Terms and Conditions

Overview

Subject to the terms and conditions of this Agreement, Aurasell will make available to Customer Aurasell’s software-as-a-service platform available at https://www.aurasell.ai/ (the “Aurasell Platform”), that provides the features and modules of the Aurasell Platform identified in the applicable Order (collectively, the “Services”).

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Services

1. Ordering Process; Agreement. Subscriptions to Services are purchased pursuant to one or more orders, which shall be in the same or substantially the same form as the Order attached as Exhibit A (the “Order”). Each Order will identify the Services to which Customer is subscribing, and, as applicable, the number of queries included in the Order, limitations around the structure or scope of data to be returned in response to queries, and the time period for which such Order applies.
2. Access Grant. During the Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services only for Customer’s internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in the Order.
3. Users. “User” means an employee or contractor of Customer that Customer allows to use the applicable Aurasell Technology on Customer’s behalf, using the mechanisms designated by Aurasell (“Log-in Credentials”). Customer will not make available the Aurasell Technology to any person or entity other than Users. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Aurasell’s breach of this Agreement). Customer will promptly notify Aurasell if it becomes aware of any compromise of any Log-in Credentials. Aurasell may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (“Process”) Log-in Credentials in connection with Aurasell’s provision of the Services or for Aurasell’s internal business purposes. 
4. Documentation. During the Term, subject to Customer’s compliance with the terms of this Agreement, Aurasell hereby grants to Customer a limited, non-exclusive, non-transferable (except as set forth in Section 18.1), and non-sublicensable right and license to internally use the then-current version of Aurasell’s standard technical documentation and usage guidelines for the Services that Aurasell makes generally available to its customers (“Documentation”), solely in connection with Customer’s exercise of the rights granted in Sections 2.2.
5. Restrictions. Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following: (a) provide access to, distribute, sell, or sublicense the Services, Documentation, or related processes, configurations, or technology provided by or on behalf of Aurasell (collectively, “Aurasell Technology”) to a third party (other than Users); (b) use the Aurasell Technology to develop a similar or competing product or service or to provide products or services to a third party; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Aurasell Technology, except to the extent such a restriction is not permitted under applicable Law (and then only with prior notice to Aurasell); (d) modify or create derivative works of the Aurasell Technology or copy any element of the Aurasell Technology; (e) remove or obscure any proprietary notices in the Aurasell Technology; (f) publish benchmarks or performance information about the Aurasell Technology; (g) interfere with the operation of the Aurasell Technology, circumvent any access restrictions, or conduct any security or vulnerability test of the Aurasell Technology; (h) transmit any viruses or other harmful materials to the Aurasell Technology; (i) take any action that risks harm to others or to the security, availability, or integrity of the Aurasell Technology; or (j) access or use the Aurasell Technology in a manner that violates any applicable relevant local, state, federal or international laws, regulations and conventions, including those related to data privacy or data transfer, international communications, or export of data (“Law”). 

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Support

During the Term, Aurasell will use commercially reasonable efforts to provide the applicable Aurasell Technology in a manner that minimizes errors and interruptions in accessing the Aurasell Technology. During the Term, Aurasell will provide technical support to Users for issues and questions arising from the operation of the Aurasell Technology in accordance with Aurasell’s then-current support policy (“Support”). 

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Data

1. Use of Customer Data. Customer hereby grants Aurasell a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to contractors and service providers), non-transferable (except as set forth in Section 18.1) right to Process, copy, display, modify, and create derivative works of any materials that Customer (including its Users) inputs or makes available to Aurasell, including through the Services (e.g., queries and prompts) or that is imported from a customer-controlled account on a Third-Party Platform (“Customer Data”) (a) to provide the Services and perform its obligations set forth in this Agreement; (b) to derive or generate Telemetry and Aggregated Data; (c) as agreed to in writing by the Parties; or (d) to comply with applicable Laws or court orders. “Telemetry” means data or information generated from use of the Services, such as technical logs, technical data, metrics, and learnings related to Customer’s and Users’ use of the Services, which information does not identify Customer or a particular User or other natural human person as the source thereof. Aurasell may use and exploit Telemetry without restriction.
2. Aggregated Data. “Aggregated Data” means Customer Data that has been aggregated with other data such that the resulting data no longer reasonably identifies Customer. Vendor may Process Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. 
3. Output. In connection with Customer’s (including its Users’) use of the Services, Aurasell may make available to Customer certain data, including data, reports, information, content, and other materials, including materials generated through the use of technologies that use or rely upon artificial intelligence, machine learning techniques, and other similar technology and features (collectively, “Output”). Customer acknowledges and agrees that Output is comprised of proprietary and third-party data, information, and content. Customer may use the Output made available to Customer solely for its internal business purposes, in accordance with the terms and conditions of this Agreement and applicable Laws.
4. Privacy and Security. Aurasell will implement and maintain, for as long as it Processes Customer Data pursuant to this Agreement, commercially reasonable security measures designed to protect Customer Data in its possession and control from and against unauthorized Processing, including those set forth in the document attached hereto as Exhibit B (“Security Requirements”), which document is incorporated herein by reference. To the extent applicable, the Parties will comply with their respective obligations as set forth in the Data Processing Agreement, which is attached hereto as Exhibit C and incorporated herein by reference. 

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Customer Obligations

Customer is responsible for its Customer Data, including its content and accuracy, and will comply with applicable Laws when collecting and providing any Customer Data and using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Aurasell to Process Customer Data and exercise the rights granted to it in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data. Customer will give Aurasell timely access to the personnel, technology, materials, and other resources in the possession or control of Customer (“Customer Materials”) reasonably required to perform implementation, design, configuration, or other professional services contemplated by an Order (“Technical Services”), and if Customer fails to do so, Aurasell’s obligation to provide Technical Services will be excused until access is provided.

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Suspension of Service

Aurasell may immediately suspend Customer’s access to any or all of the Aurasell Technology if: (a) Customer breaches Section 2.5 (Restrictions) or Section 5 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Aurasell suspend the Aurasell Technology or otherwise may impose additional liability on the part of Aurasell; or (d) Customer’s actions risk harm to any of Aurasell’s other customers or the security, availability, or integrity of any of the Aurasell Technology. Where practicable, Aurasell will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Aurasell will restore Customer’s access to the applicable Aurasell Technology.

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Third-Party Platforms

The Services may support integration with third-party platforms, add-ons, services, or products not provided by Aurasell (“Third-Party Platforms”). Use of any Third-Party Platforms integrated with or made available through the Services is subject to the terms provided by the provider of the Third-Party Platform and not this Agreement. Aurasell does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Aurasell Technology or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Aurasell Technology, Customer authorizes Aurasell to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

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Fees and Taxes

1. Fees. Customer will pay the fees for the Aurasell Technology set forth in each Order (“Fees”). All Fees will be paid in U.S. dollars unless otherwise provided in the Order. Fees are invoiced as described on the schedule in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Fees for Renewal Terms are at Aurasell’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable except as may be set out in Section 9.2 (Warranty Remedy) and Section 13.4 (Mitigation). 
2. Taxes. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Aurasell’s income tax (“Taxes”). Fees are exclusive of all Taxes.

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Warranties and Disclaimers

1. Limited Warranty. Aurasell warrants to Customer that the Services will perform materially as described in its Documentation and Aurasell will not materially decrease the overall functionality of the Services (“Limited Warranty”) during the Term (“Warranty Period”). 
2. Warranty Remedy. If Aurasell breaches the Limited Warranty during the Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by Aurasell within 30 days of discovering a breach of the Limited Warranty, then Aurasell will use reasonable efforts to correct the non-conformity. If Aurasell cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the Agreement as it relates to the non-conforming Service. Aurasell will then refund to Customer any pre-paid, unused fees for the terminated portion of the Term. This Section sets forth Customer’s exclusive remedy and Aurasell’s entire liability for breach of the Limited Warranty. The Limited Warranty does not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Aurasell Technology other than according to the Documentation; or (d) Trials and Betas (as described in Section 16) or other free or evaluation use of the Aurasell Technology.
3. Disclaimers. Except as expressly provided in Section 9.1 (Limited Warranty), the Aurasell Technology, Support, Technical Services, Output, and all other Aurasell services are provided “AS IS”. Aurasell, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Aurasell does not warrant that Customer’s use of the Aurasell Technology will be uninterrupted or error-free, that Aurasell will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Aurasell is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Aurasell’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period. Without limiting the foregoing, Customer acknowledges and agrees that: (a) the Services and Output are not professional advice; (b) the Services may produce inaccurate or erroneous Output; (c) Customer is responsible for independently evaluating the Output and any other information Customer receives from the Services; (d) Output may not be unique and other users of the Services may receive output from the Services that is similar or identical to the Output (and, notwithstanding anything to the contrary, such similar or identical output will not be understood to be Output hereunder), and (e) Aurasell may receive the same information or data from Customer and other sources, and nothing in this Agreement will be understood to restrict (and Aurasell may Process without restriction) any information or data provided to Aurasell by Customer or its Users that is or was also received by Aurasell from a source other than Customer.

1. TCPA Compliance. Customer may be able to make phone calls or send text SMS messages, including marketing messages, to customers or prospective customers (“Outreach”) through an automatic telephone dialing system feature on the Service. Customer is solely responsible for ensuring that all Outreach is conducted in compliance with the Telephone Consumer Protection Act (“TCPA”) and all other applicable laws. Without limiting the foregoing, Customer will ensure that (a) Customer has provided all necessary notices and obtained all necessary consents for all Outreach, including but not limited to prior express written consent for marketing messages and notification that recipients may be interacting with an artificial intelligence system, (b) Customer will not conduct any Outreach with customers or prospective customers that have opted out of receiving Outreach, (c) Outreach will not include any false or deceptive advertising, and (d) Customer will not include any sensitive information in any Outreach.

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Term and Termination

1. Term. Unless earlier terminated in accordance with the terms of this Agreement, the “Initial Term” of this Agreement will be as set forth on the Order. Thereafter, unless this Agreement terminates earlier in accordance with the terms of this Agreement, this Agreement will automatically renew for additional successive one-year periods (“Renewal Terms” and the Initial Term and any Renewal Terms, collectively, the “Term”), unless either party gives the other party notice of non-renewal at least 60 days before the end of the Initial Term or applicable Renewal Term. If no Renewal Term is specified in the Order, then the Term of this Agreement will end at the conclusion of the Initial Term. 
2. Termination. Either party may terminate this Agreement (including the Order) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
3. Effect of Termination. Upon expiration or termination of this Agreement, Customer’s rights to access, and Aurasell’s obligations to provide, the Aurasell Technology and Support will cease. Following the date of expiration or earlier termination of this Agreement, Aurasell will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information (as defined in Section 14) may be retained in Recipient’s (as defined in Section 14) standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
4. Survival. These Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 4 (Data), 5 (Customer Obligations), 8 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Ownership), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), and 18 (General Terms). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

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Ownership; Feedback

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in the Customer Data. Except for the rights and licenses granted in this Agreement, Aurasell and its licensors retain all intellectual property rights in and to the Aurasell Technology. To the extent Customer provides Aurasell with feedback (including suggestions and comments for enhancements or functionality) regarding the Aurasell Technology, Output (including underlying datasets), or Aurasell’s products, services, or other technology (“Feedback”), Aurasell has (a) sole discretion to determine whether and how to proceed with Feedback and (b) the full and unrestricted right to use or incorporate Feedback into any of its products, services, technology, or other materials.

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Limitations of Liability

1. Consequential Damages Waiver. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS (AS DEFINED BELOW) NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE. 
2. Liability Cap. EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS, EACH PARTY’S (AND ITS SUPPLIERS’ AND LICENSOR’S) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO AURASELL PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THIS AGREEMENT.
3. Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 2.5 (Restrictions) or 5 (Customer Obligations); (b) either party’s breach of Section 14 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party’s obligations in Section 13 (Indemnification). 
4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

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Indemnification

1. Indemnification by Aurasell. Aurasell will defend Customer from and against any third-party claim to the extent alleging that the Aurasell Technology, when used by Customer in accordance with this Agreement, infringes or misappropriates a third-party’s U.S. patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Aurasell resulting from the claim.
2. Indemnification by Customer. Customer will indemnify, hold harmless, and, at Aurasell’s request, defend Aurasell from and against any third-party claim, including any damages and costs awarded against Aurasell (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim, to the extent resulting from Customer Data or Customer Materials, Customer’s breach or alleged breach of Section 5 (Customer Obligations) or Section 9.4 (TCPA Compliance), or Customer’s use of Output.
3. Procedures. The indemnifying party’s obligations in this Section 13 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Aurasell Technology, when Aurasell is the indemnifying party).
4. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Aurasell determines necessary to avoid material liability, Aurasell may at its option: (a) procure rights for Customer’s continued use of the applicable Aurasell Technology; (b) replace or modify the allegedly infringing portion of the applicable Aurasell Technology to avoid infringement or misappropriation without reducing such Aurasell Technology’s overall functionality; or (c) terminate this Agreement and refund to Customer any pre-paid, unused fees for the terminated portion of the Term. 
5. Exceptions. Aurasell’s obligations in this Section 13 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Aurasell Technology or use of Aurasell Technology in combination with items not provided by Aurasell (including Third-Party Platforms); (b) to unauthorized use of the Aurasell Technology; (c) if Customer settles or makes any admissions about a claim without Aurasell’s prior consent; or (d) to Trials and Betas or other free or evaluation use. 
6. Exclusive Remedy. THIS SECTION 13 SETS OUT CUSTOMER’S EXCLUSIVE REMEDY AND AURASELL’S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

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Confidentiality

1. Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Aurasell’s Confidential Information includes the terms and conditions of this Agreement, Output, and the Aurasell Technology (including any technical or performance information about the Aurasell Technology). Confidential Information does not include Customer Data, which is subject to separate rights and obligations as set forth in Sections 4.1 and 4.4.
2. Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Aurasell is the Recipient, Aurasell may retain the Customer’s Confidential Information to the extent required to continue to provide the Aurasell Technology as contemplated by this Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Aurasell, the subcontractors referenced in Section 18.8), provided it remains responsible for their compliance with this Section 14 and they are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 14.
3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party or its representatives; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations to Discloser; or (d) it independently developed without using or referencing Confidential Information. 
4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14, without necessity of posting a bond or proving actual damages.

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Required Disclosures

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

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Trials

If Customer receives access to Aurasell Technology or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials”). Trials are optional and either party may terminate Trials at any time for any reason. Trials may be inoperable, incomplete, or include features that Aurasell may never release, and their features and performance information are Aurasell’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, AURASELL PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS, AND ITS LIABILITY FOR TRIALS WILL NOT EXCEED US$50.

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Publicity

Aurasell may include Customer and its trademarks in Aurasell’s customer lists and promotional materials but will cease further use at Customer’s written request. 

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General Terms

1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which this Agreement relates to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in New York, New York and both parties submit to the personal jurisdiction of those courts.
3. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to [119 S. B St., San Mateo, CA 94401] or [Contracts@Aurasell.ai] if to Aurasell or to the address or email address specified on the Order if to Customer, and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); (c) one day after dispatch if by a commercial overnight delivery service; or (d) upon the earlier of the receipt of a confirmation email or one day after sending if by email. Either party may update its address with notice to the other party pursuant to this Section. Aurasell may also send operational notices to Customer by email or through the Service.
4. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
5. Amendments. Except as permitted by Section 10.1, any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Aurasell. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Aurasell; any of these Customer documents are for administrative purposes only and have no legal effect.
6. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of this Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.
7. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
8. Subcontractors. Aurasell may use subcontractors and permit them to exercise Aurasell’s rights, but Aurasell remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
9. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
10. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Aurasell Technology. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Aurasell Technology in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
11. Open Source. The Services may incorporate third-party open source software (“OSS”), including as listed in the Documentation or otherwise disclosed by Aurasell in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
12. Government End-Users. Elements of the Aurasell Technology may include commercial computer software. If the user or licensee of the Aurasell Technology is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Aurasell Technology or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Aurasell Technology was developed fully at private expense. All other use is prohibited.
13. Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of any Order and this Agreement, the terms of the Order will control to the extent of the conflict.