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This Terms of Service Agreement (this “Agreement”) is effective as of order form signing date (the “Effective Date”) by and between RenderDraw (“RenderDraw”) and the person or entity which has agreed as Customer on separate order form (“Customer”).
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the issued and outstanding voting interests of the subject entity.“Agreement” means this Master Subscription Agreement.“Customer” means the company or other legal entity which has executed this Agreement, and Affiliates of that company or entity which have signed Order Forms.“Documentation” means user manuals, technical manuals, and any other materials provided by RenderDraw, in printed, electronic, or other forms, that describe the installation, operation, use, or technical specifications of the Software.“RenderDraw” means RenderDraw“Initial Subscription Term” has the meaning set forth in the Order Form.“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.“Non-RenderDraw Application” means a Web-based, mobile, offline, or other software application functionality that is provided by Customer or a third party and interoperates with the Software, including, for example, an application that is developed by or for Customer by a third party.“Order Form” means the order form submitted by or on behalf of Customer, and accepted by RenderDraw, for Customer’s license of the Software. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to it. “Renewal Term(s)” has the meaning set forth in Section 11.2 of this Agreement.“Software” means the software programs for which Customer is purchasing a license, as expressly set forth in the Order Form.“Subscription Term” means the Initial Subscription Term and any Renewal Term(s), if applicable.“Support” means Level 3 support services for the Software, which will include providing all production released versions issued during the subscription period. Level 3 support services are those services that are necessary to correct a defect in the workmanship or functionality of the Software independent of Customer’s use of the Software or the Software’s interoperation with any Non-RenderDraw Application. Unless otherwise agreed in a separate agreement, RenderDraw has no obligation to provide any other support for the Software or any support whatsoever for any Non-RenderDraw Application. “User” means an individual who is authorized by Customer to use the Software, for whom Customer has purchased a subscription (or in the case of any Software provided by RenderDraw without charge, for whom Software has been provisioned), and to whom Customer (or, when applicable, RenderDraw at Customer’s request) has supplied a user identification and password (for Software utilizing authentication). Users may include, for example, Customer’s employees, consultants, contractors, agents, and third parties with which Customer transacts business.
As of the Effective Date, RenderDraw will (a) make the Software available to Customer pursuant to the terms of this Agreement and the applicable Order Form(s), and (b) provide applicable Support to Customer at no additional charge, and/or upgraded support if purchased. Any upgraded support will be subject to a separate agreement.
RenderDraw will be responsible for the performance of RenderDraw’s personnel (including RenderDraw’s employees and contractors) and RenderDraw’s compliance with RenderDraw’s obligations under this Agreement, except as otherwise specified herein.
As of the Effective Date, subject to and conditioned on Customer's payment of fees specified in Section 5.1 and compliance with all other terms and conditions of this Agreement, RenderDraw hereby grants Customer a limited, non-exclusive, non-sublicensable, and non-transferable (except in compliance with this Agreement) license, exercisable solely by and through the Users, during the Term to use the Software solely for Customer's internal business purposes subject to the usage limits set forth in Section 3.3. 3.2 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, Customer purchases access to the Software .
The Software is subject to usage limits specified in Order Form or Documentation (“Usage Limits”). Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Software may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Software.
The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software. Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features. On an annual basis, and otherwise, on RenderDraw’s written request, Customer shall conduct a review of its and its Users use of the Software and certify to RenderDraw in signed by an officer of Customer that it is in full compliance with the Usage Limits or, if Customer discovers any noncompliance Customer shall immediately remedy such noncompliance and provide RenderDraw with written notice thereof. Customer shall provide RenderDraw with all access and assistance as RenderDraw requests to further evaluate and remedy such noncompliance Customer’s use of the Software exceeds Usage Limits, in addition to any other right or remedy that RenderDraw may have under this Agreement, under any other agreement between the parties, or at law or in equity, RenderDraw shall have the remedies set forth in this Section 3.4.3.4 Administration of Additional Licenses. Customer may, at any time during the applicable Subscription Term, increase the number of Users for the Software by purchasing additional licenses in excess of the “Quantity Subscribed” identified in the table on the applicable Order Form (“Additional Licenses”). Customer acknowledges and agrees that the price for such Additional Licenses shall be the applicable Monthly Subscription Price, as identified in the applicable Order Form, for the then-current Subscription Term. Further, if, at any time, Customer’s use of the Software exceeds both the number of “Quantity Subscribed” identified in the applicable table in the applicable Order Form and Additional Licenses purchased (an “Overage”), RenderDraw may charge, and Customer shall pay, for Additional Licenses necessary to the Overage at the then-current Monthly Subscription Price applicable for the current Subscription Term. Additional Licenses fees applicable during the current Subscription Term, if any, shall be: (i) due for any past period in which an Overage occurred, and invoiced in arrears(ii) due for the remainder of the Subscription Term following any occurrence of an Overage and invoiced annually in advance; and (iii) for Additional Licenses purchased in advance, due for the remainder of the applicable Subscription Term, with the amount due for the current Contract Year, as defined in the applicable Order Form, to be invoiced immediately upon purchase and for the remaining Contract Year(s), as defined in the applicable Order Form, to be invoiced annually in advance. This remedy is in addition to any other right or remedy that RenderDraw may have under this Agreement, under any other agreement between the parties, or at law or in equity. Customer shall pay all such invoices for applicable Additional Licenses pursuant to the payment terms contained in the applicable Order Form. A reduction in usage by Customer shall not reduce the fees due and payable during the applicable Subscription Term. 3.5 Restrictions on Use. Customer will not (a) make the Software available to, or use the Software for the benefit of, anyone other than Customer or its Users, unless expressly stated otherwise in any Order Forms or the Documentation(b) sell, resell, license, sublicense, distribute, make available, rent, or lease the Software, or include the Software in a service bureau or outsourcing offering(c) use the Software or Non-RenderDraw Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (d) use the Software or Non-RenderDraw Application to store or transmit Malicious Code (e) permit direct or indirect access to or use of the Software in a way that circumvents Usage Limits, or use the Software to access or use any of RenderDraw’s Intellectual Property except as permitted under this Agreement, an Order Form, or the Documentation (f) copy the Software or any part, feature, function, or user interface thereof except as permitted in this Agreement, Order Form, or Documentation or (g) reverse engineer the Software (to the extent such restriction is permitted by law). Customer’s Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Order Forms (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify RenderDraw promptly of any such unauthorized access or use (c) use the Software only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations (d) comply with terms of service of any Non-RenderDraw Applications with which Customer uses the Software and (e) be responsible for obtaining any other third-party licenses and environments required for the operation of the Software. 3.7 Audit. During the term of this Agreement, RenderDraw may, in RenderDraw’s sole discretion, audit Customer’s use of the Software to ensure Customer’s compliance with this Agreement or any Order Form, provided that (i) any such audit shall be conducted on not less than five days prior notice to Customer and (ii) no more than two audits may be conducted in any 12-month period except for good cause. RenderDraw also may, in its sole discretion, audit Customer’s systems within 12 months after the end of any the term of any Order Form to ensure Customer has ceased use of the Software and removed all copies of the Software from such systems as required under this Agreement and the applicable Order Form. Customer shall cooperate with RenderDraw’s personnel conducting such audits and provide all access requested by RenderDraw to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. RenderDraw may conduct audits only during Customer’s normal business hours and in a manner that does not unreasonably interfere with Customer’s business operations. If the results of such an audit indicate that Customer’s use of any Software exceeds or exceeded the Usage Limits by more than 2.5%, Customer shall pay to RenderDraw, within 15 days following the date of RenderDraw’s written request therefore, RenderDraw’s reasonable costs incurred in conducting the audit. If the use exceeds or exceeded the use permitted by this Agreement by more than 5.0%, RenderDraw shall also have the right to terminate this Agreement and any Order Form issued hereunder and any rights granted hereunder or thereunder, effective immediately upon written notice to Customer, in addition to any other right or remedy that RenderDraw may have under this Agreement, under any other agreement between the parties, or at law or in equity.NON-PROVIDERSNo Warranty for Non-RenderDraw ApplicationsRenderDraw or third parties may make available third-party products or services, including, for example, Non-RenderDraw Applications and implementation and other consulting services. Customer’s acquisition of such products or services, and any exchange of data between Customer and any provider, product, or service solely between Customer and the applicable provider. RenderDraw does not warrant or support Non-RenderDraw Applications or other products or services, whether or not they are designated by RenderDraw as “certified” or otherwise unless expressly provided otherwise in Order Forms.
The Software may contain features designed to interoperate with Non-RenderDraw Applications. To use such features, Customers may be required to obtain access to such Non-RenderDraw Applications from their providers and grant RenderDraw access to Customer’s account(s) on such Non-RenderDraw Applications. With the exception of Salesforce and provided managed applications, RenderDraw cannot guarantee the continued availability of the Software’s features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example, and without limitation, the provider of a Non-RenderDraw Application ceases to make available for interoperation with the corresponding Software features in a manner acceptable to RenderDraw or integration of a Non-RenderDraw Application makes the Software inoperable.
Customer will pay all fees specified in Order Forms (“Fees”). Except as otherwise specified herein or in such Order Forms, (a) Fees are based on the Software subscriptions purchased and not actual usage(b) except as provided in Section, payment obligations are non-cancelable and Fees paid are non-refundable and (c) quantities purchased cannot be decreased during the relevant .
Customer agrees to reimburse RenderDraw for actual, reasonable out-of-pocket costs for travel related to Customer’s installation of, use of, and access to the Software and any services that RenderDraw performs on behalf of the Customer, if applicable (the “Expenses”). These are in addition to and may be invoiced separately from the Fees set forth in any applicable Order Form.
RenderDraw will invoice Customer in accordance with the terms of the Order Form. Unless otherwise stated in the applicable Order Form, invoiced charges are due net 10 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to RenderDraw and notifying RenderDraw of any changes to such information.
If any invoiced amount is not received by RenderDraw by the due date, then, without limiting other RenderDraw’s rights or remedies under this Agreement, any other agreement between the parties, or at law or in equity, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
If any amount owing by Customer under this Agreement or any other agreement between the parties is 30 or more days overdue, RenderDraw may, without limiting RenderDraw’s other rights or remedies it may have under this Agreement, under any other agreement between the parties, or at law or in equity, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Customer’s license or access to the Software until Customer pays such amounts in full.
RenderDraw may not exercise its rights under Sections 5.4 or 5.5 of this Agreement if Customer has disputed the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If RenderDraw has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.7, RenderDraw will invoice Customer and Customer will pay that amount unless Customer provides RenderDraw with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, RenderDraw is solely responsible for taxes assessable against it based on its income, property, and employees.
Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by RenderDraw regarding future functionality or features.
Subject to the limited rights expressly granted hereunder, RenderDraw, and its licensors, reserve all of their respective right, title, and interest in and to the Software, including all of their respective related Intellectual Property Rights. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement or any Order Forms. Without limiting the generality of the foregoing, Customer acknowledges and agrees that RenderDraw retains all right, title, and interest in and to the Software and any software that is derived from the Software, whether or not co-developed specifically for Customer, including any Intellectual Property Rights, contained therein.
Customer grants to RenderDraw and RenderDraw’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into RenderDraw’s and/or RenderDraw’s Affiliates’ services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of the Software.
Customer agrees to serve as a customer reference but not limited to press releases, phone calls, use cases, and potential speaking engagements. These engagements must be agreed to beforehand with at least 1 weeks notice. Notwithstanding the foregoing, RenderDraw may use the name, service mark, or trademark of Customer (including the use of the name of Customer) or any information about RenderDraw’s relationship with Customer or any of its Affiliates.
Definition of Confidential Information“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing. Without limiting the generality of the foregoing, RenderDraw’s Confidential Information includes the Software and Confidential Information of each party including the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that () is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, () was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, () is received from a third party without breach of any obligation owed to the Disclosing Party, or () was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Without limiting the generality of the foregoing, the Receiving Party agrees not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this ection. Notwithstanding the foregoing, RenderDraw may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-RenderDraw Application provider to the extent necessary to perform RenderDraw’s obligations under this Agreement; provided, however, that such subcontractor is subject to obligations of confidentiality as protective as set forth herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or obtain a protective order for such disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of and providing secure access to that Confidential Information.
RenderDraw warrants that during an applicable Subscription Term (a) the Software will perform materially in accordance with the applicable Documentation and (b) subject to Section 4.2 of this Agreement, RenderDraw will not materially decrease the overall functionality of the Software. For any breach of , the Customer’s exclusive remedies are those described in Sections 11.3 and 11.4 of this Agreement.
Customer warrants that during the applicable Subscription Term (a) Customer not RenderDraw and (b) Customer and Users are not accessing the Software for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, MAKES WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
Indemnification by RenderDraw RenderDraw will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the Software infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by RenderDraw in writing of, a Claim Against Customer, provided Customer (a) promptly gives RenderDraw written notice of the Claim Against Customer (b) gives RenderDraw sole control of the defense and settlement of the Claim Against Customer (except that RenderDraw may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability) and (c) gives RenderDraw all reasonable assistance, at RenderDraw’s expense. If RenderDraw receives information about an infringement or misappropriation claim related to the Software, RenderDraw may in its sole discretion and at no cost to Customer (i) modify the Software so that no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of that the Software in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Software upon 90 days written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from a Non-RenderDraw Application. Customer’s use of the Software in violation of this Agreement, the Documentation, or applicable Order Forms or a modification to the Software by Customer or RenderDraw at the request and direction of Customer.
Customer will defend against any claim, demand, suit, or proceeding made or brought against RenderDraw by a third party arising from Customer’s use of the Software in violation of the Agreement, the Documentation, Order Form, or applicable law, or arising from any modification to the Software by Customer or RenderDraw at the request and direction of Customer (each a “Claim Against RenderDraw”), and Customer will indemnify RenderDraw from any damages, attorney fees and costs finally awarded against RenderDraw as a result of, or for any amounts paid by RenderDraw under a settlement approved by Customer in writing of, a Claim Against RenderDraw, provided RenderDraw (a) promptly gives Customer written notice of the Claim Against RenderDraw, (b) gives Customer sole control of the defense and settlement of the Claim Against RenderDraw (except that Customer may not settle any Claim Against RenderDraw unless it unconditionally releases RenderDraw of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT BY CUSTOMER AND CUSTOMER’S AFFILIATES HEREUNDER FOR THE SOFTWARE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT THE CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5.1 OF THIS AGREEMENT.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
This Agreement commences on Effective Date and continues until all Subscriptions hereunder have expired or have been terminated (“Term”).
The of each subscription shall be as specified in the applicable Order Form. At the end of the Initial Subscription Term, subscriptions to the Software will automatically renew for additional periods (“Renewal Term(s)”) equal to the expiring Initial Subscription Term or Renewal Term, as applicable, or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 90 days before the end of the expiring Initial Subscription Term or Renewal Term, as applicable. The customer acknowledges and agrees that RenderDraw may adjust the Monthly Subscription Price, as defined in the applicable Order Form, for any Renewal Term to the current rates. Notwithstanding anything to the contrary, any which for the Software has decreased from the prior Initial Subscription Term or Renewal Term, as applicable, will result in re-pricing for the Renewal Term without regard to the prior per-unit pricing.
A party may terminate this Agreement for cause upon 90 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
If this Agreement is terminated by Customer in accordance with Section 11.3, RenderDraw will refund the Customer any prepaid fees covering the remainder of after the effective date of termination. If this Agreement is terminated by RenderDraw in accordance with Section 11.3, the Customer will pay any unpaid Fees covering the remainder of . In no event will termination relieve Customer of Customer’s obligation to pay any Fees payable to RenderDraw for the period prior to the effective date of termination.
Upon Termination Upon expiration or termination of this Agreement, the license granted under this Agreement shall also terminate, and Customer shall cease using and destroy all copies of the Software and Documentation.
11.6 Surviving Provisions
Sections 5, 6, 7, 8.4, 9, 10, 11.4, 11.5, 11.6, 12, and 13 will survive any termination or expiration of this Agreement.
12. AUTHORIZED ADMINISTRATOR, NOTICES, GOVERNING LAW, AND JURISDICTION
12.1 Authorized Administrator
Customer authorizes the person designated in the table as the “Sold to” in the applicable Order Form to receive Legal Notices, as defined in Section 12.2, and official notices of updates and changes to the Software, manage User access as authorized under this Order Form and any other , and respond to other questions that may arise regarding Customer’s usage of the Software to which Customer subscribes. Customer shall notify RenderDraw in writing to change the person assigned to this role.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the business day after mailing, or (), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer in the most recent Order Form unless otherwise communicated to RenderDraw in writing.
Agreement to Governing Law and Jurisdiction
With respect to all matters arising out of or relating to this Agreement and any claim or controversy arising between the parties with respect to the subject matter hereof, including without limitation any claim or cause of action arising out of tort, shall be governed in accordance with the laws of the State of Delaware, without regard to any conflict of law provisions thereof. Each party to this Agreement hereby irrevocably submits to the exclusive jurisdiction of any Delaware state or federal court, over any action or proceeding arising out of or relating to this Agreement and any and all transactions related to or arising out of this Agreement, and each of the parties hereby irrevocably agrees that all claims in respect of such action or proceeding shall be heard and determined in such Delaware state or federal court. Each party hereby irrevocably waives, to the fullest extent permitted by law, any objection it may now or hereafter have to the laying of venue in any action or proceeding in any such court as well as any right it may now or hereafter have to remove such action or proceeding, once commenced, to another court on the grounds of forum non-conveniens or otherwise. Each party agrees that a final, non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law
13. GENERAL PROVISIONS
13.1 Export Compliance
The Software, other technology RenderDraw makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use the Software in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.
This Agreement together with any Order Form referencing this Agreement or any other document expressly incorporated herein by reference represents the entire agreement between the parties regarding Customer’s use of the Software and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such termination, RenderDraw will refund to Customer any prepaid fees allocable to the remainder of the of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.