End User License Agreement (for Microsoft Azure)

This End User License Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Software (defined below) on and through the Microsoft Azure Marketplace (“MAM”) service offerings (the “MAM Service Offerings”), and is between KADENA LLC, a Connecticut limited liability company with offices located at 68 3rd Street, Brooklyn, New York. 11231 (“Licensor”) and you or the entity you represent (“Licensee”). This Agreement takes effect when you click an “Accept Terms” button or check box presented with these terms or, if earlier, when you use the Software (the “Effective Date”). LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON OR INDICATING BY OTHER MEANS PROVIDED IN ACCORDANCE WITH MAM MARKETPLACE POLICIES FOR INDICATING ACCEPTANCE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, ACCESS, OR USE THE SOFTWARE OR DOCUMENTATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE. Licensor offers access to and use of the Software through the MAM Service Offerings subject to the terms and conditions set forth below and Licensee or the entity Licensee represents agree to all such terms and conditions when purchasing access to and use of the Software through the MAM Service Offerings. This Agreement takes effect when you click an “Accept Terms” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date”). The Parties agree as follows: 1. Definitions. (a) “Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or under common control with an entity and includes such entity’s directors, officers, managers, employees, advisors, agents and representatives, or those of any Affiliate, in each case where control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity whether through ownership of voting securities, by contract or otherwise; (b) “Authorized User” means Licensee’s employees, consultants, contractors, and agents (i) who are authorized by Licensee to access and use the Services under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder. (c) “Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software provided by or through MAM Marketplace relating to the Software. (d) “Licensee Services” means the online services or websites operated using MAM Service Offerings in connection with which you license the Software. (e) “MAM Marketplace” means MAM’s marketplace platform through which MAM permits Customer to sign up to access and use the Software and to pay for accessing and using the Software. (f) “Software” means the hosted version of Kadena’s Scalable Permissioned Blockchain (ScalableBFT) available through MAM Marketplace that is packaged as “Virtual Machines” (VM) for installation solely on the MAM Service Offering known as Azure Virtual Machines (or its successor), including any Updates provided to Licensee pursuant to this Agreement. (g) “Term” has the meaning set forth in Section 12. (h) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software. 2. License. (a) License Grant. Subject to terms and conditions of this Agreement, Licensor hereby grants Licensee a limited, revocable, non-exclusive, non-sublicenseable, non-transferable right to access and use the Software during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Licensee agrees that the Software may be installed solely on a server made available through the MAM Service Offering known as Azure Virtual Machines (or its successor). (b) Documentation License. Subject to the terms and conditions contained in this Agreement, Licensee hereby grants to Licensor a limited, revocable, non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the Term solely for Licensee’s internal business purposes in connection with its use of the Services. (c) Compliance with MAM Policies. Licensee agrees that the license granted to Licensee under this Agreement is subject to any rules, terms of use or policies applied from time to time by MAM in relation to payment for, access to, and use of the Software (including Licensee’s Microsoft Online Subscription Agreement, MAM’s Online Service Terms or similar documents). Licensor may change the terms and conditions of this Agreement at any time in accordance with rules and policies applied from time to time by MAM. Licensee’s continued use of the Software will be subject to any such revised terms. (d) Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software. 3. Licensee Responsibilities. (a) General. Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions. (b) Use of MAM. Licensee acknowledges that: (i) Licensee will need an instance from MAM upon which the Software will be installed (and in respect of which Licensee will comply with MAM terms and conditions for the same); (ii) Licensee is responsible for ensuring that it has an active account with MAM and that Licensee’s are of adequate and appropriate size, processing capacity, and configuration for use of the Software; (iii) Licensee’s use of the Software is dependent on connectivity to MAM and the instance upon which the Software is installed; and (iv) Licensor provides no guarantee that any Authorized User will be able to access the Software at any given time and Licensor shall have no liability if it is not accessible or operative at any given time. 4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly: (a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (f) except as expressly set forth in Section 2(a), copy the Software or Documentation, in whole or in part; (g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; (h) use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including: (i) power generation systems; (ii) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; (iii) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; (iv) military or aerospace applications, weapons systems, or environments; (v) nuclear, biological or chemical facilities; (i) use the Software or Documentation in violation of any law, regulation, or rule, including, without limitation, all laws, regulations, rules or executive orders administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury; (j) use the Software or Documentation in connection with any pornographic website or business; or (k) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage. 5. Support. This Agreement does not entitle Licensee to any support for the Software. 6. Fees and Payment. (a) Licensee understands and agrees that Licensee’s use of the Software is metered by MAM and is limited in accordance with the metered amounts of usage Licensee purchases from the MAM Marketplace. (b) Licensee agrees to pay the fees specified on the listing on MAM Marketplace for the Software at the time of entering into this Agreement, or, if later, as being applicable for the relevant Software for which you subscribe, as updated from time to time. (c) Licensee acknowledges and agrees to pay all fees charged by MAM relating to the instance upon which the Software is installed (including any infrastructure charges). 7. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 8. Intellectual Property Ownership. (a) Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. (b) Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback. 9. Warranty Disclaimer. (a) THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. (b) IN ADDITION TO THE DISCLAIMER SET FORTH IN SECTION 9(a), LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND DOCUMENTATION ARE DEVELOPMENTAL IN NATURE, MAY CONTAIN ERRORS OR OMISSIONS, AND MAY PRODUCED UNEXPECTED RESULTS. LICENSEE AGREES THAT ANY USE OF THE SOFTWARE IS ENTIRELY AT LICENESEE’S OWN RISK AND THAT LICENSEE IS SOLELY RESPONSIBLE FOR BACKING UP ITS DATA AND TAKING APPROPRIATE MEASURES TO PROTECT ITS HARDWARE AND SOFTWARE. 10. Indemnification by Licensee. Licensee shall indemnify, defend and hold harmless Licensor, its Affiliates and its and their respective directors, officers, employees, subcontractors, consultants, agents, successors and permitted assigns from and against any and all losses, damages, liabilities, expenses and costs (including attorneys’ fees) resulting from any suit, proceeding, claim or other action by a third party (each a “Third-Party Claim”) based on Licensee’s, or any Authorized User’s: (a) relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant or obligation under this Agreement; (b) relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Authorized Users with respect to the Software or Documentation or otherwise in connection with this Agreement; (c) relating to use of the Software or Documentation by or on behalf of Licensee or any of its Authorized Users that is in a manner not authorized or contemplated by this Agreement or contrary to the Licensor’s instructions; (d) use of the Software in combination with data, software, hardware, equipment or technology not provided by Licensor or authorized by Licensor in writing; (e) modifications to the Software not made by Licensor; (f) use of any version other than the most current version of the Software or Documentation available to Licensee, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM. (c) THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. 12. Term and Termination. (a) Term. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”). (b) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation. (c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof. (d) Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. (e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Licensee to any refund. 13. Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US. 14. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. 15. Miscellaneous. (a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. (b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control. (c) Notice. (i) Licensor may provide notice to Licensee under this Agreement by sending an email to the email provided by the Licensee when they register for this service. Notices Licensor provides by posting on the Licensor site will be effective upon posting, notices Licensor provides by message to Licensee’s MAM account will be effective when Licensor sends the message, and notices Licensor provides by email will be effective when Licensor sends the email. Licensee will be deemed to have received any email sent to an email address associated with Licensee’s account when the email is sent, whether or not Licensee actually receives the email. (ii) All notices from Licensee to Licensor shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications to Licensor must be sent to Kadena LLC, 68 3rd St, Brooklyn, NY 11231, support@kadena.io. (d) This Agreement, together with all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. (e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. (f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. (g) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. (h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. (i) For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. (j) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.