The following Agreement consists of two parts. Many of the Sections and Terms referenced in the "Evaluation Agreement" are incorporated into the "Purchase Agreement". Unless you have entered into another agreement with Intrinsyc Technologies Corporation, a wholly owned subsidiary of Lantronix Corporation, covering a J-Integra software product (a "Product"), the installation and use of all J-Integra Products is subject to the terms and conditions of the J-Integra End User License Agreement below (the "EULA"). You may not utilize any J-Integra Product except as expressly set forth in the EULA.
BY INSTALLING OR USING EACH J-INTEGRA PRODUCT YOU CONSENT TO BE BOUND BY THE TERMS OF THE EULA. IF YOU DO NOT AGREE TO THE TERMS OF THE EULA, YOU SHOULD DISCONTINUE ALL USE OF THE J-INTEGRA PRODUCT COVERED BY THE EULA AND RETURN ALL COPIES OF THE J-INTEGRA PRODUCT TO INTRINSYC TECHNOLOGIES CORPORATION, A WHOLLY OWNED SUBSIDIARY OF LANTRONIX CORPORATION.
IMPORTANT: READ THESE TERMS CAREFULLY BEFORE DOWNLOADING OR INSTALLING THIS SOFTWARE. BY SELECTING THE "I ACCEPT" BUTTON BELOW, DOWNLOADING, INSTALLING, OR OTHERWISE USING THIS SOFTWARE (EACH AN "ACCEPTANCE" OF THIS EVALUATION AGREEMENT), YOU OR THE ENTITY IDENTIFIED BY YOU WHEN ACCEPTING THIS EVALUATION AGREEMENT (THE "LICENSEE") ACKNOWLEDGE THAT YOU HAVE READ THIS EVALUATION AGREEMENT AND THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EVALUATION AGREEMENT, YOU ARE NOT AN AUTHORIZED USER OF THE SOFTWARE AND IT IS YOUR RESPONSIBILITY TO EXIT THIS DOWNLOADING / INSTALLATION PROCESS WITHOUT DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE BY DELETING THE SOFTWARE FROM YOUR COMPUTER.
DUE TO GOVERNMENT PROCUREMENT REGULATIONS AND SIMILAR LAWS AND REGULATIONS WHICH MAY VARY FROM JURISDICTION TO JURISDICTION, THIS EVALUATION AGREEMENT IS NOT INTENDED FOR USE BY NATIONAL, FEDERAL, STATE, PROVINCIAL OR LOCAL GOVERNMENTAL ENTITIES OR OTHER QUASI-GOVERNMENTAL ENTITIES SUCH AS AUTHORITIES, AGENCIES, COMMISSIONS, ETC., OR ANY OTHER ENTITY WHOSE USE OR LICENSING OF THE SOFTWARE IS GOVERNED BY OR SUBJECT TO SUCH LAWS OR REGULATIONS. IF LICENSEE IS SUCH AN ENTITY, THIS EVALUATION AGREEMENT AND THE LICENSE SHLL NOT APPLY. SUCH ENTITIES SHOULD CONTACT LICENSOR DIRECTLY FOR THE APPOPRIATE LICENSE.
(a) Authorized Use. "Authorized Use" shall mean, subject to the restrictions set forth herein, the installation and operation of the Software on a computer or a computer network owned or operated by Licensee, solely for Licensee's internal use in a non-production environment. Licensee shall not in any way use the Software to provide, or use the Software as part of, any commercial service or application, and shall use the Software solely for evaluation purposes in contemplation of entering into the Software License Agreement. Without limitation of the above: (i) Licensee may only make one copy of the Software as necessary for bona fide backup or archival purposes, (ii) no identifying marks, copyright or proprietary rights notices may be deleted from the Software or any copies of the Software made by Licensee, (iii) Licensee shall not rent, lease, loan, sell, transfer, publish, display, distribute, disclose or otherwise make the Software available to third parties or use the Software, or any portion thereof, in a service bureau, time-sharing or outsourcing service or otherwise use the Software for the benefit of third parties, and (iv) Licensee shall not modify, translate, create derivative works from or decompile the Software, or any portion thereof, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder, or adapt the Software, or any portion thereof, in any way.
(b) Effective Date. Effective Date shall mean the date that Licensee first Accepts this Evaluation Agreement.
(c) Evaluation Term. Evaluation Term shall mean the period commencing on the Effective Date and continuing for a period of thirty (30) days thereafter unless earlier terminated pursuant to Section 3.
(d) Software. "Software" shall mean Licensor's computer software program, as downloaded and installed pursuant to this Evaluation Agreement, in machine-executable form only, and any related documentation (the Documentation).
(e) Software License Agreement. "Software License Agreement" shall mean the Software License Agreement attached hereto as Exhibit A, under which Licensor may grant Licensee a license to use the Software perpetually, subject to the terms and conditions therein.
Subject to the terms and conditions set forth in this Evaluation Agreement, Licensor grants to Licensee a limited, non-exclusive and non-transferable license, solely during the Evaluation Term, to install and operate the Software, in machine-executable form only, solely for Licensee's Authorized Use (the License). Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Software. Licensee shall maintain accurate and up-to-date records of the number and location of any authorized copy Licensee makes of the Software.
(a) Term; Termination. The term of this agreement shall be for the Evaluation Term. Licensor shall have the right to terminate this Evaluation Agreement for any reason or no reason upon written notice to Licensee.
(b) Effect of Termination. The termination or expiration of this Evaluation Agreement shall automatically, and without further action by Licensor, terminate and extinguish the License and all rights granted to Licensee hereunder. In the event of termination or expiration of this Evaluation Agreement for any reason, Licensor shall have the right, at any time, to take immediate possession of the Software, and all copies thereof, wherever located. Within fourteen (14) days after the termination or expiration of the License granted hereunder, Licensee shall return the Software, including all portions and copies thereof, to Licensor, or upon request of Licensor, destroy the Software and all portions and copies thereof and certify in writing that the same have been destroyed. Sections 3(b), 4, 5, 6, 7, 8, 9, 10 and 11 shall survive the expiration or termination hereof for any reason.
(c) Entry into Software License Agreement. In the event that Licensee desires to enter into the Software License Agreement, Licensee shall notify Licensor in writing or by e-mail (to [email protected]) of such desire and make payment to Licensor of the applicable license fees under the Software License Agreement. By making such payment to Licensor, Licensee thereby offers to enter into the Software License Agreement with Licensor. Licensor's acceptance of such payment in full and provision to Licensee of a license key enabling the Software to continue to be used beyond the Evaluation Term shall be considered an acceptance of such offer and the Software License Agreement shall then be deemed to have been entered into by and between Licensor and Licensee.
Licensee acknowledges that the Software is the sole and exclusive property of Licensor or Licensors licensors, including, without limitation, all rights to patents, copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights inherent therein or appurtenant thereto, in all media now known or hereinafter developed. The Software includes certain computer software which is copyrighted by Licensor and/or Licensors affiliates and/or licensors. Without limitation of the foregoing, Licensee agrees and acknowledges that, as between Licensee and Licensor, Licensor retains title to the Software and any copies thereof. Licensee is not purchasing title to the Software or copies thereof, but rather is being granted only a license to use the Software. All rights not granted to Licensee herein are reserved to Licensor.
(a) Confidential Information. Licensee shall (and shall ensure that its employees and agents shall) maintain the strict confidentiality of the Software and all information and materials contained in or related to the Software and all information and materials conveyed by Licensor to Licensee hereunder or under the Software License Agreement, including but not limited to any license keys provided to Licensee at any time, financial records and the Softwares features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, analysis and performance information, user documentation and other technical information, plans and data (collectively, the Licensor Proprietary Information).
(b) Non-Disclosure. Licensee shall not permit anyone other than its own most trusted employees with a need to know to access or use the Licensor Proprietary Information. Licensee shall not disclose the Licensor Proprietary Information to any third party and shall not use the Licensor Proprietary Information other than as expressly authorized hereunder. Furthermore, Licensee: (a) recognizes that the unauthorized use or disclosure of Licensor Proprietary Information will give rise to irreparable injury to Licensor or its licensors or affiliates for which monetary damages may be an inadequate remedy; and (b) agrees that Licensor or its licensors or affiliates may seek and obtain injunctive relief against the breach or threatened breach of Licensees obligations hereunder, in addition to any other legal and equitable remedies which may be available to Licensor.
(c) Non-Compete. During the Evaluation Term (and the Term of the Software License Agreement in the event it is entered into by the parties), and for a period of twelve (12) months after the Evaluation Term or Term, as applicable, Licensee agrees that it shall not, directly or indirectly, develop, release, distribute or otherwise offer a product that has similar functionality to the Software or that may otherwise compete, directly or indirectly, with the Software. Licensee acknowledges that the breach, or threatened breach, by Licensee of this Section 5(c) will cause irreparable harm to Licensor, which harm cannot be fully redressed by the payment of damages to Licensor. Licensee further agrees and acknowledges that, due to the nature of Licensor's disclosure to Licensee of Licensor Proprietary Information (including without limitation the Software), the restrictions contained in this Section 5(c) are reasonable under the circumstances.
Licensee will, at its own expense, indemnify, defend and hold harmless Licensor, its parents, subsidiaries and affiliates, and their respective directors, officers, employees and agents, from and against any action brought by a third party against such entities to the extent that such action is based on a claim arising from or relating to Licensees use of the Software. Licensor shall have the exclusive right to control such defense. In no event shall Licensee settle any such claim, lawsuit or proceeding in any manner that materially prejudices Licensors rights without Licensors prior written approval.
(a) Warranty. Licensee hereby represents and warrants that: (a) it shall use the Software, and require that its employees and agents use the Software, only for Authorized Use, and (b) all registration and payment information provided by Licensee to Licensor relating to this transaction, whether via online forms or otherwise, is accurate and complete and that the person Accepting the terms hereof is authorized to bind to this Evaluation Agreement the entity identified by it as the licensee under this Evaluation Agreement.
(b) DISCLAIMER. THE SOFTWARE IS BEING LICENSED HEREUNDER WITH NO WARRANTY WHATSOEVER. LICENSEE ACKNOWLEDGES THAT ITS USE OF THE SOFTWARE IS AT ITS OWN RISK. THE SOFTWARE IS PROVIDED SOLELY ON AN AS-IS BASIS. LICENSOR AND ITS AFFILIATES AND LICENSORS MAKE, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. LICENSOR, ITS AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE SHALL BE OPERABLE, UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT.
(c) High Risk Activities. The Software is not designed, manufactured or intended for use or resale in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (High Risk Activities). Licensor specifically disclaims any express or implied warranty of fitness of the Software for High Risk Activities.
(d) TIME LIMITING DEVICE. LICENSOR ACKNOWLEDGES THAT THE SOFTWARE MAY CONTAIN A TIME-LIMITING DEVICE BY WHICH THE SOFTWARE MAY NOT OPERATE BEYOND THE EVALUATION TERM.
LICENSOR AND LICENSORS LICENSORS AND AFFILIATES SHALL HAVE NO LIABILITY WITH RESPECT TO THIS EVALUATION AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR OR LICENSORS LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR OR LICENSORS LICENSORS OR AFFILIATES BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL LICENSORS OR ITS LICENSORS' OR AFFILIATES' AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED $50.00.
LICENSEE'S RIGHTS HEREUNDER ARE EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY ANY GOVERNMENT. LICENSEE SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF LICENSOR AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
Due to government procurement regulations and similar laws and regulations which may vary from jurisdiction to jurisdiction, this Evaluation Agreement is not intended for use by national, federal, state, provincial or local governmental entities or other quasi-governmental entities such as authorities, agencies, commissions, etc., or any other entity whose use or licensing of the Software is governed by or subject to such laws or regulations. If Licensee is such an entity, this Evaluation Agreement and the License shall not apply. Such entities should contact Licensor directly for the appropriate license.
This Evaluation Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes and merges all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof. Licensor's obligations under this Evaluation Agreement shall be subject to force majeure. This Evaluation Agreement may not be modified or altered except by written instrument duly executed by both parties. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Evaluation Agreement may be brought by Licensee more than one (1) year after the cause of action has arisen. Licensee may not assign, sublicense or transfer, without the prior written consent of Licensor, its rights, duties or obligations under this Evaluation Agreement, in whole or in part, to any person or entity. The construction, interpretation and performance of this Evaluation Agreement and all transactions under it shall be governed by the laws of the Province of British Columbia, Canada, but excluding both British Columbias choice of laws rules and the U.N. Convention for the International Sales of Goods. The parties agree that any action relating to this Evaluation Agreement shall be instituted and prosecuted in a court of competent jurisdiction in British Columbia, Canada and each party waives its right to a change of jurisdiction or venue. Should any provision of this Evaluation Agreement be held to be void, invalid, unenforceable or inoperative, the remaining provisions of this Evaluation Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity. It is expressly agreed that Licensor and Licensee are acting hereunder as independent contractors. Any notice provided by Licensee to Licensor pursuant to this Evaluation Agreement shall be in writing: (a) if Licensor is Linar Ltd. as set forth in Section 1(e), then to Linar Ltd., c/o Intrinsyc Technologies Corporation, A wholly owned subsidiary of Lantronix Corporation, 885 Dunsmuir St, 3rd Floor, Vancouver, BC, Canada V6C 1N5; and (b) if Licensor is Intrinsyc Technologies Corporation, a wholly owned subsidiary of Lantronix Corporation as set forth in Section 1(e), then to Intrinsyc Technologies Corporation, a wholly owned subsidiary of Lantronix Corporation, 885 Dunsmuir St, 3rd Floor, Vancouver, BC, Canada V6C 1N5. Notices to Licensor shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, five (5) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Any notice provided by Licensor to Licensee pursuant to this Evaluation Agreement shall be sent to the e-mail or mailing address provided by Licensee upon registering for this Evaluation Agreement, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, five (5) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; (iii) if by next day delivery service, upon such delivery; or (iv) if by e-mail, upon the date sent, provided that such e-mail is not bounced back as undeliverable. Either party may change its address by giving written notice to the other party. The headings contained in this Evaluation Agreement are for convenience purposes only and shall not effect the construction or application of this Evaluation Agreement.
(a) Authorized Use. "Authorized Use" shall mean, subject to the restrictions set forth below, internal use only on the number of machines for which Licensee subscribed and has paid the applicable License Fees to Licensor. Without limitation of the above: (i) Licensee may only make one copy of the Software as necessary for bona fide backup or archival purposes, (ii) no identifying marks, copyright or proprietary rights notices may be deleted from the Software or any copies of the Software made by Licensee, (iii) Licensee shall not rent, lease, loan, sell, transfer, publish, display, distribute, disclose or make the Software available to third parties or use the Software, or any portion thereof, in a service bureau, time-sharing or outsourcing service or otherwise use the Software for the benefit of third parties, and (iv) Licensee shall not modify, translate, create derivative works from or decompile the Software, or any portion thereof, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder, or adapt the Software, or any portion thereof, in any way.
(b) Effective Date. Effective Date shall mean the date that Licensee and Licensor enter into this Agreement as set forth in Section 3(c) of the Evaluation Agreement.
(c) Evaluation Agreement. "Evaluation Agreement" shall mean the Thirty (30) Day Evaluation License Agreement to which this Agreement is attached, under which Licensee is granted a right to evaluate the Software subject to the terms and conditions therein.
(d) License Fee. "License Fees" shall be as set forth in Licensor's current applicable price list, depending on the number of licenses Licensee orders, plus any applicable Taxes (as defined in Section 5).
(e) Licensor. "Licensor" shall have the meaning set forth in the Evaluation Agreement.
(f) Software. "Software" shall have the meaning set forth in the Evaluation Agreement.
(g) Term. Term shall mean the period commencing on the Effective Date and continuing perpetually unless earlier terminated pursuant to Section 4.
(a) License. Subject to the terms and conditions set forth in this Agreement and Licensees payment of the License Fees, Licensor grants to Licensee a limited, non-exclusive and non-transferable license, solely during the Term, to install and operate the Software, in machine-executable form only, solely for Licensee's Authorized Use (the License). Licensee is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to operate the Software. Licensee shall maintain accurate and up-to-date records of the number and location of any authorized copy Licensee makes of the Software.
(b) License Key. Upon Licensor's receipt from Licensee of the applicable License Fees, Licensor shall issue Licensee a license key which shall enable Licensee to use the Software beyond the Evaluation Term of the Evaluation Agreement.
(a) Electronic Reporting. Licensee acknowledges and agrees that the J-Integra Product has an electronic reporting feature which enables Licensor to ascertain how many machines the J-Integra Product is executing on. This electronic reporting feature reports server name, IP address and license key information.
(b) No Security Mechanism. Licensor also represents and warrants that it shall not, either now or in the future, perform any actions or include in the J-Integra Product any software, hardware, electronic or other security mechanism, including password, CPU serial number validation or dependency, electronic initialization protection, time dependent execution and the like, nor any disablement, deinstallation, deactivation, damage, or deletion mechanism that hinders Licensor’s ability to use or physically and electronically transport the J-Integra Product as allowed under this Agreement, or otherwise exercise its rights under this Agreement.
Licensor shall have no obligation to provide any support to Licensee under the terms of this Agreement. If Licensee wishes to purchase support, Licensee and Licensor may enter into a separate support agreement. Licensee shall be solely responsible for backing up the Software and performing other basic maintenance as set forth in the Documentation or the instructions that may be provided by Licensor from time to time.
(a) Term; Termination. The term of this agreement shall be for the Term. Licensor shall have the right to immediately terminate this Agreement with no refund of License Fees: (a) for a material breach of this Agreement by Licensee (including, without limitation, Licensee's failure to meet its payment obligations hereunder), or (b) if Licensee becomes insolvent or is unable to pay its debts as due, enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar laws of any other jurisdiction or transfers all of its assets to another person or entity.
(b) Effect of Termination. The termination or expiration of this Agreement shall automatically, and without further action by Licensor, terminate and extinguish the License and all rights granted to Licensee hereunder. In the event of termination or expiration of this Agreement for any reason, Licensor shall have the right, at any time, to take immediate possession of the Software, and all copies thereof, wherever located. Within fourteen (14) days after the termination or expiration of the License granted hereunder, Licensee shall return the Software, including all portions and copies thereof, to Licensor, or upon request of Licensor, destroy the Software and all portions and copies thereof and certify in writing that the same have been destroyed. Notwithstanding the foregoing, Sections 5(b), 6, 7, 8 and 9 shall survive the expiration or termination hereof for any reason.
Licensee shall pay the non-refundable License Fees, including all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, taxes which may be levied on the net income of Licensor ("Taxes"). Licensee shall reimburse Licensor for the amount of any such Taxes paid or accrued directly by Licensor as a result of this transaction. If Licensee fails to pay License Fees or Taxes by their due date, without limitation of other rights and remedies, at Licensors request, Licensee shall pay late charges of one and one half percent (1.5%) per month, together with all of Licensors expenses and collection costs, including reasonable attorneys fees, incurred in enforcing the Agreement. Payments shall be paid in U.S. currency. Any rate of exchange which may be applicable to payments due or other monetary calculations for purposes of this Agreement shall be the rate set forth in the Wall Street Journal on the day that the payment is due.
Sections 4, 5, 6, 7 (other than subsection 7(d)), 9 and 10 of the Evaluation Agreement are hereby incorporated herein by reference and such Sections shall survive the termination or expiration hereof.
LICENSOR AND LICENSORS LICENSORS AND AFFILIATES SHALL HAVE NO LIABILITY WITH RESPECT TO THIS AGREEMENT OR OTHERWISE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR OR LICENSORS LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR OR LICENSORS LICENSORS OR AFFILIATES BE LIABLE FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER RELATING TO ANY THIRD PARTY SOFTWARE OR HARDWARE. IN NO EVENT SHALL LICENSORS OR ITS LICENSORS' OR AFFILIATES' AGGREGATE LIABILITY FOR ANY REASON(S) AND UPON ANY CAUSE(S) OF ACTION WHATSOEVER EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER.
This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties, and supersedes and merges all prior proposals, understandings and other agreements, oral and written, between the parties, relating to the subject matter hereof. Licensor's obligations under this Agreement shall be subject to force majeure. This Agreement may not be modified or altered except by written instrument duly executed by both parties. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. No action, regardless of form, arising out of this Agreement may be brought by Licensee more than one (1) year after the cause of action has arisen. Licensee may not assign, sublicense or transfer, without the prior written consent of Licensor, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity. The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the Province of British Columbia, Canada, but excluding both British Columbias choice of laws rules and the U.N. Convention for the International Sales of Goods. The parties agree that any action relating to this Agreement shall be instituted and prosecuted in a court of competent jurisdiction in British Columbia, Canada and each party waives its right to a change of jurisdiction or venue. Should any provision of this Agreement be held to be void, invalid, unenforceable or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity. It is expressly agreed that Licensor and Licensee are acting hereunder as independent contractors. Any notice provided by Licensee to Licensor pursuant to this Agreement shall be in writing: to Intrinsyc Technologies Corporation, a wholly owned subsidiary of Lantronix Corporation, 885 Dunsmuir Street, 3rd Floor, Vancouver, BC, Canada V6C 1N5. Notices to Licensor shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; or (iii) if by next day delivery service, upon such delivery. Any notice provided by Licensor to Licensee pursuant to this Agreement shall be sent to the e-mail or mailing address provided by Licensee upon registering for the Evaluation Agreement, and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail, return receipt requested; (iii) if by next day delivery service, upon such delivery; or (iv) if by e-mail, upon the date sent, provided that such e-mail is not bounced back as undeliverable. Either party may change its address by giving written notice to the other party. The headings contained in this Agreement are for convenience purposes only and shall not effect the construction or application of this Agreement.
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