PLEASE READ CAREFULLY: THIS END-USER LICENSE AGREEMENT (“LICENSE”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“LICENSEE” OR “YOU”), AND BITFUSION.IO, INC. (“BITFUSION”). USE OF BITFUSION FLEXDIRECT (AS DEFINED BELOW, “Bitfusion FlexDirect”) IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS LICENSE AND THE APPLICABLE THIRD-PARTY LICENSES. READ THIS LICENSE CAREFULLY BEFORE YOU CLICK THE “I AGREE” BUTTON BELOW.
BY CLICKING “I AGREE” BELOW, DOWNLOADING, USING, CONFIGURING OR INSTALLING Bitfusion FlexDirect, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS LICENSE, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS LICENSE AND THE APPLICABLE THIRD-PARTY LICENSES FOR YOURSELF AND FOR AND ON BEHALF OF YOUR ORGANIZATION, AND ARE DOING SO, (B) YOU AND YOUR ORGANIZATION CAN LEGALLY ENTER INTO THIS LICENSE AND THE APPLICABLE THIRD-PARTY LICENSES AND SATISFY ALL OF THEIR REQUIREMENTS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE ORGANIZATION SHALL BE BOUND BY THESE TERMS AND CONDITIONS AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “I DO NOT AGREE” BUTTON BELOW AND INSTALLATION WILL TERMINATE.
Bitfusion reserves the right to update and change, at any time and without notice, this End User License Agreement and all documents incorporated by reference. You can find the most recent version of this End User License Agreement at http://www.bitfusion.io/legal/terms/. Your continued use of Bitfusion FlexDirect after any such changes constitutes your acceptance of the new End User License Agreement.
IF YOU HAVE ANY QUESTIONS ABOUT THIS LICENSE, PLEASE CONTACT US AT:
11801 Domain Blvd, Floor 3,
Austin, Texas 78758
This License shall be effective following your execution and submission of this License by clicking the “I AGREE” box at the end of this License (the “Effective Date”). In consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
a. “Bitfusion FlexDirect” means, collectively, (i) the Bitfusion Software, (ii) any Third-Party Software and/or Open Source Software included within the Bitfusion Software and (iii) any updates and upgrades provided from time to time by Bitfusion.
b. “Bitfusion FlexDirect Software” means the software and other intellectual property developed or created by or on behalf of Bitfusion (other than any Third-Party Software or Open Source Software) and the Documentation, for which the Licensee has acquired the right to use under this License and any updates and upgrades provided from time to time by Bitfusion.
c. “Data” means the files and data generated by use of Bitfusion FlexDirect (but excluding any software or data that Licensee contributes or develops in connection with the use of Bitfusion FlexDirect).
d. “Documentation” means the documentation provided by Bitfusion with Bitfusion FlexDirect or available online at http:// docs.bitfusion.io/.
e. “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards License (SISL); (vii) the BSD License; (viii) the MIT License and (ix) the Apache License.
f. “Third-Party License” means any of the Third-Party Software Licenses (as defined in Section 4(a)) or Open Source Licenses (as defined in Section 4(b)).
g. “Third-Party Licensor” means the licensor of any Third-Party Software or Open Source Software.
h. “Third-Party Software” means any software or software component, module or package (other than Open Source Software) that contains, or is derived in any manner (in whole or in part) from, any software that is licensed or distributed by a third party.
2. Scope. This License applies (a) to Bitfusion FlexDirect you have licensed from Bitfusion as a service or a download onto a single server, computer, laptop or other similar device in a cloud, data center, or other similar environment or as otherwise agreed in the applicable purchase order, quote or license file and (b) whether you use Bitfusion FlexDirect as part of the Bitfusion hosted platform or the enterprise software platform. This License is a legal agreement between Bitfusion and Licensee, as a single entity, that has obtained Bitfusion FlexDirect, the Data and Documentation from Bitfusion under these terms and conditions but excluding any divisions, subsidiaries or affiliates unless they themselves have purchased a License from Bitfusion.
3. License Grant.
a. License. Subject to the terms of this License, Bitfusion grants to Licensee a limited, non-exclusive, non-transferable and royalty-free license to use Bitfusion FlexDirect on a single server, computer, laptop or other similar device. Bitfusion and its Third-Party Licensors reserve all other rights and licenses in and to Bitfusion FlexDirect not expressly granted to Licensee under this License.
b. Proprietary Rights Protection. Bitfusion FlexDirect, documentation and the associated copyrights and other intellectual property rights are protected by law and international treaties. This License confers no ownership rights to Licensee and is not a sale of any rights in Bitfusion FlexDirect, the media on which Bitfusion FlexDirect may be recorded or printed, or the Data. Licensee does not acquire any rights, express or implied, in Bitfusion FlexDirect, or the Data, other than those rights specified in this License. Bitfusion or its Third-Party Licensors shall own and retain ownership of all right, title, and interest in and to (i) Bitfusion FlexDirect and any copies, modifications, enhancements, and derivative works thereof; (ii) the Data and any copies, modifications, enhancements, and derivative works thereof; (iii) any ideas, suggestions, or feedback relating to Bitfusion FlexDirect and/or the Data (“Feedback”); and (iv) all intellectual property rights (including any patents, copyrights and trademarks) embodied within the foregoing subparagraphs(i), (ii) and (iii). Licensee hereby irrevocably assigns and agrees to assign all of its right, title, and interest in and to any Feedback to Bitfusion.
c. Restrictions. Licensee shall not:
• copy, modify, adapt, translate create derivative works or improvements or merge copies of Bitfusion FlexDirect, the Data or the Documentation except as specifically provided in this License
• translate, reverse engineer, de-compile or disassemble Bitfusion FlexDirect, except to the extent that applicable law explicitly prohibits this contractual restriction
• defeat, circumvent or disable any copy protection mechanism or mechanism in Bitfusion FlexDirect used to limit license duration or access to non-licensed functionality or capacity
• install, use, access, display and run Bitfusion FlexDirect except in the manner in which it has been licensed as indicated herein and in the applicable purchase order, quote or the license file for such Bitfusion FlexDirect, including but not limited to any restrictions on number of protected applications, number or type of licensed devices, number of authorized copies or instances, number of users, bandwidth, non-production use, database or location restrictions
• rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available Bitfusion FlexDirect to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service
• transfer Bitfusion FlexDirect that is in a licensed hosted environment out of any such environment
• delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Bitfusion and/or its Third-Party Licensors appearing on any Bitfusion FlexDirect or any other Bitfusion software or products. Licensee will reproduce such notices on all copies it makes of any Bitfusion FlexDirect
• access or use Bitfusion FlexDirect in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other rights of any third party, or that violates any applicable law
• access or use any Third-Party Software or Open Source Software as standalone software or except as otherwise provided in accordance with the applicable Third-Party License
d. Audit Rights. Licensee shall keep reasonable records relating to its use of Bitfusion FlexDirect and its compliance with the License granted herein and the applicable Third-Party Licenses. Bitfusion reserves the right (i) to audit Licensee’s use of Bitfusion FlexDirect or authorize others to conduct such an audit on its behalf upon reasonable notice and during normal business hours and (ii) to disable any application or functionality that has not been specifically licensed, in addition to any other rights and remedies available to Bitfusion. Bitfusion may not audit Licensee’s records more often than once every twelve (12) months unless the previous audit revealed that Licensee was not in compliance with the License or the applicable Third-Party Licenses.
4. Third-Party and Open Source Software.
a. Licensee hereby acknowledges that Bitfusion FlexDirect may utilize or include Third-Party Software that must be licensed under the specific license terms applicable to such Third-Party Software. Acknowledgements, licensing terms, copyright notices, disclaimers and other terms applicable to such Third-Party Software (the “Third-Party Software Licenses”) are available at www.bitfusion.io/legal/thirdpartyandopensourcelicenses/. Licensee (i) acknowledges that any such Third-Party Software License is solely between Licensee and the applicable Third-Party Licensor of the Third-Party Software and (ii) agrees to bound by, and shall comply with, the terms of any such applicable Third-Party License. If Licensee does not agree to the terms and conditions of any Third-Party Software License, Licensee shall not access and use Bitfusion FlexDirect
b. Licensee hereby acknowledges that Bitfusion FlexDirect may also utilize or include Open Source Software that must be licensed under the specific license terms applicable to such Open Source Software. Acknowledgements, licensing terms, copyright notices and disclaimers for such Open Source Software (the “Open Source Licenses”) are available at www.bitfusion.io/legal/thirdpartyandopensourcelicenses/. Licensee agrees to review any such Open Source Licenses and other related documentation in order to determine which portions of Bitfusion FlexDirect are Open Source Software and are licensed under an Open Source License. To the extent any such Open Source License requires that Bitfusion provide Licensee the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Licensee in this License, then such rights in the applicable Open Source License shall take precedence over the rights and restrictions granted in this License, but solely with respect to such Open Source Software. Licensee (i) acknowledges that any such Open Source License is solely between Licensee and the applicable Third-Party Licensor of the Open Source Software and (ii) agrees to bound by, and shall comply with, the terms of any such applicable Open Source License. If Licensee does not agree to the terms and conditions of any Open Source Software License, Licensee shall not access and use Bitfusion FlexDirect.
Open Source Software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Where the terms of an Open Source License entitle Licensee to the source code of any such Open Source Software, such source code is available under the terms of the applicable Open Source License by contacting Bitfusion at the address above and identifying the specific Open Source Software for which Licensee wants the source code.
5. Payment and Taxes.
In consideration for the specific rights granted under the License and your subscription for the access and use of Bitfusion FlexDirect, you agree to pay all fees specified in the applicable purchase order, quote or license file or as otherwise specified in writing by Bitfusion.
All fees are due upon receipt of the applicable invoice and are overdue if not paid within 30 days of receipt of the invoice or as otherwise provided in the applicable purchase order, quote or license file.
ALL FEES ARE NON-REFUNDABLE, NON-CANCELLABLE AND NON-CREDITABLE UNLESS OTHERWISE SPECIFICALLY AGREED TO IN WRITING BY BITFUSION OR REQUIRED BY LAW.
6. Notice to U.S. Government End Users. Bitfusion FlexDirect and Documentation qualify as commercial items as that term is defined at Federal Acquisition Regulation (FAR) (48 C.F.R.) 2.101, consisting of commercial computer software and commercial computer software documentation as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this End User License Agreement may be incorporated, Licensee may provide to Government end user or, if this License is direct, Government end user will acquire, Bitfusion FlexDirect and Documentation with only those rights set forth in this End User License Agreement. Use of either Bitfusion FlexDirect or Documentation or both constitutes agreement by the Government that Bitfusion FlexDirect and Documentation are commercial computer software and documentation and constitutes acceptance of the rights and restrictions herein.
7. DISCLAIMER OF WARRANTY. Bitfusion FlexDirect (INCLUDING ANY THIRD-PARTY SOFTWARE AND OPEN SOURCE SOFTWARE) AND DATA ARE PROVIDED “AS IS.” BITFUSION AND ITS THIRD-PARTY LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, ARISING, WITH RESPECT TO Bitfusion FlexDirect, DATA, SPECIFICATIONS, OR DOCUMENTATION DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO WARRANTIES THAT THEY ARE FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THE WARRANTY OF MERCHANTABILITY, WARRANTY OF NON-INFRINGEMENT OR TITLE AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BITFUSION MAKES NO WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE DATA INCLUDED IN Bitfusion FlexDirect. BITFUSION AND ITS THIRD-PARTY LICENSORS DO NOT WARRANT THAT THE FUNCTIONALITY OF Bitfusion FlexDirect WILL MEET LICENSEE’S REQUIREMENTS OR THAT ERRORS WILL BE CORRECTED, NOR DO THEY WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE DOCKET SOFTWARE. BITFUSION HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS PROVIDED ABOVE OR TO OTHERWISE MODIFY THE TERMS OF THIS LICENSE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
8. LIMITATION OF LIABILITY. THE COLLECTIVE AGGREGATE LIABILITY OF BITFUSION AND ITS THIRD-PARTY LICENSORS UNDER THIS LICENSE WILL BE LIMITED TO THE GREATER OF (A) $50 AND (B) THE FEES PAID TO BITFUSION FOR Bitfusion FlexDirect DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BITFUSION AND ITS THIRD-PARTY LICENSORS WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY) OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH Bitfusion FlexDirect OR OTHER GOODS OR SERVICES FURNISHED TO LICENSEE BY BITFUSION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, BITFUSION’S THIRD-PARTY LICENSORS WILL NOT HAVE ANY LIABILITY FOR ANY DIRECT DAMAGES OF ANY KIND UNDER THIS LICENSE. THE LIMITATIONS CONTAINED IN THIS SECTION WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER ANY TERM OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS SECTION.
THE PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES, AND, ABSENT SUCH ALLOCATION, BITFUSION WOULD NOT BE ABLE TO SUPPLY Bitfusion FlexDirect ON THE TERMS SET FORTH HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
9. Confidentiality. Licensee agrees, both during the term of this License and for a period of five (5) years thereafter, to hold all information given to it by Bitfusion that is identified as confidential, and all information concerning Bitfusion FlexDirect that is not customarily and publicly available to an end user through use of Bitfusion FlexDirect (collectively, the “Confidential Information”), in confidence, and not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than the purposes described in the Order or this License. You agree to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by Licensee’s employees or representatives in violation of this License, including limiting disclosure to employees or other persons who have a need to know and who are subject to confidentiality agreements with terms no less restrictive than those set forth in this Section 9. This restriction on disclosure shall not apply to the extent that any Confidential Information (a) is or becomes a part of the public domain through no act or omission of Licensee; (b) was in Licensee’s lawful possession prior to the disclosure and had not been obtained by Licensee from Bitfusion; (c) is lawfully disclosed to Licensee by a third party without restriction on disclosure; or (d) is independently developed by Licensee by personnel not having access to the Confidential Information. In addition, Licensee may disclose Confidential Information as required by law or court order; provided that (a) Licensee provide Bitfusion with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) Licensee only discloses such Confidential Information as is required to comply with such order or law and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Section 9.
10. Non-Production Use Software. If Licensee licenses any Bitfusion software designated as non-production, non-commercial, lab or development software in the applicable purchase order, quote or the license file for such software (“Non-Production Software”), Licensee may use any such Non-Production Software to conduct testing and development in Licensee’s non-production environment only and not to manage data traffic or applications in the ordinary course of Licensee’s business. Licensee agrees that any use of Non-Production Software in violation of the preceding sentence is a material breach of this License.
11. Evaluation Software. If Bitfusion FlexDirect is “Evaluation Software,” notwithstanding any other terms to the contrary in this License, Licensee may use Bitfusion FlexDirect only for its internal demonstration, test or evaluation purposes and not in a production environment. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS LICENSE, BITFUSION DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, FOR EVALUATION SOFTWARE AND IT IS PROVIDED ON AN AS IS BASIS. EVALUATION SOFTWARE HAS A NON-PERPETUAL TIME LIMITED LICENSE OF THIRTY (30) DAYS OR AS OTHERWISE SET FORTH IN THE APPLICABLE PURCHASE ORDER, QUOTE OR LICENSE OR AS AGREED BY THE PARTIES IN WRITING. Licensee agrees that it will not attempt to defeat or circumvent any duration mechanism for any Evaluation Software. Licensee also agrees that it will not use any Evaluation Software beyond the prescribed license duration.
12. Term and Termination.
a. The license granted in Section 2 is effective until cancelled or terminated.
b. Termination for Breach. The License will automatically terminate if Licensee breaches any of the terms and conditions of this License.
c. Termination for Convenience. This License may be terminated at any time by Licensee by returning or destroying all copies of Bitfusion FlexDirect, any related written materials and Documentation and the Data, as certified in writing by an officer of Licensee and by notifying Bitfusion in writing of its termination of the License.
d. Effects of Termination. In the event of termination of the License, Licensee shall immediately cease use of Bitfusion FlexDirect and destroy or return immediately Bitfusion FlexDirect and the Data and all copies thereof to Bitfusion as certified in writing by an officer of Licensee.
e. Survival. Upon the termination of this License, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections 1, 3(b), 4, 5, 7, 8, 9, 12(d) and (e), 14 and 15 shall survive any such termination.
13. Technical Support.
Technical support includes assistance to you in connection with your use of Bitfusion FlexDirect, and updates to Bitfusion FlexDirect to fix bugs, correct errors, or enhance functionality that Bitfusion releases on a generally available commercial basis to all subscribers of a Bitfusion Enterprise Platform product without additional charge (as modified from time to time, collectively “Technical Support”). Any such Technical Support is limited to correcting errors, bugs or other issues with Bitfusion FlexDirect and does not extend to any Third-Party Software or Open Source Software or technologies you use with the Bitfusion FlexDirect, any issues arising from modifications to the Bitfusion FlexDirect not made or authorized by Bitfusion, or the use of Bitfusion FlexDirect other than as authorized by this License.
Technical Support shall be provided via email at firstname.lastname@example.org or ticket portal at support.bitfusion.io between the hours of 9:00 am and 5:00 pm CST Monday to Friday, excluding all state and Federal and other company holidays.
Additional or alternative technical support terms may be specified in the applicable purchase order, quote or license file for Bitfusion FlexDirect.
Licensee agrees to indemnify, save, and hold Bitfusion, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Licensee’s use or misuse of Bitfusion FlexDirect, any violation by Licensee of this EULA, any breach of the representations, warranties, and covenants made by Licensee herein. Bitfusion reserves the right, at Licensee’s expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify Bitfusion, and Licensee agrees to cooperate with Bitfusion’s defense of these claims. Bitfusion will use reasonable efforts to notify Licensee of any such claim, action, or proceeding upon becoming aware of it.
a. System and Usage Data. By using Bitfusion FlexDirect, Licensee agrees that this software may occasionally collect, store, and send system and usage data to Bitfusion servers solely for the purpose of improving the software.
b. Governing Law; Dispute Resolution. This License will be governed by the laws of the State of Texas, USA without regard to its conflict of law rules. The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply and the parties specifically opt out of the application of such laws. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to any claim or otherwise in connection with this License or Bitfusion FlexDirect (a “Dispute”). In the event of any Dispute arising out of or relating to this License, the parties shall seek to settle the Dispute via direct discussions. If a Dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the Dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. The mediation shall be held in Austin, Texas. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any Dispute that remains unresolved following mediation shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Mediation Procedures. The place of arbitration shall be Austin, Texas. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party all of its Costs and Fees. “Costs and Fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Texas. The foregoing alternative dispute resolution provisions will not apply to claims or actions related to the infringement, misappropriation or violation of Bitfusion’s intellectual property rights or those of its third-party licensors and such actions may be brought in any court of competent jurisdiction.
c. Enforceability. Any provisions found to be unenforceable will not affect the enforceability of the other provisions contained herein, but will instead be replaced with a provision as similar in intent to the original as possible.
d. Export Restrictions. Bitfusion FlexDirect, the Data, and related information may be subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in other countries. Licensee shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of Bitfusion FlexDirect. Licensee shall hold harmless and indemnify Bitfusion for any damages resulting from a breach of this Section 15(d).
e. Force Majeure. The obligations of a party (other than payment) will be suspended by the occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance impossible including, acts of God, war, fire, flood, accident, strike, casualty, power failures, governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials. The party invoking force majeure shall (a) send written notice thereof to the other within a reasonable time after the invoking party knew or should have known that performance would be delayed or prevented due to the force majeure and (b) take reasonable steps to limit the duration and effect of any such force majeure.
f. Waiver. The failure of a party to claim a breach of any term of this License shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
e. Assignment. Licensee shall not assign this License or any of its rights or obligations hereunder without the prior written consent of Bitfusion, and any such prohibited assignment shall be null and void. Bitfusion may assign this License or any of its rights or obligations hereunder without the prior written consent of Licensee.
f. Severability. In the event that any provision of this License is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this License, such invalidity, voidability or unenforceability shall not affect the validity of this License nor the remaining provisions hereof.
g. Third-Party Beneficiaries. Licensee hereby acknowledges that there are third-party beneficiaries to this License. To the extent that this License contains provisions that relate to Bitfusion FlexDirect in which such third parties have an interest, including the Third-Party Licensors, such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by Bitfusion.
h. Entire Agreement; Modifications. This License constitutes the entire agreement between Licensee and Bitfusion on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This License may not be modified or waived orally and may be modified only in writing signed by duly authorized representatives of each party.