License Agreement

Taqtile, Inc.

Software License Agreement for HoloMaps™ and Manifest™

PLEASE READ THIS AGREEMENT CAREFULLY. BY SELECTING “I ACCEPT THE TERMS OF THIS LICENSE AGREEMENT,” YOU ARE AGREEING TO ENTER INTO THIS AGREEMENT (THE “AGREEMENT”) FOR TAQTILE, INC’S (“TAQTILE,” “US,” “OUR”) SOFTWARE IN AN ELECTRONIC FORMAT AND TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU REJECT ANY OF THE TERMS OF THIS AGREEMENT, PLEASE SELECT “I DECLINE.”

  1. Summary. This Agreement (the “Agreement”) sets forth the terms and conditions under which You are licensed to install and use Taqtile’s software. This Agreement applies to all guests and Authorized Users (collectively, “User(s),” “You,” “Your”). This Agreement may be modified at any time and for any reason. By continuing to access or use Taqtile’s software, You accept the updated Agreement. If You do not agree to the Agreement, You are not permitted to use, copy, or access Taqtile’s software.
  2. Definitions. Capitalized terms have the meanings set forth or referred to in this Section 2:
    1. Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise twenty percent (20 %) of the voting securities of a Person.
    2. Authorized User” means each of the individuals authorized to use the Licensed Software pursuant to Section 3 and other terms and conditions of this Agreement.
    3. Business Day” means a day other than a Saturday, Sunday or another day on which commercial banks in New York City are authorized or required by Law to be closed for business.
    4. Controlled Technology” means any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the US Export Administration Act and its associated regulations.
    5. Documentation” means any and all manuals, instructions and other documents and materials that Taqtile provides or makes available to You in any form or medium which describe the functionality, components, features or requirements of the Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
    6. 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.
    7. Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
    8. Licensed Software” means collectively, and at times individually, to HoloMaps and Manifest, together with any respective Maintenance Releases provided to You pursuant to this Agreement.
    9. Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
    10. Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Licensed Software, including any updated Documentation, that Taqtile may provide to You from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Licensed Software, but does not include any New Version.
    11. New Version” means any new version of the Licensed Software that Taqtile may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Taqtile’s designation of a new version number), and which Taqtile may make available to You at an additional cost under a separate written agreement.
    12. Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
    13. Permitted Use” means a use of the Licensed Software by an Authorized User in the ordinary course of its internal business operations.
    14. Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
    15. Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors and legal advisors.
    16. Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Taqtile, including any third-party: (a) documents, data, content or specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
  3. License.
    1. License Grant. Subject to the terms and conditions of this Agreement, and conditioned on Your and its Authorized Users’ compliance therewith, Taqtile hereby grants to You a non-exclusive, non-sublicensable and non-transferable, limited license as set forth in this Section 3 to use the Licensed Software and Documentation solely for the Permitted Use during the Term.
    2. Scope of Licensed Access and Use. You may install, use, and run one (1) copy of the Licensed Software on Your network for use by one or more devices under your legitimate control at any one time.
    3. Sole Responsibility. You are solely responsible for any authorized or unauthorized access to the Licensed Software. You agree to comply with all laws and regulations applicable to the gathering, processing, storing, transmitting, and dissemination of business or personal information.
    4. Open-Source Licenses. The Licensed Software includes Open-Source Components licensed under any GNU General Public License or GNU Library or Lesser Public License, a copy of which can be found at https://opensource.org/licenses/gpl-license (each, an “Open-Source License”). Any use of the Open-Source Components by You shall be governed by, and subject to, the terms and conditions of the Open-Source License(s).
  4. Use Restrictions. Except as this Agreement expressly permits, and subject to Section 3.4 with respect to Open-Source Components, You shall not, and shall not permit any other Person to:
    1. copy the Licensed Software, in whole or in part;
    2. modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Licensed Software;
    3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software
    4. to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
    5. reverse engineer, disassemblea, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part;
    6. bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation;
    7. remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation;
    8. use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other rights of any Person, or that violates any applicable Law;
    9. use the Licensed Software for purposes of: (i) benchmarking or competitive analysis of the Licensed Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Taqtile’s detriment or commercial disadvantage;
    10. use the Licensed Software in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Licensed Software could lead to personal injury or severe physical or property damage; or
    11. use (i) the Licensed Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.
  5. Maintenance. During the Term, Taqtile may provide You with Maintenance Releases (including updated Documentation) that Taqtile may, in its sole discretion, make generally available at no additional charge. All Maintenance Releases, on being provided by Taqtile to You hereunder, are deemed Licensed Software subject to all applicable terms and conditions in this Agreement. You agree to install all Maintenance Releases as soon as practicable after receipt. You do not have any right hereunder to receive any New Versions of the Licensed Software that Taqtile may, in its sole discretion, release from time to time.
  6. Alterations to the Licensed Software. Taqtile may change, modify, suspend, or discontinue any aspect of the Licensed Software at any time, including removing features or revising the effectiveness of certain features in an effort to improve the overall performance of the Licensed Software. Taqtile may also impose limits on certain features or restrict Your access to parts or all of the Licensed Software without notice or liability.
  7. Confidentiality. For the purposes of this Agreement, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the disclosing party (“the Disclosing Party”) considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limitations, Confidential Information includes the Licensed Software (both source and object code) and Documentation, algorithms, development techniques, the results of all evaluations, testing, benchmarking and the like of the Licensed Software, support techniques, methodologies, formulae, business plans, research and development strategies, financial, marketing, and other business information, as well as know-how and proprietary information related to the foregoing. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; (b) not access or use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; and (c) not disclose or permit access to Confidential Information to any third party except information that: (i) was rightfully known to the receiving party (the “Receiving Party“) without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure.
    1. Trade Secret. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
    2. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.2, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
  8. Fees and Payment.
    1. License Fees and Applicable Taxes. In consideration of the rights granted to You under this Agreement, You agree to pay all fees and applicable taxes incurred by You or on behalf of You. Without limiting the foregoing, You are responsible for all sales, service, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by You hereunder. You acknowledge that Taqtile is not required to refund amounts you pay to Taqtile for use of the Licensed Software, or for purchases made from Taqtile, for any reason.
    2. Post-Termination Fees. Following the termination of this agreement pursuant to Section 11.2, if You fail to cease use of the Licensed Software as provided for in Section 11.3, the You will be responsible for all costs and expenses incurred by Taqtile as a result thereof. Taqtile shall remit an invoice to You for such costs and expenses which shall be due immediately.
    3. Payment. You shall pay all amounts due and owing under this Agreement within thirty (30) days after the date of Taqtile’s invoice therefor. You shall make all payments hereunder in US dollars by cash, check, ACH, or wire transfer to the address or account specified by Taqtile.
    4. Late Payment. If You fail to make any payment when due then, in addition to all other remedies that may be available to Taqtile:
      1. Taqtile may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
      2. You shall reimburse Taqtile for all costs incurred by Taqtile in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs and collection agency fees; and
      3. if such failure continues for thirty (30) days following written notice thereof, Taqtile may: (i) disable Your use of the Licensed Software (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 11.2.
    5. No Deductions or Setoffs. All amounts payable to Taqtile under this Agreement shall be paid by You to Taqtile in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
  9. Security Measures and Consent to Monitor.
    1. The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software. You acknowledge and agree that: (a) Taqtile may use these and other lawful measures to monitor your computer or device’s memory to verify Your compliance with the terms of this Agreement and enforce Taqtile’s rights, including all Intellectual Property Rights, in and to the Licensed Software; (b) Taqtile may deny any individual access to and/or use of the Licensed Software if Taqtile, in its sole discretion, believes that a person’s use of the Licensed Software would violate any provision of this Agreement, regardless of whether You designated that person as an Authorized User.
    2. Privacy Policy. Taqtile and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Your computers, systems, and software, that Taqtile may gather periodically to improve the performance of the Licensed Software or develop Maintenance Releases. This information will be treated in accordance with Taqtile’s privacy policy, as amended from time to time, which can be viewed at: https://taqtile.com/privacy/
  10. Intellectual Property Rights.
    1. Ownership. You acknowledge and agree that:
      1. the Licensed Software and Documentation are licensed, not sold, to You by Taqtile and You do not and will not have or acquire under or in connection with this Agreement any ownership interest in the Licensed Software or Documentation, or in any related Intellectual Property Rights;
      2. Taqtile and will remain the sole and exclusive owner of all right, title and interest in and to the Licensed Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open-Source Components and the limited license granted to You under this Agreement; and
      3. You hereby unconditionally and irrevocably assign to Taqtile or Taqtile’s designee, the entire right, title and interest in and to any Intellectual Property Rights that You may now or hereafter have in or relating to the Licensed Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
    2. Notice of Infringement. You shall, during the Term:
      1. safeguard the Licensed Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
      2. at Taqtile’s expense, take all such steps as Taqtile may reasonably require to assist Taqtile in maintaining the validity, enforceability and Taqtile’s ownership of the Intellectual Property Rights in the Licensed Software and Documentation;
      3. promptly notify Taqtile in writing if You become aware of:
        1. any actual or suspected infringement, misappropriation or other violation of Taqtile’s Intellectual Property Rights in or relating to the Licensed Software or Documentation; or
        2. any claim that the Licensed Software or Documentation, including any production, use, marketing, sale or other disposition of the Licensed Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and
      4. fully cooperate with and assist Taqtile in all reasonable ways in the conduct of any claim, suit, action or proceeding (each, an “Action”) by Taqtile to prevent or abate any actual or threatened infringement, misappropriation or violation of Taqtile’s rights in, and to attempt to resolve any claims relating to, the Licensed Software or Documentation, including testifying when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
    3. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to You or any third party any Intellectual Property Rights or other rights, title, or interest in or to any of the Licensed Software or Documentation.
  11. Term and Termination.
    1. Term. This Agreement is effective as of the date of acceptance of this Agreement (the “Effective Date”), and shall remain in effect until it is terminated or superseded by a New Agreement, or, if neither of the foregoing events occurs, as long as you continue using the Licensed Software (the “Term”). In the event that Taqtile chooses to cease providing the Licensed Software or licenses a third party the right to provide the Licensed Software, Taqtile may, but is not obligated to, provide you with prior notice.
    2. Termination. This Agreement may be terminated at any time:
      1. by Taqtile, effective on written notice to You, if You fail to pay any amount when due under this Agreement (the “Payment Failure”);
      2. by You, at any time by notifying Taqtile; and
      3. Taqtile reserves the right to terminate this Agreement at any time for any reason, or for no reason, with or without notice to You.
    3. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement:
      1. all rights, licenses, and authorizations granted to You hereunder will immediately terminate and You shall:
        1. immediately cease all use of and other activities with respect to the Licensed Software and Documentation other than those described in Section 11.3(a)(ii);
        2. promptly deliver to Taqtile, or at Taqtile’s written request destroy, and permanently erase from all devices and systems You directly or indirectly control, the Licensed Software, the Documentation and Taqtile’s Confidential Information, if any, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials;
        3. if requested, certify to Taqtile in a signed written instrument that You have complied with the requirements of this Section 11.3; and
      2. all amounts payable by You to Taqtile of any kind under this Agreement are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement under Section 11.3.
      3. any right you may have had to any pre-purchased access to Licensed Software is forfeit, and you agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid prior to any termination of this Agreement.
    4. Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 11.4, Section 2 (Definitions), Section 7 (Confidentiality), Section 10 (Intellectual Property Rights), Section 12 (Representations and Warranties), for clarity, including Section 12.6 (Disclaimer), Section 13 (Indemnification), Section 14 (Limitations of Liability) and Section 17 (Miscellaneous).
  12. Representations and Warranties.
    1. Limited Warranty. Subject to the limitations and conditions set forth in Section 12.2 and Section 12.3, Taqtile warrants to You that for a period of thirty (30) days from the first date the Licensed Software is first installed on Your device (the “Warranty Period”):
      1. the Licensed Software will substantially conform in all material respects to the specifications set forth in the Documentation when installed, operated and used as recommended in the Documentation and in accordance with this Agreement; and
      2. any media on which Taqtile supplies the Licensed Software to You will be free of material damage and defects in materials and workmanship under normal use.
    2. Requirements. The limited warranties set forth in Section 12.1 apply only if You: (a) notify Taqtile in writing of the warranty breach before the expiration of the Warranty Period; (b) promptly installed all Maintenance Releases to the Licensed Software that Taqtile previously made available to You; and (c) as of the date of notification, You are in compliance with all terms and conditions of this Agreement (including the payment of all license fees then due and owing).
    3. Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 12.1 does not apply to problems arising out of or relating to:
      1. Licensed Software, or the media on which it is provided, that is modified or damaged by You or Your Representatives;
      2. any operation or use of, or other activity relating to, the Licensed Software other than as specified in the Documentation, including any incorporation in the Licensed Software of, or combination, operation or use of the Licensed Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Your use in the Documentation;
      3. Your or any third party’s negligence, abuse, misapplication or misuse of the Licensed Software, including any use of the Licensed Software other than as specified in the Documentation;
      4. Your failure to promptly install all Maintenance Releases that Taqtile has previously made available to You;
      5. the operation of, or access to, Your system or network or a third party’s system or network;
      6. any Open-Source Components, beta software, software that Taqtile makes available for testing or demonstration purposes, temporary software modules or software for which Taqtile does not receive a license fee;
      7. Your breach of any provision of this Agreement;
      8. any Third-Party Material failure; or
      9. any other circumstances or causes outside of the reasonable control of Taqtile (including abnormal physical or electrical stress).
    4. Remedial Efforts. If Taqtile breaches, or is alleged to have breached, any of the warranties set forth in Section 12.1, Taqtile may, at its sole option and expense, take any of the following steps to remedy such breach:
      1. replace any damaged or defective media on which Taqtile supplied the Licensed Software;
      2. amend, supplement or replace any incomplete or inaccurate Documentation;
      3. repair the Licensed Software;
      4. replace the Licensed Software with functionally equivalent software (which software will, on its replacement of the Licensed Software, constitute Licensed Software hereunder); and/or
      5. terminate this Agreement.
    5. Sole Remedy. If Taqtile does not cure a warranty breach or terminate this Agreement as provided in Section 12.4 within a commercially reasonable period of time after Taqtile’s receipt of written notice of such breach, You shall have the right to terminate this Agreement as provided in Section 11.2. THIS SECTION 12.5 SETS FORTH THE YOUR SOLE REMEDY AND THE TAQTILE’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY TAQTILE WARRANTY OF THE LICENSED SOFTWARE OR DOCUMENTATION SET FORTH IN THIS AGREEMENT.
    6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12.1, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY TAQTILE ARE PROVIDED “AS IS.” TAQTILE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TAQTILE MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY OTHER TAQTILE OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET YOUR OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
  13. Indemnification. You hereby agree to defend and indemnify Taqtile, its parent, subsidiaries, licensors, and affiliates against and from any third party claims, liabilities, losses, injuries, damages, costs, or expenses incurred by Taqtile arising out of or from Your use of the Licensed Software or any specific services or features associated therewith.
    1. Mitigation. If the Licensed Software, or any part of the Licensed Software, is, or in Taqtile’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Your use of the Licensed Software is enjoined or threatened to be enjoined, Taqtile may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Licensed Software, effective immediately on written notice to You, in which event You shall cease all use of the Licensed Software and Documentation immediately on receipt of Your notice.
  14. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL TAQTILE, ITS PARENT, SUBSIDIARIES, LICENSORS, AND AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, OR (g) DEATH, BODILY INJURY, OR DAMAGE TO TANGIBLE PROPERTY, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, TAQTILE’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
    2. CAP ON LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF TAQTILE, ITS PARENT, SUBSIDIARIES, LICENSORS, AND AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TEN PERCENT (10%) THE TOTAL AMOUNTS PAID TO TAQTILE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  15. Export Regulation. You shall not, or permit any other Person to, export, re-export or release, directly or indirectly any Controlled Technology to any country, jurisdiction or Person to which the export, re-export or release of Controlled Technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
  16. Force Majeure.
    1. No Breach or Default. In no event will Taqtile be liable or responsible to You, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Taqtile’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) days or more.
    2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Taqtile shall give prompt written notice to You stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
  17. Miscellaneous.
    1. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other forms of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    2. Notices. Any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section 17.2):
      1. All notices given by You under this Agreement shall be in writing and addressed to: Taqtile, Inc., 107 Spring Street, Seattle, Washington 98104, Attn: Kelly Malone
      2. All notices given by Taqtile under this Agreement shall be given to You either through written notice, email, or website blog post.
      3. Notices sent in accordance with this Section 17.2 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
    3. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments and appendices to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other documents 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. The parties intend this Agreement to 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. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
    4. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
    5. Assignment. You shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Taqtile’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section 17.5 is null and void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    6. Severability. If any 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. On such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and County of King, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other documents by mail to such Party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
    8. Equitable Remedies. You acknowledge and agree that Your breach or threatened breach of this Agreement would cause Taqtile irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Taqtile will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.