Software End User License Agreement

This End User License Agreement (this “Agreement”) is a binding agreement between Lightmatter, Inc. (“Licensor”) and you (“Licensee”).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE “ACCEPT” BOX PROMPTED TO YOU PRIOR TO DOWNLOADING THE SOFTWARE, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL OR IN ANY WAY USE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

“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.

“Licensee” has the meaning set forth in the preamble.

“Licensor” has the meaning set forth in the preamble.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Software” means Licensor’s Idiom software libraries and associated software development tools made available by Licensor hereunder and downloaded and installed by Licensee pursuant to this Agreement.

“Term” has the meaning set forth in Section 11.

“Third Party” means any Person other than Licensee or Licensor.

“Updates” has the meaning set forth in Section 8.

  1. License Grant and Scope. Subject to Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee (including its Authorized Users (defined herein)) a non-exclusive, non-transferable, non-sublicensable (except with Licensor’s prior express written consent in each case), limited license during the Term, to:
    1. download and install the Software in accordance with the Documentation, 
    2. use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation,
    3. download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith,
    4. modify and create derivative works of the sample source code delivered in the Software, and
    5. distribute those portions of the Software that are identified in the Documentation as distributable as incorporated in object code format into a software application (“Licensee Application”) that meets the distribution requirements set forth in Section 3 (such license under this subsection (e), the “Distribution License”).

All copies of the Software and Documentation shall be the exclusive property of the Licensor, shall be subject to the terms and conditions of this Agreement, and must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

  1. Distribution Requirements. In accordance with the Documentation and subject to the terms of this Agreement, Licensee may distribute portions of the Software only as explicitly permitted under the Distribution License, provided that: 
    1. the Licensee Application has material additional functionality, beyond the included portions of the Software;
    2. the distributable portions of the Software are only accessed by the Licensee Application; 
    3. the Licensee Application includes the following notice in all modifications and derivative works of sample source code distributed: “This software contains source code provided by Lightmatter, Inc.”;  
    4. the Licensee Application does not include tools that are not identified in the Documentation as distributable by Licensee; and
    5. the Licensee Application shall only be distributed pursuant the terms binding on any third party who accesses or uses such Licensee Application, which are consistent with the terms of this Agreement and at least as protective of the Software as those hereunder (the “Licensee Application Terms”). 

Licensee agrees that it shall protect the privacy, security and legal rights of the users of the Licensee Application. Licensee will notify Licensor in writing of any known or suspected distribution or use of the Software not in compliance with the requirements of this Agreement and shall enforce the Licensee Application Terms with respect to distributed Software.

  1. Pre-Release Software. The Software versions identified as alpha, beta, preview or otherwise as pre-release (collectively, “Pre-Release Software”) may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, accessibility, availability and reliability standards relative to commercial versions of Licensor’s Software, Documentation and other materials. Use of Pre-Release Software may result in unexpected results, loss of data, project delays or other unpredictable damage or loss. Licensee acknowledges that use of Pre-Release Software is at its own risk and that Pre-Release Software is not intended for use in production or business-critical systems. Licensor may choose not to make available a commercial version of any Pre-Release Software. Licensor may also choose to abandon development and terminate the availability of Pre-Release Software at any time without liability.
  2. Third-Party Materials. 
    1. The Software bundles, includes, or may be distributed together with, certain third party components that are owned by Persons other than Licensor (“Third Party Components”) and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all Third Party Components and provided under Third-Party Licenses can be found at Open Source Software Notice and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement. If and to the extent there is a conflict between the terms in this Agreement and the Third-Party Licenses associated with the Third Party Components, the Third-Party Licenses applicable to the Third Party Components shall prevail only to the extent necessary to resolve the conflict and only with respect to such Third Party Component.  
    2. Subject to the other terms of this Agreement, Licensee may use the Software to develop and test applications released under Open Source Initiative (OSI) approved open source software licenses.
  3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
    1. use the Software or Documentation beyond the scope of the license granted under Section 2;
    2. except as may be expressly permitted by Section 2, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
    3. perform any benchmark tests with respect to the Software or Documentation without the prior written consent of Licensor, and any results of such permitted benchmark testing shall be deemed Confidential Information (as defined below) of Licensor;
    4. publish or disclose to any third party any test materials, benchmarks or results generated or learned in connection with the Software or Documentation, including any copies or excerpts thereof or summaries based thereon (including photographs and videos of the foregoing);
    5. bypass, disable, or circumvent any encryption, security, digital rights management or authentication mechanism in the Software;
    6. except as expressly provided in this Agreement, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
    7. except as expressly provided in this Agreement, combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
    8. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part or copies thereof, including, for the purpose of translating any outputs or results to target a non-Licensor platform;
    9. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
    10. use the Software or Documentation in violation of any law, regulation, rule, or generally accepted practices or guidelines in the relevant jurisdictions; 
    11. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage;
    12. indicate that any Licensee Application created by Licensee with the Software is sponsored or endorsed by Licensor;
    13. use the Software in any manner that would cause it to become subject to an open source software license, including any open source software license that requires that the Software be:
      1. disclosed or distributed in source code form;
      2. licensed for the purpose of making derivative works; or
      3. redistributable at no charge;
    14. copy the Software, or except as expressly set forth in Section 2(c), copy the Documentation, in whole or in part;
    15. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason; or
    16. use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems (collectively, “Hazardous Applications”), including:
      1. power generation systems;
      2. aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
      3. safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
      4. military or aerospace applications, weapons systems, or environments.

Licensee acknowledges that the Software as delivered is not tested or certified by Licensor for use in connection with Hazardous Applications. Licensor shall not be liable to Licensee or any third party, in whole or in part, for any claims or damages arising from use of the Software in Hazardous Applications. Licensee is responsible for ensuring that any product or service developed in connection with the Software includes sufficient features to comply with all applicable legal and regulatory standards and requirements.

Licensee shall defend, indemnify and hold harmless Licensor and its affiliates, and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations losses, liabilities, costs or debt, fines, restitutions and expenses (including but not limited to attorney’s fees and costs incident to establishing the right of indemnification) arising out of or related to products or services that use the Software in or for Hazardous Applications, and for use of the Software outside of the scope of license explicitly granted hereunder or not in accordance with this Agreement.

  1. Responsibility for Use of Software. Licensee may permit its employees to access and use the Software on its behalf, provided that each such employee has an active developer account with Licensor (each, an “Authorized User”). Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement. 
  2.  Updates. Licensor may, at its sole discretion, provide updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all licensees of the Software. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to provide support, maintenance or develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. For clarity, Updates shall not include any new version or new release of the Software that Licensor may issue as a separate or new product. Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion. Licensee acknowledges and agrees that the form and content of the Software that Licensor provides hereunder may change without prior notice to Licensee, and that Updates or new versions or releases of the Software may introduce incompatibility with prior versions. 
  3. Intellectual Property Rights. 
    1. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. As between the parties, Licensor reserves and shall retain its entire right, title, and interest in and to the Software, Documentation, and all Intellectual Property Rights arising out of or relating to the Software (including all copies thereof), except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights. With respect to Third Party Components, the applicable licensors thereof are intended third party beneficiaries and may enforce this Agreement and the applicable Third-Party Licenses with respect to their Intellectual Property Rights. 
    2. Licensee may (but is not obligated to) provide suggestions, comments or other feedback to Licensor with respect to the Software and/or Documentation (“Feedback”).  Feedback, even if designated as confidential by Licensee, shall not create any confidentiality obligation for Licensor notwithstanding anything else.  Licensor acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind.  Licensee shall, and hereby does, grant to Licensor a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
    3. Licensee holds all rights, title and interest in and to its Licensee Applications, including the related Intellectual Property Rights, subject to Licensor’s rights under Section 9(a).
  1. Confidentiality. 
    1. Licensee (the “Receiving Party”) understands that Licensor (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party), including, without limitation, the Software, Documentation and any benchmark test results or other test results. 
    2. The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential Information solely to its employees and agents with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
    3. Licensee will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by Licensor prior to such disclosure, or is included in a filing required to be made by a Licensee with a governmental authority (provided Licensee will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
  2. Term and Termination.
    1. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
    2. Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. 
    3. Licensor may, at any time, terminate this Agreement if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof. Licensor may also terminate this Agreement immediately if (i) Licensee violates Licensor’s Intellectual Property Rights; (ii) Licensee commences or participates in a legal proceeding against Licensor with respect to the Software or Documentation; or (iii) Licensor ceases to provide the Software in Licensee’s country or, in Licensor’s sole discretion, determines that offering the Software is no longer commercially viable.
    4. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation.  Upon written request, Licensee shall certify its compliance with this Section in writing. Sections 1 (Definitions), 4 (Pre-Release Software) through 7 (Responsibility for Use of Software), and 9 (Intellectual Property Rights) through 16 (Miscellaneous) will survive any expiration or termination of this Agreement. 
  1. No Warranties.  THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” WITHOUT ANY WARRANTY OR SUPPORT OF ANY KIND AND WITH ALL FAULTS AND DEFECTS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, THE ABSENCE OF ANY DEFECTS, WHETHER LATENT OR PATENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
  2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
    1. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; COSTS OF PROCURING SUBSTITUTE PRODUCTS; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED $10.00. THE NATURE OF THE LIABILITY OR NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
    3. THE LIMITATIONS SET FORTH IN SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THESE EXCLUSIONS AND LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND, ABSENT ANY OF THESE EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT. 
  3. Export Regulation. The Software and Documentation may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
  4. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. 
  5. Miscellaneous.
    1. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.  With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the County of Kent, Delaware, USA.
    2. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. 
    3. Licensee agrees to cooperate with Licensor and shall provide information reasonably requested by Licensor to verify its compliance with this Agreement.
    4. Licensor will not be responsible or liable for any failure or delay in its performance hereunder due to circumstances or causes beyond Licensor’s reasonable control.
    5. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to Licensor at 100 Summer Street, Suite 1850, Boston, MA 02110 and/or legal@lightmatter.co and to Licensee at the address provided upon signing up for the Software or as may be designated by either party from time to time in accordance with this Section 16(e).
    6. This Agreement constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 
    7. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16(g) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    8. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    9. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    10. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    11. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) Sections refer to the Sections of this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. 
    12. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.