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<br />or entity on the U.S. Commerce Department's Table of Denial Orders; or (iv) any person or entity where such export,
<br />reexport, or provision violates any u.s. export control law or regulation. Licensee shall not export the Software, Data, and/or
<br />Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and
<br />regulations. Licensee represents and warrants that it is not a national, resident, located in or under the control of, or acting on
<br />behalf of any person, entity, or country subject to such U.S. export controls.
<br />
<br />10.3 Commercial Terms and Conditions-This Agreement contains ESRI's commercial terms and conditions. Licensee's
<br />rights in the Software, Data, and Documentation are strictly limited to the uses granted by this Agreement pursuant to
<br />FAR l2.2l1, FAR l2.2l2, and DFARS 227.7202. In the event any court, arbitrator, or board holds that the U.S. Government
<br />has greater rights to any portion of the Software, Data, or Documentation, such rights shall extend only to the portiones)
<br />affected and use, duplication, or disclosure by the U.S. Government is subject to restrictions as provided in FAR 52.227-l9
<br />(June 1987), FAR 52.227-l4 (ALT III) (June 1987), DFARS 252.227-7015 (NOV 1995), or NFS l852.227-86
<br />(December 1987), as applicable. No other license terms or conditions shall apply unless expressly agreed in writing by ESRI
<br />and Licensee. ESRI Software is unpublished and all rights reserved under copyright laws of the United States.
<br />
<br />10.4 Taxes and Fees, Shipping Charges-License fees quoted to Licensee are exclusive of any and all taxes or fees
<br />including, but not limited to, sales tax, use tax, value-added tax (VAT), customs, duties, or tariffs, and shipping and handling
<br />charges.
<br />
<br />10.5 No Implied Waivers-The failure of either party to enforce any provision of this Agreement shall not be deemed a
<br />waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
<br />
<br />1 0.6 Severability-The parties mutually agree that if any provision of this Agreement is held to be unenforceable for any
<br />reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable.
<br />
<br />10.7 Counterparts-This Agreement may be executed in counterparts, all of which, taken together, shall be deemed one (l)
<br />original document.
<br />
<br />10.8 Successor and Assigns-Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations
<br />under this Agreement without ESRI's prior written consent, and any attempt to do so without consent shall be void. This
<br />Agreement shall be binding upon the respective successors and assigns of the parties to this Agreement. Notwithstanding, a
<br />U.S. Government contractor may assign its rights under this Agreement to a U.S, Government Agency upon written notice to
<br />ESRI if the U.S. Government Agency assents to the terms of this Agreement.
<br />
<br />10.9 Survival of Terms-The provisions of Articles 6, 7, 8, 9, and lO of this Agreement shall survive the expiration or
<br />termination of this Agreement for any reason.
<br />
<br />10.10 Equitable Relief-Licensee agrees that any breach of this Agreement by Licensee may cause irreparable damage and
<br />that, in the event of such breach, in addition to any and all remedies at law, ESRI shall have the right to seek an injunction,
<br />specific performance, or other equitable relief in any court of competent jurisdiction to prevent violation of these terms and
<br />without the requirement of posting a bond or undertaking or proving injury as a condition for relief.
<br />
<br />10.11 Governing Law, Arbitration
<br />
<br />A. Licensees in the United States of America, Its Possessions, and Territories-This Agreement shall be governed by and
<br />construed in accordance with the laws of the State of California without reference to conflict of laws principles. Except
<br />as provided in Article 10.10 above, any controversy or claim arising out of or relating to this Agreement, or the breach
<br />thereof, which cannot be settled through negotiation, shall be fmally settled by arbitration administered by the American
<br />Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator
<br />may be entered in any court having jurisdiction thereof. If Licensee is a U.S. Government agency, this Agreement is
<br />subject to the Contract Disputes Act of 1978, as amended (41 U.S.e. 60l-613), in lieu of the Arbitration provisions of
<br />this clause.
<br />B. All Other Licensees-All disputes arising in connection with the present Agreement that cannot be settled through
<br />negotiation shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1)
<br />arbitrator appointed in accordance with said Rules. The language of the arbitration shall be in English. The place of the
<br />arbitration shall be at a mutually agreed location. This Agreement shall not be governed by the United Nations
<br />Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Either
<br />party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the
<br />dispute.
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