|
9.3 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 />9.4 No Implied Waivers. The failure of either party to enforce any provision of this License Agreement shall not be deemed
<br />a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
<br />9.5 Severability. The parties agree that if any provision of this License 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 />9.6 Successor and Assigns. Licensee shall not assign, sublicense, or transfer Licensee's rights or delegate its obligations
<br />under this License Agreement without ESRI's prior written consent, and any attempt to do so without consent shall be void.
<br />This License Agreement shall be binding upon the respective successors and assigns of the parties to this License Agreement.
<br />Notwithstanding, agovernment contractor that has acquired Software, Data, Web Services, or Documentation under contract
<br />to the government may assign this License Agreement to its government customer upon written notice to ESRI, provided the
<br />government customer assents to the terms of this License Agreement.
<br />9.7 Survival of Terms. The provisions of Articles 2, 5, 6, 7, 8, and 9 of this License Agreement shall survive the expiration
<br />or termination of this License Agreement.
<br />9.8 Equitable Relief. Licensee agrees that any breach of this License Agreement by Licensee may cause irreparable damage
<br />and that, in the event of such breach, in addition to any and all remedies at law, ESRI shall have the right to seek an
<br />injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of
<br />posting a bond or undertaking or proving injury as a condition for relief.
<br />9.9 Government Licensee. The Software, Data, Web Services, and Documentation are commercial computer software,
<br />commercial data, commercial computer software documentation, and commercial Web Services. This License Agreement
<br />contains ESRI's commercial license terms and conditions for such items. The commercial license rights in this License
<br />Agreement strictly govern Licensee's use, reproduction, or disclosure of the Software, Data, Web Services, and
<br />Documentation. No other license terms or conditions shall apply unless expressly agreed in writing by ESRI and Licensee.
<br />ESRI Software source code is unpublished and all rights to the Software, Data, Web Services, and Documentation are
<br />reserved under copyright laws of the United States. In the event any court, arbitrator, or board holds that Licensee has greater
<br />rights to any portion of the Software, Data, Web Services, or Documentation under applicable public procurement law, such
<br />rights shall extend only to the portion affected, and use, duplication, or disclosure by Licensee is subject to restrictions as
<br />provided in FAR 52.227-19(b) (DEC 2007), FAR 52.227-14 (ALT III) (DEC 2007), DFARS 252.227-7015 (NOV 1995), or
<br />NFS 1852.227-86 (DEC 1987), or the local, state, or foreign equivalent, as applicable.
<br />9.10 Governing Law, Arbitration
<br />a. Licensees in the United States ojAmerica, Its Territories, and Outlying Areas. This License Agreement shall be
<br />governed by and construed in accordance with the laws of the State of California without reference to conflict of laws
<br />principles, except that U.S. federal law shall govern in matters of intellectual property. Except as provided in Section 9.8,
<br />any dispute arising out of or relating to this License Agreement or the breach thereof, which cannot be settled through
<br />negotiation, shall be finally settled by arbitration administered by the American Arbitration Association under its
<br />Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator maybe entered in a court of competent
<br />jurisdiction. If Licensee is a U.S. government agency, this License Agreement is subject to the Contract Disputes Act of
<br />1978, as amended (41 U.S.C. 60113), in lieu of the arbitration provisions of this clause. This License Agreement shall
<br />not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of
<br />which is expressly excluded.
<br />b. All Other Licensees. Except as provided in Section 9.8, any dispute arising out of or relating to this License Agreement
<br />or the breach thereof, which cannot be settled through negotiation, shall be finally settled under the Rules of Arbitration
<br />of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with said rules. The language
<br />of the arbitration shall be in English. The place of the arbitration shall be at an agreed-upon location. This License
<br />Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the
<br />application of which is expressly excluded. Either party shall, at the request of the other, make available documents or
<br />witnesses relevant to the major aspects of the dispute.
<br />9.11 Maintenance. Maintenance for qualifying Software or Data consists of updates and other benefits such as access to
<br />technical support, specified in ESRI's most current applicable software maintenance policy.
<br />Page 5 of 5 E200 6/08
<br />
|