TERMS OF SERVICE AGREEMENT
THIS SERVICES AGREEMENT (“AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND BIMOTICS INC. (“Bimotics,” “US”, OR “WE”). BY REGISTERING A USER ACCOUNT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU (A) AGREE TO BE BOUND BY THIS AGREEMENT; AND (B) REPRESENT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE (AT LEAST EIGHTEEN (18) YEARS OF AGE IN MANY STATES). IN ADDITION, IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT. YOU SHOULD PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS BY USING THE PRINT FUNCTIONALITY IN YOUR BROWSER. COMPLETING THE REGISTRATION IS YOUR AGREEMENT TO THESE TERMS AND CONDITIONS, AND ACCEPT TO RECEIVE THE SERVICES DESCRIBED BELOW.
"Account" refers to the billing account for the Service.
"Application Key" means the proprietary string of characters, also known as a key, which is generated by the Software to uniquely identify an application from your Account.
"Customer Data" means the data in tables or other files stored in your Account which is collected through use of the Bimotic’s service (the
"Deploy Code" means, collectively, the proprietary Bimotics software that is installed on a web page for the purpose of displaying an application from your Account, together with any online documentation, and any fixes, updates and upgrades provided to you. The Deploy Code also refers to a URL, or the address of a web page, containing a link to the Service and an Application Key.
"Service" has the meaning ascribed to such term in the first paragraph of this Agreement.
"Software" means the Deploy Code, the Processing Software and the Application Key.
"Website" means the collection of pages containing the Deploy Code.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
To register for the Service, you shall provide Bimotics with current, complete and accurate information as prompted by the registration form, including your e-mail address. You are solely responsible for any and all activities that occur under your Account. You agree to notify Bimotics immediately upon learning of any unauthorized use of your Account or any other breach of security. From time to time, Bimotics support staff may log into the Service under your Account in order to maintain or improve service, including without limitation assisting you with technical or billing issues. You hereby acknowledge and consent to such access.
1. Services. Subject to the terms and conditions of this Agreement and your payment of any relevant fees, we will provide you with access to certain cloud-based analytics and other services (collectively, the “Purchased Services”). We may also provide temporary access to Purchased Services on a free trial basis (“Trial Services”) and through a Beta Program (“Beta Services”). (Purchased Services, Trial Services and “Beta Services” together, the “Services”). If Bimotics has made the Purchased Services available on a free trial basis or through a Beta Program and you have registered for such Trial Services or Beta Services, Bimotics will make the Trial Services and Beta Services available to you until:
(a) the end of the then current Trial Services and Beta Services period offered by Bimotics, unless otherwise extended by Bimotics in its discretion;
(b) the start date of any Purchased Services ordered; or
(c) the date on which Bimotics elects, in its sole discretion, to terminate your access to Trial Services and Beta Services.
You acknowledge and agree that: (i) the features and functionality of the Trial Services and Beta Services may be limited during the Term, and (ii) if you exceed any applicable eligibility requirements for Trial Services and Beta Services (for example, limitations on number of projects, or use of enhanced or premium functionality), you may be required to pay fees for such excess usage as a condition to retaining your eligibility to receive Trial Services and Beta Services. Except as specifically set forth in this Section, this Agreement shall apply to the use of Trial Services and Beta Services.
From time to time Bimotics may offer a free trial (“Trial Services”) of the Service to prospective customers. Bimotics reserves the right to discontinue the offering of free trial Service without notice. Free trials are meant to let prospective customers experience the Service before committing to it. Use of a free trial Service for anything other than the above is prohibited. Furthermore, you agree that you are not allowed to (i) open more than one trial account, and/or (ii) upon termination of your free trial account open a new trial account.
One type of free trial offering requires payment information at the time of sign up. This type of free trial account automatically converts to a regular paying Account at the end of the trial period. If the trial account is not closed within the trial period, regular fees will apply immediately thereafter.
Another type of free trial account requires no payment information at sign up. Unless you convert your free trial account to a paying account within thirty (30) days of opening your account, Bimotics reserves the right to discontinue your account at the end of such thirty (30) day trial period and delete all of your Customer Data and account information without notice.
Free trial account users additionally agree that you (i) will not use more capacity and resources than allocated to your account, (ii) will not hide or otherwise tamper with Bimotics branding on your confirmation pages, (iii) will maintain accurate and up to date contact and, to the extent collected by Bimotics, billing information, and (iv) agree to receive sales and marketing emails from Bimotics and its partners. Bimotics may, in its sole and absolute discretion, immediately terminate your service, upgrade your free account to a regular, paying Account, and/or charge appropriate fees if any of the requirements above are not met.
From time to time, Bimotics may offer access to beta software to interested parties. Beta software is software that is not officially released, and may contain problems or bugs, and is not warranted by Bimotics in any way. Any beta services are provided "as is" for evaluation and testing purposes only, and beta users are advised to not rely on the features or performance of such services for any reason. By registering for and using beta services, you acknowledge that you are accessing a pre-release evaluation of such services and that such services and/or any products and services offered in connection therewith may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other applications, and may cause errors, data loss or other problems. Bimotics shall not be liable for any damages, including but not limited to direct, indirect, incidental or consequential damages or for loss of data, profits, or revenue incurred by you or third parties.
As a beta user, you agree that you shall promptly report to Bimotics any failure of the applicable beta service to perform in accordance with applicable documentation, and will provide such other information relating to the beta service as Bimotics may reasonably request. At Bimotics's request, you will provide a written evaluation of the beta service in a form reasonably requested by Bimotics. You grant Bimotics an unrestricted, royalty-free right to use all such feedback for purposes of marketing, public relations, correcting and/or enhancing the beta service and developing additional products and services.
Bimotics's beta programs have a fixed duration. At the end of a beta program you may be offered the opportunity to convert your beta account to a regular Account. Beta accounts that are not converted to a regular Account are deleted at the end of the beta program and all Customer Data is lost.
2. Restrictions. You may only use the Services as described on our Web site and in any applicable documentation. Any breach of this Agreement by you or your agents will constitute a breach by you. Except as expressly authorized by this Agreement, you will not (and will not allow any third party to): (i) permit any third party to access and use the Services; (ii) decompile, disassemble, or reverse engineer the Services, except to the extent expressly authorized under the law; (iii) use the Services or any of our confidential information to develop a competing product or service; or (iv) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Services for the benefit of any third party.
3. Use of the Services. You may not use the Services to:
(a) Upload, post, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, intimidating, abusive, harassing, tortuous, defamatory, derogatory, vulgar, obscene, libelous, invasive of another's privacy, disrespectful, hateful, or racially, ethnically or otherwise objectionable;
(b) Upload, post, e-mail or otherwise transmit any content that is harmful or objectionable to minors in any way;
(c) Impersonate any person or entity or falsely state or otherwise misrepresent their affiliation with a person or entity;
(d) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(e) Upload, post, e-mail or otherwise transmit any content that you do not have the right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) Upload, post, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) Upload, post, e-mail or otherwise transmit any material that contains software viruses or worms or any other computer code, files or programs designed to disable, interrupt, destroy, redirect, monitor another user's usage, limit or otherwise inhibit the functionality of any computer software or hardware or telecommunications equipment;
(h) Disparage the products or services of any company or individual;
(i) Use racially or ethnically offensive language; discuss or incite illegal activity; use explicit/obscene language or solicit/post sexually explicit images;
(j) Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
(k) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation.
4. Availability. The Services will be available for remote access 99.5% of the time each calendar month of the Term, excluding Excused Outages (as defined below) (“Availability”). Downtime as a result of any causes beyond our control or that are not reasonably foreseeable by us, including, without limitation by any of the events noted below are excluded from the Availability calculations (collectively, “Excused Outages”):
(a) Your environment issues affecting connectivity or interfering with the Services, including without limitation, your telecommunications connection or any other of your software or equipment, your firewall software, hardware or security settings, your configuration of anti-virus software or anti-spyware or malware software, or operator error;
(b) any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
(c) force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond our reasonable control;
(d) issues related to third party domain name system (DNS) errors or failures; and
(e) scheduled maintenance of the Services, conducted on a regular basis, generally during hours of non-peak use.
In the event we fail to achieve the Availability requirement, we will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event we fail to achieve the Availability requirement in two consecutive months during the term of this Agreement, you may terminate this Agreement within thirty (30) days of the end of the second consecutive month, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute your sole and exclusive remedy and our sole and exclusive liability for failure to achieve the Availability requirement.
5. Proprietary Rights. You acknowledge that all Services are protected by intellectual property rights, as applicable, of Bimotics and its vendors/licensors and that you have no rights to transfer or reproduce the Services or prepare any derivative works with respect to, or disclose confidential information pertaining to, the Services. Under no circumstances will you be deemed to receive title to any portion of any Services, title to which at all times will vest exclusively in us and our licensors. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code (“the Copyright Act”). You will preserve all Services from any liens, encumbrances, and claims of any individual or entity. You will not use any of our information or data to contest the validity of any of our intellectual property or our licensors. Any such use of our information and data will constitute a material, non-curable breach of this Agreement.
6. Customer Data. You grant us a non-exclusive, world-wide, royalty-free license to use the documents, information, graphics, data, content, and other materials input by you into the Services (the “Customer Data”) for purposes of performing this Agreement. You will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to us for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting us any right, title, or interest in the Customer Data. You grant us a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from your use of Services (the “Aggregated Data”) for our business purposes, including the provision of products and services to our customers; provided the Aggregated Data is combined with similar data from our other customers and does not include (directly or by inference) any information identifying you or any identifiable individual. The Aggregated Data will not be considered your Confidential Information.
Bimotics will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data and will provide the Services in accordance with applicable laws and government regulations. Any Customer Data entered into the Services during Trial Services or Beta Services and any changes made to the Customer Data by or for you during Trial Services or Beta Services may be permanently lost unless you: (a) purchase a subscription to the same Services as those covered during Trial Services or Beta Services, (b) purchase upgraded Services, or (c) export Customer Data before the end of Trial Services or Beta Services. Bimotics’ privacy and security policies may be viewed at Bimotics reserves the right to modify its privacy and security policies in its discretion from time to time.
7. Feedback. You may provide us with suggestions, comments or other feedback (collectively, “Feedback”) with respect to our products and services, including the Services. Feedback is voluntary and we are not required to hold it in confidence. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant us an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with our business, products, and services, including the enhancement of the Services.
8. Fees. If you elect Services for which a charge is imposed, you are obligated to pay those fees. All fees are non-refundable. Late payments will be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. You are responsible for paying all personal property, sales, use and other taxes (excluding taxes based upon our net income) and license and registration fees and other assessments or charges levied or imposed by any governmental body or agency as a result of the execution or performance of this Agreement, including your receipt of the Services. We may change the fees for the Services at any time on notice to you.
9. Your Warranties. You represent and warrant that (i) you have full power, capacity, and authority to enter into this Agreement and to grant the license in Section 4 (Proprietary Rights); (ii) your use of the Services will be in compliance with all applicable local, state, and federal laws and regulations; and (iii) the information you have provided us for purposes of creating your account is true and correct and that you will promptly notify us of any changes.
10. Indemnification. You will defend and indemnify Bimotics and hold it and its affiliates, officers, directors, employees, and agents harmless from any and all claims, actions, proceedings, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees and all related costs and expenses) incurred by them as a result of any claim, judgment, or adjudication related to or arising from any or all of the following: (i) your use of the Services; and (ii) breach of any of your obligations, representations, or warranties in this Agreement.
11. Suspension of Services and Removal of Customer Data. We may, in our sole discretion, suspend your access to the Services or remove any content or data you have provided for any of the following reasons: (i) to prevent damages to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; and (iii) to otherwise protect us from potential legal liability. We will restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on us to monitor use of the Services.
12. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. BIMOTICS AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF SERVICES, IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BIMOTICS OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF BIMOTICS’ OBLIGATIONS HEREUNDER.
THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT BIMOTICS AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE THE CONTENT, WEB SITES, COMPUTERS, OR NETWORKS. WE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.
13. Limitation of Liability and Damages. NEITHER BIMOTICS NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF THE SERVICES EVEN IF BIMOTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF BIMOTICS AND ITS VENDORS AND LICENSORS TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT) WILL NOT EXCEED THE TOTAL FEES YOU PAID, IF ANY, DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES PROVIDED ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
14. Term. The initial term (“Initial Term”) of this Agreement will begin on your first use of the Services or acceptance of this Agreement, whichever is earlier, and will continue thereafter for one (1) year. Thereafter, the Agreement will automatically renew for successive one year terms (each a “Renewal Term”), unless either party gives written notice to the other of its intent not to renew at least sixty (60) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.”
15. Termination. This Agreement will terminate (i) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; (ii) upon written notice by either party, immediately, if (a) a receiver is appointed for the other party or its property; (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof; or (iii) on sixty (60) days’ notice from us in the event we cease providing the Services generally to our customers. If use of the Service or any portion of them becomes, or in our discretion is likely to become, the subject of an intellectual property infringement claim, we may, in our discretion, (i) procure the right for you to continue to use the Service; (ii) replace or modify the Service with one of comparable quality and performance capabilities; or (iii) terminate this Agreement and refund the prorated portion of any prepaid, unused recurring fees. From and after termination, you will immediately pay all due sums owed to us.
In the event of termination or expiration of the Term, upon a request made within 30 days after the effective date of applicable termination or expiration, Bimotics shall make Customer Data available for download by you in the format in which it is stored in the Services. After such 30-day period, Bimotics shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
16. General Provisions.
16.1 Affiliates, Subcontractors and Vendors. Some or all of the Services, including support, may be provided by our affiliates, agents, subcontractors and information system vendors. Our rights and obligations may be, in whole or in part, exercised or fulfilled by the foregoing entities.
16.2 Export. The Services utilize software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, you represent and warrant that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Bimotics and its licensors make no representation that the Services are appropriate or available for use in other locations. Each party shall be solely responsible for its required compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
16.3 Federal Government End User Provisions. If you are the U.S. Federal Government, Bimotics provides the Services, including related software and technology, solely in accordance with this Section. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Bimotics to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreements.
16.4 Publicity and Customer References. Bimotics may reference and use your name and trademarks and may disclose the nature of the Services provided hereunder in Bimotics’ business development and marketing efforts, including without limitation its Web site. You hereby grant Bimotics the right to use your trade name and/or your corporate logo in connection with Bimotics's promotional materials and/or website to identify you as a customer or user of Bimotics.
16.5 Force Majeure. Except for the payment of fees, as described in Section 8 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
16.6 Entire Agreement; Amendment. This Agreement provides the entire agreement between the parties with regard to its subject matter. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement. Except as provided below, this Agreement may not be amended without a writing signed by both parties. We may, at any time and from time-to-time, change the terms of this Agreement. Any changes will be posted on our Web site. In addition, we may also send you a notice about the amended terms via email. If you do not accept the terms of any modification, your only recourse is to terminate this Agreement by sending a termination notice us before the effective date of the amendments. The termination will be effective on the date we receive the notice. The most current version of the Agreement will be available on our Web site and will supersede all previous versions of the Agreement. Your continued use of the Services will constitute your acceptance of the changes.
16.7 Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the laws of the State of Florida, without reference to its conflict of laws rules. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in Broward County. You consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen.
16.8 Assignment. You may not assign this Agreement without the prior written consent of Bimotics.
16.9 Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
16.10 Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
16.11 Survival. The following provisions will survive termination or expiration of this Agreement: 5 (Proprietary Rights), 10 (Indemnification), 12 (Disclaimer of Warranties), 13 (Limitation of Liability and Damages), 15 (Termination), and 16 (General Provisions).
16.12 Electronic Signatures - Binding. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and your acceptance will be deemed binding between us. Neither of us will contest the validity or enforceability of this Agreement and any related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form. Neither of us will contest the validity or enforceability of a signed facsimile copy of this Agreement on the basis that it lacks an original handwritten signature. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.