INCLUDING NEGLIGENCE, EVEN IF LICENSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR AND ITS SUPPLIERS’
AGGREGATE LIABILITY TO LICENSEE UNDER THIS AGREEMENT RESULTING FROM BREACH OF CONTRACT,
BREACH OF WARRANTY, AND TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE FEES ACTUALLY
PAID BY LICENSEE TO LICENSOR IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
8. MAINTENANCE/SUPPORT.
(a) MAINTENANCE. Licensor has the sole right and responsibility to maintain and
update the Software. In connection with such maintenance and update, Licensee shall provide to
Licensor any testing assistance that Licensor may reasonably request.
(b) STANDARD ENHANCEMENTS. Licensor reserves the right, as reasonably
necessary or convenient for Licensor’s own purposes or to improve the quality of the Software, to
change access procedures, types of equipment utilized in the Licensor computing environment,
system interfaces, operating and other system and network software, utilities, and database
software, and to implement Standard Enhancements to the Software. Whenever practicable,
Licensor shall give Licensee advance notice of the scheduled implementation of any Standard
Enhancement.
(c) ACCESS INTERRUPTIONS. Licensee acknowledges and agrees that in order for Licensor
to perform the maintenance services set forth herein, Licensor may be required from time to time to
interrupt Licensee’s ability to access the Software.
(d) PRODUCT SUPPORT. Licensor shall be obligated to provide Licensee with only the
implementation, training or other deployment services as set forth in the applicable Order.
(e) SUPPLEMENTAL SERVICES. If Licensor provides Licensee with certain limited services
or equipment outside the scope of Services or on an emergency basis (“Supplemental Services”), Licensor
shall notify Licensee of the fees for any Supplemental Services requested by Licensee and obtain
Licensee’s approval prior to providing such services. In the event Licensor reasonably determines that
Supplemental Services are required on an emergency basis through no fault of Licensor, Licensee may
provide such services without the consent of Licensee, at Licensee’s expense.
9. PAYMENTS AND TAXES. Licensee shall pay to Licensor the fee(s) in accordance with the
payment terms specified in the Order. Licensee shall be responsible for the payment of any and
all taxes, fees and duties, including any related Value Added Tax, arising under this Agreement,
other than income taxes levied upon Licensor. All payments will be made in United States dollars.
Except as otherwise specified on any Order, all such fees will be due and payable within 30 days of receipt of any applicable invoice. In addition to any other sums payable thereunder, Licensee
shall pay to or reimburse Licensor for all taxes, however designated (except Licensor income
taxes), arising from this Agreement. Licensor reserves the right, upon seven (7) days’ advance
written notice to Licensee, to suspend operation of Software or Services should Licensee fail to
make full payment upon the date said payment is due. Licensor, at its sole discretion, may charge
interest, not exceeding one and one half percent (1-1/2%) per month or fraction thereof or
eighteen percent (18%) per year, for Licensee’s failure to make any payment in a timely manner.
Should Licensor be required to begin an action against Licensee to collect any past due
payments, Licensee shall pay all costs of collection, including accrued interest, court costs and
reasonable fees of attorneys and fees of other professionals.
10. END USER AGREEMENTS. All end users of the Software shall be bound by Licensor’s
Standard Terms of Use Agreement, as amended from time to time and posted at: for Software
provided by C3D, www.concept3d.com, and for Software provided by Localist, www.localist.com.
11. CONFIDENTIAL INFORMATION.
(a) Licensor and Licensee each expressly undertakes to retain in confidence all
information transmitted to it by the other party pursuant to this Agreement that the disclosing party
identifies as being proprietary and/or confidential or that, by the nature of the circumstances
surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential
(“Confidential Information”), and will make no use of such Confidential Information except under
the terms and during the existence of this Agreement. Licensor and Licensee shall treat the
terms and conditions of this Agreement as confidential; however, either party may disclose such
information in confidence to its immediate legal and financial consultants as required in the
ordinary course of that party’s business. The receiving party’s obligation hereunder shall extend
for five (5) years following the disclosure of the Confidential Information.
(b) Confidential Information shall not include any information that: (i) is at the time of
disclosure or subsequently becomes publicly available without the receiving party’s breach of any
obligations owed the disclosing party; (ii) became known to the receiving party prior to the
disclosing party’s disclosure of such information to the receiving party; (iii) became known to the
receiving party from a source other than the disclosing party other than by the breach of an
obligation of confidentiality owed to the disclosing party; (iv) is independently developed by the
receiving party; (v) has been incorporated into or comprises any part of the Software; or (vi) is
aggregated or derived from Licensee’s use of the deliverables or the Software.
12. LOCALIST TERMS
(a) APPLICATION OF TERMS. The following terms and conditions, requirements,
restrictions, and license grants of this Section 12 apply to the parties to the extent any applicable Order is
executed by Localist.
(b) ADDITIONAL GRANT OF LICENSE BY LOCALIST. During the term hereof and
subject to the terms and conditions of this Agreement and the payment of any and all applicable fees and
expenses set forth herein, Localist hereby grants to Licensee a nonexclusive, non-transferable, non-
sublicenseable license to display the Software provided by Localist branded with Licensee’s brand on the
Software website as mutually agreed upon in writing by the parties (the “Branded Site”) solely for the
purposes of using the Software and Services for its internal business purposes. Licensee shall have no right
to use any Software and/or Services for any purpose other than as set forth herein. All rights not expressly
granted by Localist to Licensee are hereby reserved by Localist and all implied licenses are hereby
disclaimed.
(c) GRANT OF LICENSE BY LICENSEE. Licensee agrees that if, in the course of
performing the Services, it is necessary for Localist to use the Licensee Technology, Licensee hereby grants Licensor and its subcontractors, if any, a nonexclusive, royalty-free, sublicensable, license, during
the term of this Agreement, to use the Licensee Technology solely for the purposes of delivering the
Software and Services to Licensee. Licensor shall have no right to use the Licensee Technology for any
purpose other than as set forth herein. “Licensee Technology” means Licensee’s and/or it suppliers’
proprietary technology, including, but not limited to, Licensee’s Internet operations design, hardware,
content, software tools, hardware designs, algorithms, software (in source and object forms), user interface
designs, architecture, class libraries, objects, documentation (both printed and electronic), know-how, trade
secrets and any other related intellectual property rights.
(d) USER DATA. Between the parties and subject to any applicable laws, Licensee shall be
the sole and exclusive owner of all information and data inputted by Users accessing the Software and
Services provided by Localist (collectively, “User Data”) and such data shall be deemed Licensee’s
Confidential Information. Licensee hereby grants to Licensor, and its subcontractors and agents, a
worldwide, non-exclusive right and license to use the User Data during the term hereof to provide the
Services to Licensee and the perpetual right to aggregate the User Data in a manner which does not disclose
any individual identifiable information and to use such aggregated data for any legal purposes whatsoever.
Notwithstanding anything to the contrary herein, Licensor is the sole and exclusive owner of information
other than User Data collected by the Licensor servers including, but not limited to, usage statistics of the
Software and Services. For the purposes of this Section 12, “User” shall mean the authorized users of
Licensee accessing the Software and Services provided by Localist through the Branded Site (as defined in
Section 12(b)) solely for Licensee’s internal business purposes, subject to the terms and conditions set forth
herein.
(e) BRANDING & NOTICES. Licensee shall affix the following proprietary rights notice to
any marketing materials and products or services used in connection with the Software or Services
provided by Localist: “Powered by Localist, a Concept3D company.” Licensee shall prominently display a
Localist logo on its website when content is accessed by Users which logo shall be provided to Licensee by
Licensor from time to time and Localist may display a textual or logo with “Powered by Localist, a
Concept3D company” on the footer of each page of the Services. Localist shall approve in writing the
appearance of its logo before each use by Licensee.
(f) THIRD PARTY PRODUCTS AND SERVICES. From time to time, Localist may offer
third party applications, data and services integrated with its Software and Services (for example, payment
processing). Localist is not responsible for any third party applications or integrations and Licensee agrees
that Localist shall not be liable, or otherwise responsible, for the accuracy, performance, reliability,
availability or any other feature, failure or damage caused by any third party service, plugin, software,
platform or other functionality that is not directly supplied by Localist. Each such third party service,
platform, software or plugin may contain additional terms and conditions. Licensee agrees that if it is
damaged or has any issue with such third party service, platform, software or plugin, it will contact the
vendor/supplier of that third party service, platform, software or plugin directly and will seek all remedies
directly with such third party vendor/supplier.
(g) ANNUAL ADJUSTMENT FEE. The Annual License Fee set forth in the Order
(excluding telecommunications fees, third party software license fees or maintenance fees) shall be
adjusted annually on each anniversary of the Effective Date in an amount equal to nine percent (9%) of the
previous year’s Annual License Fee. All other fees including, but not limited to, telecommunications fees,
third party software license fees or maintenance fees shall be directly passed through to Licensee, including
any related cost increases, which shall be passed through to Licensee when and as implemented.
(h) PAID REGISTRATION PROCESSING. If Licensee uses Localist for processing
payments for paid events, Licensee must comply with the following registration and ticketing requirements:
(i.) Certain Services provided by Localist include the provision of a branded event
content management platform (the “Register Platform”) with features that enable Licensee to provide or
sell tickets to events, or otherwise collect payments from Users (such activities, “Register Activity”).
Licensee is solely responsible for any Register Activity, and compliance with any laws or regulations
related thereto, Localist is not liable for Licensee’s Register Activity use, including any related events,
promotions, or ticket sales.
(ii.) Licensee is solely responsible for: (a) all taxes and fees associated with Register
Activity, including without limitation any taxes related to the purchase or sale of products or services in
connection therewith; (b) collecting, reporting and remitting required taxes to relevant government
authorities; and (c) informing Users of required any taxes, and providing them with invoices as required
by law. Licensee agrees that any tax estimates, reporting or related materials that Localist may provide via
the Services are for illustration purposes only, and Licensee will not rely on them to comply with any tax
obligations.
(iii.) Licensee is solely responsible for handling any comments or complaints related
to Register Activity, including without limitation any issues related to payments, promotions, refunds or
chargebacks. Licensee shall provide accurate and complete contact information to Users regarding any
Register Activity so that Users can submit comments or complaints to Licensee.
(iv.) Licensee represents and warrants that its use of the Register Platform and all
Register Activity shall comply with all applicable laws and regulations, including but not limited to, if
applicable, posting and making available all necessary privacy notices, and any other terms or policies that
may be required by law.
(v.) Register Restrictions. Licensee may only use the Register Activity to offer
tickets and access to Events. “Events” means something that occurs in a certain place during a particular
interval of time. Licensee may not offer or sell any products or services which, in Localist’s sole discretion:
(a) is not an Event; (b) may be deemed hazardous, counterfeit, stolen, fraudulent, offensive or abusive; (c)
are prohibited for sale, distribution or use; or (d) otherwise fail to comply with any applicable laws or
regulations, including without limitation with respect to intellectual property, privacy or publicity rights,
consumer protection, product safety or trade regulations, or export controls, regulations or sanctions.
Notwithstanding the foregoing, Licensor shall have no obligation or liability related to monitoring or failure
to monitor Events or Register Activities or Licensee’s use in connection therewith.
(vi.) Register Payment Processors. To accept payments from Users in connection
with Register Activity, Licensee may integrate the Register Platform with third party payment processors
(“Register Payment Processors”). Licensee’s relationship with such Register Payment Processors is
governed by those Register Payment Processors’ terms and policies. Localist doesn’t control and isn’t
responsible for any Register Payment Processors, or for any transaction you may enter into with or through
any Register Payment Processors. In addition to any fees assessed by any Registered Payment Processors,
Localist will assess a payment processing fee at 3.4% + $1.49 per ticket, which may be modified from
time to time in Localist’s sole discretion with prior written notice to Licensee.
(i) BULLETIN USAGE. If Licensee uses Software or Services provided by Localist for
sending event emails through its Bulletin feature, Licensee is permitted to send up to two thousand five
hundred (2,500) sends per month and one (1) campaign, except as otherwise stated on any applicable
Order.
13. MISCELLANEOUS.
(a) The validity and performance of this Agreement shall be governed by the laws of the State of Colorado. Determination of any disputes shall be in the state or federal courts in
Boulder or Denver, Colorado, and the parties hereby consent to exclusive personal jurisdiction in
such courts for all matters arising under this Agreement.
(b) Neither this Agreement nor any rights or obligations under this Agreement in whole
or in part, shall be assignable or otherwise transferable by Licensee without the prior written
consent of Licensor and any unauthorized attempt to assign or transfer this Agreement or any
rights or obligations under this Agreement shall be null and void. In the event there is a change
of fifty (50%) percent or more in the ownership or control of Licensee, or if Licensee acquires or
merges with another organization, Licensor reserves the right, at its sole option, to terminate this
Agreement or to re-negotiate the fees according to its then-current fee schedule.
(c) This Agreement together with any Exhibit(s) and mutually designated Appendices
that may be attached hereto constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all other communications written or verbal.
(d) Any modification to this Agreement must be specified and agreed to in writing by
both parties.
(e) All notices and demands hereunder must be in writing and sent by personal
delivery, first-class mail, return receipt requested, confirmed facsimile transmission or nationally
or internationally recognized express courier service to the address of the receiving party set forth
in this Agreement (or at such different address as may be designated by such party by written
notice to the other party). Notices or demands sent by personal delivery shall be effective upon
delivery. Notices sent by mail, facsimile transmission or courier shall be effective upon the date
of receipt as evidenced by the return receipt.
(f) In the event any action is brought by a party in connection with this Agreement, the
prevailing party shall be entitled to recover its costs and expenses, including reasonable
attorneys’ fees, expert and lay witness fees, court costs, deposition costs, travel, and other
related expenses.
(g) In making and performing this Agreement, Licensor shall be deemed to be acting
as an independent contractor of Licensee and shall not be deemed an agent, legal
representative, joint venture or partner of Licensee.
(h) The Services provided to Licensee hereunder are provided on a nonexclusive
basis. Nothing contained herein shall prevent Licensor from providing the same or similar
services for others.
(i) Licensor’s timely provision of the Services will be contingent upon Licensee
providing certain resources as may be more specifically set forth in this Agreement (including any
applicable Order). Failure to timely provide such resources may affect the timing of delivery,
price of or ability to perform the Services.
(j) Notwithstanding anything contained herein to the contrary, neither party shall be
liable to the other for any delay or failure to perform due to causes beyond its reasonable control.
Performance times shall be considered extended for a period of time equivalent to the time lost
because of any such delay. If such extended performance times conflict with Licensor’s pre-existing contractual commitment to other customers, Licensor shall so advise Licensee, and the
parties shall use their best efforts to agree in writing to an alternative implementation schedule. If
the parties are unable to agree upon an alternative implementation schedule, or if the delay
continues for a period of three (3) months or more, this Agreement may be terminated by either
party and neither party shall be liable to the other for such termination, except for payment of fees
and costs incurred as of the effective date of termination.