DIGITALWRITING SYSTEMS CUSTOMER PURCHASE. USE AND LICENSE AGREEMENT
- Digital pen and digital paper
- License of software products
- License and support fee
- Payment terms
- Term, renewal and termination
- Parties' responsibilities relating to products
- Limited and express warranties
- Disclaimer of warranties
- Disputes
- General provisions
This agreement is a legal agreement between DigitalWriting Systems LLC, a Pennsylvania limited liability corporation, with its principal place of business at 4 Midland Avenue, Berwyn, Pa 19312 ("DWS") and you. (As used in this Agreement, the terms "you" and "your" refer both to you in your capacity as an authorized agent of the business entity you represent ("Customer") and to the Customer itself.)
A. The ExpeData® Digital Pen and Paper System (the "System") was developed by Standard Register Company ('Standard'), with modifications by DWS, to work specifically as a Point-of-Care system with OASIS and home care agency software certified by DWS. The System will permit the Customer, using digital pens (the "Digital Pens" or "Pens) and specially designed digital paper (the "Digital Paper"), to create text and images which are transmitted from the Digital Pens via a docking station (the "Docking Station") via the Internet through certain software products (the "Software Products") and the associated Online Services to a web site (the "Form Viewer") where the text and image data (the "Electronic Data") are processed. The Electronic Data will then be downloaded via the Internet to the Customer's server computer (the "Server"), where Server Software processes the data and places them into the correct tables in the correct databases located on the Customer's computer(s). (Hereinafter, the Digital Pens, the Digital Paper, the Docking Station, the Software Products, the On-line Services, and the Server Software shall be referred to collectively as the "Products.") Once the data are properly located on the Customer's Server, the Customer will be able to access and manipulate the data for its usual business purposes
B. Customer desires to purchase the Digital Pen(s) and the Digital Paper from DWS, to license the Software Products from DWS, as defined herein, and to obtain DWS Support, as defined herein. Therefore, for the consideration and subject to the terms and conditions set forth herein, DWS and Customer enter into this Agreement. By clicking on "ACCEPT" below, you are thereby acknowledging Customer's agreement to the terms herein, and you represent that that Customer accepts and agrees to all of the terms and conditions of this Agreement and that you have full authority to bind Customer to all of the terms and conditions of this Agreement.
When you have accepted this Agreement on behalf of the Customer, DWS will provide the Customer with a User Id and a password which it will use to register with DWS, through the DWS website, www.DWSpen.com (the "DWS Website"), and which it will use to have access to the on-line purchase order to purchase Digital Pens and Digital Paper, to pay the License Fees for the license granted herein to Customer and to pay the Support Fees for the Support provided by DWS in connection with the System. You and the Customer are responsible for keeping the Customer's User ID and password secret and confidential. The Customer is solely responsible for any communications or other uses that are made by the use of its User ID and password, even if not made by the Customer, as well as any obligations that may result from any such use. The Customer must not and may not transfer or sell its user ID or password to any third party. The Customer is responsible for changing its password if it believes that its password has been stolen or might otherwise be misused. The Customer must notify DWS immediately of any unauthorized use of its User ID or password.
TERMS AND CONDITIONS
1. DIGITAL PEN AND DIGITAL PAPER
1.1. Purchase of Digital Pen(s). Customer shall purchase from DWS and DWS shall provide to Customer the quantity of Digital Pen(s) Customer shall specify on the purchase order published on the DWS Website (the "Purchase Order"). Prices are subject to change and current prices will be maintained on the DWS Website.
1.2. Customer Purchase of Digital Pens Subsequent to Initial Purchase. After the initial purchase of any Digital Pen(s) pursuant to Section 1.1, Customer may purchase an additional Digital Pen or Digital Pens ("Subsequent Pen(s)"), and with respect to each such purchase of Subsequent Pens, the terms and conditions of this Agreement shall apply.
1.3 Digital Paper Purchases. When customer purchases a Digital Pen Starter Kit, as defined on the Purchase Order, from DWS pursuant to Section 1.1, DWS shall provide Customer with an initial standard quantity of Digital Paper. Thereafter, Customer shall order additional quantities of Digital Paper at the price then in effect by use of the online Purchase Order form or by telephone.
1.4 Purchase Order Price and Fee Changes. Subject to limitations on price and fee increases set forth in this Section 1 or in Section 3 of this Agreement, DWS reserves the right to change the prices and fees, including any License Fee Increase and Support Fee Increase (as defined in Section 3 hereof) as published on the DWS Website.
2. LICENSE OF SOFTWARE PRODUCTS
2.1 Grant of License. In connection with each Digital Pen purchased in accordance with Section 1.1 or section 1.2 of this Agreement, upon payment to DWS of the License Fees, DWS hereby grants Customer the non-exclusive, non-transferable license to use the Software Products in accordance with the terms and conditions of this Agreement. Also, with each License granted in accordance with the preceding sentence, Customer will be granted permanent ownership of a Docking Station.
2.2 No Ownership Rights. Except as provided in Section 1.1 and 1.2 with respect to Pens, Section 1.3 with respect to Digital Paper and Section 2.1 with respect to Docking Stations, nothing in this Agreement grants Customer any right, title, or other interest or ownership of the Products, the form(s) of the Digital Paper, or any source code associated in any way with the Products.
2.3 No Purchase Option. Nothing in this Agreement grants Customer any option to purchase any component of the Software Products at any time.
2.4 Third Party Modules. Customer hereby acknowledges that to the extent that the Software Products incorporate(s) or integrate(s) any software module that is not owned by DWS ("Third Party Module"), Customer will have the use of those Third Party Modules for the License Term(s) of this Agreement, but Customer shall not acquire any right, title, interest or ownership to, in or of such Third Party Modules under this Agreement.
3.1 License Fee. In consideration of the License granted hereunder, Customer shall pay or cause to be paid to DWS the License Fee at the time an order is placed. Purchase and ownership of a docking station is included with License Fee. All fees are subject to Section 3.3 of this Agreement.
3.2 Support Fee. In consideration of the Support to be provided by DWS under this Agreement, when Customer purchases each Pen or Subsequent Pen, Customer shall pay to DWS the Support Fee then in effect and as set forth in the Purchase Order or as published on the DWS Website. Each Support Fee shall be paid for a Support Term.
3.3 License Fee and Support Fee Increase. License Fees and Support Fees may change from time to time. The then current License Fees and Support Fees shall be published on the DWS Website. If DWS announces a future fee increase, then before such increased fee effective date, a Customer may elect to purchase as many Products which would otherwise be subject to the price increase as the Customer wishes, and the Customer shall pay only the fee currently in effect before DWS announced the increased fee for such Products. Any advanced License renewals purchased under such an advance purchase plan would be added to the end of the current license period so that all such purchases run consecutively.
4.1 Payment for Products and Fees. Customer must pay for all Products ordered and all related and applicable License and Support Fees before any Products are shipped to Customer.
4.2. Taxes. The Fees quoted from time to time for the Products and the License do not include any governmental taxes that may be applicable. If DWS has the legal obligation to collect such taxes or charges (excluding taxes based upon DWS's income), such amounts will be added to the Purchase Fees, License Fees and Support Fees and shall be paid by Customer, unless Customer provides DWS with a valid tax exemption certificate issued by the appropriate taxing authority.
4.3 Shipping and Handling Fees. The Fees quoted from time to time for the Products hereto do not include the cost of shipping and handling the ordered Products. Shipping and handling fees will be added to all orders unless such fees are specifically excluded by DWS.
5. TERM, RENEWAL AND TERMINATION
5.1 License Term. Each License granted with respect to each Pen purchased by Customer shall have a "License Term," which shall mean the one year period during which the License is effective, beginning on the first day of the calendar month following the day on which a Digital Pen is activated and shall mean any one year renewal thereof. If customer purchases any Subsequent Pen, a new License Term shall commence on the first day of the calendar month following the day on which a Subsequent Pen(s) is activated.
5.2 Support Term. When Customer purchases Support by paying the Support Fee, such Support shall have a "Support Term," which shall mean the one year period during which the Support is provided by DWS, beginning on the first day of the calendar month following the day on which a Digital Pen is activated, and shall mean any one year renewal thereof. If customer purchases any Subsequent Pen, a new Support Term shall commence for each Subsequent Pen(s) on the first day of the calendar month following the day on which a Subsequent Pen(s) is/are activated.
5.3. Renewal of License and Support Unless Customer notifies DWS in writing with proof of delivery at least sixty (60) days in advance of the expiration of a License Term or Support Term that Customer wishes to terminate the use of a Digital Pen, the Software Products or Support, then this Agreement will automatically renew for a License Term and Support Term, and Customer shall cause to be paid to DWS the License Fee and Support Fees then in effect as provided in and subject to the provisions of Section 3.3 of this Agreement. If Customer does not wish to renew any License or Support with a particular Pen or Pens, Customer shall notify DWS in writing of that fact at least sixty (60) days before the expiration of a License Term or Support Term or both, as the case may be. If a License is not renewed, then each specific Digital Pen for which License applies will be deactivated. If Support is not renewed, Support will cease. If all fees due DWS for a Renewal Term are not paid by the Renewal date, the Customer's ability to use the System will be deactivated.
5.4. Termination of Agreement. If at any time Customer breaches any material term or provision of this Agreement, DWS may terminate this Agreement upon written notice to Customer of the breach and of DWS's intent to terminate the Agreement. Customer shall have thirty (30) days after the date of such written notice to cure the breach, unless DWS provides Customer with written notice that Customer has breached the terms of Sections 7.1(a), Section 7.1(b) or the confidentiality or proprietary rights provisions of this Agreement, in which case DWS may terminate the Agreement immediately, deactivate all Pens and cease all Support services upon learning of such breach, and may seek all equitable and legal remedies available to DWS as the result of such breach. If a Pen is deactivated, there will be a charge to reactivate it at a later date.
5.5 Cessation of Use of Digital Pen(s) and Deletion of Software Products after Termination. Upon termination of this Agreement for whatever reason, Customer shall immediately cease using any and all Digital Pens and shall uninstall, delete or otherwise completely remove the Software Products from the Customer's Server.
6. PARTIES' RESPONSIBILITIES RELATING TO PRODUCTS
6.1. DWS's Responsibilities
(a). Shipment of Products. Upon the acceptance of this Agreement by Customer and DWS and upon Customer's payment to DWS of all fees required to be paid for the Products ordered under this Agreement, DWS shall ship to Customer the Products ordered.
(b). Support Services.
(1). Compliance with Section 6.2 (b). DWS's obligation to provide any Support set forth in Section 6.1(b)(3) is explicitly conditioned on Customer's compliance with Section 6.2(b) of this Agreement. DWS shall be obligated to provide Support only if the Software Products is installed on personal computers with a Microsoft Operating System at all times supported by Microsoft.
(2). Support of Software Products. As long as the Customer is current on its Support Fee obligation and the Software Products are active, DWS shall provide Customer with unlimited telephonic support ("Support"), solely related to the specific Digital Pen for which Support is purchased, during normal working hours, Eastern time, Monday through Friday ("Weekdays"), excluding DWS holidays.
(3). Support Items. Support consists of telephonic assistance for or relating to: (i) activation and use of specific Digital Pen(s) for which Support is a currently paid service, (ii) the initial installation and use of Software Products on Customer's computer hardware; and (iii) resolution of questions concerning the proper operation and the functionality of components of the System. In certain instances, correcting any problems of functionality, may involve replacing a Digital Pen. Digital Paper or a Docking Station that is defective due to material or workmanship which is identified during the warranty period.
(4) Support Exclusions. Support under this Agreement does not cover or include any support activity not specified in Section 6.1(b) (3) above.
(c). Chargeable Support.
(1). General Chargeable Support. If Customer desires DWS to provide any support services not specified in Section 6.1(b) (3) above, such support services will be deemed ("Chargeable Support"). DWS' fees for Chargeable Support will be quoted upon request.
(2). No Automatic Waiver of Fee for Chargeable Support. At its sole discretion, DWS may from time to time elect to provide at no charge support services that would otherwise be deemed to be Chargeable Support. If DWS elects to provide what would otherwise be Chargeable Services at no charge, DWS shall not be deemed to have thereby waived any future right to charge for the same or other Chargeable Support services provided to Customer, nor does it change the obligation of Customer to pay for such Chargeable Support services when billed.
(d). Cost of Customer Consultants. Customer alone shall bear the cost of any consultants, independent contractors or employees it retains to work on Customer's hardware or the installation or reinstallation of any of Customer's software, including the Software Products.
(e). On Site Visits by DWS Personnel. The fees payable by Customer to DWS under this Agreement do not include the cost of any on-site visits for any purpose by DWS personnel to Customer's Agency or other sites owned or operated by Customer or related to Customer's operations. Upon Customer's request and DWS's consent, DWS will provide an on-site visit for fees and costs as quoted at the time of the request, which amount must be paid in full prior to any such on-site visit.
(f). Cessation of Operation of Software Products and of DWS' Support and System Upgrade Obligations after Termination. Upon expiration of the then current License Term or Support Term with respect to a Digital Pen, then associated Software Products and/or Pen(s) will cease to function and access to the Form Viewer and the Pen(s) will be deactivated. Moreover, all obligations of DWS under Section 6.1(b) of this Agreement and any independent support obligations of any DWS Licensors shall cease. There will be a charge to reactive any Pen which deactivates for failure to renew required Licenses in the required time.
6.2. Customer's Responsibilities.
(a) Cooperation in Support Activities. Customer acknowledges that compliance with this section 6.2 is a crucial provision of this Agreement.
(b) Operating System. During the term of the Agreement and during each Renewal Term, Customer hereby agrees to maintain on each Server and Workstation where the Software Products is installed an operating system which is at all times fully supported by Microsoft. If Customer does not have a Microsoft supported operating system, then DWS shall have no obligation whatsoever to provide Support to Customer. Customer also acknowledges that the System requires a free USB port on the computer(s) Customer will use to connect to the Internet.
(c) Certification. Customer acknowledges in order for data to be written to the Customers databases, the Customer's OASIS and home care software must be certified by DWS. Customer shall be responsible to verify that Customer's OASIS and home care software are certified by DWS.
(d) Internet Access. Customer acknowledges that the System requires an Internet connection on the Server and on each computer where Software Products are installed in order to upload and download or transmit the data recorded by the Digital Pen(s).
(e) System Upgrade Support Activity. Customer shall cooperate fully with DWS in DWS's provision of Support. Customer shall incorporate each System Upgrade immediately upon receiving such System Upgrades or immediately upon receiving e-mail or other notice of such System Upgrade's availability at the DWS Website or other location. DWS shall send all notices of System Upgrades to Customer's mailing or e-mail address as set forth on the signature page below (or as updated in writing to DWS from time to time), which shall serve as a single point of contact for Customer. Customer shall notify DWS in writing of changes to the Customer's address, phone numbers, or e-mail address.
(f) Accuracy and Completeness of Data. Customer hereby acknowledges that it has the sole responsibility for the accuracy and completeness of the data recorded, validated and transmitted using the System. DWS and any Licensor assume no responsibility for the accuracy or completeness of any data submitted by or on behalf of Customer to any Licensor, payer or other person.
(g) Protection of Customer Data. Customer has and hereby acknowledges that it is solely responsible for the protection, via backup or otherwise, of any data on its computers. DWS and Standard shall not have any responsibility whatsoever for the reconstruction of any files, data or programs of Customer lost or altered, regardless of the cause of such loss or alteration.
7. LIMITED AND EXPRESS WARRANTIES
7.1. Limited Warranties.
(a). All Warranties Are Limited. All of DWS's warranties to Customer are limited warranties.
(b). Warranty of Title. DWS warrants that DWS has title to the Software Products and the right to grant to Customer the rights granted under this Agreement.
(c). Function of Software Products As Stated in Accordance with Documentation. DWS further warrants that, subject to System Upgrades made after the date of this Agreement and subject to Customer's compliance with all hardware and Internet connectivity requirements, the Software Products will function as stated.
7.2. Exclusive Remedy. Customer's exclusive remedy for Errors and Error corrections shall be Support pursuant to the Support provisions of this Agreement and repair or replacement of Products found to defective in material or workmanship during the warranty period.
7.3 Express Warranties.
(a) MATERIAL AND WORKMANSHIP WARRANTY OF DIGITAL PAPER. DWS warrants to Customer that the Digital Paper shall be free, during ordinary use, from defects in material and workmanship (the "Digital Paper Material and Workmanship Warranty"), provided that Customer has used the Digital Paper in connection with the Digital Pen(s) and Software Products and associated Online Services. Unless otherwise agree to in writing by DWS, this Digital Paper Material and Workmanship Warranty shall expire thirty (30) days from the date of delivery of the Digital Paper. Digital Paper which Customer believes is defective, in material and workmanship may be returned to DWS at Customer's expense within thirty (30) days of receipt. Defective Digital Paper will be replaced, following inspection, and returned to Customer without charge. If Digital Paper which is returned as defective but is not defective, then Customer shall pay the shipping costs associated with the return of such Digital Paper. If any Digital Paper is defective, DWS' sole liability to Customer, and Customer's sole remedy, shall be limited to replacing such defective Digital Paper.
(b) MATERIAL AND WORKMANSHIP WARRANTY OF DIGITAL PENS. DWS shall transfer the manufacturer's warranty for the Digital Pens to the Customer. The Digital Pens are warranted to be free, during ordinary use, from defects in material and workmanship for two (2) years from date of purchase (the "Digital Pen Material and Workmanship Warranty"). If because of defective material or workmanship the Digital Pen does not function properly, Customer shall return such Digital Pen to DWS at Customer's expense along with a specific written explanation of the defect. The defective pen will be returned to the manufacturer for inspection. If it is determined that the Digital Pen is indeed defective due to material or workmanship, the Digital Pen will be repaired or a new Digital Pen will be issued at no cost to Customer. DWS shall pay shipping charges related to the return of a defective Digital Pen. If a Digital Pen which is returned as defective is not defective, then DWS shall not pay the shipping costs associated with the return of such Digital Pen and may charge Customer for the cost of Inspection of the Pen and the shipping and handling costs to return the Pen to the Customer. If a Digital Pen is defective, DWS' sole liability to Customer shall be limited to the repair or replacement of such defective pen. If any Digital Pen is damaged, destroyed or lost, DWS shall have no obligation to repair or replace such Digital Pen.
8.1. "AS IS". EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE PRODUCTS, TOGETHER WITH DOCUMENTATION AND RELATED MATERIALS, ARE PROVIDED TO CUSTOMER "AS IS."
8.2. DISCLAIMER. THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CUSTOMER'S PURPOSE, SYSTEM INTEGRATION, NONINFRINGEMENT, SECURITY, NONINTERFERENCE, TITLE, ACCURACY, OR ANY OTHER STATUTORY WARRANTIES, WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
8.3. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, WHETHER DWS OR ANY LICENSOR IS NEGLIGENT OR OTHERWISE, SHALL DWS OR ANY LICENSOR BE LIABLE FOR OR SHALL CUSTOMER BE ENTITLED TO RECOVER LOSS OF REVENUES OR PROFITS, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES RESULTING FROM: (i) CUSTOMER'S FAILURE TO PERFORM CUSTOMER'S RESPONSIBILITIES UNDER THIS AGREEMENT; OR (ii) ANY CLAIM AGAINST CUSTOMER BY A THIRD PARTY.
8.4. ACKNOWLEDGMENTS. CUSTOMER ACKNOWLEDGES THAT USE OF THE PRODUCTS IS AT CUSTOMER'S SOLE RISK AND THAT DWS AND ITS LICENSORS ARE NOT INSURERS WITH REGARD TO PERFORMANCE OF THE PRODUCTS NOR DOES DWS OR ANY LICENSOR OF DWS HAVE ANY RESPONSIBILITY FOR THE DATA OF CUSTOMER USING THE PRODUCTS, OR FOR MAINTAINING CUSTOMER'S FILES, DATA OR PROGRAMS OR RECONSTRUCTING CUSTOMER'S LOST OR ALTERED FILES, DATA OR PROGRAMS. IN ORDER TO OBTAIN THE PRODUCTS, CUSTOMER AGREES TO ASSUME ALL RISK FOR (i) ALL LIABILITY DISCLAIMED BY DWS AND ITS LICENSORS HEREIN, AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT OF THE LIMITED REMEDY PROVIDED HEREUNDER. ANY ERROR CORRECTIONS OR OTHER REMEDIES MADE BY DWS SHALL NOT BE DEEMED TO HAVE CAUSED ANY LIMITED WARRANTY TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE RIGHTS GRANTED HEREIN BY DWS ARE BASED ON THE ALLOCATION OF RISKS BETWEEN THE PARTIES AS PROVIDED HEREIN, AND ANY REALLOCATION OF SUCH RISKS SHALL BE DEEMED BY THE PARTIES TO BE NULL AND VOID.
8.5. LIMITATION OF DAMAGES. LICENSEE HEREBY AGREES THAT IN ANY ACTION (WHETHER IN A JUDICIAL OR ARBITRATION FORUM), LICENSEE SHALL NOT CLAIM ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER OR NOT LICENSEE HAS NOTIFIED ANY DWS OR ANY OTHER PARTY IN ANY SUCH ACTION OF THE EXISTENCE OR POSSIBLE EXISTENCE OF ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, AND LICENSEE SHALL LIMIT ITS CLAIM FOR MONETARY DAMAGES TO THE AMOUNT OF THE UNAMORTIZED PAYMENTS RECEIVED BY DWS FROM LICENSEE FOR THE THEN CURRENT, UNEXPIRED PERIOD OF THE APPLICABLE LICENSE.
8.6. INDEMNIFICATION. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS DWS AND ITS DWS LICENSORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES FROM ALL DAMAGES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) RESULTING IN ANY WAY FROM CUSTOMER'S USE OF THE SOFTWARE PRODUCTS.
9.1 Time Limit for Assertion of Claims. Customer may not bring an action for any claimed breach of this Agreement with respect to any Product more than one (1) year after the date of purchase.
9.2 Settlement of Disputes.
(a) Limited Injunctive Relief. Each party acknowledges and agrees that, if there is any breach of this Agreement involving unauthorized use or disclosure of Confidential Information of the other party, the non-breaching party will suffer irreparable injury that cannot be compensated by money damages and therefore will not have an adequate remedy at law. Accordingly, if either party institutes an action or proceeding to enforce the provisions of this Agreement relating to or concerning unauthorized use or disclosure of Confidential Information, such party shall be entitled to obtain such injunctive relief, specific performance, or other equitable remedy from a court of competent jurisdiction as may be necessary or appropriate to prevent or curtail any such breach, threatened or actual. With the exception of an action in a court of competent jurisdiction for injunctive relief arising out of the unauthorized use or disclosure of Confidential Information as provided in this Section 9.2(a), neither party shall have resort to any adjudicative method other than mediation or arbitration, as provided in Section 9.2(b) and Section 9.2(c) hereof, for the resolution of any dispute, controversy, or claim arising out of or related to this Agreement or to the creation, validity, interpretation, breach, or termination of this Agreement (a "Dispute"). Any action for injunctive relief, specific performance or other equitable remedy authorized by this Section 9.2(a) may be instituted and prosecuted only in the courts having competent jurisdiction over the State or Commonwealth and Municipality in which DWS maintains its principal place of business as of the date that the cause of action arises. Customer specifically consents to the jurisdiction of such courts and extraterritorial service of process in accordance with the laws of the State or Commonwealth in which DWS maintains its principal place of business.
(b) Mediation. With the exception of any breach of this Agreement involving unauthorized use or disclosure of Confidential Information of the other party, which is governed by Section 9.2(a) hereof, if a Dispute arises, and if the Dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association (the "AAA") under its Commercial Mediation Procedures before resorting to arbitration. Any Dispute shall first be referred to mediation before, and as a condition precedent to, the initiation of any arbitration. Any such mediation shall be held in Philadelphia, Pennsylvania, and shall be conducted by the AAA pursuant to its rules and procedures governing commercial mediation. The mediator shall be selected by the AAA. The party requesting mediation shall do so in accordance with the Commercial Mediation Procedures of the AAA. Furthermore, the party requesting mediation shall be responsible for the payment of all fees and costs necessary to initiate the mediation in accordance with the then current mediation fee schedule of the AAA. All notices from one party to the other relating to any mediation under this Agreement shall be in writing and shall be effective if given in accordance with Section 10(f).
(c) Arbitration. If, within ninety (90) days after the commencement of mediation, the matter has not been resolved to the satisfaction of either party, then unless a party dissatisfied with mediation does not wish to pursue the Dispute further, the matter shall be referred to arbitration in accordance with Section 9.2(c)(i). In the event that the parties are unable to resolve any Dispute by mediation, then neither party shall have resort to any court of law or equity, and arbitration shall be the sole, exclusive means of resolving such Dispute. However, judgment upon any award in arbitration may be entered in any court of competent jurisdiction.
(i) Binding Arbitration. If any Dispute has not been resolved between the parties by mediation under Section 9.2 (b), then either party may demand that the Dispute be submitted to binding arbitration, using the following procedures:
((1)) The arbitration shall be held in Philadelphia, Pennsylvania, and will be conducted by the AAA pursuant to the Commercial Arbitration Rules of the AAA. The arbitration will take place before a panel of three arbitrators chosen according to the Commercial Arbitration Rules of the AAA.
((2)) The party filing the complaint in or demand for arbitration shall be responsible for payment to the AAA of any filing or other fees and costs necessary to initiate the arbitration according to the then applicable fee and cost schedule of the AAA.
((3)) With the exception of payment of any filing or other fees and costs necessary to initiate the arbitration, as set forth in Section 9.2 (c) (i) ((2)) of this Agreement, the expenses of arbitration, including the attorney's fees and expenses of the prevailing party, shall be borne by the party against whom the decision is rendered, or apportioned in accordance with the decision of the arbitrators if there is a compromise decision.
((4)) All notices from one party to the other relating to any arbitration under this Agreement shall be in writing and shall be effective if given in accordance with Section 10(f).
((5)) The arbitrators may not amend or disregard any provision of this Section 9 and may not decide any issues or actions not covered by this Agreement.
NOTICE: DWS AND CUSTOMER HEREBY ACKNOWLEDGE THAT THEY ARE GIVING UP ANY RIGHTS EACH MIGHT OTHERWISE POSSESS TO HAVE A COURT OF EQUITY OR LAW DECIDE OR RESOLVE ANY DISPUTE ARISING OUT OF THE MATTERS INVOLVING THIS AGREEMENT. DWS AND CUSTOMER ARE ALSO GIVING UP ANY RIGHTS EITHER MAY OTHERWISE POSSESS TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INVOLVING THIS AGREEMENT DECIDED BY A JURY IN A COURT OF LAW. IN SO AGREEING, EACH PARTY IS FURTHER GIVING UP ITS JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF DWS OR CUSTOMER REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, THEN THAT PARTY MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE SUBSTANTIVE LAW OF THE UNITED STATES AND CERTAIN LAWS OF THE INDIVIDUAL STATES OF HE UNITED STATES. DWS AND CUSTOMER HEREBY ACKNOWLEDGE THAT THEY ARE VOLUNTARILY AGREEING TO SUBMIT ANY DISPUTE ARISING OUT OF THE MATTERS INVOLVING THIS AGREEMENT TO ARBITRATION. HOWEVER, NOTHING IN THIS NOTICE AMENDS OR CHANGES THE PLACE OF ARBITRATION OR OTHER TERMS OF SECTION 9 OF THIS AGREEMENT.
(a) Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflict of law principles, which are hereby disclaimed.
(b) Entire Agreement. The parties acknowledge that this Agreement expresses their entire understanding and Agreement, and that there have been no warranties, representations, covenants or understandings made by either party to the other except such as are expressly set forth in this Agreement. The parties further acknowledge that this Agreement supersedes, terminates and otherwise renders null and void any and all prior Agreements or contracts, whether written or oral, entered into between DWS and Customer with respect to the matters expressly set forth in this Agreement.
(c) Waiver, Amendment, Modification. No waiver, amendment or modification, including those by custom, usage of trade, or course of dealing, of any provision of this Agreement will be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No waiver by any party of any default in performance by the other party under this Agreement or of any breach or series of breaches by the other party of any of the terms or conditions of this Agreement shall constitute a waiver of any subsequent default in performance under this Agreement or any subsequent breach of any terms or conditions of that Agreement. Performance of any obligation required of a party under this Agreement may be waived only by a written waiver signed by a duly authorized officer or principal of the other party, and that waiver shall be effective only with respect to the specific obligation described in that waiver.
(d) Free From Encumbrances. Customer agrees to keep the Software Products free and clear of all claims, liens and encumbrances, and shall immediately notify DWS of any intent or effort by any third person to place a claim, lien or encumbrance on the Software Products.
(e) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the personal and legal representatives, successors and permitted assigns of the parties hereto.
(f) Notices. Except as otherwise provided in this Agreement, all notices required to be given under this Agreement shall be in writing and shall be deemed duly given on the date of issuance if sent by e-mail, registered or certified mail, telecopy, overnight commercial courier or personal delivery, to the addresses set forth on the signature page of the Agreement. Either party may designate a new address by written notice to the other as set forth herein.
(g) Rights and Remedies Cumulative. Except to the extent a remedy in this Agreement is expressly made an exclusive remedy, the various rights, options, elections, powers and remedies of a party or parties to this Agreement shall be construed as cumulative, and not one of them exclusive of any others or of any other legal or equitable remedy that such party or parties might otherwise have in the event of breach or default with respect to the terms hereof. The exercise of one right or remedy by a party or parties shall not in any way impair its rights to any other right or remedy until all obligations imposed on a party or parties have been performed.
(h) Waiver. No waiver by either party of any breach, provision or default by the other shall be deemed a waiver of any other breach, provision or default.
(i) Interpretation. The parties hereto agree that the terms of this Agreement shall be given a neutral interpretation and any ambiguity or uncertainty herein should not be construed against any party hereto.
(j) Severability. If any court of competent jurisdiction holds any provision of this Agreement or portion thereof to be unenforceable or invalid, such provision or portion affected shall be deemed amended to conform to applicable law so as to be valid and enforceable or, if the provision or portion cannot be so amended without materially altering the parties' intent, the provision or portion thereof shall be stricken, and the remainder of the Agreement shall not be affected thereby.
(k) Duly Authorized Signatories. Each party hereby represents and warrants that its respective signatory whose signature appears on this Agreement has been and is on the date of this Agreement duly authorized by all necessary corporate or other appropriate action to execute this Agreement.
(l) Amendment. This Agreement may not be amended or modified in any manner, except by a written instrument signed by a duly authorized representative of DWS and Customer.
(m) Third Parties. Customer acknowledges and agrees that DWS and any Licensors may use third parties to satisfy their obligations under this Agreement.
(n) Force Majeure. Neither party shall be liable for failure or delay in performance of its obligations (except any obligation to pay money) hereunder when such failure or delay is caused by acts of God, flood, extreme weather, fire or other natural calamity, acts of governmental agencies, failure of products or services provided to Customer or DWS by persons not a party to this Agreement or similar causes beyond the control of such party. If for any of the reasons set forth above either party shall be unable to perform any obligation when due, such party shall immediately notify the other party of such inability and of the period of which such inability is expected to continue. Affected obligations of the party shall be temporarily suspended during this period and the time for performance under this Agreement shall, as applicable, be extended by the duration of any such period.
(o) Supplementary Terms and End User Restrictions. You acknowledge that you have read and that Customer (i) accepts and agrees to the supplemental terms, end user restrictions and other terms and conditions set forth at the DWS Website at www.DWSpen.com/legal.htm (the "Supplemental Terms), (ii) that such Supplemental Terms, are made a part of this Agreement, and (iii) are binding upon Customer.
(p) Survival. Sections 2.2, 2.3, 2.4, 5.4, 5.5, 6.1(f), 7.2, 8.3, 8.4, 8.5, 9 and 10 shall survive termination of this agreement.
(q) Headings. The headings of the sections of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.