1.1."Agreement" means this License Agreement, the Order Form, and the Technical Service and Support Guidelines.
1.2."Appliance" means the Software and Equipment.
1.3."Beta Features" are those features of the Software which are identified by Google as beta or unsupported in Google's then current technical documentation.
1.4."Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
1.5."Customer" means the purchaser identified in the Order Form.
1.6."Customer Technical Contacts" means up to two (2) technical employees designated by Customer as such on the Order Form.
1.7."Documentation" means certain Google proprietary documentation regarding the Equipment and Software as may be provided to Customer pursuant to this Agreement and as may be updated from time to time.
1.8."Equipment" means certain Google proprietary equipment as may be provided to Customer pursuant to this Agreement, together with all replacement parts, additions, and accessories incorporated therein and/or affixed thereto.
1.9."Fees" means all applicable fees, charges, and taxes as set forth in the Order Form.
1.10."Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
1.11."Order Form" means the individual Google Digital Audio Products and Services Order Form executed by both Customer and Google and into which this License Agreement has been incorporated by reference as provided therein. Each Order Form (as it may be amended from time to time) into which this License Agreement may be incorporated will be considered a separate agreement from any other Order Form. Accordingly, for purposes of interpretation of any specific order form, "Order Form" shall refer only to that Order Form into which this License Agreement has been incorporated and which is the subject of interpretation, and not to any other order form into which this License Agreement may otherwise be incorporated (unless and then only to the extent the parties have expressly provided otherwise).
1.12."Product" means the Equipment, Software and Documentation.
1.13."Services" means configuration and other technical support services provided by Google to Customer under this Agreement.
1.14."Shipment Date" means the date of shipment by Google or its designated agent.
1.15."Software" means certain Google proprietary computer software, in binary executable form only, as may be provided to Customer pursuant to this Agreement on a stand-alone basis or as installed in certain Equipment.
1.16."Technical Service and Support Guidelines" means the guidelines located at the following uniform resource locator: http://www.google.com/ads/audioequipment/tss.html.
2. Products; License Grant.
2.1.License Grant. Subject to the terms and conditions of this Agreement, Google grants to Customer (and Customer agrees to comply with) a non-sublicensable, non-transferable, non-exclusive, limited license to use the Software that is installed in the Equipment and the Documentation solely for the purpose of managing Customer's digital audio programming for broadcast. A license key that enables the Software may be required and forwarded to Customer electronically.
2.2.Google Rights. Google (or its third party licensors or providers) owns all right, title, and interest, including without limitation all Intellectual Property Rights in and to the Products except that title to the Equipment shall pass to Customer upon receipt of all Fees by Google. Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in this Agreement. Any rights not expressly granted herein are deemed withheld.
2.3.Third-Party Components. Any third party component embedded, included or otherwise provided for use with the Equipment may only be used in conjunction with such Equipment, and such use shall be subject to all the terms and conditions of this Agreement. The Equipment is designed for use with certain other equipment and accessories specified in the Documentation. Google assumes no responsibility under this Agreement for obtaining or providing such equipment. Customer is also responsible for ensuring a proper environment and proper utilities for the Equipment. Notwithstanding the foregoing, to the extent that the Equipment may include some components that are governed by licenses including provisions prohibiting their further distribution by Customer under this Agreement, any modification or distribution of those components are instead governed solely by the respective appropriate licenses. To the extent Equipment includes some components covered by licenses requiring the provision of corresponding source code for those components, Google hereby offers the provision of such source code consistent with such licenses.
2.4.Prohibited Actions. Customer agrees not to, or to allow others to: (a) adapt, alter, modify, decompile, translate, disassemble, or reverse engineer the Products, or any component thereof, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction); (b) create license keys that enable the Software; (c) copy the Products except as provided herein; (d) transfer, sublicense, loan, sell, lease or use for timesharing or service bureau purposes the Products or any component thereof; or (e) ship, divert, transship, transfer, export or re-export the Products or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department's Bureau of Export Administration, the U.S. Department of Treasury's Office of Foreign Assets Control or any other applicable government agency. For the avoidance of doubt, nothing in this Agreement grants to Customer any rights whatsoever in or relating to the source code of the Software.
2.5.Beta or Unsupported Features. The Product may include Beta Features. Customer understands and agrees that Beta Features are provided "as is" and any use thereof shall be undertaken solely at Customer's own risk. Google reserves the right, in its sole discretion, to include or cease providing Beta Features as part of the Product at any time.
3. Brand Features; License Grant.
3.1.Brand Features. Each party shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Brand Features. Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Brand Features of the first party; and all rights not expressly granted herein are deemed withheld. All use by Google of Customer Brand Features (including any goodwill associated therewith) shall inure to the benefit of Customer. No party shall challenge or assist others to challenge the Brand Features of the other party (except to protect such party's rights with respect to its own Brand Features) or the registration thereof, nor shall either party attempt to register any Brand Features or domain names that are confusingly similar to those of the other party.
3.2.License to Customer Brand Features. Subject to the terms and conditions of this Agreement, Customer grants to Google a limited, nonexclusive and nonsublicensable license to display those Customer Brand Features expressly authorized for use in this Agreement, solely for the purposes expressly set forth herein.
4. Representations and Warranties. Each party represents and warrants that it has full power and authority to enter into the Agreement. Customer represents and warrants that the execution and delivery of this Agreement and the performance by Customer of its obligations hereunder, will not constitute a breach or default of or otherwise violated any agreement to which such party or any of its affiliates are a party or violate any rights of any third parties arising therefrom. Google warrants the Equipment against defects in materials and workmanship for one (1) year from delivery of the relevant Equipment. Google's total liability is hereby limited to such shop labor necessary to repair or replace any defective items, FOB Google's repair facility in Dallas, Texas (or such other facility as may be designated by Google). Google will repair or replace defective Equipment or parts with new or reconditioned Equipment or parts, or with a newer Equipment model of equal or better functionality; the foregoing shall be Customer's sole remedy in connection with defective Equipment. This warranty does not apply to physical damage to the surface of the Equipment, including cracks or scratches on the outside casing or as the result of use. Under NO circumstances will Customer be compensated for delays, unrealized savings, unexpected expenses, loss of prospective profits, data loss or any other incidental or consequential damages. Customer agrees to inspect all items delivered and accept suitability or notify Google within fourteen (14) days. Customer agrees it will not modify the Equipment, and that any modifications will void this Warranty and shall constitute a material breach of the Amendment. This warranty EXCLUDES repairs or replacements for damage by abuse, misuse, accident, alteration of the Equipment, fire, theft, storms, flood, lightning, variation in electrical power and internet disturbances. EXCEPT AS SET FORTH ABOVE, THE EQUIPMENT IS PROVIDED "AS IS".
5. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 4 ABOVE, GOOGLE AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. THE PRODUCT AND SERVICES ARE PROVIDED BY GOOGLE AND ITS LICENSORS "AS IS". GOOGLE AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCT OR ANY PORTION THEREOF, ARE ERROR, VIRUS OR BUG FREE, OR THAT YOUR USE OF THE PRODUCT OR SERVICES WILL BE UNINTERRUPTED. GOOGLE AND ITS LICENSORS ASSUME NO RESPONSIBILITY FOR THE PROPER INSTALLATION, CONFIGURATION, AND USE OF THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF SHIPMENT OF THE APPLICABLE PRODUCT. THE PRODUCT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USES SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE FAILURE OF THE PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENT DAMAGE ("High Risk Activities").
6. Indemnification.
6.1.Google Indemnity. Google will defend, or at its option settle, any third party lawsuit or proceeding brought against Customer based upon or otherwise arising out of a claim that the Appliance used in accordance with the Documentation and this Agreement infringe(s) or misappropriate(s) any copyright, trade secret or trademark of such third party ("IP Claim"). Notwithstanding the foregoing, in no event shall Google have any obligations or liability under this Section arising from: (a) use of any Beta Features; (b) use of the Products in a modified form, use not in accordance with this Agreement or the Documentation, or use in combination with materials not furnished by Google; (c) continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; and (d) use of other than Google's most current release of the Products. Customer will defend and indemnify Google, or at its option settle, in the same manner as provided in this Section 6, any claims made against Google for infringement based on any conduct described in subsections (b) through (d) of this subsection 6.1. 6.2.Following notice of an IP Claim or any facts which may give rise to such IP Claim, Google may, in its sole discretion and at its option: (a) procure the right for Customer to continue to use the Products; (b) replace the Products; or (c) modify the Products to avoid the alleged infringement. If Google determines that it is not commercially reasonable to perform any of these alternatives, Google shall have the option to terminate the license for the allegedly infringing Products and refund the fees for the Products actually paid through the date such IP Claim occurs, less depreciation (as applicable) for use assuming straight line depreciation over twenty-four (24) months.
6.3.Customer Indemnity. Customer will defend, or at its option settle, any third party lawsuit or proceeding brought against Google based upon or otherwise arising out of: (a) Customer Brand Features; and/or (b) any claim alleging facts that would constitute a breach of Customer's representations and warranties made in Section 4.
6.4.General. Indemnification provided under Section 6.1 shall be limited to: (a) payment by the indemnifying party ("Indemnitor") of all damages and costs finally awarded for such claim; or (b) settlement costs approved in writing by the Indemnitor. The foregoing obligations shall exist only if the party seeking indemnification ("Indemnitee"): (i) promptly notifies the Indemnitor of such claim; (ii) provides the Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding; and (iii) gives the Indemnitor full control and sole authority over the defense and settlement of such claim. The Indemnitee may join in defense with counsel of its choice at its own expense. The Indemnitor shall only reimburse the Indemnitee for expenses incurred by the Indemnitee with the Indemnitor's prior written approval. SECTION 6 STATES THE PARTIES' ENTIRE LIABILITY AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
7. Limitation of Liability. SUBJECT TO SECTION 7.1, NEITHER PARTY OR GOOGLE'S LICENSORS WILL BE LIABLE FOR: (i) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE, OR INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE PRODUCTS OR DESTRUCTIVE PROPERTIES OF THE PRODUCTS. SUBJECT TO SECTION 7.1, IN NO EVENT SHALL GOOGLE'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (WHEN AGGREGATED WITH GOOGLE'S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) EXCEED THE NET AMOUNT GOOGLE HAS ACTUALLY RECEIVED AND RETAINED UNDER THE AGREEMENT (AFTER ACCOUNTING FOR ALL DEDUCTIONS, PAYMENTS TO CUSTOMER AND OTHER OFFSETS PROVIDED FOR UNDER THE AGREEMENT) DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES.
7.1.Exclusions from Limitations. Unless and then only to the extent this Agreement expressly states otherwise, nothing in this Agreement shall exclude or limit either party's liability for: (a) breaches of any confidentiality obligations contained in this Agreement; (b) Customer's infringement or misappropriation of Google's Intellectual Property Rights, (c) Customer's breach of any license granted in this Agreement; or (d) any amounts payable to third parties pursuant to the parties' indemnification obligations hereunder.
7.2.Allocation of Risk. The parties agree that the mutual agreements made in this Section 7 reflect a reasonable allocation of risk, and that each party would not enter into the Agreement without these limitations on liability.
8. Confidentiality; Publicity.
8.1.In connection with performance of its obligations hereunder, a party (the "Discloser") may disclose to the other party certain information it considers confidential and/or proprietary ("Confidential Information") to the other party (the "Recipient") including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; and (e) the terms of this Agreement and the discussions, negotiations and proposals related thereto. The Recipient will only have a duty to protect Confidential Information disclosed to it by the Discloser: (1) if it is clearly and conspicuously marked as "confidential" or with a similar designation; (2) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (3) if it is disclosed in a manner in which the Discloser reasonably communicated, or the Recipient should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation "confidential" or any similar designation is used. Customer acknowledges that all communications between Customer and Google technical support personnel is Confidential Information and that the source and object code of the Software remains a confidential trade secret of Google and/or its licensors and that Customer is not entitled to review either the object code or the source code of the Software for any reason at any time. Recipient shall not disclose or cause to be disclosed any Confidential Information of Discloser, except to those employees, agents, representatives, or contractors of the parties who require access to the Confidential Information to perform under this Agreement ("Authorized Personnel") and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to Recipient, or as such disclosure may be required by law or governmental regulation. Furthermore, Recipient agrees to be responsible for any act and/or omission of any Authorized Personnel in breach of this Section. Recipient shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. A party's Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient's disclosure, and where Recipient was not aware that the information was the confidential information of Discloser; or (iv) is independently developed by the Recipient without violation of this Agreement. Recipient may disclose Confidential Information solely as needed to comply with a court order, subpoena, or other government demand (provided that Recipient first notifies Discloser and gives Discloser the opportunity to challenge such court order, subpoena, or government demand). Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 8 or Section 2. In the event that Customer returns the Appliance to Google, Customer will use commercially reasonable efforts to remove its Confidential Information on the Appliance before returning the Appliance to Google. A Recipient's duty to protect Confidential Information expires five (5) years from the date of disclosure.
8.2.Neither party will issue any public announcement regarding the existence or content of this Agreement without the other party's prior written approval. Notwithstanding the foregoing, Google may include Customer's Brand Features in presentations, marketing materials, and customer lists (which includes, without limitation, customer lists posted on Google's web sites and screen shots of Customer's implementation of the Services). Upon Customer's request, Google will furnish Customer with a sample of such usage.
9. Term and Termination
9.1.Term. Subject to Customer's payment of all Fees, the term of the license granted herein for any Product shall commence upon the Shipment Date and may be terminated as set forth herein.
9.2.General. Either party may suspend performance and/or terminate this Agreement, in whole or in part: (a) if the other party materially breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof; or (b) if the other party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency or receivership proceeding, or has any petition under bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing, or has a trustee, administrator or receiver appointed for its business or assets or any part thereof.
9.3.Google Termination Rights. Google may terminate this Agreement immediately upon written notice: (a) if Customer breaches Section 2 (Products; License Grant), or Section 8 (Confidentiality); (b) if Customer is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches; (c) if Google reasonably determines that it is commercially impractical to continue providing the Services in light of applicable laws; or (d) as otherwise provided in this Agreement.
9.4.In the event of termination of this Agreement, all licenses, and any other rights and services provided by Google to Customer as set forth in this Agreement, shall cease immediately and each party shall promptly return to the other party, or destroy and certify the destruction of all Confidential Information of the other party. In the event of termination of this Agreement, Customer agrees to erase all Software in compliance with the process as instructed by Google, and Customer will provide written certification that Customer has properly completed such process within ten (10) business days of such termination.
9.5.Termination of this Agreement, Order Form or any license shall not limit either party from pursuing other remedies available to it, including without limitation, injunctive relief nor shall such termination relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer. Neither party shall be liable to the other for any damages resulting solely from termination as permitted herein.
10.Miscellaneous.
10.1.Compliance with Laws. Each party shall comply with all laws, rules and regulations, if any, applicable to it in connection with the performance of its obligations under this Agreement.
10.2.U.S. Government Restricted Rights. The Product is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Product is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product, including technical data or manuals, is restricted by the terms, conditions and covenants contained in this Agreement. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, the use of the Software is further restricted by this Agreement.
10.3.Notices. All notices shall be in English and in writing and: (a) if sent to Customer to the address identified on the Agreement; and (b) if sent to Google to such address as provided at: www.google.com/corporate/address.html or as otherwise provided in writing for such notice purposes; provided, however, that all invoices and payments shall be sent to the attention of Google Finance, all legal notices shall be sent to the attention of the Google Legal Department, and all other correspondence shall be sent to the attention of the account manager specified by Google. Notice shall be deemed given: (i) upon receipt when delivered personally; (ii) upon written verification of receipt from overnight courier; (iii) upon verification of receipt of registered or certified mail; or (iv) upon verification of receipt via facsimile, provided that such notice is also sent simultaneously via first class mail.
10.4.Assignment. Customer shall not assign or otherwise transfer its rights or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of Google, and any attempt to do so will be null and void. For purposes of this sentence, an assignment will be deemed to include any transaction in which another party or parties acquire the direct or indirect power to direct the management and policies of a party or its assets, whether by way of merger, consolidation, change of control, sale of all or substantially all of a party's securities or assets, contract, management agreement or otherwise.
10.5.Consultations. Before a party initiates legal action against the other arising from this Agreement (except to seek injunctive or equitable relief or to otherwise protect its Intellectual Property Rights), the matter in controversy will first be referred to an officer of each party, who shall make good faith and reasonable efforts to resolve the matter within four (4) weeks of the date of referral.
10.6.Governing Law. The laws of California, excluding California's choice of law rules, and applicable federal U.S. laws shall govern this Agreement. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
10.7.Equitable Relief. Either party may seek equitable relief, including temporary restraining orders or injunctions, in addition to all other remedies, for breach or threatened breach of Section 2 (Products; License Grant), Section 3 (Brand Features; License Grant) or Section 8 (Confidentiality) of this Agreement.
10.8.Entire Agreement; Amendments. This Agreement supersedes any other prior or collateral agreements, whether oral or written, with respect to the subject matter hereof. This Agreement and any terms located at Google URLs referenced pursuant to this Agreement ( which are all incorporated herein by reference), constitute the entire agreement with respect to the subject matter hereof, and any terms contained in any related purchase order(s) or other documents pertaining to the subject matter of this Agreement shall be null and void. Any amendments or modifications to this Agreement must (a) be in writing; (b) refer to the Agreement; and (c) be executed by an authorized representative of each party. Any changes to this Agreement not approved in writing by the Google Legal Department shall not be binding on Google.
10.9.No Waiver; Severability. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter; nor shall waiver of a breach of any provision constitute a waiver of the provision itself. If any provision is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise contrary to law, such provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions shall remain in full force and effect.
10.10.Survival. The following sections will survive any expiration or termination of this Agreement: 2.1, 2.2, 2.3, 2.4, 3.1, 5, 6, 7, 8, 9.4 and 10.
10.11.Independent Contractors; No Third Party Beneficiaries. The parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency, partnership, or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
10.12.Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances ("Force Majeure").
10.13.Successors; Counterparts. This Agreement shall be binding on and inure to the benefit of each of the parties and their respective successors and assigns, may be executed in counterparts, including facsimile counterparts, each of which will be deemed an original and all of which when taken together will constitute one and the same instrument, and shall be construed as if both parties jointly wrote it.
V. 022607
