Terms of Service
Last updated February 24, 2016.
The Hickory Services (as defined below) are being made available by Forty One Enterprises, Inc. (“Licensor” or “Hickory”) to You (as defined below) (together, the “Parties”) on the condition that You agree to these terms of service (the “Agreement” or “TOS”). Violation of any of the terms below will result in the termination of this Agreement and Your access to the Hickory Services and Website.
BY USING THE HICKORY SERVICES OR VISITING/USING THE HICKORY WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS AND, IF ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THAT ORGANIZATION. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH TEHSE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE HICKORY SERVICES OR VISIT/USE THE HICKORY WEBSITE.
Although we may attempt to notify You when major changes are made to these TOS, You should periodically review the most up-to-date version of these TOS. Hickory may, in its sole and absolute discretion, modify or revise these TOS and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these TOS shall be deemed to confer any third-party rights or benefits.
I. DEFINITIONS. As used in the Agreement, these terms shall have the following definitions:
“Applicable Laws” means national, federal, state, and local laws, rules and regulations.
“Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the business or operations of either Party or a third party, that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably be treated as confidential.
“Licensee,” “You” or “Your” means the person agreeing to these TOS for the purpose of accessing or using the Hickory Services, or, if You are a duly-authorized representative entering into this Agreement on behalf of an organization, such as an employer, “Licensee,” You” or “Your” means such organization. In the latter case, You represent and warrant that You have the authority to bind such organization to this Agreement.
“Order Form” means Hickory’s proposal, statement of work (“SOW”), pilot proposal, estimate, order form or invoice, that incorporates the terms of this Agreement and sets forth relevant information relating to the Hickory Services, including but not limited to the product purchased, its base features and capabilities, the Term or Terms, fees and billing terms.
“Hickory Service(s)” means all data, equipment, software, services, products, information and databases provided to You by Hickory under the terms of this Agreement, as further set forth and defined in each Order Form to this Agreement. Services may include the provision of software, provision of the Services via Hickory’s website and/or customization services as may be provided, as set forth and described in each Order Form to this Agreement.
II. LICENSE RIGHTS AND LIMITATIONS. Subject to the terms and conditions of this Agreement, and, if applicable, the Order Form(s) to this Agreement, Hickory grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable license (the “License”) to access and use any software and associated documentation that is made available via the Hickory Services or otherwise by Hickory (“Software”) for the sole purpose of enabling You to use the Hickory Services in the manner permitted by this Agreement. Unless otherwise agreed to in an Order Form accompanying this Agreement, the Software shall be used solely for Licensee’s internal business purposes. You agree that You shall not make any use of the Hickory Services except as expressly permitted by this Agreement.
A. Usage Restrictions. You will not, and shall not permit any third party to use the Hickory Services, including, but not limited to, use of the Hickory Services to (i) host, sublicense, resell, rent, distribute or provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider; (ii) reproduce, copy, modify, translate, decompile, disassemble, reverse engineer, or otherwise attempt (or permit others to attempt) to discover the source code of the Software or the Hickory Services, in whole or in part, or create derivative works based on the Software or Hickory Services; (iii) create Internet “links” to the Hickory Services or “frame” or “mirror” any content accessed through the Hickory Services other than as permitted by Hickory; or (iv) copy, distribute, sell or otherwise make available any Hickory-supplied content or services other as expressly permitted in this Agreement. Licensee further agrees that it shall not use the Software or Hickory Services in any way to design or develop competing software.
B. Ownership of Your Content. If You provide content to Hickory, You represent and warrant that You have the right to provide such content (“Licensee Content”) to Hickory. You retain any right, title and interest in and to the Licensee Content that You may have, and Hickory acknowledges that it neither owns nor acquires any additional rights in and to the Licensee Content not expressly granted by this Agreement. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Licensee Content due to any action by You. You hereby grant to Hickory a non-exclusive, worldwide, royalty-free right and license to use, host, store, cache, reproduce, publish, display, perform, distribute, transmit, modify, adpat and create derivative works of such Licensee Content and to otherwise use the Licensee Content for purposes of performing Hickory’s obligations under this Agreement, which license shall expire or terminate in accordance with this Agreement or as may be directed by You from time to time.
C. Ownership of Hickory Services. You acknowledge and agree that (i) all proprietary rights in the Software, Hickory Service(s), any Hickory Application Program Interface (“API”), any documentation, deliverables to each Order Form, and the data and content (but not Licensee Content) contained therein are the sole property of Hickory and its third-party licensors; (ii) the Software, Hickory Services, the software and data (but not Licensee Content) therein, and all copies thereof were compiled, prepared, selected and arranged by Hickory through the expenditure of substantial time, effort and money and that they constitute valuable property of Hickory; (iii) Hickory shall own all improvements, including all Intellectual Property Rights in the same, in and to the Software and Hickory Services including, but not limited to, any changes to the Software or Hickory Services such as derivative works (but not Licensee Content contained therein), whether or not such improvements are made solely by Hickory, Licensee, or jointly by the Parties; and (iv) Licensee may not sublicense, transfer or otherwise distribute the Software, Hickory Services, or any portion of either except as expressly permitted by this Agreement. You further acknowledge that Hickory retains the right to use the foregoing for any purpose in Hickory’s sole discretion. You also acknowledge that You neither own nor shall acquire any rights in and to the foregoing not expressly granted by this Agreement.
D. Derived Works. Licensee shall not create any applications, software or databases, which utilize any source code of, or otherwise copy any substantial part of, the Software (“Derivatives”). Any Derivatives derived by Licensee from the Software are hereby assigned immediately upon creation by Licensee to Hickory, and Licensee shall promptly execute such instruments as Hickory may reasonably request to protect and perfect Hickory’s rights in such Derivatives.
III. ADDITIONAL OBLIGATIONS.
A. Security Measures. Each party shall take reasonable measures to prevent unauthorized use of (i) with respect to You, the Software and the Hickory Services, and (ii) with respect to Hickory, the Licensee Content, and each Party shall promptly report to the other Party any possible infringement of rights of which such Party becomes aware.
B. Contact with Licensee’s Customers and Employees. Licensee shall be solely responsible for all contact and support for Licensee’s customers, employers, brokers, agents and other third parties affiliated with the Licensee. Hickory shall have no responsibility to respond to any inquiries by Licensee’s customers, employees, brokers, agents and other third parties affiliated with the Licensee, or Licensee’s customers, employees, brokers, agents or users except those specifically designated as points of contact for Licensee service.
SECTIONS “TERM AND TERMINATION,” “FEES AND EXPENSES; PAYMENTS,” “PUBLICITY,” “AFFILIATE ORDERING” AND “AUTHORITIES; CONFLICTS” BELOW ONLY APPLY TO ORGANIZATIONS PURCHASING THE HICKORY SERVICES PURSUANT TO AN APPLICABLE ORDER FORM.
IV. TERM AND TERMINATION.
A. Term. The term of this Agreement will commence upon acceptance of these TOS, and will continue for the length of time specified in any Order Form(s) unless earlier terminated in accordance with this Section IV (the “Term”).
B. Order Form Terms. Unless otherwise set forth in an Order Form, any subscription in an Order Form to a Hickory Service shall be effective for a period of 1 (one) year (the “Initial Term”) commencing upon the execution of one or more applicable Order Form(s) (the “Commencement Date”) unless earlier terminated as provided for herein. Any Order Form shall automatically renew on the anniversary of the Commencement Date for subsequent one (1) year term(s) after the expiration of the Initial Term (the “Extended Term(s)”) unless either Party provides the other with written notice of its intent not to extend the Order Form for an Extended Term (“Notice of Non-Renewal”) no less than thirty (30) days prior to the expiration of the Initial or Extended Term.
C. Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.
D. Obligations on Termination. Upon any termination of this Agreement, You will (a) immediately discontinue all use of the Hickory Services and any Hickory Confidential Information; and (b) promptly pay to Hickory all amounts due and payable under this Agreement and (c) Hickory will refund any unused advance payments. Additionally, upon termination of this Agreement each Party shall immediately return, or, if so requested, destroy all Confidential Information and other property belonging to the requesting Party, retaining no copies thereof, other than copies retained as required by applicable law or in automatic backup systems in respect of which such information is generally inaccessible in the ordinary course of business.
E. Effect of Termination. Termination of this Agreement and all associated Order Forms shall not limit either Party from pursuing any other remedies available to it. Except as otherwise set forth in this Agreement, early termination of this Agreement and all associated Order Forms by Licensee shall constitute a material breach. A material breach shall entitle Hickory to a claim for total damages under this Agreement and all associated Order Forms. Damages shall therefore be based on all of Hickory’s rights to performance under this Agreement and all associated Order Forms. This shall include, but is not limited to, committed and/or ordered quantities, as defined in this Agreement and/or Order Forms, for the remainder of the Term of this Agreement.
V. FEES AND EXPENSES; PAYMENTS.
A. Pricing. Hickory will invoice You for Your access and use of the Hickory Services in accordance with the pricing set forth on the applicable Order Form(s), and, where applicable, sales tax fees.
B. Fees. In consideration for the access rights granted to You and the Services performed by Hickory under this Agreement, You will pay Hickory, wihtout offset or deduction, all fees required by the applicable Order Form(s) in the manner set forth therein. If no payment schedule is set forth therein, all fees shall be due within fifteen (15) days of Your receipt of an invoice from Hickory. If you are delinquent in the payment of undisputed amounts, Hickory may suspend the provision of the Hickory Services to You.
C. Disputed Fees. If You dispute any fees, taxes or other charges billed by Hickory, You shall notify Hickory, in writing, of the disputed amount within twenty (20) business days following receipt of Hickory’s invoice for such disputed charge. If you fail to notify Hickory, in writing of, of the disputed amount within twenty (20) business days following receipt of Hickory’s invoice for such disputed charge, then such amount is deemed undisputed and due to Hickory. All Parties agree to work cooperatively to resolve any such disputed amounts.
D. Taxes. You will be responsible for payment of any applicable sales, use, excise or other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Hickory’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related Services. Notwithstanding the foregoing, Licensee shall not be entitled to offset or reduce any invoice with bank processing fees, service fees, payment processing fees, currency conversion fees or any such similar fees and Licensee acknowledges that it shall be solely responsible for such fees.
VI. PUBLICITY. During the Term and at any point thereafter, You hereby agree that Hickory may include Your name and logo in customer lists that may be published as part of Hickory’s marketing and promotional efforts. From time to time upon Hickory’s request, You agree to provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing joint press releases and writing testimonials). Hickory may issue a press release and/or case study concerning the arrangements under this Agreement between You and Hickory, which will be provided to You for review and approval, such approval not to be unreasonably conditioned, delayed or withheld.
VII. AFFILIATE ORDERING. Each of Your parent companies, subsidiaries, affiliates, and related companies, whether related by direct or indirect ownership or control (collectively, “Affiliates”), may also purchase Hickory’s Services from Hickory hereunder for their own account on the same terms and conditions as are applicable to You. Each Affiliate shall be separately liable for payment for Hickory’s Services and compliance with the terms and conditions of this Agreement, and neither You nor any Affiliate shall be liable for the obligations of any other Affiliate under this Agreement. Hickory will have no obligations to provide any Hickory Services to an Affiliate until such time as Hickory and the Affiliate enter into an Order Form. By so doing, the Affiliate agrees to be bound by this Agreement and for purposes of its order is considered “You” as the term is used in this Agreement.
VIII. AUTHORITY; CONFLICTS. Each Party represents and warrants to the other that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its Terms; (iv) such Party is not subject to any pending or threatened litigation or governmental action which could interfere with such Party’s performance of its obligations under this Agreement or in any related agreement; and (e) the Parties shall at all times comply with all applicable laws, rules and regulations in effect at the time Services are performed pursuant to this Agreement.
A. Mutual Confidentiality Obligations. Each of the Parties agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) to use a reasonable degree of care to protect Confidential Information and to prevent any unauthorized use or disclosure of Confidential Information; (iii) that neither Party will create any derivative work from the Confidential Information disclosed to such Party by the other Party except as necessary to perform such Party’s obligations under the Agreement; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have agreed with either party in writing to keep information confidential; and (v) to the extent practicable, return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
B. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of this Agreement regarding Confidential Information will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the receiving Party; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order, unless prohibited from doing so by operation of law; or (b) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
C. Remedy. Hickory and Licensee acknowledge that the remedy at law for any breach or threatened breach of the provisions of this Agreement regarding Confidentiality shall be inadequate, and that the non-breaching Party, in addition to any other remedy available to it, shall be entitled to obtain injunctive relief without proof of irreparable injury and without posting bond.
© Forty One Enterprises, Inc.
+1.917.331.6709 / firstname.lastname@example.org
X. WARRANTIES; DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED HEREIN, THE HICKORY SERVICES, THE HICKORY SOFTWARE (AND ALL ASSOCIATED DOCUMENTATION), AND ALL SERVICES PERFORMED BY HICKORY ARE PROVIDED “AS IS” AND HICKORY DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HICKORY SPECIFICALLY DOES NOT WARRANT THAT THE HICKORY SERVICES OR ANY OTHER SERICES PROVIDED BY HICKORY WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE HICKORY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. HICKORY DISCLAIMS ANY AND ALL LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF CONTENT THAT IS ACCESSED THROUGH THE HICKORY SERVICES AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, HICKORY WILL NOT BE LIABLE FOR ANY INDIRECT DAMAGES THE LICENSEE MAY SUFFER ARISING OUT OF USE, OR INABILITY TO USE, THE SOFTWARE, OR MANAGED HOSTING SERVICES PROVIDED HEREUNDER. HICKORY WILL NOT BE LIABLE FOR FAILURE OF THE INTERNET OR TELECOMMUNICATIONS ERRORS. LICENSEE ACKNOWLEDGES AND UNDERSTAND THAT NO NETWORK SECURITY PROGRAM CAN ASSURE COMPLETE NETWORK SECURITY OR PREVENT ALL UNAUTHORIZED ACCESS TO ITS NETWORK.
XI. EXCLUSIONS OF REMEDIES; LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF HICKORY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED (A) WITH RESPECT TO DULY-AUTHORIZED REPRESENTATIVES ENTERING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, THE TOTAL AMOUNT OF ALL FEES PAID TO HICKORY BY YOU UNDER THE APPLICABLE ORDER FORM(S) DURING THE SIX (6) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (B) WITH RESPECT TO INDIVIDUALS ENTERING THIS AGREEMENT ON THEIR OWN BEHALF, $5.00 (FIVE DOLLARS AND ZERO CENTS). THIS LIMITATION OF DAMAGES AND LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. YOU ACKNOLWEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES, AND THAT HE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY. LICENSEE HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY. Some states do not allow the exclusion of incidental or consequential damages and therefore certain provisions hereof may not apply to Licensees located in those States. The provisions of this Section allocate the risks under this Agreement between Hickory and Licensee. Hickory’s pricing reflects the allocation of risk and limitation of liability specified herein.
A. Hickory’s Indemnity Obligations. Hickory agrees to indemnify, defend and hold harmless You from and against any and all claims arising from a claim by any third party (including reasonable attorneys’ fees) that the Hickory Services or Software infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. Such Hickory obligation is subject to You (i) promptly notifying Hickory in writing of the claim; (ii) providing full cooperation with Hickory for the defense of any such claim, at Hickory’s expense; (iii) allowing Hickory sole authority to control the defense and settlement of such claim; and (iv) not entering into any settlement or compromise of any such claim without Hickory’s prior written approval. If such a claim is made or appears possible, in addition to Hickory’s indemnification obligations hereunder, You agree to permit Hickory, at Hickory’s sole discretion, to enable You to use the Hickory Services, Software or the documentation, as applicable, or to modify or replace any infringing material to make it non-infringing. If Hickory determines that none of these alternatives is reasonably available, Hickory shall be permitted to terminate the License and You shall upon, written request from Hickory, cease use of, and, if applicable, return any materials that are the subject of the infringement claim, in which event Hickory shall refund all amounts paid by You in respect of Hickory Services or Software not received. This Section shall not apply to the extent the alleged infringement would not have occurred but for (i) a modifcation of the Hickory API or Software by You; (ii) a combination, operation or use of the Hickory Services, API or Software with other software, hardware or technology not provided, or approved in writing, by Hickory; (iii) Licensee Content; or (iv) the use of a version of the Software other than the then-current version if infringement would have been avoided with the use the then-current version. This indemnification shall only apply to a claim that is specifically directed and attributable to Hickory’s Software and Hickory’s liability (if any) shall be limited only to the extent the apportioned infringement is directly attributable to such Software. THIS SECTION STATES HICKORY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
B. Your Indemnity Obligations. You agree to hold harmless, indemnify and, at Hickory’s option, defend Hickory from and against any third party claims, losses, liabilities, costs (including reasonable attorneys’ fees) or damages arising out of Your use of the Hickory Services or Software, unless such claims or damages result from the gross negligence of Hickory in providing the Software, from the willful misconduct of Hickory or its employees, a material violation by Hickory of any representation it has made hereunder, or unless Your authorized use of the Services or Software has given rise to claims or damages based on the infringement of any copyright or other proprietary right of any third party. Such Licensee obligation is subject to Hickory (i) giving You prompt written notice of any such claim; (ii) giving You sole control over the defense and settlement of any such claim; (iii) providing full cooperation for the defense of any such claim, at Your expense; and (iv) not entering into any settlement or compromise of any such claim without Your prior written approval; further provided that You will not settle any third-party claim against Hickory unless such settlement completely and forever releases Hickory from all liability with respect to such claim or unless Hickory consents to such settlement; and further provided that Hickory will have the right, at its option, to participate in the defense thereof by counsel of its own choice.
XIII. GENERAL PROVISIONS
A. Independent Contractor. Hickory is an independent contractor. Neither Hickory nor Hickory’s employees are, or shall be deemed for any purpose to be, employee’s of Licensee. Licensee shall not be responsible to Hickory, Hickory’s employees or any governing body for any payroll-related taxes related to the performance of the Hickory Services.
B. Survival. Any provisions of the Agreement containing license restrictions, warranties or warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
C. Export Regulations. You may not use or otherwise export or re-export the Hickory Services except as authorized by United States law and the laws of the jurisdiction in which the Hickory Services were obtained. In particular, but without limitation, the Hickory Services may not be exported or re-exported (a) into an U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s list or Entity List. By using the Hickory Services, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Hickory Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear missiles or chemical or biological weapons.
D. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by delivery in person, by courier service, by facsimile, by e-mail or by registered or certified mail (postpage prepaid, return receipt requested) to Hickory at Attn: Elizabeth Friedman, Forty One Enterprises, Inc., 35 East 19th Street, Third Floor, New York, New York 10003 or email@example.com, and to You at the address specified in the applicable Order Form(s), or, if You are entering this Agreement as an indvidual on Your own behalf, at the e-mail address under which You registered for the Hickory Services. Notice shall be deemed given (i) if delivered in person, on the date of delivery; (ii) if by facsimile, upon receipt of a confirmation of delivery; or (iii) if by any other means, one day after date of transmission.
E. Force Majeure. Neither Party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any cause beyond the reasonable control of such Party.
F. Severability. I fany provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of the Agreement shall not be affected thereby.
G. Governing Law. This Agreement will be deemed to have been made and delivered in New York, and thereby, shall be construed in accordance with, and all disputes hereunder shall be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws of the State of New York, without regard to its conflicts of laws principles or rules. If any dispute, controversy or claim cannot be resolved by a good faith discussion between the Parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in New York, New York, and the Parties hereby irrevocably consent and submit to the personal jurisdiction and venue in the courts thereof. The Parties hereby waive, to the fullest extent permitted by applicable law, any right to trial by jury with respect to any action or proceeding arising out of or related to this Agreement. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
H. Assignment. This Agreement, and any rights and obligations in this Agreement, shall not be assigned, whether by agreement or by operation of law, by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, or any attempt to do so shall be null and void; provided, however, that either Party may assign this Agreement to a parent, wholly-owned subsidiary or affiliate or in connection with the sale or reorganization of all or substantially all of its business relating to the subject matter thereof, but no such assignment shall relieve such Party of its obligations hereunder. This Agreement shall be binding upon and inure to the benefit of the respective succesors, permitted assigns and legal representatives of the Parties hereto.
I. Waiver. No delay, failure or waiver of either Party’s exercise or partial exercise of any right or remedy hereunder shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. Any waiver on one occasion shall not constitute a waiver of any prior, concurrent or subsequent occassions.
J. U.S. Government End Users. The Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 222.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software with only those rights as set forth ehrein. Unpublished rights reserved under the copyright laws of the United States.
K. Ability to Accept Terms of Service. You affirm that You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with these Terms of Service.
L. Construction. The headings of sections of this Agreement are included solely for convenience of reference and are not to be used to interpret this Agreement. As used in this Agreement, unless otherwise specified, the word “including” means “including without limitation.” Unless otherwise noted, section number references denote sections within the same part of the Agreement.
M. TAX ADVISE DISCLAIMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY RELATED DOCUMENT, HICKORY IS NOT AND DOES NOT PROVIDE ANY TAX ADVISE IN CONNECTION WITH ANY OF THE SERVICES OR SOFTWARE UNDER THIS AGREEMENT. LICENSEE, LICENSEE’S CLIENTS AND/OR THEIR RESPECTIVE CUSTOMERS SHOULD CONSULT ITS OWN TAX ADVISOR WITH RESPECT TO ANY QUESTIONS OR ISSUES RELATING TO TAXES.
N. Entire Agreement. The Agreement is the complete, entire, final and exclusive statement of the terms and conditions of the agreement between the Parties. The Agreement supersedes, and the terms of the Agreement govern, any prior or collateral agreements between the Parties with respect to the subject matter hereof. The Agreement may not be modified except in a writing executed by duly authorized representatives of the Parties. The terms and conditions of the Agreement shall prevail notwithstanding any variance with the terms and conditions of any other instrument submitted by Licensee.