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109738\153265\46611157.8
<br />and Payment”) (with respect to amounts accrued but as-
<br />yet unpaid), 5 (“Propriety Rights”), 6 (“Proprietary
<br />Information”), 7 (“Representations and Warranties;
<br />Warranty Disclaimer”), 8 (“Security”), 9
<br />(“Indemnification”), 10 (“Limitation of Liability”), 11
<br />(“Term and Termination”) and 12 (“General
<br />Provisions”).
<br />12. General Provisions
<br />12.1 Notices. Any notice, request,
<br />demand or other communication required or
<br />permitted hereunder shall be in writing, shall
<br />reference this Agreement, and shall be deemed to be
<br />properly given (on the earliest of) (a) when delivered
<br />personally; (b) when sent by facsimile, with written
<br />confirmation of receipt; or (c) upon receipt three (3)
<br />days after having been sent by registered or certified
<br />mail, return receipt requested, postage prepaid. All
<br />notices shall be sent to the address set forth on the
<br />signature page below (or to such other address as may
<br />be designated by a party by giving written notice to the
<br />other party pursuant to this Section 12.1).
<br />12.2 Governing Law; Jurisdiction.
<br />This Agreement shall be governed by and construed in
<br />accordance with the laws of the state where Licensee
<br />is physically located, without reference to its conflicts
<br />of law provisions. The United Nations Convention on
<br />Contracts for the International Sale of Goods does not
<br />apply to and shall not be used to interpret this
<br />Agreement. Any dispute regarding this Agreement
<br />must be brought in the state or federal courts located
<br />in the state where Licensee is physically located.
<br />12.3 Construction. This Agreement
<br />has been negotiated by the parties and their respective
<br />counsel. This Agreement shall be interpreted fairly in
<br />accordance with its terms and without any
<br />construction in favor of or against either party.
<br />12.4 Injunctive Relief. In the event
<br />that Licensee breaches any provision of the EULA or
<br />Sections 2, 5, or 6 or any other material provision of
<br />this Agreement, Licensee acknowledges and agrees
<br />that there may be no adequate remedy at law to
<br />compensate Selectron for such breach, that any such
<br />breach may result in irreparable harm to Selectron
<br />that would be difficult to measure; and, therefore, that
<br />upon any such breach or threat thereof, Selectron shall
<br />be entitled to seek injunctive and other appropriate
<br />equitable relief (without the necessity of proving
<br />actual damages or of posting a bond or other security),
<br />in addition to whatever remedies Selectron may have
<br />at law, in equity, under this Agreement, or otherwise.
<br />12.5 Waiver. The waiver by either
<br />party of a breach of or a default under any provision of
<br />this Agreement, shall be in writing and shall not be
<br />construed as a waiver of any subsequent breach of or
<br />default under the same or any other provision of this
<br />Agreement, nor shall any delay or omission on the part of
<br />either party to exercise or avail itself of any right or
<br />remedy that it has or may have hereunder, operate as a
<br />waiver of any right or remedy.
<br />12.6 Severability. If the application of
<br />any provision of this Agreement to any particular facts or
<br />circumstances shall be held to be invalid or unenforceable,
<br />then (a) the validity and enforceability of such provision as
<br />applied to any other particular facts or circumstances and
<br />the validity of other provisions of this Agreement shall not
<br />in any way be affected or impaired thereby, and (b) such
<br />provision shall be enforced to the maximum extent
<br />possible so as to effect the intent of the parties, and
<br />reformed without further action by the parties, to the
<br />extent necessary to make such provision valid and
<br />enforceable. Without limiting the generality of the
<br />foregoing, Licensee agrees that Section 7.4 will remain in
<br />effect notwithstanding the unenforceability of any other
<br />provision hereof.
<br />12.7 Independent Contractor
<br />Relationship. Selectron’s relationship with Licensee will
<br />be that of independent contractor, and nothing
<br />contained in this Agreement shall be deemed or
<br />construed as creating a joint venture, partnership, or
<br />employer-employee relationship. Licensee is not an
<br />agent of Selectron and is not authorized to make any
<br />representation, contract, or commitment on behalf of
<br />Selectron, or to bind Selectron in any way. Selectron is not
<br />an agent of Licensee and is not authorized to make any
<br />representation, contract, or commitment on behalf of
<br />Licensee, or to bind Licensee in any way. Selectron will
<br />not be entitled to any of the benefits that Licensee may
<br />make available to its employees, such as group insurance,
<br />profit sharing, or retirement benefits.
<br />12.8 Force Majeure. Except for the
<br />payment of monies due hereunder, neither party shall be
<br />responsible or have any liability for any delay or failure to
<br />perform to the extent due to unforeseen circumstances or
<br />causes beyond its reasonable control, including, without
<br />limitation, acts of God, earthquake, fire, flood, embargoes,
<br />labor disputes and strikes, riots, war, terrorist attacks,
<br />errors in Licensee or End User uploads,
<br />telecommunication, internet, or other network
<br />“brownouts” or failures, power failures, epidemics or
<br />pandemics , and any national or regional emergencies or
<br />acts of civil or military authorities; provided that such party
<br />gives the other party prompt written notice of the failure
<br />to perform and the reason therefor and uses its
<br />reasonable efforts to limit the resulting delay in its
<br />performance and to mitigate the harm or damage caused
<br />Docusign Envelope ID: 387D777D-8080-8C8A-81D9-2D8903B7172D
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