CUTTING EDGE AI, INC.
General Terms and Conditions
THESE GENERAL TERMS & CONDITIONS apply to and form part of the Agreement entered into between Cutting Edge AI, Inc. ("Licensor") and Licensee.
1. DEFINITIONS and RULES OF INTERPRETATION
1.1 Definitions. The following terms shall have the assigned meanings:
"Affiliates" means corporations, business entities or contractual partners of Licensee which Control, are Controlled by, or are under common Control with Licensee, where "Control" means direct or indirect ownership of at least fifty percent (50%) of the outstanding economic and voting interests in such corporation, business entity or contractual partner, or such lesser ownership interest that Licensor may agree to in writing for specific persons.
"Authorized Users" means (a) employees of Licensee or its Affiliates, and (b) independent contractors, subcontractors, and businesses with whom Licensee has a reseller, indirect sales channel, consulting, or other similar business relationship to use the Software to aid in the sale of Licensee's products and services, and who sign and deliver to Licensor the Authorized Users Agreement.
"Licensee Credentials" means the valid user ID and password combination that provides end user access to the Software.
“Personal Information” means a person’s name, social security, employee identification or similar tax id numbers; driver’s license, passport or other similar identification num-bers; bank, credit card, or debit account numbers; access codes, passwords, PINs, an individual’s past, present or future physical or mental health or condition; the provision of health care to an individual; the past, present, or future payment for the provision of health care to an individual; and any other similar information relating to or regarding such individual or entity.
"Software” means the Edge AI Software which employs artificial intelligence tools and systems for detection, image capture, and security analysis of full motion video images.
1.2 Rules of Interpretation. Unless otherwise specified: (a) “or” is not exclusive and includes “and/or”; (b) “including” means “including, without limitation”; (c) “shall” means ‘has a duty to; is required to’; (d) whenever a term is defined here-in, the definition ascribed to such term, and each common noun and pronoun, shall be equally applicable to both the singular and plural forms of such term and to masculine, feminine and neuter genders of such term; (e) references to sections, subsections, paragraphs, Service Orders, or at-tachments shall refer to such portions of this Agreement unless otherwise specified, and each such document is in-corporated into this Agreement as though set forth fully herein; (f) unless the context shall clearly indicate otherwise, or may otherwise require, in this Agreement the terms “here-in,” “hereunder,” “hereby,” “hereto,” “hereof” and any similar terms refer to this Agreement as a whole and not to any par-ticular section or subsection hereof; (g) the headings herein are inserted as a matter of convenience only, and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof.
2. GRANT OF LICENSE.
Subject to the terms and conditions of this Agreement, Licensor grants to Licensee, and Licen-see accepts, a non-exclusive, nontransferable right and license to access, operate, and run the Software and docu-mentation during the term of this Agreement for its own in-ternal business purposes. At its sole cost and expense, Li-censee shall be responsible for providing and maintaining all necessary computer hardware, software (such as operat-ing systems and web browsers), and telecommunications equipment required for its access to and use of the Software. This license includes the right to work with Licensor under the terms of any Service Order to ensure that the Software is compatible with Licensee’s network environment, the Licen-see’s own software, and any third-party software that will interact with the Software.
2.1 Limitations. Except as specifically permitted in this Agreement, Licensee shall not directly or indirectly (a) transfer, rent, sublicense, lease, time-share or use the Software in any service bureau arrangement; or (b) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Soft-ware. Licensee is not permitted to circumvent any techno-logical measure that controls access to the Software.
2.2 System Access. Access by Licensee’s Authorized Users to the Software requires the Licensee Credentials. Licensor will assign the initial Licensee Credentials for Authorized Users or administrators upon registration and full payment of any the License Fees due in accordance with the provi-sions of this Agreement. Unauthorized access to the Soft-ware is a breach of this Agreement. Licensee assumes all responsibility for keeping the Licensee Credentials se-cret. Licensee further assumes all responsibility and liability for any use of the Licensee Credentials, and Licensee shall notify Licensor immediately upon becoming aware of any abuse or a security breach of the Licensee Credentials, in-cluding any use of the Software not authorized by this Agreement.
2.3 Ownership of Modifications. Any separate copyright or other intellectual property rights of any nature that come into existence at any time as a result of any modification or al-teration of the Software, or entry of data into the Software, created by or for Licensee, shall vest solely in Licensor, and Licensee assigns all rights, title, and interest, including, but not limited to, copyright in the modifications to the Software and related data to Licensor. Any Licensee IP which is not considered by Licensor, acting reasonably, as part of the Software shall vest solely in Licensee and Licensor hereby assigns, to the extent allowed under applicable law, all rights, title, and interest, including but not limited to, copy-right in the enhancements made by Licensee, in and to such Licensee IP to Licensee.
2.4 Proprietary Rights. This Agreement provides to Licensee a limited license only. Licensor and its licensors retain all rights; title and interest in and to the Software and Licensee shall not take any action inconsistent with such title and ownership. Under this Agreement, Licensee does not ac-quire any rights of ownership in the Software. Licensee ac-quires only the right to use the Software subject to the terms of this Agreement. Licensee acknowledges and agrees that the Software may contain code or require devices that detect or prevent unauthorized use of the Software.
2.5 Support & Upgrades. Licensor will provide support and maintenance services for the Software as set forth in Attach-ment B. Licensor will provide periodic updates to the Soft-ware at its discretion, at no cost to Licensee, which will be scheduled and communicated to Licensee as soon as rea-sonably practicable before such periodic update.
This Agreement shall commence on the Effective Date and shall continue for one year unless it is terminated in accordance with the provisions of Section 4, provided, however, that any Service Order with a termination date after the termination date of this Agreement shall extend this Agreement accordingly, unless that Service Order is also terminated. The term of each specific Service Order shall be set forth in the Service Order. This Agreement shall automat-ically renew for successive one-year terms on the first anni-versary of the Effective Date, and each anniversary thereaf-ter, unless earlier terminated in accordance with Section 4
4.1 By Licensor. In addition to any other rights at law or in equity, Licensor may immediately suspend access to and use of the Software by Licensee or terminate this Agreement or any Service Order if Licensee (i) fails to make payment of License Fees or for services specified in any Service Order when due and to remedy such non-payment within 5 business days after receipt of written notice thereof from Licensor; (ii) becomes insolvent or bankrupt or ceases paying its debts generally as they mature; (iii) com-mits a breach of any of the material terms of this Agreement (other than a breach addressed in (i) and (ii) above) and fails to remedy such breach within 20 days after receipt of written notice thereof from Licensor. Licensor may terminate this Agreement or any Service Order for convenience upon not less than 30 days written notice to Licensee. If Licensor terminates this Agreement Licensee shall pay Licensor for all amounts due through and including the date of termination.
4.2 By Licensee. In addition to any other rights at law or in equity, Licensee may terminate this Agreement and any Ser-vice Order if Licensor: (ii) becomes insolvent or bankrupt or ceases paying its debts generally as they mature; or (ii) commits a breach of any of the material terms of this Agree-ment and fails to remedy such breach within 40 days after receipt of written notice thereof from Licensor. Licensee may terminate this Agreement for convenience upon not less than 60 days written notice to Licensor. If Licensee termi-nates this Agreement, Licensee shall pay Licensor all amounts due through and including the date of termination.
5. PRICING, BILLING and PAYMENT.
Before using the Soft-ware, Licensee shall pay to Licensor the License Fee set forth on Attachment A. In some instances, advance payment or deposit shall be required before Licensor commences services, which shall be specified in the applicable Service Order. Any amounts due hereunder that are more than 30 days past due shall accrue interest at the lesser of two per-cent (2%) per month or the maximum amount allowable by law, compounded daily, beginning with the 31st day follow-ing the date on which Licensee received the invoice, and continuing until paid in full. If Licensee disputes an invoice in good faith, Licensee may withhold the disputed amount, not to exceed twenty percent (20%) of the amount of the invoice, provided that Licensee must: (a) notify Licensor at least ten (10) days before the invoice is due of any such disputed amount, specifying the nature of the dispute or inaccuracy; and (b) pay any undisputed amount when due hereunder.
All prices and other charges due hereunder are exclusive of all applicable taxes, including value added tax, sales taxes, and duties or levies imposed by any authority, government or government agency, the payment of which shall be the sole responsibility of Licensee, and Licensee agrees to indemnify and hold Licensor harmless from any liability therefore.
7. EQUIPMENT AND MATERIALS NOT PROVIDED BY LICENSOR - ACCESS TO LICENSEE DEVICES.
Licensor shall not provide any Licensee premise equipment or other equipment or mobile devices, nor any software, to Licensee except as specifically set forth in this Agreement. If Licensee or third-party equipment or software impairs Licensee’s use of the Software, Licensee shall nonetheless be liable for payment of License Fees.
8. INTELLECTUAL PROPERTY, OWNERSHIP AND RIGHTS.
8.1 Licensee Content. All trademarks, artwork, logos, graphics, video, text, data, and other materials supplied by Licensee, including through Licensee’s third party vendors or suppliers, to Licensor in connection with this Agreement for use in or by the Software, as well as the domain name or names provided by Licensee or assigned to access such content, shall remain the sole and exclusive property of Licensee or other third party lawful owner thereof (the "Li-censee Content"), to be used only in connection with the Software. Licensee hereby grants Licensor and its vendors a license to use all Licensee Content to the extent reasonably necessary to operate and provide the Software. Licensee warrants that (1) it has the right to possess and use all Li-censee Content delivered to Licensor by Licensee or for Licensee's account, and that Licensee is the sole owner of all rights in the Licensee Content, and the reproduction, distribution, exhibition and performance of the Licensee Content (and the creation of derivative works based there-on) in providing the Software will not in any way constitute an infringement or other violation of any copyright, patent, trademark, trade secret or other proprietary or personal rights of any third party, (2) the Licensee Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or ser-vices that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person, and (3) the Licensee Content shall not include any personally identifiable information of any person.
8.2 No Work Made for Hire. The design, development, or manufacture by Licensor of any intellectual property in con-nection with this Agreement, the Software, or any services provided under a Service Order, shall not be deemed to produce a work made for hire (unless specifically stated otherwise in the applicable Service Order). All intellectual property rights owned by either party or any vendor of Li-censor shall be retained by such person. If any intellectual property is created by any of the parties in connection with this Agreement, as between Licensor and Licensee, Licensor shall be deemed the owner of any such intellectual property (including, without limitation, any modifications, transla-tions, adaptations, or derivative works thereof), and Licen-see shall receive a worldwide, non-exclusive, royalty-free license to such intellectual property without the right to sub-license. Except as otherwise expressly set forth in this Agreement, nothing contained in this Agreement shall oper-ate or be construed to grant any license, by implication, es-toppel or otherwise, under any party’s intellectual property rights.
8.3 Third Party Software. Licensor or a vendor or Licensor may require that Licensee agree to end-user licenses or oth-er software license agreements as a condition to granting Licensee access to use the Software. Third party computer programs and other creative content licensed to and pro-vided by Licensor or its vendors to Licensee hereunder shall be sublicensed to Licensee as a non-exclusive end user on terms and conditions determined by Licensor's li-censor, and Licensee shall receive under the sublicense only such rights and warranties as are offered by Licensor's licensor who shall be solely responsible to Licensee for such programs or content. All rights not specifically trans-ferred or licensed to Licensee hereunder are retained by Licensor or the Vendor, as applicable. Unless expressly stated otherwise in a Service Order, Licensor may use and embed open source, copyleft, or community source code in any of its deliverables as part of the Services, including li-braries or code licensed under any General Public License, Lesser General Public License or similar license arrange-ment.
9. DATA SECURITY AND STORAGE.
9.1 Licensee grants Licensor a non-transferable (except for the right to subli-cense to any applicable Vendor) license to the Licensee Content for the sole and exclusive purpose of providing the Software, including, without limitation, a license to store, record, transmit, destroy, and display the Licensee Content to the extent necessary to provide the Software to Licensee. Licensor and its Vendors shall only be obligated to maintain and store Licensee Content during the term of this Agree-ment and shall only backup or archive the Licensee Content as necessary to comply with the terms and provisions this Agreement. Licensee Content shall not include any person-ally identifiable information of any person and therefore Licensor shall not be obligated to provide data security or breach detection sufficient for the protection of personally identifiable information.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR ANY KNOWLEDGE THAT LICENSOR OR ITS VENDORS MAY HAVE REGARD-ING THE TYPE OF DATA TO BE TRANSMITTED OR THE STATUS OF THE INDIVIDUAL OR ENTITY TRANSMITTING THE DATA, LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR SHALL NOT IN ANY WAY BE LIABLE TO LICENSEE FOR ANY LOSS, EXPENSE OR DAMAGE (INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, CONSEQUENTIAL OR INCI-DENTAL DAMAGES) ARISING OUT OF OR RELATING TO ANY UNAUTHORIZED ACCESS TO OR USE OF THE DATA BY A THIRD PARTY SO LONG AS THE DATA BREACH WAS NOT CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF LICENSOR.
Each party will have access to certain confidential information of the other concerning such party's business, products, services, technical data, trade secrets, technology, Licensees, employees, vendors, finances, products, services, inventions, processes, know-how and similar valuable, confidential information (“Confidential Information”). Each party shall use the Confidential Information of the other solely to perform this Agreement, and all Confidential Information shall remain the sole property of the respective parties. Respecting the other party’s Confidential Information, each party shall use the same care as it uses to maintain the confidentiality of its own Confidential Information, which shall be no less than reasonable care, and shall not disclose the Confidential Information to any third party without the written consent of the disclosing party, except to employees, consultants or agents to whom disclosure is necessary to the performance of this Agreement and who are bound by a duty of confidentiality. Information shall not be deemed confidential if it (1) is known to the receiving party prior to receipt from the disclosing party as reasonably evidenced by such party; (2) becomes known to the receiving party from a source other than one who is under an obligation of confidentiality to the disclosing party; (3) becomes publicly known or otherwise ceases to be confidential other than by a breach of the receiving party; (4) is independently developed by receiving party other than by a breach of this Agreement.
11. WARRANTY AND SERVICE LEVEL AGREEMENT.
11.1 Licensor warrants that the Software will substantially con-form to the functional specifications contained in the Docu-mentation for nine months following the Effective Date (the “Warranty Period”) when used without material alteration by Authorized Users. This warranty shall not apply: (i) if the Software is not used in accordance with the documentation; or (ii) if the defect is caused by Licensee, or a third-party software malfunction. Licensor does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors which do not materially affect such performance or that the applications contained in the Soft-ware are designed to meet all of Licensee’s or its authorized Affiliates’ business requirements.
11.2 Licensor's Software service availability objective is to have Software available 99.9% of the time. Software access unavailability consists of the number of minutes that the Software is not available to Licensee. Software downtime is calculated commencing on the date and time on which Li-censor opens a trouble ticket and ending on Licensor's con-firmation that the ability of Licensee’s Authorized Users to use the Software is restored. If Licensor does not meet the 99% target for Software availability, as Licensee’s sole and exclusive remedy, Licensor will, upon written notice from Licensee, credit Licensee’s account for each cumulative hour of unavailability or fraction thereof in any calendar month, the prorated charges for one day of the Licensor License Fees, not to exceed one month's charges.
12. WARRANTY DISCLAIMER.
THE WARRANTY IN SEC-TION 11 IS EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. EXCEPT AS SPECIFICALLY PROVIDED HERE-IN, THE SOFTWARE IS NOT ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Licensor HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL IM-PLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. Licensor MAKES NO WARRANTY OR REPRESENTATION REGARD-ING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SOFTWARE, OR THAT THE PRO-VISION OF THE SOFTWARE, ACCESS TO THE SOFTWARE AND TO LICENSEE CONTENT STORED ON Licensor SERVERS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE Licensor HAS NO CONTROL OVER AND EXPRESSLY DIS-CLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACTS OR OMISSIONS OF THIRD-PARTY TELECOMMUNI-CATIONS, INTERNET, CYBER-CENTER, HOSTING OR CLOUD PLATFORM SERVICE PROVIDES. NO ADVICE OR INFORMATION GIVEN BY Licensor OR ITS CONTRAC-TORS OR THEIR RESPECTIVE EMPLOYEES SHALL CRE-ATE A WARRANTY.
13. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANY-THING TO THE CONTRARY CONTAINED IN THIS AGREE-MENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUEN-TIAL LOSSES OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST OR DAMAGED DATA, FAILURE TO ACHIEVE COST SAVINGS, LOSS OF USE OF FACILITY OR EQUIPMENT, OR INCREASED EXPENSE OF OPERATIONS, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ES-SENTIAL PURPOSE OF ANY LIMITED REMEDY. THE MAXI-MUM AMOUNT FOR WHICH EITHER PARTY MAY BE LIA-BLE FOR ANY DAMAGES, LOSS OR EXPENSE ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID TO LICENSOR RE-SPECTIVELY DIRECTLY BY LICENSEE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. The provi-sions of this Section 13 allocate the risks between Licensor and Licensee, and Licensor's pricing reflects the allocation of risk and limitations of liability specified herein.
14.1 Licensee shall indemnify, de-fend, and hold harmless indemnify, defend, and hold harm-less Licensor and its employees, directors, officers, repre-sentatives, and agents (collectively, the “Indemnified Par-ties”) against any against any claim, suit, action, liabilities, costs, and expenses or other legal proceeding brought by a third party against the Indemnified Parties (“Claim(s)”), that (1) the Licensee Content infringes any intellectual property right of any third party, or any right of publicity or privacy, or is libelous or defamatory or obscene, or (2) any Data is dis-closed by Licensee in violation of any privacy regulation or law; provided, however, that Licensee shall be under no obli-gation to indemnify, defend, or hold harmless the Licensor Indemnified Parties with respect to such Claim to the extent that the claim results from any deletions, additions, or altera-tions to, or any unauthorized use of, the Licensee Content by Licensor.
14.2 Licensor shall indemnify, defend and hold Licensee and its Affiliates, and their respective officers, directors, em-ployees, harmless from and against all Claims, alleging that Licensee’s use of the Software and documentation infringes or misappropriates: (i) any United States patent; or (ii) a copyright; or (iii) trade secret rights, provided that, Licensee promptly notifies Licensor in writing of any such Claim and Licensor is permitted to control fully the defense and any settlement of such Claim as long as such settlement shall not include a financial obligation on Licensee. Licensee shall cooperate fully in the defense of such Claim and may appear, at its own expense, through counsel reasonably acceptable to Licensor. Licensor may, in its sole discretion, settle any such Claim on a basis requiring Licensor to sub-stitute for the Software and Documentation alternative substantially equivalent non-infringing programs and supporting documentation. If there is any preliminary injunction, temporary restraining order or final injunction, Licensor shall use best efforts to either: (i) obtain the right for continued use of the infringing Soft-ware and documentation; or (ii) modify the infringing Soft-ware and documentation to avoid such infringement while obtaining at least equivalent functionality; or (iii) substitute for the Software and documentation alternative equivalent software and supporting documentation while obtaining at least equivalent functionality; or (iv) after using best efforts which shall not exceed fifteen (15) days to provide (i), (ii) or (iii) above, provide a refund to Licensee of paid license fees for that part of the Software under claim of infringement, (un-less such part is a major integral function of the Software, in which case a full refund of paid License Fees would be reim-bursable).
Neither party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other party; except that Licensor may or assign this Agreement without consent to any affiliated entity or to any successor in interest whether by merger, reorganization or transfer of all or substantially all of its as-sets or otherwise. Any attempted assignment or delegation in contravention of this Section 15 shall be void.
16. FORCE MAJEURE.
No failure or omission by either party to carry out or observe any of the terms and conditions of this Agreement (other than any payment obligation) shall give rise to any claim against such party or be deemed a breach of this Agreement if such failure or omission arises from an act of God, an act of government, fire, natural disas-ter, accident, riots, shortage of materials or supplies, failure of telecommunications or Internet systems, or any cause reasonably beyond the control of a party, or any other cir-cumstance commonly known as “Force Majeure”.
All notices, requests or other communications hereunder shall be in writing, addressed to the parties at the address indicated on the Signature Page. Notices mailed by registered or certified mail shall be deemed to have been received by the addressee on the third business day follow-ing the mailing or sending thereof. Notices sent by facsimile or e-mail shall be conclusively deemed to have been re-ceived when the delivery confirmation is received. Any no-tice of change of address shall be deemed to be received only when actually received.
18. SEVERABILITY AND WAIVER.
If any part or any provi-sion of this Agreement is or becomes illegal, invalid, or un-enforceable, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the validity or enforceability of the remain-ing parts of said provision or the remaining provisions of this Agreement. No waiver by either party of any provision of this Agreement shall be binding unless made in writing. Ei-ther party’s waiver of any portion of this Agreement, or fail-ure to insist upon strict performance of any provision of this Agreement, shall not be construed as a waiver of any of its rights hereunder.
19. GOVERNING LAW.
19.1 The laws of the state of Florida shall govern this Agreement, without reference to its princi-ples of conflict of laws. Licensee irrevocably consents and submits to personal jurisdiction in the courts of Florida for all matters arising under this Agreement. If an action is brought or an attorney is retained by any part to this Agree-ment to enforce the terms of this Agreement or to collect any moneys due hereunder, the prevailing party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, reasonable costs of investigation and other related expenses incurred in connection therewith. The parties acknowledge and agree that any breach of their respective obligations under Sec-tions 8 or 9 will cause irreparable harm to the non-breaching party. Accordingly, the parties agree that in the event of a breach or threatened breach of Section 8 or 9 in addition to any remedy at law to which the non-breaching party is enti-tled, such party shall be entitled to obtain appropriate equi-table relief.
19.2 If any legal action, arbitration] or other proceeding is brought under this Agreement, in addition to any other relief to which the successful or prevailing party or parties (the “Prevailing Party”) is entitled, the Prevailing Party is entitled to recover, and the non-Prevailing Party shall pay, all (i) reasonable attorneys’ fees of the Prevailing Party,(ii) court costs, and (iii) expenses, even if not recoverable by law as court costs (including, without limitation, all fees, taxes, costs and expenses incident to arbitration, appellate, bank-ruptcy and post-judgment proceedings), incurred in that action, arbitration or proceeding and all appellate proceed-ings. For purposes of this Section, the term “attorneys’ fees” includes, without limitation, paralegal fees, investigative fees, expert witness fees, administrative costs, disburse-ments, and all other charges billed by the attorney(s) to the Prevailing Party.
20. WAIVER OF TRIAL BY JURY.
The parties hereby knowingly, irrevocably, voluntarily, and intentionally waive any rights to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement or arising out of, under, or in connection with this Agreement or any document or instrument executed in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or action of any party hereto. This provision is a material inducement for Licensor and Licensee entering into the subject trans-action.
21. ENTIRE AGREEMENT.
This Agreement, including the relevant Service Orders represents the entire understand-ing between the parties in relation to the matters herein and supersedes all previous agreements whether oral or written made between the parties in relation to the subject matter hereof. Except as otherwise agreed herein, this Agreement may only be modified by a writing signed by authorized representatives of both parties.
Any provision of this Agreement which con-templates performance or observance after any termination or expiration of this Agreement (in whole or in part) shall survive any termination or expiration of this Agreement and continue in full force and effect.
This Agreement may be signed in any number of counterparts, any one and all of which shall con-stitute the Agreement of the parties and each of which shall be deemed an original. The signatures of all of the parties need not appear on the same counterpart, and delivery of an executed counterpart signature page by facsimile or by scanning and e-mail is as effective as an original signature.