General Terms and Conditions

These General Terms and Conditions, when incorporated by the applicable Ordering Document (defined below), will constitute a contractually binding agreement (collectively, the "Agreement") between the eruditeMETA entity identified in Section 15 below ("eruditeMETA"), and the counterparty identified as the "Customer" in the Ordering Document ("Customer") (eruditeMETA and Customer each, a "Party," and collectively, the "Parties").

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Definitions:

1. "Aggregated Data" means any data or information related to Customer's use of the Platform that is used by or on behalf of eruditeMETA in an aggregate and de-identified form, including to compile statistical and performance information related to the provision and operation of the Platform.

2. "Authorized User" means any individual who accesses the Platform on Customer's behalf.

3. "Collector" means any on-premises Hardware Appliance or Virtual Appliance.

4. "Confidential Information" means any information disclosed by or on behalf of one Party ("Discloser") to the other Party ("Recipient") pursuant to this Agreement that is marked as "confidential," or in some other manner to indicate its confidential nature. Without limiting the foregoing, the eruditeMETA IP (defined in Section 1.5) is eruditeMETA’s Confidential Information. Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient's possession without a duty of confidentiality owed to the Discloser at the time of the Discloser's disclosure; (iii) is lawfully obtained by the Recipient from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser.

5. "Content" means any educational content that eruditeMETA makes available to Authorized Users through any portal or dashboard feature within the SaaS component.

6. "Customer Data" means the following data that the Platform automatically accesses or collects when monitoring, and communicating with, Customer's information technology systems to determine how those systems communicate within a network: user data, online identifiers and media access control addresses, usernames, device communication details, data transmission protocols used, communication headers, metadata representing connection and session set up exchanges, host name associated with a device and the network used by an information technology system. Notwithstanding the foregoing and for clarity, Customer Data excludes Aggregated Data.

7. "Documentation" means the user guide, release notes, and other materials that eruditeMETA delivers to Customer pertaining to the Platform but excluding the Content.

8. "Effective Date" means the effective date of the Order Document.

9. "Order Form" means a mutually agreed and executed order form expressly referencing and incorporating these General Terms and Conditions.

10. "Ordering Document" means either: (a) for direct sales from eruditeMETA to Customer, the Order Form; or (b) for indirect sales involving a reseller that has been authorized by eruditeMETA, the agreement between the reseller and Customer expressly referencing and incorporating these General Terms and Conditions.

11. "Platform" means the SaaS Component and the Collector.

12. "Platform Assets" means the Platform, Documentation, and Content.

13. "Professional Services" means the professional services described in the Ordering Document.

14. "SaaS Component" means the eruditeMETA proprietary cloud-based service identified as ordered under an Ordering Document.

15. "SLA/SLO" means the eruditeMETA Service Level Agreement/Service Level Objectives, as updated from time-to-time, available via eruditeMETA's Trust Portal, when applicable.

16. "Support Services" means the services to be provided by eruditeMETA as set out in the Support Services Description, as updated from time-to-time, available via eruditeMETA's Trust Portal, when applicable.

17. "Term" means the period beginning on the Effective Date and continuing through and including the Termination Date.

18. "Termination Date" means the termination date of the Ordering Document.

19. "Update" means any update, upgrade, release, or other modification of the Platform Assets that eruditeMETA may provide to Customer from time-to-time during the Term.

20. "Virtual Appliance" means the eruditeMETA proprietary software identified as ordered under an Ordering Document.

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1. Proprietary Rights

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1.1 Rights to Use. During the Term and subject to the terms and conditions of this Agreement, eruditeMETA hereby grants to Customer a non-exclusive, non-transferable (except under Section 17), irrevocable (subject to eruditeMETA's right to terminate the Agreement) and non-sublicensable license to: (a) access and use the SaaS Component, Documentation and Content; and (b) install and use the Collector; in the case of clauses (a) and (b), solely for Customer's internal business purposes. Without limiting the prior sentence, all use of the Platform must be in accordance with the Documentation and subject to any use limitations indicated in the applicable Ordering Document.

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1.2 Authorized Users. Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Platform; (c) ensuring the Authorized Users comply with the terms of this Agreement as if they were a party to it, and that none of the Customer's personnel, agents, or advisors who are not Authorized Users access or attempt to access the Platform; and (d) all activities that occur under its and its Authorized Users' usernames, passwords, or accounts. eruditeMETA is not responsible for any losses arising due to any breach of this Agreement by any Authorized User or any other personnel, agent, or advisor of Customer. Customer will notify eruditeMETA immediately of any unauthorized use of the Platform.

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1.3 Restrictions. Customer may not, directly or indirectly, and may not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how, or reconstruct or discover any hidden or non-public elements, of the Platform (except to the extent expressly permitted by applicable law notwithstanding this restriction); (b) translate, adapt, or modify the Platform Assets; (c) write or develop any program based upon the Platform Assets, or, to the fullest extent permissible by applicable law, otherwise use any portion of the Platform Assets; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Platform Assets or any rights thereto; (e) permit any portion of the Platform Assets to be used by any other persons other than Authorized Users; (f) transmit to or from the Platform any data, materials or other content that infringes, misappropriates or otherwise violates any third party intellectual property or other rights; (g) alter or remove any trademarks or proprietary notices contained in or on the Platform Assets; (h) circumvent or otherwise interfere with any authentication or security measures of the Platform or otherwise disrupt the integrity or performance thereof; or (i) use any portion of the Platform Assets in violation of or non-compliance with any applicable laws, rules or regulations (including regarding export controls). Customer acknowledges that eruditeMETA may, but is under no obligation to, monitor Customer's use of the SaaS Component. eruditeMETA may suspend Customer's or any Authorized User's access to the SaaS Component for any period during which Customer is, or eruditeMETA has a reasonable basis for alleging Customer or such Authorized User is, in noncompliance with any of the prohibited actions in this Section. Customer must promptly notify eruditeMETA in writing if it becomes aware of, or has reason to believe, that any of the prohibitions listed in this Section has been breached by Customer or any Authorized User.

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1.4 Updates. eruditeMETA will provide Customer with all Updates that eruditeMETA may, in its sole discretion, make generally available to its licensees at no additional charge. All Updates provided to Customer are deemed included within the license in Section 1.1.

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1.5 Ownership. Except for the rights granted to Customer in Section 1.1, as between the Parties, eruditeMETA solely owns and retains all rights, title and interest, including all intellectual property rights, in and to all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information incorporated into or constituting any portion of the Platform Assets (but excluding any Customer Data) and Developed IP (defined in Section 5) (“eruditeMETA IP”). Except for the rights granted to eruditeMETA in Section 3, as between the Parties, Customer solely owns and retains all rights, title, and interest in and to Customer Data and Feedback (defined in Section 3). Each Party retains all rights that are not expressly licensed to the other Party in this Agreement and does not grant the other Party any implied licenses in this Agreement under any theory.

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2. Obligations. Without limiting any other terms set forth in this Agreement:

 

2.1. eruditeMETA.

 

2.1.1. eruditeMETA will: (a) provide Customer with access to the Platform Assets, Support Services, and Professional Services; and (b) use commercially reasonable efforts to make the SaaS Component available as set forth in SLA/SLO.

 

2.1.2. eruditeMETA will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data as set forth in the security documents and reports, as updated from time-to-time, available via eruditeMETA’s Trust Portal, as applicable.

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2.2. Customer.

 

2.2.1. Customer may engage a service provider (“Service Provider”) to use and administer the Platform on its behalf in accordance with this Agreement. Under such circumstances, Customer must: (a) enter into a written agreement with the Service Provider requiring the Service Provider to comply with this Agreement and to cease all use of the Platform upon termination of its relationship with Customer; and (b) promptly provide eruditeMETA with a copy of such written agreement upon eruditeMETA's request.

 

2.2.2. In connection with eruditeMETA's provision of the Platform, Customer acknowledges that Authorized Users will be required to perform certain tasks and provide eruditeMETA with certain information to facilitate use of the Platform as set forth under Section 1.1 (“Customer Dependencies”). Customer understands that eruditeMETA’s provision of the Platform is dependent on Customer’s timely and effective satisfaction of the Customer Dependencies hereunder and timely decisions and approvals by Customer, on which eruditeMETA will be entitled to rely.

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3. Customer Data and Feedback.

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3.1. Customer Data. Customer hereby grants to eruditeMETA during the Term a non-exclusive, irrevocable (subject to Customer’s rights to terminate the Agreement), non-transferable (except under Section 17), royalty-free and worldwide license, with the right to grant and authorize sublicenses as set forth below, to process, transmit, store, use, disclose, and benefit from the Customer Data in connection with the performance of its obligations or the exercise of its rights under this Agreement. eruditeMETA may sublicense the license under this Section to any third party who acts for or in support of eruditeMETA, provided that eruditeMETA is responsible for any breach of this Agreement by any such sublicensee. To the extent eruditeMETA is acting as a data processor to Customer under the General Data Protection Regulation, the Agreement incorporates the terms and conditions set forth in the GDPR Data Processing Addendum.

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3.2. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, eruditeMETA may collect and compile Aggregated Data (including based on Customer Data input into and processing by the Platform). eruditeMETA solely owns and retains all rights, title, and interest in and to the Aggregated Data.

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3.3. Feedback. From time-to-time, Customer may make available to eruditeMETA, directly or indirectly, feedback, analysis, suggestions, or comments about the eruditeMETA IP (collectively, “Feedback”). Customer hereby grants to eruditeMETA a non-exclusive, perpetual, irrevocable, transferable, royalty-free, and worldwide right, with the right to grant and authorize sublicenses, to use and benefit from such Feedback to provide and improve the Platform and eruditeMETA’s business without any compensation or credit due to Customer.

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4. Professional Services. eruditeMETA will use commercially reasonable efforts to perform the Professional Services, if any, set forth in each Ordering Document. Nothing in this Agreement or any Ordering Document will limit or prevent eruditeMETA from developing similar work product or deliverables for any third party. Any and all technology in any form or medium, including software and other works of authorship, data, databases, and collections of data, inventions (whether or not patentable) or discoveries, trade secrets and confidential information, and any processes, know-how, or techniques, in each case, that is conceived, developed, or reduced to practice by or on behalf of eruditeMETA in connection with the Professional Services (collectively, “Developed IP”) is solely owned by eruditeMETA. Any Developed IP that eruditeMETA incorporates into the Platform or Documentation is deemed covered by the license to Customer in Section 1.1.

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5. Payment. All of eruditeMETA’s obligations under this Agreement are conditioned on Customer’s upfront payment in full of the applicable fees set forth in the Ordering Document. Unless otherwise specified in the Ordering Document: (a) Customer will pay all amounts due under this Agreement in U.S. Dollars currency; (b) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice; and (c) all fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder will accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies, and duties (collectively, “Taxes”), and all such Taxes are Customer’s sole responsibility. If applicable law requires Customer to withhold amounts on payments owed to eruditeMETA pursuant to this Agreement, Customer shall: (d) effect such withholding and remit such amounts to the appropriate taxing authorities; and (e) ensure that, after such deduction or withholding, eruditeMETA receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount eruditeMETA would have received and retained in the absence of such required deduction or withholding. Further, if applicable law requires eruditeMETA to collect any Taxes from Customer in connection with this Agreement, then eruditeMETA will issue an invoice for such amounts and Customer will remit those amounts to eruditeMETA in accordance with Section 5.

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6. Customer Account. The Platform may only be used by or for Customer through an account that is specific to Customer (the “Account”). Customer will ensure that the Authorized Users keep their Account login details secure at all times and will treat such Account login details with at least the same degree of care as Customer’s most sensitive confidential information. Unauthorized access or use of the Account or the Platform must be immediately reported to eruditeMETA.

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7. Third-Party Components. The Platform may use or include third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided under the terms of this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict Customer from obtaining Third-Party Components under the applicable third-party licenses or to limit Customer’s use of Third-Party Components under those third-party licenses. A list of all Third-Party Components in the current version of the Platform, as updated from time to time, is available via eruditeMETA’s Trust Portal, as applicable.

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8. Confidentiality. The Receiving Party may use the Disclosing Party’s Confidential Information solely to perform its obligations under this Agreement. Except as set forth in the immediately following sentence, the Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party except to its employees, consultants, affiliates, agents, and subcontractors having a need to know such information to perform its obligations under this Agreement who have signed a non-disclosure agreement with the Receiving Party containing terms at least as protective of the Disclosing Party’s Confidential Information as those contained herein. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the Disclosing Party of such required disclosure to enable Disclosing Party to seek a protective order or otherwise seek to prevent or restrict such disclosure. All right, title, and interest in and to Confidential Information are and will remain the sole and exclusive property of the Disclosing Party. The Receiving Party will use no less than reasonable efforts to protect the Disclosing Party’s Confidential Information from unauthorized access, use, or disclosure. Notwithstanding anything to the contrary in this Agreement, eruditeMETA’s obligations with respect to the protection of Customer Data are solely as set forth in Section 2.1.2.

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9. Warranties.

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9.1. General. Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.

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9.2. Software Warranty. eruditeMETA represents and warrants that the SaaS Component and Virtual Appliance will substantially perform in conformance with the Documentation when used in accordance with the Documentation and this Agreement. As the Customer’s sole and exclusive remedy and eruditeMETA’s sole liability for breach of this warranty, eruditeMETA will use commercially reasonable efforts to correct the applicable deficiencies with the SaaS Component and Virtual Appliance in accordance with the SLA/SLO. The warranty set forth in this Section will not apply if the failure of the SaaS Component and Virtual Appliance results from or is otherwise attributable to: (a) repair, maintenance, or modification of the SaaS Component and Virtual Appliance by persons other than eruditeMETA or its authorized contractors; (b) accident, negligence, abuse, or misuse of the SaaS Component and Virtual Appliance; (c) use of the SaaS Component and Virtual Appliance other than in accordance with the Documentation or this Agreement; (d) Customer’s failure to implement software updates provided by eruditeMETA specifically to avoid such failure; or (e) the combination of the Platform with technology not authorized or provided by eruditeMETA.

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9.3. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN THIS SECTION, eruditeMETA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, eruditeMETA DOES NOT WARRANT THAT (A) THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR (B) THE PLATFORM WILL DETECT, PREVENT, OR PROTECT AGAINST ALL POSSIBLE THREATS WHETHER KNOWN OR UNKNOWN.

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10. LIMITATION OF LIABILITY. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

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10.1. GENERALLY. (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, REVENUE, REPUTATION, OR PROFITS, DATA, OR DATA USE), AND (B) eruditeMETA’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO eruditeMETA BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

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10.2. DATA SECURITY. THE LIMITATIONS IN SECTION 10.1(B) WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR RELATED TO THE UNAUTHORIZED ACCESS OR DISCLOSURE OF CUSTOMER DATA DUE TO eruditeMETA’S BREACH OF SECTION 2.1.2. eruditeMETA’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE UNAUTHORIZED ACCESS OR DISCLOSURE OF CUSTOMER DATA DUE TO eruditeMETA’S BREACH OF SECTION 2.1.2, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE TWO (2) TIMES THE TOTAL AMOUNTS ACTUALLY PAID TO eruditeMETA BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

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10.3. EXCEPTIONS. THE LIMITATIONS IN SECTION 10.1 WILL NOT APPLY TO (A) ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION); (B) LIABILITY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS; (C) LIABILITY ARISING OUT OF A BREACH OF SECTION 9 (CONFIDENTIALITY); OR (D) AMOUNTS OWED BY CUSTOMER UNDER THIS AGREEMENT.

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11. Indemnification.

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11.1. eruditeMETA. eruditeMETA will: (a) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use (as authorized in this Agreement) of any aspect of the Platform during the Term at the time of the claim constitutes a direct infringement of any intellectual property or proprietary rights of any third party (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by eruditeMETA; provided that Customer provides eruditeMETA: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by eruditeMETA in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, eruditeMETA may, at its sole option and expense: (c) procure for Customer the right to continue to use the applicable infringing parts; (d) modify the Platform to make it non-infringing, such modification to not substantially impact the Platform; (e) replace the affected aspect of the Platform with non-infringing technology having substantially similar capabilities; or (f) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, eruditeMETA will have no liability to Customer: (1) for any use of the Platform in combination with software, products, or services not provided by eruditeMETA, to the extent that the Platform would not be infringing but for such combination or modification; (2) for, or where any infringement arises as a result of, Customer’s failure to use the Platform in accordance with this Agreement; or (3) for any claims for which Customer has an obligation to indemnity eruditeMETA under Section 11.2.

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This Section states eruditeMETA’s entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement.

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11.2. Customer. Customer will defend or, at its option, settle, any claim brought against eruditeMETA by a third party (including any regulatory authority) alleging that the use by or on behalf of eruditeMETA of the Customer Data or any other eruditeMETA data obtained pursuant to a request from Customer in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws; provided, that eruditeMETA provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Customer will pay all damages finally awarded against eruditeMETA (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. eruditeMETA may appear in connection with such claims, at Customer’s expense, through counsel reasonably acceptable to Customer.

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12. Term; Termination. This Agreement will start on the Effective Date and will continue, unless terminated earlier in accordance with this Agreement, at 12:00 am ET on the day following the Termination Date. Except as otherwise specified in an Order Form, the Order Form will automatically renew for additional periods equal to the expiring subscription term or one-year (whichever is shorter) (each, a “Renewal Term”), unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the relevant subscription term, and the Termination Date will be postponed accordingly. The per-unit pricing during any Renewal Term will increase by up to 5% above the applicable pricing in the prior term, unless eruditeMETA provides Partner notice of different pricing at least sixty (60) days prior to the applicable Renewal Term. Except as expressly provided in the applicable Order Form, renewal of promotional or limited time priced subscriptions will be at eruditeMETA’s applicable list price in effect at the time of the applicable renewal. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Upon termination or expiration of this Agreement: (a) the licenses granted in Section 1.1 will expire, and Customer will discontinue any further use and access thereof of the Platform Assets; (b) without limiting the foregoing clause (a), Customer will immediately delete and dispose of all copies of the Documentation, Content, and Virtual Appliance within its possession or control; (c) eruditeMETA may delete all Customer Data within its possession or control sixty (60) days after termination or expiration of this Agreement, and prior to that data Customer may request a copy of all Customer Data and eruditeMETA will use commercially reasonable efforts to deliver the Customer Data to Customer in a mutually agreed upon format; (d) any sums paid by Customer until the date of termination will be non-refundable, and Customer will immediately pay to eruditeMETA all amounts owed but not yet paid to eruditeMETA under this Agreement as of the termination or expiration hereof; (e) Customer will promptly return any Hardware Appliance leased under this Agreement to eruditeMETA , at its sole cost and risk of loss, to an address specified by eruditeMETA; and (f) the following Sections, and all defined terms required to interpret those Sections, will survive: 3.2, 3.3, 4.4, 5, 10.

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13. Force Majeure. eruditeMETA will not be liable for any delay or failure to perform any of its obligations under this Agreement resulting from circumstances or causes beyond the reasonable control of eruditeMETA, including on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, internet or other technology failures, pandemic or epidemic (or similar regional health crisis) (collectively, “Force Majeure Events”).

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14. Entire Agreement. This Agreement, including all Order Forms, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. Each Order Form that has been executed by both Parties incorporates this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a respective Order Form, the former will prevail, unless and to the extent that the Order Form expressly states the specific provision to be changed and the precise change being made in the “Special Terms” Section of the Order Form. Any other Customer document that purports to override the terms of this Agreement will not have such effect unless agreed to in writing by eruditeMETA.

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15. Parties. The eruditeMETA entity that Customer is contracting with under this Agreement depends on where the Customer is domiciled as follows:

• if Customer is an entity of the federal government of the United States of America, the eruditeMETA contracting entity is eruditeMETA Public Sector, LLC, a Georgia limited liability company; and

• if Customer is not domiciled in Europe, the Middle East, or Africa, and is not an entity of the federal government of the United States of America, the contracting entity is eruditeMETA, LLC., a Georgia limited liability company.

 

16. Miscellaneous. The failure of either Party to enforce any rights granted hereunder or to act against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. All waivers of rights arising under this Agreement must be made in writing by the Party making the waiver. The Agreement may only be amended by mutual express written agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, that court will amend the provision to the extent necessary to make it enforceable and best reflect the Parties’ original intent. eruditeMETA provides the Platform Assets for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to Platform Assets include only those rights customarily provided to the public as specified in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, then it must negotiate with eruditeMETA to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in the applicable agreement. Neither Party may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. This Agreement will be governed by and construed under the laws of the State of California, without reference to principles and laws relating to the conflict of laws. The competent courts of San Francisco will have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and will not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Unless context clearly requires otherwise, whenever used in this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”, the words “hereof,” “hereunder,” “herein,” and similar terms mean under this Agreement (including any attachments hereto), and the word “or” is deemed to mean “and/or”; (b) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (c) the headings in this Agreement are for reference only and do not affect the interpretation of this Agreement; and (d) references to “ordered” or similar terms pertaining to any eruditeMETA property that is licensed or leased under this Agreement means those assets are licensed or leased and is not intended to mean such assets are in fact sold.