End User Software License Agreement (EULA)

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Last Updated 5/30/2024

NOTICE TO USER: THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY, THE “LICENSEE” OR “YOU”) AND AMERICAN INNOVATIONS, LTD. (“LICENSOR”) REGARDING YOUR USE OF LICENSOR’S SOFTWARE THAT HAS BEEN DELIVERED TO YOU OR MADE AVAILABLE FOR YOU TO DOWNLOAD AND THAT IS IDENTIFIED BY LICENSOR IN THE APPLICABLE QUOTE OR INVOICE SUBMITTED BY LICENSOR TO YOU (SUCH QUOTE OR INVOICE, THE “ORDER CONFIRMATION” AND SUCH SOFTWARE AND ACCOMPANYING DOCUMENTATION, THE “SOFTWARE”). CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (THIS “AGREEMENT”) BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THE SOFTWARE CONTAINS CERTAIN SOFTWARE OF LICENSOR AS WELL AS CERTAIN SOFTWARE OF THIRD PARTIES (THE “THIRD-PARTY SOFTWARE”). THE SOFTWARE, INCLUDING THE THIRD-PARTY SOFTWARE, IS LICENSED (NOT SOLD) TO YOU. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND RETURN IT TO LICENSOR OR DESTROY IT. ALL RETURNS WILL BE SUBJECT TO LICENSOR’S THEN CURRENT RETURN POLICY.

A. GRANT OF LICENSE. Provided that Licensee complies with all terms and conditions of this Agreement including the payment to Licensor of all related fees, Licensor grants Licensee for the specific term set forth in the applicable Order Confirmation the non-exclusive, non-revocable (but terminable as provided for in this Agreement), non-transferable (except as permitted in Section J(8) below in connection with a permitted assignment of this Agreement), non-sub-licensable, limited right to use the Software for Licensee’s internal business purposes; subject, however, at all times to the restrictions set forth in this Agreement, including the following:

  1. Installation. The Software may only be installed on computers at the facilities of Licensee or its Affiliates (or on the computers of third party entities engaged by Licensee to host the Software solely for the access and use by Licensee and its Affiliates as permitted under, and in accordance with, this Agreement) and, subject at all times to compliance with the user restrictions set forth below, solely for the use by the employees and contractors of Licensee and Licensee’s Affiliates which Licensee or its Affiliates have authorized to use the Software for the sole benefit of Licensee and/or its Affiliates (each an “Authorized User”). Notwithstanding the foregoing, users of the PCS Field Data Collector Software are limited in all instances to use the Software solely on the device and specific Operating System for which it was purchased for. As used herein, the term “Affiliate” means any legal entity that is then currently controlled by Licensee, where “control” means the power to cause the direction of the management of such legal entity, directly or indirectly, whether through ownership of voting securities or otherwise.
  2. Use Restrictions: Concurrent User/Named User Restrictions. If the license type set forth in the applicable Order Confirmation is a “Concurrent Use” license, then in no event may the number of Authorized Users who are accessing and/or running any of the Software at the same time (“Concurrent Users”) exceed the Maximum Number of Authorized Users set forth in such Order Confirmation. If the license type set forth in the applicable Order Confirmation is a “Named User” license, then only those individuals who are then properly designated as a “named user” (each a “Named User”) may access and use the Software subject at all times to the maximum number of Named Users set forth in such Order Confirmation. You agree to use the approved license manager provided, or otherwise authorized in writing, by Licensor that controls the Concurrent User and the Named User (as applicable) access to the Software to ensure compliance with the terms of this Agreement. Licensor may (with notice to You) terminate this Agreement and the license granted hereunder if the number of Concurrent Users of the Software at any time exceeds the applicable Maximum Number of Authorized Users or if applicable, users other than the then current Named User(s) access and use the Software. If the Maximum Number of Authorized Users is not expressly designated in the applicable Order Confirmation for the Software provided by Licensor to You, the Maximum Number of Authorized Users shall be one.
  3. Internal Business. The Software may only be used in the conduct of Licensee’s and its Affiliates’ internal business and for the sole purpose of processing Licensee’s and its Affiliate’s internal data. Nothing in this Agreement shall permit Licensee or its Affiliates to distribute or otherwise make the Software (in whole or part) available to any third party (other than Authorized Users) or use the Software to operate as a service bureau or offer outsourcing, hosting or subscription services to any third party Licensee is permitted to configure the Software for its and its Affiliates’ own use and to interface with third party products and programs.
  4. Documentation. All use of the Software must be in accordance with the applicable documentation that accompanies the Software or that is related to the Software and provided by Licensor (the “Documentation”) and not in any manner that circumvents or is intended to circumvent the scope of the license granted under this Agreement. Licensee and its Affiliates may copy the Documentation for use by Authorized Users under this Agreement; provided all copies of the Documentation contain all notices of copyright and ownership as contained in the original.
  5. No Source Code; Additional Requirements. This Agreement does not grant Licensee any rights to the source code of the Software. Licensee may not: (i) reverse engineer, decompile or disassemble the Software or otherwise attempt to discover the source code of the Software, (ii) modify, transfer, distribute, or otherwise make the Software available to a third party (other than to Authorized Users as permitted under sub-clause (1) above) without the prior written approval of Licensor, and (iii) create derivatives of the Software or otherwise use the Software to create a competitive product with the same or similar functionality. Further, any benchmarking data or other results of use or testing of the Software obtained by Licensee or its Affiliates that are indicative of the Software’s performance, operation, efficacy, reliability, or quality shall at all times be the sole and exclusive confidential information of Licensor and not disclosed or otherwise made available (in whole or part) by Licensee or its Affiliates to any third party.

ANY UNAUTHORIZED USE OF THE SOFTWARE WILL VOID THE LICENSE GRANT UNDER THIS AGREEMENT IF NOT TIMELY CURED AS PROVIDED FOR UNDER THIS AGREEMENT AND MAY SUBJECT LICENSEE TO CLAIMS BY LICENSOR FOR COPYRIGHT INFRINGEMENT, BREACH OF CONTRACT, INJUNCTIVE RELIEF AND/OR MONETARY DAMAGES. THE SOFTWARE IS LICENSED AND NOT SOLD. ALL RIGHTS, TITLE, AND INTEREST (INCLUDING WITHOUT LIMITATION ALL INTELLECTUAL PROPERTY RIGHTS) IN AND TO THE SOFTWARE ARE AND SHALL REMAIN OWNED EXCLUSIVELY BY LICENSOR AND, IF APPLICABLE, ITS LICENSORS. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU IN THIS AGREEMENT ARE RESERVED TO LICENSOR.

B. TECHNICAL SUPPORT & MAINTENANCE (TSM). Provided Licensee has paid all applicable fees for technical support and maintenance for the Software, Licensor shall provide the following technical support and maintenance services for the Software (“Support”):

  • Software Releases
    • Release installation guidance and general use assistance
    • Digital delivery of software package, when applicable
  • Multichannel Customer Service
    • E-mail & phone support during Licensor’s regular business hours
  • General Product Support
    • Troubleshooting of technical issues related to Licensor’s hardware products
    • Remote diagnosis of Software issues
  • Basic Software Setup Guidance (Note: Licensee’s infrastructure and custom meta-data configuration are excluded)
  • Basic American Innovations Hardware Setup Guidance (Note: Custom installation outside of Licensor’s product specs are excluded)
  • Product License Deployment and Management
  • Support Ticket Info Management; ticket status & historical data

Support also includes the provision by Licensor to Licensee of the following from time to time based upon availability: (i) knowledge base articles (including, technical bulletins, helpful hints, and troubleshooting recommendations), (ii) user guides, (iii) Software release notes, (iv) technical documentation, (v) Licensor’s newsletter, and (v) such other materials and offerings (including on-demand training) as Licensor makes generally available under its technical support and maintenance services.

All Support shall be provided during the term of this Agreement and shall be provided by Licensor subject to the terms and conditions of this Agreement. All fees for Support shall be paid by Licensee to Licensor within thirty (30) days of the invoice date. Licensor may suspend the provision of Support if the applicable fees for the Support have not been timely paid by Licensee. Further, Licensee may be charged a reinstatement fee if Licensee opts out of the Support by failing to timely pay for the Support and then later desires to receive Support. Licensee must use the then current version of the Software in order to receive Support; provided, however, for a period of one (1) year following the commercial release date of the then current version of the Software, Licensee may continue to use the immediately prior version of the Software.

C. LIMITED WARRANTY. Licensor warrants, for Licensee’s benefit alone, that for a period of ninety (90) days from the date the Software is delivered to Licensee (the “Warranty Period”), the Software will perform substantially in accordance with the Documentation. If, during the Warranty Period, Licensee notifies Licensor in writing of a material defect in the Software, and if Licensor is able to replicate the defect, then Licensor will work to provide You with replacement Software that corrects the defect. Any replacement Software will be warranted for the remainder of the Warranty Period or thirty (30) days from the date of delivery to You, whichever is longer. Licensor also warrants that it has the necessary experience and capability to perform the Support service with reasonable diligence using reasonable skill and care to a standard that is expected of a reputable firm for service similar to the Support service and it will perform the service in a good and workmanlike manner. If Licensee is dissatisfied with the Support service provided, Licensee shall promptly notify Licensor in writing; and following receipt of such notice, Licensor shall confer with Licensee to discuss the problem and, if applicable, Licensor will arrange for the performance to be raised accordingly. The foregoing sets forth the sole and exclusive remedy for defects in the Software or if Licensee believes the Support service is inadequate or defective.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND ALL SUPPORT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE SOFTWARE OR SUPPORT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE SOFTWARE WILL BE SECURE OR PERFORM IN ANY PARTICULAR MANNER, AS WELL AS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES. LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF, THE SOFTWARE IN TERMS OF ACCURACY, CORRECTNESS, RELIABILITY OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT LICENSOR WILL BE ABLE TO CORRECT ALL DEFECTS AND ERRORS. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.

D. REMEDIES. Licensor’s entire liability and Licensee’s exclusive remedy under the above limited warranty shall be that Licensor, in its sole discretion, will use reasonable commercial efforts to correct or provide a workaround for any reproducible error in the Software (each such action a “Remedy”) at Licensor’s expense provided you give written notice itemizing such error to Licensor during the Warranty Period. Licensor cannot guaranty that any Remedy nor any other services or support provided under this Agreement will permanently cure the error. The limited warranty is void if failure of the Software has resulted from improper use.

E. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (A) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LICENSOR, ITS AFFILIATES, AND ITS LICENSORS EXCEED THE FEES PAID UNDER THIS AGREEMENT FOR THE SOFTWARE, IF THE LICENSE TERM IS PERPETUAL, OR THE AVERAGE ANNUAL FEES PAID FOR THE SOFTWARE UNDER THIS AGREEMENT, IF THE LICENSE TERM IS NOT PERPETUAL; (B) IN NO EVENT SHALL LICENSOR OR ANY OF LICENSOR’S AFFILIATES OR LICENSORS BE LIABLE FOR ANY DAMAGES ARISING FROM A CYBER ATTACK OR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE.

THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (I) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (II) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (III) REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (IV) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE CLAIM.
THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF THE PARTIES’ BARGAIN HEREUNDER, AND LICENSEE ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. IF THE FOREGOING LIMITATION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, THEN LICENSOR’S LIABILITY UNDER THIS LICENSE SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

F. Intellectual Property Indemnification. Licensor agrees to indemnify, defend, and hold harmless Licensee against all liabilities, judgments, awards and costs arising out of or related to any claim that Licensee’s authorized use or possession (as permitted herein) of the Software owned by Licensor infringes or violates the U.S. copyright, trade secret, patent, or any other proprietary right of any third party, provided that Licensee: a) notifies Licensor promptly in writing of any claim or suit; b) gives Licensor the sole right to control investigation, preparation, defense, and settlement of such claim or suit; and c) gives Licensor assistance and reasonable cooperation for the defense of same. Following notice of any claim or should Licensor believe that the Software may be the subject of an infringement claim, Licensor may, in its discretion and at its option, procure the right for Licensee to continue to use the Software, replace or modify the Software to make it non-infringing, or terminate this Agreement. The foregoing obligations of Licensor shall not apply and Licensor will have no liability for any claim of infringement to the extent such infringement arises because: a) the Software is configured or developed to Licensee’s specifications; b) the Software is modified after delivery by anyone other than Licensor or a party approved in writing by Licensor; c) the Software is combined with other products, services, processes, or materials not provided or approved by Licensor; d) Licensee continues the infringing activity after modifications that would have avoided the alleged infringement have been made available to Licensee; or e) Licensee’s use is not in accordance with this Agreement. The foregoing states Licensee’s sole remedy for, and Licensor’s entire liability and responsibility for, infringement of any copyright, trade secret, patent, or any other proprietary right of any third party relating to the Software and/or the Support. Licensor shall not be liable for any settlement made without Licensor’s prior written consent. Licensee will defend, indemnify, and hold Licensor harmless from all damages, settlements, reasonable attorneys’ fees and reasonable expenses that are awarded against Licensor by a court of competent jurisdiction or agreed upon in settlement by Licensee and related to 1) any claim of infringement excluded from Licensor’s indemnity by the preceding sentence; and/or 2) any damages, settlements, reasonable attorney’s fees and reasonable expenses caused by Licensee’s unauthorized use of the Software in violation of this Agreement.

G. Third Party Products. Licensor is not responsible for the third-party products used in conjunction with the Software. You understand that your use of the third party products (and all associated warranties) is subject to the applicable license agreements for the third party products.

H. GOVERNMENT USE/PROCUREMENT. If the Software is being licensed under the terms of an agreement with the U.S. Government or any contractor on its behalf: 1) the Software is commercial computer software; 2) the Software and Documentation were developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; or (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors. If the Software will be made available to the U.S. Government, any use, duplication, or disclosure by the U.S. Government of the Software shall be subject to the restrictions applicable to proprietary commercial computer software set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable. The manufacturer is American Innovations, Ltd., 12211 Technology Blvd., Austin, TX 78727.

I. TERM AND TERMINATION

  1. Term and Termination. This Agreement shall take effect on the date the Software is delivered or otherwise made available to Licensee and shall remain in effect until the expiration of the license term stated in the applicable Order Confirmation (the “License Term”) or unless it is earlier terminated as provided for in this Agreement. Provided this Agreement was not terminated earlier due to Licensee’s breach, the License Term shall automatically renew for successive renewal terms equal in length to the initial term unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current initial or renewal term. Licensor will provide notice of any price increases for the renewal term at least sixty (60) days prior to the end of the then-current initial or renewal term. All fees paid or payable by Licensee under this Agreement (including fees for Support) are non-refundable except solely in the following instances: (i) Licensee terminates this Agreement as provided for in sub-clause 3 below of this Section I and (ii) in the event Licensor terminates this Agreement as permitted under Section E above, whereupon Licensor will refund the pro-rata portion of any fees paid to by Licensee under this Agreement for the Software and for the Support. Licensee may terminate this Agreement (or any Support provided hereunder), for its convenience upon thirty days prior written notice to Licensor, however Licensee shall not be entitled to any refund of any license fees or fees for unused Support if the Agreement or Support, as applicable, is terminated by Licensee for its convenience. Termination of this Agreement automatically terminates all Support provided hereunder.
  2. Survival. Upon any termination of Support, Licensee shall be placed on an “on-demand” status for any subsequent support, maintenance and/or updates or new releases of or for the Software. All clients designated as “on-demand,” shall be subject to additional costs and fees for support, maintenance, and updates or new releases of or for the Software.
  3. Termination for Breach. In the event Licensor is in breach of this Agreement and is unable to cure such breach within twenty (20) business days following written notice from Licensee, Licensee may terminate this Agreement upon written notice to Licensee and Licensor shall reimburse to Licensee solely the pro-rata portion of any fees paid to by Licensee under this Agreement for Support.
  4. Licensee Data. In the case of termination of the Agreement or EULA, the Licensor, if notified in writing to do so by the Licensee, shall promptly, but in any event no more than seven (7) business days from the Licensee’s request, provided Licensee has provided a database backup in the required format to Licensor, shall provide all Licensee data to Licensee in a format that is available within the PCS and/or CartoPac application. This section 4 d) shall survive the termination of this Agreement and/or EULA.
  5. Time to Cure. Notwithstanding anything to the contrary contained within this Agreement, if Licensor provides written notice to Licensee that Licensee is in breach of this Agreement, Licensee shall have twenty (20) business days following the date of such written notice, or other longer period at Licensor’s sole discretion and which longer period Licensor has provided written notice to Licensee, to cure such breach. If Licensee fails to cure such breach within the required time period, Licensor may immediately terminate this Agreement upon written notice to Licensee. Notwithstanding the foregoing, Licensor may immediately terminate this Agreement upon written notice to Licensee if: (i) based on reasonable evidence, Licensor determines that Licensee intentionally or maliciously misused the Software or (ii) Licensee’s failure to timely pay any amounts due under this Agreement occurs on more than three instances and Licensor determines that such failure is intentional.

J. MISCELLANEOUS

  1. Complete Agreement. This Agreement constitutes the entire agreement between the parties concerning the Software and Support, and supersedes all previous communications, representations, proposals and agreements, either oral or written. No other oral, written, click through terms and conditions or links to other terms and conditions pertaining to the Software and Support, shall apply unless mutually agreed in writing by both Licensor and Licensee. No action or omission by either party shall constitute a waiver of any right or duty afforded either party under this Agreement, nor shall any such action or omission constitute an approval of any breach under this Agreement, except as may be specifically agreed to in writing signed by the party against which it is asserted.
  2. Confidential Information. Licensee and Licensor agree: (i) not to make any of the Confidential Information of the other available to any third party (other than its Authorized Users for Licensee and its Affiliates for Licensor), (ii) not to use the Confidential Information of the other except as otherwise permitted by this Agreement, (iii) not use or permit the use of any of the Confidential Information of the other, directly or indirectly, in any manner to the material detriment of the other or to obtain any competitive advantage over the other; and (iv) to hold the Confidential Information of the other in confidence during the term of this Agreement and for as long as it has custody or control of such Confidential Information of the other. Each of Licensee and Licensor agree to use the same degree of care to protect the Confidential Information of the other received or otherwise obtained under this Agreement as it uses to protect the confidentiality of its own Confidential Information (but never less than reasonable care). The parties also agree that no adequate remedy at law exists for breach of this Section, and any such breach would cause irreparable harm to the other party and that the other party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it has at law or otherwise in the event of a breach by Licensee or Licensor (as applicable) of its obligations. Confidential Information of a party is any information or materials of a party or received or otherwise obtained from a party under this Agreement which the party disclosing the same has marked as confidential or which the other party should reasonably know to be the confidential information of the disclosing party. The Software, including all Documentation, and the Support services are the Confidential Information of Licensor. Confidential Information of Licensor also specifically includes the pricing terms of this Agreement.
  3. Governing Law. This Agreement is governed by the laws of the state of Texas, exclusive of any provisions of the United Nations convention on the international sale of goods, without regard to principles of conflicts of law. The state and federal courts in Travis County, Texas shall have the sole and exclusive jurisdiction over any suit or proceeding brought in connection with this Agreement and Licensee and Licensor agree to submit to the personal jurisdiction of such courts. Upon the expiration or earlier termination of this Agreement, Licensee must immediately stop using the Software. If any action is brought by either party against the other, the prevailing party shall be entitled to recover reasonable attorney fees and court costs in addition to any relief granted. If any provision of this Agreement is held invalid, the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect.
  4. Further Amendments. This Agreement shall not be modified unless by written agreement of the Licensee and Licensor. Further, this Agreement represent an informed, voluntary allocation of risks, both known and unknown, between the parties.
  5. Survival. All terms of this Agreement which, by their nature, are intended to survive termination will survive termination, including without limitation, all, indemnification obligations, Intellectual property rights and confidentiality obligations.
  6. Press Releases. Neither party shall issue any press release or make any statement to the general public concerning this Agreement or the relationship created thereby without the prior written consent of the other party.
  7. Notices. Any notice, demand, or other communication required or permitted by any provision of this Agreement shall be in writing and shall be deemed to have been given for all purposes when delivered in person or sent by email, overnight courier, or registered or certified mail, return receipt requested, all postage and other charges prepaid, and addressed as set forth on the first page of this Agreement or at such other address as may be designated by notice pursuant to this Section from such party to the other party. Notice sent by email shall be deemed delivered on the same business day. Notice sent by overnight courier shall be deemed delivered on the business day immediately following deposit with such courier. Notice sent by certified or registered mail shall be deemed delivered on the fifth day after deposit with the United States postal service.
  8. Assignment. Licensee may not assign this Agreement by operation of law or otherwise without the prior written consent of Licensor, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the case of a merger, acquisition, change of control, reorganization or sale of substantially all of its assets or business (or any substantially similar transaction), a party may assign this Agreement to the successor in connection with such transaction so long as such successor agrees in writing to be bound to all of the terms of this Agreement and such successor is not a competitor of Licensor. Should an Affiliate of Licensee cease to be an Affiliate (a “Divested Entity”) and the Divested Entity requires Software identical to or similar to the Software it was using under this Agreement before divestment, upon Licensee’s written request, Licensor shall provide that Software (or licenses thereof as directed by Company) for the remainder of the term of Agreement or Agreement, including any renewals, or such other shorter period as Licensee may direct; provided such Divested Entity is not owned or controlled by a competitor of Licensor. The terms of a supply of Software to a Divested Entity pursuant to this clause shall be the same as the terms under which the Software was provided to the Divested Entity immediately prior to divestment, including in relation to all fees; but that Divested Entity shall (unless otherwise expressly agreed in writing) be entirely responsible for any and all charges and other amounts due in relation to those services from the completion of the relevant divestment, and Licensor shall not look to Licensee for payment of any charges associated with that Software. In the event that there are any additional incremental costs and expenses in relation to the provision of the Software to the relevant Divested Entity, such costs and expenses shall be identified and agreed to in writing by the parties.