End User License Agreement
THIRD WALL™ by RMM Plus™ END USER LICENSE AGREEMENT. Thank you for selecting THIRD WALL™! Please read the terms and conditions of this THIRD WALL™ End User License and Assurance Agreement (the “Agreement”) carefully. Please print this Agreement to maintain a copy for your records. This Agreement applies to any software or software applications owned or licensed by RMM Plus™ (the “Software”). This Agreement specifies the terms and conditions of your use of the Software. RMM Plus™THIRD WALL, LLC, a Florida limited liability company (sometimes referred to as “We”, “Us”, “Our” or “RMM Plus™”) is willing to license its Software to You as the individual, company or legal entity that will be using the Software (“You”, “Your” or “Licensee”), but only on the condition that You accept all terms of this Agreement. This Agreement is a legal and enforceable contract between RMM Plus™ and You. If you are entering into this Agreement on behalf of a business organization or other legal entity, You represent that You have the authority to bind such organization or entity, in which case the terms “You”, “Your” or “Licensee” shall refer to such organization or entity.
You accept (“Accept”) this Agreement and agree to its terms if you otherwise use the Software (e.g. install, order, receive, load, download, retain or copy the Software) (with any of the foregoing events being deemed an “Acceptance”). In the event of Acceptance, You Accept and agree to be bound by this Agreement, the Documentation and all other matters referenced herein and therein. All of the terms of the Documentation are incorporated into the terms of this Agreement as if fully rewritten herein. Whenever the capitalized term “Agreement” is used herein, it shall, unless otherwise expressly specified, include the Documentation, regardless of whether the capitalized term “Documentation” is also used. You hereby represent you have read and understand all of the terms and conditions of this Agreement. If You do not Accept and agree to all of the terms of this Agreement, then RMM Plus™ is unwilling to license the Software to You and You may not use, install, order, receive, load, download, retain or copy the Software. If you install or otherwise use the Software under any trial, not for resale, evaluation, or purchase transaction, Your conduct constitutes Acceptance of this Agreement and You will be bound by all of its terms and conditions. You and RMM Plus™ are sometimes collectively referred to in this Agreement as “the Parties” and individually as a “Party.”
a. “Seat” means a single active seat for the Software that resides on a single computerized device managed by Licensee and which Seat communicates with the THIRD WALL™ Server to transform directions from the THIRD WALL™ Server into action tasks.
b. “Authorized Machine” means Equipment running a THIRD WALL™ Seat, for which you will pay license fees.
c. “Documentation” means all written information, sales agreements, schedules, product descriptions, user guides, instruction manuals, help files, catalogs, maintenance policies, maintenance guides, training materials, support policies, specifications or other materials or specifications pertaining to the use of the Software (whether in hard copy, online or downloadable format) as may be updated and/or in the future delivered by RMM Plus™ from time to time.
d. “Equipment” means hardware upon which you will be running the THIRD WALL™ Seat or Plug-in.
e. “RMM Plus™ Console” means THIRD WALL™ user interface controls for the Software that allows Licensee to access, use and manage the Software in accordance with the terms of this Agreement.
f. “THIRD WALL™ Server” means the Software's automation and tracking data center dedicated to: (i) processing information provided by the Seats; and (ii) using such information for tracking Seats for licensing count purposes, and for other information and activities as needed.
g. “License Fee(s)” mean(s) the price paid by Licensee to RMM Plus™, its authorized reseller or distributor in consideration of Licensee's use of the Software in accordance with the terms and conditions of this Agreement. The applicable License Fee(s) is/are set forth in the Documentation.
3. Licensing Models. Subject to the terms and conditions of this Agreement, including the Documentation, RMM Plus™ offers the following licensing models, (singularly, a “Licensing Model” and collectively, the “Licensing Models”):
a. THIRD WALL™Software as a Service (SaaS) License. Under a “THIRD WALL™ SaaS License”, Licensee licenses the Software for a month-to-month License Fee
established by RMM Plus™, its authorized reseller or its distributor, in accordance with the Documentation. License fees shall be determined based on count of deployed Seats by the Licensee.
b. THIRD WALL™ Evaluation License. Under a “THIRD WALL™ Evaluation License” Licensee has access to the Software for the limited purpose of Licensee's evaluation of the functionality of the Software for use by Licensee. A THIRD WALL™ Evaluation License is not subject to a License Fee. The evaluation period of a THIRD WALL™ Evaluation License is set forth in the Documentation.
4. License Grant and Restrictions. Subject to the terms and conditions of this Agreement, and other Terms and Conditions available on the THIRD WALL™ or RMM Plus™ websites,and timely payment of any applicable License Fee, We grant You a limited, revocable, non-exclusive, non-transferable, non-sublicenseable object code license to use the number of Seats specified in the Documentation solely: (i) on Equipment as may be compatible with the applicable Licensing Model; (ii) in the Software's present, “as is” unmodified form; (iii) in accordance with the terms and conditions of this Agreement, including the Documentation, and in accordance with the specific conditions and limitations attributable to the applicable Licensing Model. You shall not directly or indirectly: (i) use the Software or Documentation in violation of this Agreement; (ii) lease, rent, assign, license, sublicense, transfer, provide, sell, market, distribute or copy the Software; (iii) use or allow the Software to be used by or for the benefit of any third-party other than as permitted by the applicable Licensing Model and this Agreement; (iv) copy the Software or Documentation except as expressly authorized by this Agreement; (v) grant a security interest in or otherwise encumber or transfer rights to, or possession of, the Software; (vi) use the Software in a time-sharing arrangement or in the operation of a service bureau; (vii) modify, revise, delete, enhance, reverse engineer, decompile, disassemble, translate, make any attempt to discover the source code of the Software, make derivative works of the Software or make additions to the Software, including, without limitation, so called plugins or add-ons; (viii) remove or alter any proprietary notices or legends identifying the Software or Documentation; or (ix) ship or transmit any copies of the Software or Documentation to any country or destination prohibited by the United States Government. If the Documentation specifically permits You to operate the Software on a multi-user system, this Agreement will cover all users of that system. All rights and licenses granted pursuant to any section of this Agreement are, and shall otherwise be, for purposes of Section 365(n) of the U.S. Bankruptcy Code (or as amended), licenses of rights to “intellectual property”, as defined under Section 101(35A) of the U.S. Bankruptcy Code (or as amended). The parties shall retain and may fully exercise all of their respective rights and elections under the U.S. Bankruptcy Code.
5. Seat Functionality and Tracking; Cessation of Operation; THIRD WALL™ Access.
a. Seat Functionality and Tracking; Cessation of Operation. You understand and agree that the Software functionalities are enabled through the use of Seats issued by RMM Plus™. For so long as You are not in breach or default with respect to any of Your obligations to RMM Plus™ under this Agreement or otherwise, RMM Plus™ will provide You with all license rights necessary to enable You to make normal use of the Software. You agree that RMM Plus™ may disable, remove, or refuse to renew or replace Seat(s), rendering some or all aspects of the Software unusable by You, and potentially resetting certain controllable parameters on managed computers and / or servers to Microsoft Windows™ default settings, at any time to enforce its rights under the Agreement. You further understand and agree that with respect to certain Licensing Models and your non-compliance with Terms and Conditions and / or financial obligations, all functionality of the Software will time out and cease to operate and potentially may reset certain controllable parameters on managed computers and / or servers to Microsoft Windows™ default settings, dependent on the Licensing Model, and as may be specified in the Documentation. RMM Plus™ will have no liability to You as a result of such cessation of operation or resetting of parameters to defaults. The Software's authorization protocol requires periodic notice of authority from RMM Plus™ to extend operations past a given number of days. Because the Software follows this protocol, the Software may therefore cease to function and potentially may reset certain controllable parameters on managed computers and / or servers to Microsoft Windows™ default settings when the Licensing Model reaches its authorized number of days, or due to other conditions as determined by RMM Plus™. RMM Plus™ will have no liability to You as a result of such cessation of functionality or resetting of parameters to defaults. RMM Plus™ warrants that it will take reasonable steps to prevent inappropriate termination of normal Software operations, and to reinstate such Software promptly upon notification by You of the need therefore and demonstration by You, to the reasonable satisfaction of RMM Plus™, that all amounts due and owing by You have been paid; provided that You are not otherwise in default of any of Your obligations under this Agreement. RMM Plus™ does not warrant that operation of the Software will be uninterrupted and RMM Plus™ will under no circumstances be liable for interruption of the Software or cessation of functionality of the Software as a result of viruses, worms, bugs or other like mediums. RMM PLUS™ BEARS NO LIABILITY IN CONNECTION WITH THE TEMPORARY OR PERMANENT INTERRUPTION OF THE SOFTWARE AS DESCRIBED IN THIS SECTION. You understand that the Software is programmed to track the number of deployed Seats, Authorized Machines, users and/or other usage and user related data, including, without limitation, monitoring of Your usage patterns of the Software, and you consent to all such operations. You at all times will enable, and will not hinder, impede, alter, prevent, or otherwise distort, the operation of such tracking and reporting functions, which reports will be periodically transmitted to the THIRD WALL™ Server.
b. THIRD WALL™ Access. Licensee acknowledges and agrees that the THIRD WALL™ implementation team, support team and/or development team, whether as employees or agents of RMM Plus™ (“RMM Plus™ Representative(s)”), may periodically, as part of its implementation and tracking rights, require remote access to all Authorized Machines in order to adequately support, trouble-shoot and update the Software to maintain its functionality and You will not hinder, impede, alter or prevent such access.
6. Effective Date; Term and Termination.
a. Effective Date. This Agreement is effective and binding on You the date You Accept this Agreement.
b. Term and Renewal. Under a THIRD WALL™ License, the initial term, if any, shall be set forth in the Documentation. Except as otherwise expressly set forth in the Documentation, upon the expiration of the initial term of a License, the subject License will automatically renew for successive renewal terms equal in duration to the initial term at THIRD WALL™ then-current rates. For month-to-month licenses (i.e. THIRD WALL™ SaaS License), either party may terminate any such month-to-month license, effective only upon the expiration of the then current month-to month term, by notifying the other party in writing at least thirty (30) business days prior to the expiration date of the current term. For Licenses extending beyond month-to-month, either party may terminate any such Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) calendar days prior to the expiration date of the current term. The termination rights and duties set forth in this Section 6(b) are subject to all portions of this Section 6.
c. Termination. In addition to the rights otherwise set forth in this Agreement and the Documentation, and not in limitation thereof, RMM Plus™ may terminate this Agreement on ten (10) days' written notice to You if You materially breach any provision of this Agreement and fail to cure such breach within ten (10) calendar days after receiving RMM Plus™'s written notice of the breach. Any THIRD WALL™ Evaluation License may be terminated by either Party for any reason upon five (5) business days' prior written notice to the other Party. RMM Plus™ will have no responsibility to notify any third party, of any termination or suspension of this Agreement, nor will RMM Plus™ have any liability for any consequences resulting from any termination, suspension or lack of notification.
d. RMM Plus™ may, from time to time, require you to install an update to the Software. Should you choose to not install a required update, RMM Plus™ will have the right to immediately terminate your licenses and / or suspend all functionality of THIRD WALL™ in your environment. Once you install the required update, RMM Plus™ may reinstate your licenses as they were prior to suspension or termination.
e. Effect of Termination. Upon termination, cancellation or expiration of this Agreement for any reason, Your rights to the Software will immediately terminate, You must cease all use of the Software and Documentation and You will cooperate in: (a) removing, deactivating or de-installing all copies of the Software from computers on which it is installed, if applicable; and (b) satisfying all financial obligations You may owe to RMM Plus™ associated with Your use of the Software, which obligations, along with all other Sections of this Agreement (excepting the license grant made to You hereunder) shall survive such termination, cancellation or expiration.
7. License Fee and Taxes. Except for Evaluation Licenses, You shall pay the License Fee established by RMM Plus™, its authorized reseller or its distributor, in accordance with the Documentation. All fees are exclusive of costs for hardware, equipment use, travel and/or lodging incurred by Us or Our employees. License Fees payable under this Agreement are not subject to reduction or set-off of any kind for any reason. Fees for late payment are set forth in the Documentation. All License Fees are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to this Agreement or Your use of the Software, and You shall be responsible for payment of all such taxes, fees, levies, duties or similar fees, including all applicable sales taxes, use taxes, value-added taxes or excise charges as well as all customs duties or brokerage fees. You shall also be solely responsible for assessing and remitting payment for any such items to the appropriate authorities, excluding only taxes based solely on RMM Plus™ income.
8. Installation. You agree to prepare your Authorized Machines and remainder of Your Equipment and site for Software installation in accordance with RMM Plus™ requirements. You agree to maintain internet connectivity from your LabTech™ Server or appropriate remote management software to RMM Plus™ as specified by RMM Plus™. If implementation services are selected in the Documentation (as set forth in an agreed upon Statement of Work made a part of the Documentation), such services may include installation of the Software on your Authorized Machine, configuration of the Software for Your use, and testing the Software to confirm that it operates in conformity with the THIRD WALL™ specifications.
9. Intellectual Property and Proprietary Rights. This is a license and not a sale. You acknowledge that the Software contains trade secrets of RMM Plus™ or its licensors, if any. You have no copyright, trademark, trade secret, patent or other intellectual property right in any Software or Documentation or in any related data, design, code, program or other item provided by RMM Plus™, and RMM Plus™ owns all such rights exclusively. The Software and Documentation are proprietary products of RMM Plus™ and are protected by law, including applicable copyright law. Nothing in this Agreement constitutes a waiver of RMM Plus™'s rights under United States or international copyright law or any other law. Ownership of the Software and all copies, modifications, translations, components, features, and derivatives thereof shall at all times remain with RMM Plus™, including all copyrights, patent rights, trade secret rights, trademarks and other intellectual property rights in the Software and Documentation. Your rights to use the Software are limited solely to those rights identified in this Agreement. RMM Plus™ retains all rights not expressly granted in this Agreement. This Agreement governs any updates, upgrades, releases, rereleases, revisions or enhancements to the Software that RMM Plus™ may furnish to You. This Agreement does not include a grant of any: (a) ownership right, title, interest, security interest or other interest in the source code or object code of the Software or in any of RMM Plus™'s intellectual property rights; (b) right or authority to modify the Software; (c) right to use the Software to develop derivatives or derivative works of the Software; (d) right to reverse engineer, decompile, recompile or translate the Software or otherwise attempt to discover source code, embedded scripts or commands, or trade secrets related to the Software; (e) right to copy the Software except as expressly permitted in this Agreement; and/or (f) right to copy, sublicense, sell, lend, rent, lease, give, transfer, assign, or otherwise dispose of all or any portion of the Software or any interest in the Software. You agree that you will not alter, obscure or revise any proprietary, restrictive, trademark, copyright notice or notice of trade secret included with, or affixed to, the Software. You shall keep the Software free and clear of any claim, lien or encumbrance, and any such action shall be void from its inception.
10. Limited Warranty. You shall independently determine if the Software meets Your needs and requirements. However, and subject to Section 15 below, if there is a material failure of the Software to substantially comply (a “Defect”) with Our most current and applicable Documentation during the first thirty (30) days following Your execution of the sales agreement or subscription made a part of the Documentation (the “Warranty Period”), RMM Plus™ shall, at Our election and as Our sole obligation under this Agreement (and as Your sole remedy) repair or replace the Software; provided such limited warranty is subject to any Defect being reported to RMM Plus™ prior to the expiration of the Warranty Period. This limited warranty does not apply if the Software, or any other Equipment upon which the Software is authorized to be used: (a) has been altered, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by RMM Plus™, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing, not for resale or demonstration purposes; or (e) any Software for which RMM Plus™ does not receive a License Fee.
11. Assurance. We shall provide support, maintenance and Software updates (collectively, “Assurance”) for Software during the period of time, if any, specified in the
Documentation (the “Assurance Period”) consisting of: (i) the identification and correction of covered Defects as described in this Agreement; (ii) periodic additional upgrades (but not new versions) of the Software; and (iii) service level support as documented in THIRD WALL™ support service level agreement made a part of the Documentation. You agree to test any initial deployment and / or update in your test environment and will only download, load, deploy, use or install (as applicable) the Software and / or update at Your sole risk once You are satisfied that the Software and / or update will not adversely affect You. Assurance Fees are included in the License Fees payable by Licensee under Licensing Models, as further itemized in the Documentation. Notwithstanding anything contained herein to the contrary, if You use the Software in violation of this Agreement for any reason, RMM Plus™ may immediately discontinue its provision of Assurance to You and all Assurance Fees paid to RMM Plus™ shall be deemed non-refundable.
12. Advertising; Privacy and Security.
a. Advertising and Marketing. We have the right to include Your name in a general listing of users of Our products and services. However, neither Party shall use any logo
or trademark owned by the other Party unless preapproved in writing by one of its officers. In addition to RMM Plus™'s use of Licensee Data, as set forth in Section 12(b) below, You acknowledge and agree that RMM Plus™ is authorized to share Licensee's name and contact information of those individuals listed as Licensee contacts in the Documentation with RMM Plus™'s strategic partners, who may use such information for marketing of their respective products and services to Licensee.
13. Downtime and Suspension of Services. You acknowledge that: (i) RMM Plus™ shall be entitled, to suspend its provision of the Software to You at any time: (a) for scheduled downtime to permit RMM Plus™ to conduct maintenance or make modifications to the Software; (b) in the event of a denial of service attack or other event that We determine, in Our sole discretion, may create a risk to the provision of the Software to You or to any of our other licensees if the provision of services were not suspended; (c) in the event that We determine that any provision of the Software is prohibited by law or We otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons; (d) if You engage in any conduct or activities that is in excess of average customer usage parameters, including but not limited to, your bandwidth, CPU or disk space usage and such usage by You is or may adversely affect the performance or availability of Our provision of the Software, or Our infrastructure or resources, or Our other licensees; or (e) if You engage in any conduct or activities that RMM Plus™ in good faith believes to be in violation of any of the terms and conditions in this Agreement; and (ii) Your access to and use of the Software may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Software for any reason, including as a result of power outages, system failures or other interruptions (all of the foregoing collectively referred to as “Service Suspensions”). RMM Plus™ shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent RMM Plus™ is able, RMM Plus™ will endeavor to provide You notice of any Service Suspension, but shall have no liability for the manner in which We may do so or if we fail to do so; it being further understood that RMM Plus™ may take any mitigating action without liability or notice to You in response to the situations described in (i)(c)-(e) above.
14. Internet and Third Party Products.
a. Internet. You acknowledge that use of the internet is subject to limitations, security risks and delays inherent in the use of the internet and electronic communications. RMM Plus™ is not responsible for any delays, delivery failures, security breaches or other damage resulting from such problems.
b. Third-Party Products. You acknowledge and agree that Your use of the Software may, based on the applicable Licensing Model, include the use, combination or integration with the Software of software or products (“ThirdParty Product(s)”) owned by persons or entities other than RMM Plus™ (singularly a “Third-Party Provider” and collectively, “Third-Party Providers”). In the event the Licensing Model You have elected incorporates ThirdParty Products, You agree that You are bound by the terms and conditions of any licensing agreement or arrangement of any Third-Party Provider governing the use of its Third-Party Product(s) (in any event, a “ThirdParty License Agreement”). Your agreement to be bound by any applicable Third-Party License Agreement is in addition to, and not in lieu of, Your obligations set forth in this Agreement. Any applicable Third-Party License Agreement shall be referenced in the Documentation. Under no circumstances shall RMM Plus™ have any responsibility or liability to You with respect to any product or service provided by a third party, including ThirdParty Providers.
15. Disclaimer. Under no circumstances shall THIRD WALL™ have any liability for any Defect or losses, claims, demands, penalties, actions, causes of action, suits, obligations, liabilities, damages, delays, costs or expenses, including reasonable attorney's fees court costs and expert witnesses (collectively “Losses”) caused, directly or indirectly, in whole or in part, by: (i)You; (ii) any third party, including any Third Party Provider and/or Third-Party Products; (iii) denial of service attacks (iv) abuse, misuse, alteration or use of the Software outside of RMM Plus™'s specified operating requirements; (v) Your failure to install, or an incomplete or improper installation, of the originally licensed or any subsequent release of Software; (vi) incorrect or incomplete data used by You; (vii) software, hardware or systems not supplied by RMM Plus™; or (viii) any other failure not directly attributable to, or reasonably anticipated by, RMM Plus™. RMM Plus™ shall make the final determination as to the existence and cause of any Defect. RMM Plus™ shall have no obligation with respect to a Defect unless: (i) You reasonably assist RMM Plus™ in its diagnosis and correction; (ii) You provide a written description of the Defect to RMM Plus™; (iii) You install and maintain internet connectivity in accordance with RMM Plus™ specifications; (iv) You perform diagnostic and remedial actions described in Documentation or other writing supplied by RMM Plus™; and (v) the Defect, if it relates to Software, can be reproduced at RMM Plus™'s facilities using the most current release of the Software supplied to You. You shall pay RMM Plus™ its then current labor rates for analyzing any irregularity or failure not caused by a covered Defect. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, ALL SOFTWARE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. ALL WARRANTIES, CONDITIONS AND DUTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, DURABILITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, CONTINUOUS USE, DESIGN, NON-NEGLIGENT PERFORMANCE, COMPLIANCE OF DATA OUTPUT WITH APPLICABLE LAW, PERFORMANCE OR ERROR-FREE OPERATION, SYSTEM INTEGRATION OR COMPATIBILITY, (INCLUDING ANY CREATED BY THE INTERNATIONAL SALE OF GOODS CONVENTION) ARE DISCLAIMED IN THEIR ENTIRETY. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERRORFREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE WILL BE FREE OF HARMFUL ASPECTS. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE'S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT.
16. Exclusion of Certain Damages. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN “DIRECT DAMAGES” AS DESCRIBED BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR BREACH OF CONTRACT OF RMM PLUS™, AND EVEN IF RMM PLUS™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL RMM PLUS™ BE LIABLE FOR ANY LOSSES RELATING TO THE SOFTWARE OR THE ACTIONS OR INACTIONS OF RMM PLUS™ IN CONNECTION WITH THIS AGREEMENT THAT WAS NOT BROUGHT TO RMM PLUS™'S ATTENTION BY LICENSEE IN WRITING WITHIN FORTY-FIVE (45) DAYS OF ITS OCCURRENCE. NO CLAIM FOR LOSSES OR OTHER RELIEF ARISING OUT OF THIS AGREEMENT, THE DOCUMENTATION OR THE SOFTWARE MAY BE FILED BY LICENSEE MORE THAN ONE (1) YEAR FOLLOWING DELIVERY OF THE SOFTWARE TO LICENSEE. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU AND THEN RMM PLUS™'S TOTAL LIABILITY IN ANY SUCH CASE IS LIMITED, IN THE AGGREGATE, TO: (A) DURING THE FIRST TWELVE (12) MONTHS FOLLOWINGLICENSEE'S EXECUTION OF THE SALES AGREEMENT, THE GREATER OF AN AMOUNT EQUAL TO: (X) THE LICENSE FEES ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE DURING SUCH 12 MONTH PERIOD, REGARDLESS OF THE FORM OF CLAIM OR ACTION (E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD OR OTHER LEGAL THEORY): AND (Y) ONE DOLLAR ($1.00), AND (B) THEREAFTER, TO THE GREATER OF AN AMOUNT EQUAL TO: (X) ANY ASSURANCE FEES PAID BY LICENSEE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM, REGARDLESS OF THE FORM OF CLAIM OR ACTION (E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD OR OTHER LEGAL THEORY); AND (Y) ONE DOLLAR ($1.00)
18. Liability Reflects Risk Allocation. Licensee agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Licensee Accepts the Software. Licensee acknowledges and agrees that RMM Plus™ has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties. Licensee acknowledges that it has sufficient knowledge of Windows® and any Remote Monitoring and Management Software to safely operate THIRD WALL™ software, and agrees to appropriately test all features and functions of THIRD WALL™ software prior to deployment and use within a production environment; failure to do so shall absolve RMM Plus™ of any liability whatsoever relating to the use of THIRD WALL™ software. Licensee understands, acknowledges and agrees that if RMM Plus™ takes any corrective action because of an action of Licensee, that corrective action may adversely affect other persons or entities to whom You provide information technology services through use of the Software (“Third-Party Customer(s)”), and Licensee agrees that RMM Plus™ shall have no liability to You, or to any Third-Party Customers, or any other third party due to such corrective action by RMM Plus™. The limitations and exclusions provided for by this Section reflect an informed and voluntary allocation of risks between the Parties and applies to risks both known and unknown that may exist in connection with the Agreement.
a. Licensee Indemnification. Licensee shall indemnify, defend and hold harmless RMM Plus™ and its members, managers, officers, employees, directors and agents, in their individual capacities or otherwise, from and against any and all Losses asserted by any third party resulting from, arising out of or incurred in connection with: (i) Licensee's negligence or willful misconduct resulting in personal injury or property damage; (ii) Licensee's misuse of the Software; (iii) any actual or alleged violation of applicable law, rule or regulation by You or any individual or entity accessing or using the Software by or through You (including Third-Party Customers); (iv) Licensee's actual or alleged violation of this Agreement; (v) Licensee's failure to comply with the terms of any third party agreement to which Licensee is a party, including any Third-Party License Agreement; (vi) any claim by any person or entity (including Third-Party Providers and/or Third-Party Customers) of libel or unfair competition, or any actual or alleged infringement or violation by You, or any person accessing or using the Software by or through You, of privacy rights or intellectual property rights of any person or entity (including Third-Party Providers and/or Third-Party Customers); (vii) any claims by Third-Party Providers or arising out of or relating to Licensee's relationship with any Third-Party Providers or Licensee's use of Third-Party Products; or (viii) any claims by Third-Party Customers or arising out of or relating to Licensee's relationship with any Third-Party Customers.
b. RMM Plus™ Indemnification For Third-Party Infringement Claims. RMM Plus™ will indemnify, hold harmless and, at its option, defend Licensee from and against any and all Losses asserted by a third party resulting from the Software directly infringing a registered third party United States patent or copyright. RMM Plus™ shall have no liability, or duty of indemnification or defense, for any claim of infringement resulting, in whole or in part, from: (i) any use of the Software in violation of this Agreement: (ii) any use of a version of the Software other than the most current unmodified version made available to You by RMM Plus™; (iii) use or combination of the Software with software or computer programs owned or licensed by a party other than RMM Plus™, including Third-Party Providers; (iv) any damage to, or misapplication or misuse of the Software by You; (v) Your failure to implement corrections or changes to the Software offered by RMM Plus™; (vi) any information, design, specification, manual, instruction, software, data or material not furnished by RMM Plus™. You agree to defend, indemnify and hold harmless RMM Plus™ from and against any claims of infringement by third parties resulting from any of the circumstances listed in the immediately preceding sentence. If a claim has been asserted that the Software directly infringes a third party registered United States patent or copyright or in RMM Plus™'s reasonable opinion is about to be asserted, RMM Plus™ will, at its option, either: (i) procure for You the right to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing; (iii) terminate this Agreement; or (iv) defend such action and pay all costs, damages or settlements finally paid by You, provided: (a) the action is brought within the United States; (b) in the case of an action that has already been filed and in which RMM Plus™ has not been named, RMM Plus™ is notified in writing at least fifteen (15) days prior to the expiration of the applicable answer and response period; (c) RMM Plus™ is given full control over the defense of all the claim; and (d) You give RMM Plus™ reasonable assistance and cooperation in its defense of the claim.
20. Relationship. RMM Plus™ and Licensee are each independent contractors. Neither Party nor any of their representatives shall be considered employees of the other. RMM Plus™ has the sole right to supervise, manage, contract, direct, procure and perform Our obligations under this Agreement. Nothing contained in this Agreement shall be construed to (A) give either Party the power to direct and control the day-to-day activities of the other, (B) constitute the Parties as partners, joint venturers, co-owners agents, franchisee or franchisor or otherwise, or (C) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever. Licensee is not an employee of RMM Plus™ and is not entitled to any RMM Plus™ benefits. Licensee represents and warrants that it: (X) will not make any representation, warranties, or guarantees on behalf of RMM Plus™, and (Y) will not disparage RMM Plus™ in any manner or otherwise harm RMM Plus™'s business or reputation.
21. THIRD WALL™ Administrator. The Documentation designates the RMM Plus™ representative(s) (the “RMM Plus™ Administrator(s)”) that shall serve as Your primary contact in the event You have any questions regarding Your use of the Software.
22. Interference. You shall not, directly or indirectly, at any time of this Agreement or at any time You are using the Software, induce or influence any employee of RMM Plus™ or any other person or entity to terminate their relationship with RMM Plus™. You will not directly or indirectly, in any capacity or manner, make, express, transmit speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward the Software, RMM Plus™ or any of its directors, officers, affiliates, subsidiaries, employees, agents or representatives.
23. Confidentiality. Each Party shall treat all information received from the other Party and designated as confidential (“Confidential Information”) as a trade secret and strictly confidential and shall not use such information for any purpose other than to provide or receive the Software and related services under this Agreement and the Documentation. RMM Plus™ designates the Software, all information relating to the Software, the Documentation and the terms of this Agreement as Confidential Information. Both Parties shall: (i) restrict disclosure of Confidential Information to its employees and agents solely on a “need to know” basis and who agree to be bound by the herein confidentiality restrictions; (ii) advise its employees and agents of their confidentiality obligations; (iii) use commercially reasonable means to comply with the confidentiality obligations of this Agreement but no less than the same standard of care the disclosing Party would use to protect information it deems proprietary and confidential; and (iv) notify the other of any unauthorized possession or use of that Party's Confidential Information as soon as possible upon receiving notice of same. If the receiving Party becomes legally compelled in response to a valid order from a United States court (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand or similar process) to make any disclosure that is prohibited or otherwise constrained by this Agreement, the receiving Party will provide the disclosing Party with prompt notice of such legal proceedings so that it may seek an appropriate protective order or other appropriate relief. In the absence of a protective order, the receiving Party is permitted (with the disclosing Party's cooperation but at the receiving Party's expense) to disclose that portion (and only that portion) of the Confidential Information that the receiving Party is legally compelled to disclose; provided, however, that the receiving Party must use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded by any person to whom any Confidential Information is so disclosed.
24. Compliance with Laws and Import/Export Requirements. You shall abide by all applicable, local, state, national, international laws, rules, treaties and regulations in connection with Your use of the Software. The Software and all Confidential Information is subject to export controls under United States Export Administration Regulations and may be subject to the import and export laws of any country where the Software is imported or re-exported. You represent and warrant that You will: (i) remain in compliance with all legal requirements associated with those controls and laws; (ii) cooperate fully with any audit related to these controls; and (iii) not utilize the Software or any other Confidential Information in any country that is embargoed by the United States government or that is subject to any kind of trade sanctions imposed by the United States. You are solely responsible for the importation of the Software and Confidential Information, including obtaining, at Your cost, any approval or permit necessary for importation. In addition to and not in limitation of the foregoing, You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce and/or other United States or foreign agency or authority, including, but not limited to, the International Traffic in Arms Regulations (“ITAR”), and not knowingly export or re-export or allow the export or re-export of the Software or any other Confidential Information or any derivative thereof in violation of any such restrictions, laws or regulations, or any amendment or successor regulation thereto.
25. Audit. RMM Plus™ shall have the right, upon at least five (5) business days prior written notice, to visit Your facilities, during normal business hours, for the purpose of determining the adequacy of Your procedures for maintaining the confidentiality of RMM Plus™'s Confidential Information and to otherwise audit, monitor and ensure compliance with the terms of this Agreement. All such audits shall be reasonable in scope and duration. RMM Plus™ shall maintain the confidentiality of any information disclosed during an audit that is identified as confidential by You. RMM Plus™ will pay for the audit.
26. Additional Remedies. In addition to all other rights and remedies of RMM Plus™ set forth herein and any other remedies at law or in equity to which it is entitled, RMM Plus™ reserves the right to terminate this Agreement: (A) upon thirty (30) days advance written notice if You: (i) are the subject of a dissolution or bankruptcy action; or (ii) suffer the appointment of a receiver or trustee; or (B) immediately if You commit any act with the intent to defraud RMM Plus™. In addition, because an award of money damages (whether pursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by Licensee, and any such breach would cause RMM Plus™ irreparable harm, Licensee also agrees that, in the event of any breach or threatened breach of this Agreement, RMM Plus™ will also be entitled, without the requirement of posting a bond or other security, to injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity.
27. Assignment. You may assign all of Your rights in connection with a sale of all or substantially all of Licensee's assets or in connection with a merger or other third-party acquisition of all or substantially all of the business conducted by Licensee for which the Software is used, and then only if: (1) You are not in default of any term, covenant or condition to be paid, performed or observed hereunder or the Documentation; (2) You retain no further rights under this Agreement, (3) Your assignee or transferee expressly agrees in writing to assume all of Your obligations under this Agreement, (4) Your assignee or transferee is no less capable of performing this Agreement than are You; and (5) the assignee is not a competitor of RMM Plus™ as determined by RMM Plus™. You will remain primarily and jointly and severally liable with any such assignee or transferee for the full and timely payment and performance of all obligations under this Agreement. Notwithstanding the foregoing, any actual or proposed assignment to a competitor of RMM Plus™ or change in control of You that results or would result in a competitor of RMM Plus™ directly or indirectly owning or controlling five percent (5%) or more of You shall entitle RMM Plus™ to terminate the Agreement for cause in whole or in part immediately upon written notice. In all other cases, You shall not subcontract, assign, sublicense, sublet, subrogate, pledge or transfer any interest, obligation or right under this Agreement without prior written consent from RMM Plus™, and any such attempt without such prior written consent, shall be null and void. Any dissolution, merger, consolidation, reorganization or transfer of a majority of the assets, stock or other equity interest of Licensee shall constitute an attempted assignment of this Agreement, subject to all of the requirements and restrictions set forth in this Section 27. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns.
28. Choice of Law; Venue and Dispute Resolution Procedure. This Agreement shall be governed by the laws of the State of Florida, U.S.A. and controlling United States federal law without regard to any choice-of-law or conflict-of-law principles. The United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to the Agreement. Except as expressly provided for in this Section 28, jurisdiction and venue in any action brought by any Party pursuant to this Agreement will lie exclusively in the state and federal courts located in Pinellas County, Florida, U.S.A. Each Party submits to the jurisdiction of any such courts over itself and its property with respect to any such action and each Party hereby waives any objection that such courts are an improper or inconvenient forum for the resolution of such action. RMM Plus™ and Licensee agree that RMM Plus™ and Licensee may bring claims against the other only in RMM Plus™'s or Licensee's individual capacity, and not as a plaintiff or class representative or class member in any purported class or representative proceeding as a private attorney general. Each Party waives, to the fullest extent permitted by applicable law, the right to trial by jury in any legal proceeding based on this Agreement.
Except as expressly provided for in this Section 28, any action for provisional relief concerning this Agreement or the Parties' relationship hereunder, including, without limitation, a temporary restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim or conservatory measure, shall be brought exclusively in Pinellas County, Florida, U.S.A. Except as provided below, each Party consents and submits to the exclusive jurisdiction of the state and federal courts located in Pinellas County, Florida, U.S.A. over itself and its property with respect to any such action. Notwithstanding anything contained herein to the contrary, this choice of jurisdiction and venue does not prevent RMM Plus™ from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order in any other appropriate jurisdiction. Process in any action relating to this Agreement may be served on any Party anywhere in the world.
Notwithstanding the foregoing, at the election of either Party to this Agreement, any dispute, controversy or claim arising out of, relating to, or in connection with concerning this Agreement or the Parties' respective rights and duties hereunder (collectively, “Arbitrable Dispute”) shall be submitted for final resolution by arbitration administered by the American Arbitration Association (the “AAA”), and in the event of such election, both Parties expressly waive any right to a trial by jury. Notwithstanding the foregoing, any claim for infringement or violation of copyright, trademark, or other intellectual property rights is not an Arbitrable Dispute, but shall be brought before a court of competent jurisdiction in Pinellas County, Florida, U.S.A.
In the event of an Arbitrable Dispute, the election to arbitrate must be made in writing by a Party on or before the last day to answer and/or respond to a summons and/or complaint brought by the other Party. If Licensee is a U.S. resident or maintains a place of business in the U.S., the arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules in effect at the time of the arbitration, excepting any rules pertaining to class arbitrations. If Licensee is not a U.S. resident or does not maintain a place of business in the U.S., the arbitration shall be conducted in accordance with the AAA International Arbitration Rules in effect at the time of the arbitration, excepting any rules pertaining to class arbitrations. The Commercial Arbitration Rules and International Arbitration Rules are collectively referred to as the “Rules”, which Rules can be obtained at http://www.adr.org. The Parties intend that any arbitration between them shall involve only the dispute between the Parties. No other dispute between a Party and a third party shall be included in the arbitration. Class arbitration shall not be permitted. The arbitration shall be conducted by a single arbitrator selected in accordance with the Rules. In the event of an arbitration conducted under the International Arbitration Rules, the arbitrator must also have experience in international software licensing transactions. The place of arbitration shall be Hillsborough County, Florida, U.S.A. and shall be conducted in the English language, unless the Parties agree otherwise in writing. In the event the Rules cannot, in the course of the arbitration proceeding, resolve a procedural question(s), such question(s) shall be supplemented with the procedural laws of Florida. Further, in the event the Rules are silent, either in part or in full, on the application of substantive law, then wherever such rules are silent, Florida's substantive law shall be applied. Any award rendered by the arbitrator shall be final and binding; provided, however, judgment on the award may be entered in any court of competent jurisdiction. By agreeing to Arbitration, the Parties do not intend to deprive any court of competent jurisdiction in Pinellas County, Florida, U.S.A. of its ability to issue any form of provisional remedy, including, without limitation, a temporary restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim or conservatory measure. A request for such provisional remedy or interim or conservatory measure by a Party to a court shall not be deemed a waiver of an agreement to arbitrate.
29. Remedies Cumulative; Waiver. The rights and remedies of RMM Plus™ under this Agreement are cumulative and not alternative. Neither any failure nor any delay by RMM Plus™ in exercising any right, power or privilege under this Agreement or any of the documents referred to in this Agreement will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Party; (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
30. Force Majeure. RMM Plus™ shall not be liable for any loss, damage or failure due to causes beyond Our control, including strikes, riots, earthquakes, epidemics, wars, fires, floods, weather, power failure, telecommunications interruption or interruption of internet service, the failure or closure of a financial institution, computer malfunctions, acts of God or any other failure, interruption or error not directly caused, or reasonably anticipated, by RMM Plus™. RMM Plus™'s performance of this Agreement is subject to existing laws and legal process, and You agree that RMM Plus™ may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of the Agreement.
31. Headings and Construction. The headings that appear in this Agreement are inserted for convenience only and shall not limit or extend the scope of this Agreement. This Agreement shall not be construed more strongly against either Party, regardless of who is more responsible for its preparation.
32. Insolvency Proceedings. To the extent permitted by applicable law, if You are or become the subject of any insolvency, bankruptcy, receivership, dissolution, reorganization or other similar proceeding, federal or state, voluntary or involuntary, under any present or future law, You consent, to the extent permitted by applicable law, to the immediate and absolute lifting of any stay as to the enforcement of remedies under this Agreement, including, any stay imposed by the United States Federal Bankruptcy Code, as amended.
33. Power and Authority. Each Party, and each person that Accepts this Agreement on behalf of a Party, represents and warrants it has full legal capacity and authority to enter into and perform the obligations of this Agreement without any additional consent or approval.
34. Entire Agreement. This Agreement (including the Documentation and the other items referenced herein and therein) constitutes the entire agreement between RMM Plus™ and You with respect to the Software and supersedes and cancels all other (prior or contemporaneous) communications. You agree that any terms or conditions contained in any document, including but not limited to any email or other document that You may now or later provide to RMM Plus™, will have no effect and that the Agreement is the only contract between RMM Plus™ and You regarding the Software and may only be amended or modified as set forth herein. A printed version of this Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
35. Conflict with Law. If there is a conflict between a part of this Agreement and any present or future applicable law, the part of this Agreement that is affected shall be curtailed only to the extent necessary to bring it within the requirements of that law.
36. Notices and Electronic Communications. RMM Plus™ may give notice by means of a general notice on the Software, electronic mail to Your e-mail address on record in RMM Plus™'s account information, or by written communication sent by first class mail, certified mail, postage prepaid or overnight courier (e.g. FedEx or UPS), to Your address on record in RMM Plus™'s records. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to RMM Plus™ (such notice shall be deemed given when received by RMM Plus™) at any time by certified mail, postage prepaid or overnight courier (e.g. FedEx or UPS) to RMM Plus™ at the address set forth in the Documentation. You agree that RMM Plus™ may communicate electronically with You for matters relating to the Software and any related services that may be provided hereunder, including information and notifications regarding product updates, rewards programs, training opportunities and ways to more efficiently use the Software.
37. Official Text. The official text of this Agreement shall be the English language, and any interpretation or construction of this Agreement shall be based thereon. In the event that this Agreement or any documents or notices related to it is translated to another language, and in the event of a discrepancy, the English language version shall be controlling.
38. Agreement Priority. The terms of this Agreement govern Your access and use of the Software, provided that to the extent there is an applicable separate non-electronic agreement manually signed by authorized representatives of the Parties (e.g. the sales agreement, if applicable, made a part of the Documentation), then the order of precedence shall be the signed agreement and then this Agreement. Except as set forth in the preceding sentence or otherwise indicated in this Agreement, this Agreement shall govern in case of a conflict between the Agreement and the Documentation. If the Software has upgrades, updates, re-releases, revisions or enhancements from an earlier version of the Software, or You purchase additional Seats or are issued additional license keys, You agree Your installation and/or use of such upgrades, updates, re-releases, revisions, enhancements, additional Seats and/or license keys constitutes Acceptance of the terms and conditions of this Agreement and this Agreement shall govern the use of said upgrades, updates, re-releases, revisions, enhancements, additional Seats and/or license keys.
39. Amendments. RMM Plus™ may, at any time, amend the provisions of the Agreement, and You may accept the amended provisions in the manner indicated in the amendment notice as communicated by RMM Plus™. Any amendment proposed by You may only be accepted by RMM Plus™ in a non-electronic writing signed by authorized representatives of the Parties. You agree to periodically visit to examine the then-current Agreement. Termination of this Agreement shall not affect the rights or obligations of the Parties that arose prior to, or that are expressly intended by their terms to continue beyond, any such termination, and such rights or obligations, shall survive any such termination.
40. Severability. If any of the provisions of the Agreement shall be held by a court of competent jurisdiction for any reason to be unenforceable by reason of being excessively broad, or excessively narrow or limited, in its scope or duration, the offending provision(s) automatically shall be deemed amended so as to be as broad as is permissible (if the unenforceability is due to excessive breadth) or as narrow or limited (if the unenforceability is due to excessive narrowness or limitation) as is permitted by applicable law. The unenforceability or invalidity of any one provision shall not affect the remainder of the Agreement, which shall continue in full force annd effect.