Avancir Software Group, LLC Terms and Conditions

Last modified: 21 Mar 2024

THESE TERMS AND CONDITIONS ARE INCORPORATED INTO THE SOW BETWEEN AVANCIR AND CLIENT.  CAPITALIZED TERMS USED BUT NOT DEFINED IN THESE TERMS AND CONDITIONS SHALL HAVE THE MEANING ASCRIBED IN THE SOW.  BY PURCHASING THE SOLUTION, YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS AND CONDITIONS.

 

THE SOW REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

 

The SOW is a binding agreement between Avancir and Client.  Client acknowledges that certain affiliates of Avancir (“Avancir Affiliates” which term shall include, without limitation, Atlas RFID Solutions Store, LLC, a Delaware limited liability company) may perform services (including, without limitation, sale of the Solution through atlasRFIDstore.com, logistical services, shipping, back office services, accounting, billing, and invoicing) on behalf of Avancir in connection with this SOW and Client’s use of the Solution.  Notwithstanding anything to the contrary: (i) Avancir Affiliates are not a party to this SOW, (ii) Avancir Affiliates are not third-party beneficiaries of this SOW, and (iii) Client hereby agrees to indemnify, defend, and hold Avancir Affiliates harmless from and against any Losses (defined below) arising out of or related to Actions (defined below) asserted or threatened by, under, or through Client or Client’s affiliates (including, without limitation, entities under common control with Client, Client’s direct or indirect parent entities, and Client’s direct or indirect subsidiaries (collectively, “Client Affiliates”)) against Avancir Affiliates.  To the fullest extent permitted by law, Client covenants that it will not pursue or cause or permit any Client Affiliate to pursue the prosecution, in any state, federal or foreign court, or before any local, state, federal, or foreign administrative agency or other tribunal, arbitrator, or court of any kind, any charge, claim, judgement, settlement, or action of any kind, nature or character whatsoever (including, without limitation, claims arising under contract, tort (including negligence), strict liability, or otherwise) (collectively, “Actions”) which Client or Client Affiliates now have, have ever had, or may in the future have against Avancir Affiliates.  Without limiting the generality of the foregoing, nothing in this SOW shall limit, Client hereby accepts and agrees to abide by, and this SOW hereby incorporates the Terms of Service applicable to use of atlasRFIDstore.com.

 

This SOW governs: (i) Client’s license and use of the Avancir software (“Software”) (ii) Client’s purchase of Hardware (defined below), and (iii) Avancir’s provision of certain professional services related to the Solution (the “Services”).  The purchased Hardware, licensed Software, and Services are referred to herein, collectively, as the “Solution”.

 

AVANCIR PROVIDES THE SOLUTION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS SOW.  CLIENT REPRESENTS AND WARRANTS THAT THE PERSON EXECUTING THE SOW ON BEHALF OF CLIENT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS SOW ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THE TERMS OF THIS SOW, AVANCIR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO CLIENT AND CLIENT MUST NOT DOWNLOAD, INSTALL, OR USE THE SOLUTION.

  1. Definitions. For purposes of this SOW, the following terms have the following meanings:

“Authorized Users” means Client’s employees, agents, and contractors, but shall not include any customers of Client.

“Documentation”  means Avancir’s user manuals, handbooks, and installation guides relating to the Software provided by Avancir to Client in hard copy form.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Fees” means the fees, including all taxes thereon, paid or required to be paid by Client for the license granted under this SOW, including the SOW Amount.

“Order Form” means the SOW cover page provided to Client upon purchase of the Solution into which these Terms and Conditions are incorporated and which, together with these Terms and Conditions, comprise the SOW.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Third Party” means any Person other than Client or Avancir.

                    “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Avancir develops after EFfective Date

  1. License Grant and Scope. Subject to and conditioned upon Client’s compliance with all terms and conditions set forth in this SOW, Avancir hereby grants Client a non-exclusive, non-sublicensable, non-transferable, license, during the Term and solely by and through its Authorized Users, to use the Software, but solely for the purposes described in the Documentation.  Client shall not copy or reproduce the Software or the Documentation, and if Client breaches this obligation, without limiting Avancir’s other remedies under law or at equity, all copies of the Software and/or Documentation made by the Client: (i) will be the exclusive property of Avancir; (ii) will be subject to the terms and conditions of this SOW; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
  2. Use of Client.  Client shall use and run the Software as properly installed in accordance with this SOW and the Documentation, solely as set forth in the Documentation and solely for Client’s internal business purposes.
  3. Use Restrictions. Client shall not, and shall require its Authorized Users not to, directly or indirectly:
    1. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
    2. provide any other Person, including any subcontractor, independent contractor, Client Affiliate, customer, or service provider of Client, with access to or use of the Software or Documentation;
    3. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
    4. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
    5. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
    6. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights or notices provided on or with the Software or Documentation, including any copy thereof;
    7. copy the Software or Documentation, in whole or in part;
    8. 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;
    9. use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems,
    10. use the Software or Documentation in violation of any law, regulation, or rule; or
    11. 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 Avancir’s commercial disadvantage.
  4. Responsibility for Use of Software; Hardware.
    1. Use of Software.  Client is responsible and liable for all uses of the Software and Documentation through access thereto provided by Client, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Client is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Client or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this SOW.
    2. Software Data. If and to the extent use of the Solution results in, generates, captures, or otherwise stores or transmits any materials, information or data of any kind (“Software Data”) all such Software Data will be the sole and exclusive property of Client.  Client shall collect, maintain, and safeguard all Software Data in accord with all applicable laws and regulations.  Client represents and warrants that: (i) it has the right, power, and authority to use the Software Data without the consent of any Third Party, and such use will not violate the rights (including but not limited to Intellectual Property Rights) of any Third Party and (ii) the Software Data will be free from any and all viruses, Trojan horse, self-replicating or other computer instructions that may involuntarily: (1) alter, destroy, inhibit or discontinue effective functioning of the Software and/or the Solution, (2) erase, destroy, corrupt or modify any data, programs, materials or information, or (3) store any data, programs, materials or information on any computer or server.
    3. Expense Reimbursement.  Client acknowledges that the SOW Amount does not include, and Client shall be solely responsible for the cost of reasonable out of pocket expenses incurred by Avancir and its employees and contractors in connection with travel to Client’s offices or other facilities (“Reimbursable Expenses”).  Avancir will seek written pre-approval from Client for all Reimbursable Expenses to the extent Avancir deems such expenses are required in connection with performing the Services.  Client shall pay, within thirty (30) days of invoice from Avancir, the cost of all Reimbursable Expenses that were pre-approved by Client in writing.  If a line item for travel expenses is included in the SOW Amount or otherwise specified in the SOW, Client is hereby deemed to have approved Reimbursable Expenses up to the amount of such line item.
    4. Hardware.  The term “Hardware” as used in this SOW means any goods (including, without limitation RFID tags, readers, antennas, and cables, and any electronic equipment related thereto (collectively “RFID Equipment”)) used in connection with the Solution.  All Hardware will be purchased from Avancir.  Client acknowledges that Avancir is not able to provide any services, support, or warranty on any hardware that is not purchased from Avancir.  Client shall install and maintain all Hardware in accordance with the system operations manuals or such other specifications as may be provided by Avancir or the Hardware’s manufacturer (even if not provided by Avancir). Client warrants that it will not use any Hardware in contravention of any law or regulation. 

CLIENT FURTHER ACKNOWLEDGES THAT THE SOLUTION MAY NOT FUNCTION IF THE HARDWARE IS NOT PROPERLY INSTALLED OR CONFIGURED.  RFID EQUIPMENT’S PERFORMANCE VARIES IN THE ENVIRONMENT IN WHICH IT IS USED (INCLUDING, WITHOUT LIMITATION THE MATERIALS ON WHICH RFID TAGS ARE APPLIED, READ RANGES, AND READ ORIENTATIONS).  CLIENT SHALL BE SOLELY RESPONSIBLE FOR INSTALLING AND CONFIGURING RFID EQUIPMENT AND FOR PLACEMENT, APPLICATION, AND THE ENVIRONMENT IN WHICH RFID TAGS WILL BE USED (COLLECTIVELY, “HARDWARE INSTALLATION”) UNLESS AVANCIR EXPRESSLY ASSUMES SUCH RESPONSIBILITY IN A WRITING SIGNED BY AVANCIR IN CONNECTION WITH PERFORMING THE SERVICES.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, AVANCIR SHALL HAVE NO LIABILITY OF ANY KIND, AND CLIENT COVENANTS NOT TO BRING AGAINST AVANCIR, ANY ACTION ARISING OUT OF OR RELATING TO HARDWARE INSTALLATION.

  1. Compliance Measures.
    1. The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Client shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
    2. During the Term, Avancir may, in Avancir’s sole discretion, audit Client’s use of the Software to ensure Client’s compliance with this SOW. Client shall cooperate with Avancir’s personnel conducting such audits and provide all reasonable access requested by Avancir to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information.
    3. If Avancir determines that the Client’s use of the Software exceeds or exceeded the use permitted by this SOW then Client shall immediately cease and discontinue all use of the Solution (without limiting Avancir’s right to pursue additional remedies Avancir may have at law or in equity, whether under this SOW or otherwise).
  2. Maintenance and Support.  Client acknowledges that Avancir shall have no obligation to provide support services for the Solution other than directing Client to the Documentation.  Avancir shall have no obligation to provide Updates to the Software.  Client hereby covenants on behalf of itself and all Client Affiliates not to bring any Action alleging Avancir failed to support the Solution or otherwise provide any services related to the Solution.  
  3. Intellectual Property Rights. Client acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Client. Client does not acquire any ownership interest in the Software or Documentation under this SOW, 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 SOW. Avancir  reserves and shall retain its 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 Client in this SOW. Client shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Client shall promptly notify Avancir if Client becomes aware of any infringement of Avancir’s Intellectual Property Rights in the Software and fully cooperate with Avancir in any legal action taken by Avancir to enforce its Intellectual Property Rights.
  4. Payment. All sales of the Solution are final. All Fees are payable in the manner set forth in the Order Form and are non-refundable.
  5. Term and Termination.
    1. This SOW and the license granted hereunder shall remain in effect for the Term.  If the Order Form indicates that Client has purchased the Solution for a limited trial period, the Term of this SOW shall expire at the end of such trial period.
    2. Client may terminate this SOW by ceasing to use and destroying all copies of the Software and Documentation and by providing Avancir with written notice of such termination.  The entire SOW Amount shall be due and payable to Avancir in the event of such termination.
    3. Avancir may terminate this SOW, effective upon written notice to Client, if Client, breaches this SOW and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15) days after Avancir provides written notice thereof. The entire SOW Amount shall be due and payable to Avancir in the event of such termination.
    4. Avancir may terminate this SOW, effective immediately, if Client 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. The entire SOW Amount shall be due and payable to Avancir in the event of such termination.
    5. Upon expiration or earlier termination of this SOW, the license granted hereunder shall also terminate, and Client shall cease using and destroy all copies of the Software and Documentation.
  6. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
    1. Avancir warrants that, during the Term (the “Warranty Period”): the Software will substantially contain the functionality described in the Documentation, and when properly installed according to the specifications set forth in, and operated in accordance with the Documentation, the Software will substantially perform in accordance therewith.  Client acknowledges that Avancir does not manufacture any Hardware.  Avancir will pass through to Client any warranties given by the applicable Hardware’s manufacturer to the extent permitted by the terms and conditions of Avancir’s agreement with the applicable manufacturer.  Avancir will make such pass-through warranty available to Client upon Client’s written request.  Avancir shall not be liable for any Loss in the event any Hardware manufacturer fails to honor its warranty with respect to the Hardware.  Client further acknowledges and agrees all or some portion of the Hardware may not be covered by any manufacturer warranty and that RFID tags, specifically, are not covered by any manufacturer warranty.  As used in this SOW, “Losses” means all losses, damages, deficiencies, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, reasonable expert fees, and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
    2.  The warranty set forth in Section 11(a) will not apply and will become null and void if Client breaches any provision of this SOW, or if Client, any Authorized User, or any other Person provided access to the Software by Client or any Authorized User, whether or not in violation of this SOW:
      1. installs or uses the Software on or in connection with any hardware or software not specified in the Documentation;
      2. modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
      3. misuses the Software, including any use of the Software other than as specified in the Documentation.
    3. If, during the Term, any Software covered by the warranty set forth in Section 11(a) fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 11(b) or otherwise by operation of this SOW (e.g., a performance failure related to Hardware Installation), Avancir will, subject to Client’s promptly notifying Avancir in writing of such failure, at its sole option, either:
      1. repair or replace the Solution, provided that Client provides Avancir with all information Avancir requests to resolve the reported failure, including sufficient information to enable Avancir to recreate such failure; or
      2. refund the Fees paid for the Solution during the one (1) year prior to the effective termination, subject to Client’s ceasing all use of and, if requested by Avancir, returning to Avancir all copies of the Software and returning all Hardware to Avancir.

The remedies set forth in this Section 11(c) are Client’s sole remedies and Avancir’s sole liability for any Action alleging the Solution (or any component thereof) fails to perform in accord with the Documentation or is otherwise defective, non-functioning, or non-operational in any way. 

    1. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(A) THE SOLUTION AND DOCUMENTATION ARE PROVIDED TO CLIENT “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AVANCIR, ON ITS OWN BEHALF AND ON BEHALF OF AVANCIR AFFILIATES AND ITS AND THEIR RESPECTIVE SUPPLIERS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOLUTION, 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, AVANCIR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOLUTION WILL MEET THE CLIENT’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.
  2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
    1. IN NO EVENT WILL AVANCIR OR AVANCIR AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SUPPLIERS OR SERVICE PROVIDERS, BE LIABLE TO CLIENT, CLIENT AFFILIATES, OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOLUTION; 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 SOW, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT AVANCIR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT WILL AVANCIR’S OR AVANCIR AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE SUPPLIERS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS SOW OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE LESSER OF (I) THE SOW AMOUNT AND (II) THE FEES PAID DURING THE ONE (1) YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO AVANCIR’S LIABILITY.
    3. THE LIMITATIONS SET FORTH IN SECTION 12(A) AND SECTION 12(B) SHALL APPLY EVEN IF THE CLIENT’S REMEDIES UNDER THIS SOW FAIL OF THEIR ESSENTIAL PURPOSE.  CLIENT ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE A MATERIAL PART OF AVANCIR AND CLIENT’S AGREEMENT AND THAT THE PRICE FOR THE SOLUTION WOULD BE MATERIALLY HIGHER IF SUCH LIMITATIONS WERE NOT INCLUDED IN THIS SOW.
    4. Avancir shall have no liability of any kind for any delay in delivery of the Solution or any component thereof to Client.
  3. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client 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 available outside the US.
  4. Arbitration.  CLIENT AGREES AND HEREBY DOES GIVE UP ANY RIGHTS TO LITIGATE ACTIONS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY ACTION.  OTHER RIGHTS THAT CLIENT WOULD HAVE IF CLIENT WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
    1. ANY ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN OR AMONG AVANCIR AND/OR AVANCIR AFFILIATES ON THE ONE HAND AND CLIENT AND/OR CLIENT AFFILIATES ON THE OTHER HAND ARISING FROM OR RELATING IN ANY WAY TO THE SOLUTION AND/OR THIS SOW (a “DISPUTE”) SHALL BE SUBMITTED TO MANDATORY, FINAL AND BINDING ARBITRATION AS DESCRIBED BELOW.
    2. The arbitration will be submitted to and administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules then in effect. 
    3. There shall be one arbitrator, who will be agreed to by the Parties within 30 days of receipt by respondent of a copy of the demand for arbitration. If the Parties cannot agree on an arbitrator within the time period specified then, at the request of either Party, such arbitrator shall be appointed by the AAA. The language of the arbitration shall be English. The place of the arbitration shall be Birmingham, Alabama, U.S.A. The arbitrator shall be an attorney licensed in Alabama with at least ten (10) years of experience.
    4. The arbitration shall be the sole and exclusive forum for resolution of any Dispute, and the award shall be in writing, state the reasons for the award and be final and binding. Judgment thereon may be entered in any court of competent jurisdiction.
    5. By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the AAA shall have full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the AAA’s orders to that effect. In any such judicial action: (i) each of the Parties irrevocably and unconditionally consents to the exclusive jurisdiction and venue of the federal or state courts located in Birmingham, Alabama, U.S.A. (the “Alabama Courts”) for the purpose of any pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings, and to the non-exclusive jurisdiction of such courts for the enforcement of any judgment on any award; (ii) each of the Parties irrevocably waives, to the fullest extent they may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any Alabama Courts; and (iii) each of the Parties irrevocably consents to service of process by first-class certified mail, return receipt requested, postage prepaid at the address specified in the Order Form.
    6. The prevailing Party, as determined by the AAA, shall be entitled to recover its reasonable costs and attorneys’ fees.
    7. Except as may be required by law, the Parties shall preserve the confidentiality of all aspects of the arbitration, and shall not disclose to a Third Party (other than disclosure to affiliate(s) of a Party on a need-to-know basis and such affiliate(s) is/are informed of the confidential nature of such information and is/are instructed to keep such information confidential), all information made known and documents produced in the arbitration not otherwise in the public domain, all evidence and materials created for the purpose of the arbitration, and all awards arising from the arbitration, except, and to the extent that disclosure is required by law or regulation, is required to protect or pursue a legal right or is required to enforce or challenge an award in legal proceedings before a court or other competent judicial authority.
    8. Client agrees to an arbitration on an individual basis. In any dispute, neither Client nor Avancir will be entitled to join or consolidate claims by or against other customers in court or in arbitration or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity.
  5. Avancir’s Mitigation.  In the event any Action alleges use of the Solution in accordance with the terms of this SOW infringes United States patent or United States copyright or misappropriates trade secrets pursuant to laws of a state in the United States or any other intellectual property right under any jurisdiction or governmental body has occurred or in Avancir’s reasonable opinion is likely to occur, Avancir may (but shall not be required to), to (i) procure for Client the right to continue using the Solution, (ii) replace or modify the Solution so that it becomes non infringing but provide Client substantially similar or better capabilities, or (iii) if Avancir reasonably determines that both of the foregoing are technically impracticable or commercially infeasible, immediately terminate both Parties’ respective rights and obligations under this SOW with respect to the infringing component of the Solution, in which case Client shall return to Avancir all copies of such component of the Solution in its possession or control, and Avancir shall refund to Client the applicable amount paid by Client for the then-current Term prorated for the portion of the Term through the date of such termination.
  6. Miscellaneous.
    1. All matters arising out of or relating to this SOW shall be governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule.
    2. In no event shall Avancir be liable to Client, or be deemed to have breached this SOW, for any failure or delay in performing its obligations under this SOW if and to the extent such failure or delay is caused by any circumstances beyond Avancir’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this SOW; (vi) national or regional emergency, (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances, (viii) shortage of adequate power or transportation facilities, or (ix) shortage or delays in Avancir’s ability to procure Hardware.
    3. All notices, requests, consents, claims, demands, waivers, and other communications hereunder 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 (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 day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth on the Order Form (or to such other address as may be designated by a Party from time to time in accordance with this Section 16(c)).
    4. This SOW, together with the Order Form, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Client and Avancir 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.
    5. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this SOW, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Avancir’s prior written consent, which consent Avancir may give or withhold in its sole discretion. No delegation or other transfer will relieve Client of any of its obligations or performance under this SOW. Any purported assignment, delegation, or transfer in violation of this Section 16(e) is void. Avancir 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 SOW without Client’s consent. This SOW is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    6. This SOW 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 SOW.
    7. This SOW 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 SOW, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this SOW 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.
    8. If any term or provision of this SOW is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this SOW or invalidate or render unenforceable such term or provision in any other jurisdiction.
    9. All rights, obligations and provisions under this SOW that, by their terms or nature, are intended to survive termination or expiration of this SOW shall survive any expiration or termination of this SOW until the expiration of the applicable statute of limitations or, if shorter, the express survival or warranty period set forth in this SOW.
  7. Limitations Period.  Any Action arising out of or related to breach of this SOW by Avancir and/or Avancir Affiliates must be filed by Client in a court of competent jurisdiction within one (1) year of the later of (i) the Availability Date and (ii) six (6) months after expiration of the Term (the “Limitations Period”).  Client and Client Affiliates hereby covenant not to bring any such Action after the Limitations Period.