Version 1 

Last Updated November 12, 2024

 

1. TERMS & CONDITIONS OF USE: These terms and conditions, together with any Order Acknowledgement(s) state the entire agreement between Easy Automation, Inc. (“EAI”) and Buyer (the “Agreement”) with respect to EAI’s services (the “Services”) which may include EAI’s software platform, NexGen (the “Software”), in addition to all onboarding, access, support, and maintenance in connection with EAI’s Software, as well as a personal, revocable, non-transferable, non-exclusive, non-sublicensable license to access and use the Software during any active Subscription Term (as defined below) (collectively, the “Software License”), and such other of EAI’s products as may be set forth in an Order Acknowledgment (collectively, the “Goods”). Buyer’s placement of an order with EAI constitutes Buyer’s agreement to this Agreement. EAI will not be bound by any different or additional terms and conditions unless expressly agreed to in a separate written agreement by EAI. This Agreement will not hereafter be subject to any change or modification without EAI’s express and written consent.  No course of dealing or course of performance of EAI or Buyer with respect to goods sold under or in connection with this Agreement shall be considered in interpreting this Agreement.
    

2. SOFTWARE SERVICES: Provided Buyer is not in default, and to the extent set forth in an Order Acknowledgment, EAI will provide Buyer with a License to access EAI’s Software and related Services, which may include maintenance and support services, during the subscription term (the “Subscription Term”) set forth in the Order Acknowledgment. The Subscription Term will be the period during which Buyer has an account with, and Software License from, EAI entitling Buyer to access the Software and/or Services, as set forth in the Order Acknowledgment.  EAI may provide Buyer with features, services, or other software, in addition to the Software and/or Services to better utilize the Software and/or Services in EAI’s sole discretion. EAI reserves the right to provide some or all of the Software and/or Services through third-party service providers, as reasonably necessary.
    

3. GOODS: Subject to the terms and conditions of this Agreement, EAI shall sell and transfer to Buyer, and Buyer purchase from EAI, those Goods set forth in the Order Acknowledgment. Buyer agrees it must deliver to EAI any claim for defective Goods, errors, or shortages in Goods in writing within ten (10) days from delivery of the Goods.
    

4. TERMS OF PAYMENT: Buyer agrees to pay EAI fees for the Goods, Software, and Services in the amounts and upon the terms set forth in the Order Acknowledgment (the “Fees”). Unless otherwise provided in an Order Acknowledgment and subject to credit approval, fifty percent (50%) of the Fees are due at the time of order and the remaining balance is due upon receipt of EAI’s notification that the order is ready to ship. All shipments are made F.O.B. EAI’s point of shipment unless otherwise stated and agreed in an Order Acknowledgment. If EAI agrees to invoice any portion of the Fees, unless otherwise provided in the Order Acknowledgment, invoices are due within thirty (30) days of the date of the invoice. If Buyer fails to remit full payment of all Fees as required hereunder, EAI may (A) delay or decline shipment of any Goods until all Fees are paid in full, or (B) add a late payment charge of five percent (5%) or the highest rate permitted by law, whichever is less, to the invoice for each month outstanding and unpaid. Further, EAI may, in its sole discretion, cease, suspend, or terminate the Services, including, but not limited to, access to the Software and/or Software License, unless or until such time as any unpaid invoice is resolved to EAI’s reasonable satisfaction. In the event EAI terminates for non-payment, Buyer shall remain liable for the total outstanding invoice balance for all Fees through the date of such termination and all other obligations under this Agreement and remedies available to EAI. Buyer agrees that it shall be responsible for the payment any sales or other tax imposed upon the Goods, Software, or Services, as may be determined in EAI’s reasonable determination, and for all other reasonable charges for ancillary services and costs set forth in the Order Acknowledgment. All credit card payments will be assessed a credit card transaction fee. Notwithstanding anything to the contrary contained in this Agreement, in the event Buyer fails to pay any other invoice when due or EAI otherwise reasonable determines that Buyer may be unable to pay for any Goods or Services hereunder when due, EAI may cease performance, decline shipment, or stop any Goods in transit from being delivered without liability, unless or until such time as EAI is reasonably satisfied with Buyer’s financial condition, which may include requiring pre-payment or such other conditions as EAI may determine in its sole discretion.
    

5. SOFTWARE LICENSE AND INTELLECTUAL PROPERTY RIGHTS: Subject to Buyer’s continued compliance with this Agreement, EAI hereby grants to Buyer the Software License. This Software License will govern any updates of the Software by EAI that modifies, repairs, replaces, supplements, and/or updates the Software from time-to-time, unless a separate license is provided to Buyer for such update, in which case the terms of the new license will govern. Buyer acknowledges and agrees that except for the limited Software License, Buyer shall not acquire any intellectual property rights under this Agreement in the products, services, confidential, proprietary, or trade secret information, or materials of EAI, including, but not limited to, the Goods, Software, or Services, and all rights therein are strictly reserved. Buyer expressly agrees that nothing in this Agreement shall create any “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C. § 101). To the extent EAI creates any inventions, works of authorship or other intellectual property, including, but not limited to, documentation conceived, developed, originated, or reduced to practice by EAI or under its direction in performing the Services, whether or not requested by Buyer, EAI shall be the sole and exclusive owner of such property, except to the extent that it contains or includes any confidential information of the Buyer, which confidential information shall remain the sole and exclusive property of Buyer. Without limiting the foregoing, EAI owns all right, title, goodwill, and interest in and to those materials consisting of EAI’s original works of authorship that EAI may provide to the Buyer under this Agreement (collectively, “EAI Materials”), which cannot be used by the Buyer or any Buyer personnel except as allowed under this Agreement in connection with the Goods, Services, and Software. These rights include the copyrights in the materials, throughout the world and for the full term of the copyrights, including any extensions and renewals.
    

6. EAI’S SERVICE DUTIES: EAI shall provide initial training and onboarding on the use of the Software, to the extent set forth in the Order Acknowledgment. Thereafter, EAI shall undertake commercially reasonable efforts to provide fixes, workarounds, or other commercially reasonable solutions to remedy Buyer’s reproducible errors and bugs in the current version of the Software that are reported to EAI and cause a “Material Malfunction” within the first thirty (30) days of the Subscription Term. A “Material Malfunction” means the substantial failure of the Software to function for its intended use. EAI will utilize commercially reasonable efforts to provide support by telephone, e-mail, remote meeting, or such other means as may be requested and agreed by Buyer and EAI for support during EAI’s regular business hours. Without limiting the foregoing, EAI’s Services do not include fixes of errors that arise: (i) out of the Buyer’s alteration of the Software, Buyer’s own hardware, or fixes or errors caused in whole or in part by persons other than EAI; (ii) from products, computer programs, or stored procedures not furnished by EAI; (iii) from programming, error correction, or custom work required as a result of conversions or updates involving Buyer’s core software or hardware; (iv) from improper hardware installation or server configuration, specifications, or defect; (v) from issues related to Buyer’s core processing systems or server; or (vi) any violation of this Agreement by Buyer. Except for a Material Malfunction, or as otherwise provided in an Order Acknowledgment, Buyer shall be solely responsible for any and all costs incurred by EAI to correct or fix any errors or bugs requested by Buyer on a time and materials basis at EAI’s then-current, standard hourly rate, which costs shall be invoiced as provided under this Agreement. Buyer expressly agrees that it shall be responsible for all costs incurred by EAI if a suspected error results from unauthorized alteration of the Software, or the use of the Software that is not in accordance with standard operating procedures or EAI’s recommended minimum system specifications.
    

7. CONTROL AND LOCATION OF SERVICES: The method and means of providing the Services shall be under the exclusive control, management, and supervision of EAI. EAI may, at its sole discretion, enter into any subcontracts for the performance in connection with the Services, or assign or transfer any of its rights or obligations under this Agreement without Buyer’s prior written consent. However, EAI’s use of subcontractors or any other third-party service-provider shall not relieve EAI of any of its duties or obligations under this Agreement.
    

8. LICENSE TO HOST DATA: By using the Software, and to the extent such use requires EAI to host or transmit any of Buyer’s data, including to any third-party service, Buyer grants EAI a limited-term license to host, transmit, copy and display Buyer’s data as needed to provide the Services in accordance with this Agreement and any terms of use, end user license agreements, or privacy policies that may apply in connection with the same, the terms of which shall be incorporated herein by reference and provided to Buyer from time-to-time. Notwithstanding anything to the contrary contained herein, Buyer acknowledges and agrees that it shall be solely responsible, and it assumes all risk, for any and all electronic data and document backups and cybersecurity protocols.
    

9. REQUESTED FEATURES: In the event that Buyer asks for, and EAI produces any particular new feature, including, but not limited to any feature based on Buyer’s feedback, Buyer grants and assigns to EAI all right title and interest in and to any such feature, at no cost to EAI and without any right of Buyer to renumeration or ownership of any sort, including, but not limited to, a worldwide, perpetual, irrevocable and royalty free license to use Buyer’s suggestion as a separate or integral feature available to others both during and after the termination of this Agreement, and Buyer expressly disclaims any right to such feature independent of its rights to use the same under this Agreement.
    

10. CLAIMS AND RETURNS: No returns will be allowed without written authorization from EAI’s President, Vice President of Sales, or Vice President of Operations. All claims for defective goods, errors, or shortages in goods delivered by EAI must be made in writing within 10 days from receipt of the goods. All returns and cancellations authorized by EAI are subject to a restocking charge in the amount of 50%. Buyer may cancel an order only upon EAI’s written approval and upon payment of reasonable charges specified by EAI, including but not limited to work in progress plus overhead and percentage of profit attributable thereto and any other expenses or charges including engineering and overhead charges, incurred by EAI in connection with the performance of this Contract up to date of cancellation. EAI reserves the right to require Buyer to complete all purchase order terms and make full payment in accordance with the terms and conditions set forth in the purchase order. EAI’s Vice President of Sales has authorization to waive any return or cancellation fees.
     

11. RESTRICTIONS ON BUYER’S USE OF SOFTWARE AND SERVICES: Without EAI’s specific, written consent, Buyer may not access the Software if Buyer sells or develops competitive products or services. In addition, Buyer may not access the Software for purposes of reverse-engineering, preparing derivative works, monitoring EAI’s availability, performance, functionality, or for any other benchmarking or competitive purpose. Unless contained in a written agreement to the contrary, Buyer may not: (i) allow use of the Software for the benefit of anyone other than Buyer or its authorized users; (ii) offer, sell or otherwise provide use of the Software to any of Buyer’s own Buyers; (iii) post or incorporate content or data that infringes any third-party’s rights (including intellectual property or privacy rights) or is libelous or otherwise unlawful; (iv) post, upload, or otherwise provide to EAI any content or data that contains malicious code; (v) attempt to gain access to the data of any third-party; (vi) copy or reproduce any part of the Software or Services for any purpose not otherwise authorized herein, including for use on another computer system or to build a competitive product or offer competitive services; (vii) attempt to reverse engineer any feature of the Software unless permitted by applicable law; or (viii) attempt to integrate any application that does not originate with, or is not authorized by, EAI with the Software or Services. The Software may only be accessed by individuals Buyer has designated as authorized users. Once an authorized user is set up to access the Software, that user’s password should not be shared with any other individual, and Buyer shall indemnify and hold EAI harmless from and against any claim, damage, loss, or liability of any kind arising out of or related to any unauthorized access to a user’s account due to disclosure of any user’s password or login credentials. Buyer is responsible for, and agrees to hold EAI harmless from and against, any claim, damage, loss, or liability, arising out of or related to: (i) ensuring that all users comply with the provisions of this Agreement; (ii) the accuracy, legal appropriateness, backup, and security of all data entered into the Software; and (iii) preventing unauthorized use, access, degradation, or loss to the Software or any data contained therein.
     

12. EAI WARRANTIES:

    1. Infringement. EAI warrants that, to its best knowledge, the Software will not infringe upon any copyright, patent, trade secret or other intellectual property interest of any third party.

    2. Services. EAI warrants that the Services to be provided hereunder shall be performed in a professional manner in accordance with generally accepted industry standards. Upon breach of this warranty, EAI’s obligation hereunder is limited to correcting the Software so that it complies with this warranty or refunding that portion of the Fees payable for that portion of the Services giving rise to the breach hereunder.

    3. Goods. EAI’s one-year, limited warranty in effect at the time an Order Acknowledgment is accepted, as may be amended from time to time, applies to all Goods purchased from EAI. EAI’s liability on any claim in connection with the Goods, whether in contract, tort, or otherwise, and whether on account of EAI’s delivery of any non-conforming Goods or non-delivery, shall be limited to repair or replacement of the defective or non-conforming Goods or repayment of that portion of the Fees attributable to the Goods giving rise to the warranty claim hereunder, as EAI may elect in its sole discretion, and further subject to this Agreement.

    4. Exclusions. EAI does not warrant that the Software or Goods will perform without error or that it will run without immaterial interruption. EAI provides no warranty regarding, and will have no responsibility for, any claim arising out of: (i) modification of the Software or Goods made by anyone other than EAI, unless EAI approves such modification in advance in writing; (ii) use of the Software or Goods in combination with any system not authorized in the documentation or with hardware or software specifically forbidden by the documentation; or (iii) any failure by Buyer to backup data or information or undertake commercially reasonable cyber or physical security protocols. EAI does not warranty the Software’s or any Good’s interoperability with any system. EAI’s warranties exclude non-performance issues that result from third-party hardware or software malfunction or defect or defects which are outside the reasonable control of EAI, including those caused or resulting from the actions or inactions of Buyer or any third-party under its direction or control.

    5. No Implied Warranties.  Any description of the Goods or Services contained on EAI sales forms or any other correspondence is for the sole purpose of identifying it, is not part of the basis of the bargain and does not constitute a warranty that the Good or Service shall conform to that description. The use of any sample in connection with sale is for illustrative purposes only, is not part of the basis of the bargain and is not intended to be construed as a warranty that the Goods will conform to the sample. Any affirmation of fact or promise made by EAI personnel is not part of the basis of the bargain and shall not constitute a warranty that the Goods will conform to the affirmation or promise, except as expressly set forth herein.
       
       EXCEPT AS EXPRESSLY DESCRIBED IN THIS WARRANTY SECTION, EAI MAKES NO WARRANTY OF ANY KIND. EAI DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO SOFTWARE, SERVICES, AND GOODS, TO THE FULLEST EXTENT ALLOWED BY LAW.
        

13. ​INDEMNIFICATION:

    1. EAI’s Obligation to Indemnify Buyer. In the event the Software infringes the intellectual property rights of a third-party, EAI, at its own expense, shall promptly take one or more of the following actions (“IP Indemnity”): (i) secure for Buyer the right to continue using the Software; (ii) replace the Software with a comparable alternative or modify such Software to make it non-infringing, provided such modification or replacement does not materially degrade any functionality set forth in the Order Acknowledgment; or (iii) refund the prorated portion of the fees paid by Buyer for the current Subscription Term in connection with the Order Acknowledgment under which the Services were rendered, if any, and cancel the same, or refund that portion of the Fees attributable to the Services giving rise to the claim hereunder. In conjunction with Buyer’s right to terminate for breach where applicable, the preceding sentence states EAI’s sole obligation and liability, and Buyer’s sole remedy, for potential or actual intellectual property infringement. Notwithstanding anything to the contrary contained herein, EAI’s obligations set forth above with respect to IP Indemnity shall not apply to the extent that a claim for indemnity regarding intellectual property infringement arises out of Buyer’s: (iv) breach of this Agreement; (v) revisions or modification to the Software made without EAI’s written consent; or (vi) use of the Software in combination with hardware, other software, products, or goods not provided or approved by EAI.

    2. Buyer’s Obligation to Indemnify EAI. Buyer shall defend and indemnify EAI, including EAI’s shareholders, officers, directors, employees, agents, representatives, affiliates, insurers, and each of their respective successors and assigns, against any and all claims, suits, proceedings, losses, damages, injuries, costs, penalties, or expenses, including all attorneys’ fees, costs and disbursements incurred by such party, arising out of or related to: (i) claims by third parties, including Buyer’s own customers, employees, or contractors in connection arising out of or related to Buyer’s use or misuse of the Goods, Software, and/or Services; (ii) Buyer’s breach or alleged breach of any of the covenants, terms, conditions, or provisions of this Agreement or any contract or license to which Buyer is a party or by which Buyer is bound or owes any obligation to EAI; (iii) Buyer’s revisions, modifications, or misuse of the Software or Goods; (iv) any act, omission, or negligence on the part of Buyer or any third-party related to this Agreement, including, but not limited to, the use of, misuse of, or failure to properly use the Remote Capability, and data or information loss, cyber or physical security breach, or any material malfunction not caused by EAI’s willful misconduct, including all software, hardware, and/or service; (v) any actual or alleged patent, trademark, copyright or other intellectual property infringement, misappropriation, or dispute, or (vi) Buyer’s use of the Software or Goods in any other way that is not expressly authorized by EAI.

    3. Exclusive Remedy. This Section states each indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described herein.
        

14. LIMITATION OF LIABILITY AND DISCLAIMERS:

    1. “As Is” Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 12, BUYER ACCEPTS THE SOFTWARE, SERVICES, AND GOODS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EAI HAS NO OBLIGATION TO INDEMNIFY OR DEFEND BUYER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.

    2. “Feedback” Disclaimer. EAI has not agreed to, and does not agree to, treat as confidential any Feedback (as defined below) Buyer provides to EAI, and nothing in this Agreement, or in the Parties’ dealings arising out of or related to this Agreement will restrict EAI’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Buyer. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of EAI’s products or services, including, but not limited to, the Goods, Software, and/or Services. “Feedback” shall not constitute confidential information of Buyer. Except as otherwise provided herein, Buyer hereby disclaims any and all right, title, or interest to any improvement or feature arising out of or related to Feedback.

    3. Dollar Cap Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EAI’S LIABILITY TO BUYER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED, AS APPLICABLE THE LESSER OF: (I) THE TOTAL FEES PAID BY BUYER TO EAI IN THE IMMEDIATELY PRECEDING SIX MONTHS FOR THE SERVICES RENDERED UNDER THE ORDER ACKNOWLEDGMENT GIVING RISE TO ANY CLAIM OF LIABILITY; OR (II) THE FEES PAID FOR THE SPECIFIC GOODS GIVING RISE TO THE CLAIM OF LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT, OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY. THE ABOVE LIMITATION, HOWEVER, SHALL IN NO WAY LIMIT BUYER’S PAYMENT OBLIGATIONS TO EAI OR OTHERWISE SERVE AS A CREDIT OR OFFSET OF ANY OBLIGATION IN CONNECTION THEREWITH.

    4. Exclusion of Damages. IN ADDITION TO THE LIMITATION SET FORTH ABOVE, IN NO EVENT WILL EAI BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT EAI HAS BEEN ADVISED OF THE SAME, OR IF SUCH DAMAGES MAY OTHERWISE BE RECOVERABLE BY LAW, TO THE MAXIMUM EXTENT ALLOWABLE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF TIME, LOSS OF PRODUCTION, INCREASED OVERHEAD, LOSS OF BUSINESS OPPORTUNITY, DELAYS IN PRODUCTIONS, COSTS OF REPLACEMENT COMPONENTS, INCREASED COST OF OPERATION, INCREASED COST OF CONSTRUCTION, CHANGE IN MARKET CONDITIONS, DAMAGE TO GOODWILL, INCONVENIENCE, OR OTHER COMMERCIAL OR ECONOMIC LOSS.
        

15. REMOTE MONITORING AND CONNECTIVITY: Buyer assumes acknowledges and agrees that it is solely responsible for the oversight, control, and use of any remote automation software or hardware (the “Remote Capability”) included as an additional functionality to EAI’s existing software and hardware platform to allow for automated and remote access and control over Buyer facilities (each, a “Buyer Facility”). Without limiting the foregoing, EAI is not responsible for, and expressly disclaims all liability in connection with, any safeguards, warnings, or other injury-prevention measures for the Buyer Facility and use of the Remote Capabilities therein. Buyer acknowledges and agrees that the Remote Capabilities depend on the connectivity of the Buyer’s device(s)/network, including the interaction between hardware, software, telecommunication and internet service providers, each of which are outside of EAI’s control. As such, EAI expressly disclaims any and all liability arising out of or related to any data or information back-up, cyber or physical security protocols, “downtime”, or connectivity-related issues related to the Remote Capability or otherwise resulting from the operation of Buyer Facilities, or any other matters outside of EAI’s control. Without limiting the foregoing, Buyer acknowledges and agrees that EAI shall have no liability to Buyer (or any third-party) due to the following “Excluded Circumstances”: (i) unavailability or loss of data caused by circumstances beyond EAI’s control, including, without limitation, acts of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, pandemic, epidemic, acts of terror, acts of third-parties over whom EAI has no control (including Buyer, any party accessing a Buyer Facility, any internet service provider, or any other network or utility provider), strikes or other labor problems, or any other force majeure event or factor beyond EAI’s reasonable control; (ii) any problems resulting from Buyer or any user’s failure to back-up data, information, or otherwise utilize proper cyber or physical security measures, combining or merging the Remote Capability software, hardware, and/or services with any hardware or software not supplied by EAI or not otherwise identified by EAI in writing as compatible with the Remote Capability or the software, hardware, or services offered by EAI; (iii) loss of data, interruptions, or delays in providing the Remote Capability resulting from lack of data backups and protocols, telecommunications or Internet service provider failures, or cyber or physical security breaches outside of EAI’s reasonable control, including those arising out of or related to the actions or inactions of Buyer or any end user, including their telecommunications or internet service provider’s failures; and/or (iv) any loss, interruption, or unavailability resulting from the acts, omissions, negligence, misuse, improper use, alteration, or damage of the Remote Capability software, hardware, or services by parties over whom EAI has no control, including Buyer, any user, or any other party accessing the Buyer Facility. Buyer agrees that Buyer, Buyer’s employees, agents, invitees, and all other parties entering the Buyer Facility expressly and without entitlement assume all risks, whether latent, patent, or otherwise, and any and all injury or loss caused directly or indirectly by Buyer’s alleged or actual use of, misuse of, or failure to properly use the Remote Capability. While EAI assumes no obligation to monitor the Buyer’s behavior with respect to compliance with these terms, Buyer agrees and understands that EAI may monitor Buyer’s usage and behavior relating to the Remote Capability and these terms in EAI’s sole discretion.
     

16. U.S. GOVERNMENT RESTRICTED RIGHTS: Notwithstanding anything herein to the contrary, if Buyer is acquiring the Software on behalf of any unit or agency of the United States Government, the Software shall be provided herein only with restricted rights and limited rights therein. Any use, duplication, or disclosure by the government is subject to the restrictions set forth in FAR Sections 52-227-14 and 52-227-10 or DFARS Section 52.227-7013, as each may apply.
     

17. FORCE MAJEURE: No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, governmental legislation, acts, orders or regulation, embargoes, epidemic, pandemic, state of emergency, or other causes beyond the party’s reasonable control, including, but not limited to, any third-party hosting service or similar provider.
     

18. MISCELLANEOUS: This Agreement, including all Order Acknowledgments and any prior or contemporaneous non-disclosure agreement, if any, constitutes the entire agreement and understanding between the Parties regarding its subject matter and supersedes any prior verbal or written agreements, commitments, or communications regarding the same. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under Minnesota law, but if any provision, or the application thereof, shall be held invalid, illegal or unenforceable, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or this Agreement. The terms and provisions of this Agreement that, by their very nature, impose continuing obligations on one or both of the parties following the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement, for any reason, or the termination of the relationship between the parties for any reason. No waiver by either party at any time of any breach of or non-compliance with any condition or provision of this Agreement to be performed by the other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or any prior or subsequent time. This Agreement shall be binding upon the heirs and legal representatives of the parties and shall be enforceable by the permitted successors and assigns of the parties. Buyer may not sell, assign, or otherwise convey its rights and obligations under this Agreement without the written consent of EAI. The performance, construction, and interpretation of this Agreement and all disputes between the Parties shall be governed by the laws of the State of Minnesota, without regard to its conflicts of law principles. The Parties acknowledge and agree that any disputes or litigation between the Parties shall be brought exclusively in the courts situated in Martin County, State of Minnesota. All Parties agree that the courts of Minnesota are a convenient forum for the resolution of such disputes. In the event of any legal proceeding arising out of this Agreement, the performance, breach, or interpretation thereof, or any dispute between the parties to this Agreement, EAI shall be entitled to recover its reasonable attorney’s fees, witness fees, expert fees, costs, disbursements, and other expenses (including those on appeal), from the Buyer in such lawsuit or proceeding.