July 2023
This End User License Agreement (“EULA”) and the applicable Supplemental Terms and Terms of Sale (together, this “Agreement”) are entered into between Aero Hygenx and the customer that accepted this Agreement (“Customer”). This Agreement may be accepted by manual signature or electronic signature, or through an electronic system specified by Aero Hygenx. In the electronic system, Customer will be prompted to accept these terms by clicking a button. Clicking the button or using the Products or Services indicates that Customer has read, understood and accepted these terms. If Customer does not accept this Agreement, Customer must return the Product(s) to Aero Hygenx or its authorized solution partner prior to installation or use for a refund.
“API” means application programming interface.
“Documentation” means user documentation provided by Aero Hygenx for Software, Hardware, or Services, in print, online, embedded as part of a help function, or in license files, “read me” files, header files, or similar files. Documentation includes license specifications, technical specifications, API information, and instructions for use.
“Hardware” means hardware equipment, devices, accessories, and parts delivered by Aero Hygenx hereunder, including firmware incorporated therein.
“Maintenance Services” means Product maintenance, enhancement, and technical support services provided by Aero Hygenx.
“Order” means an order form (Order Form), statement of work (SOW), or similar ordering document that (i) incorporates the terms of this Agreement and sets forth the Products and Services ordered by Customer and any associated fees and (ii) has been agreed by manual or electronic signatures of both parties or agreed through an electronic system specified by Aero Hygenx. In the electronic system, Customer will be prompted to accept by clicking a button.
“Products” means Hardware, Software and Documentation.
“Professional Services” means training, consulting, engineering or other professional services provided hereunder by or on behalf of Aero Hygenx, typically pursuant to a statement of work (SOW).
“Services” means Maintenance Services and Professional Services.
“Software” means software licensed by Aero Hygenx to Customer hereunder, including updates, modifications, design data, and all copies thereof. Software includes Aero Hygenx applications, associated APIs, as well as scripts, toolkits, libraries, reference or sample code, and similar materials.
“Aero Hygenx IP” means all patents, copyrights, trade secrets, and other intellectual property rights in or related to Products or Services.
“Supplemental Terms” means those separate terms and conditions that apply to Products or Services as attached hereto, set forth or referenced in an Order, or otherwise agreed by the parties.
2.1. Orders
Offerings shall be purchased by the Customer issuing a written purchase Order signed by an authorized representative of the Customer, indicating the relevant Aero Hygenx’s proposal or quotation number, specific Offerings desired, quantity, total purchase price, shipping instructions (including Customer’s tax and importation registrations and account numbers for shipments outside of Canada), and any applicable tax-exempt certifications and any other special instructions. All Orders are subject to prior written acceptance by Aero Hygenx.
2.2. Renewals
If indicated on the Order or otherwise agreed by the parties in writing or in Aero Hygenx’s electronic or online ordering system, Subscription or M&S Services for an applicable paid Product will automatically renew unless either party notifies the other at least 60 days before the end of the then-current term that it has elected not to renew. Any renewal term will be the same length as the preceding term or 12 months, whichever is greater. Any renewed Subscription or M&S Services will be governed by Aero Hygenx’s then current standard terms and conditions applicable to the Product(s) as specified in an Order and available at www.aerohygenx.com/terms. The fees during any renewal will be the same as those charged during the preceding term, unless (i) Aero Hygenx notifies Customer about different future fees at least 90 days before the end of the then-current term or (ii) fees for the renewal are specified on the Order.
2.3. Payment
Customer will pay the fees set forth in the applicable Order under the conditions specified in the Order or the Aero Hygenx invoice unless otherwise agreed by the parties. Aero Hygenx will invoice Customer for Professional Services on a monthly basis as charges are incurred. Unless specified otherwise in the applicable Order, Aero Hygenx will invoice Customer for fees related to any other Offerings in advance. Without limiting any other remedies available to Aero Hygenx, Customer will pay applicable fees for any excess use of an Offering at the then-current price for such Offering within 30 days after the invoice date. Except as expressly set forth in this Agreement, all payment obligations are noncancelable, and all fees are non-refundable. If Customer has procured an Offering through an Aero Hygenx authorized solution partner, different terms regarding invoicing and payment may apply as specified between Customer and the solution partner. Aero Hygenx may share information with the solution partner related to Customer’s use and consumption of Offerings for account management and billing purposes. Payments for M&S Services shall be made upfront for the first 12 months of service, and for each subsequent 12 months on the delivery anniversary date thereafter. Offerings offered on a multi-year subscription agreement are billed on the first of every month for the period of that month. Aero Hygenx reserves the right to obtain prior credit approval and request alternative payment terms, at its sole and absolute discretion. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this Agreement, Aero Hygenx may, at its discretion withhold shipment or stop performance of services in respect of any order and may, at its option, require Customer to pre-pay for further shipments or performance. All payments not received when due shall be subject to an additional interest charge of one and a half percent (1.5%) per month (annual rate 18%) of the unpaid amount or the maximum rate permitted by law until the date of payment. Customer grants to Aero Hygenx a security interest in Products (excluding services) purchased under this Agreement to secure payment for those Products purchased. If requested by Aero Hygenx, customer agrees to execute financing statements to perfect such security interest. There is no set-off right for the Customer. Aero Hygenx shall be permitted to apply payments made by Customer on other accounts, including deposits for other Products or services, to delinquent accounts.
2.4. Taxes
All amounts to be paid to Aero Hygenx are exclusive of any taxes and any other charges. Customer agrees to pay or reimburse Aero Hygenx or its authorized solution partner for the payment of any applicable taxes or duties including, but not limited to, sales taxes, value added taxes, goods and services taxes, consumption taxes, or any other charge that is imposed by any government authority on Customer’s use or receipt of, or license to, any Offering. If Customer is exempt from value-added or sales tax, then it must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to Aero Hygenx or its authorized solution partner. If Customer is required by law to make any income tax deduction or to withhold income tax, after the application of reductions available under international treaties, from any sum payable directly to Aero Hygenx under this Agreement, Customer will promptly effect payment thereof to the applicable tax authorities, and will also promptly provide Aero Hygenx with official tax receipts or other evidence issued by the applicable tax authorities to support a claim for tax credit relief. Notwithstanding the foregoing, Customer is responsible for, and will indemnify Aero Hygenx for, any taxes, including withholding taxes, resulting from making an Offering available to users in geographic locations outside the country in which Customer is located as per the Order.
3.1 License Grant and Conditions.
License Grant. Aero Hygenx grants Customer a nonexclusive, nontransferable, limited license to install and use Software and related Documentation for Customer’s internal business purposes for the time period specified in the Order, and subject to the applicable Supplemental Terms. Software is provided in object code form only, unless otherwise specified in this Agreement. Software is the trade secret of Aero Hygenx or its licensors. Customer may copy Software only as required to support the authorized use. Each copy must include all notices and legends embedded in Software and affixed to its medium or container as received from Aero Hygenx. Aero Hygenx or its licensors retain title to and ownership of Software and Aero Hygenx IP. Aero Hygenx reserves all rights in Products and Aero Hygenx IP not expressly granted herein.
License Compliance. Aero Hygenx reserves the right to embed a reporting mechanism in Software to determine unauthorized use of licenses. The mechanism does not transmit technical or business data that Customer processes with Software.
Third-Party and Open Source Software. Products may contain third-party technology, including open source software (“Third-Party Technology”). Third-Party Technology may be licensed by third parties under separate terms (“Third-Party Terms”). Third-Party terms are specified in the Documentation and control solely with respect to Third-Party Technology. If Third-Party Terms require Aero Hygenx to furnish Third-Party Technology in source code form, Aero Hygenx will provide it upon written request and payment of any shipping charges.
3.2 Maintenance Services Terms. Maintenance Services are governed by the terms found at www.aerohygenx.com/terms/ms and are incorporated herein by reference.
3.3 Customer Responsibilities.
Transfer and Remarketing of Software. Unless otherwise provided in this Agreement or required to be permitted by applicable law, Customer will not cause or permit the transfer, loan, lease, publication, or use of Software to or for the benefit of any third party without the prior written consent of Aero Hygenx.
Reverse Engineering, Modification, Use of APIs. Customer will not reverse engineer, decompile, or otherwise attempt to discover the source code of Software. Customer will use Software provided in source code form only to modify or enhance Software for its authorized use. Customer will not otherwise modify, adapt, or merge Software. Customer will not subject Software to any open source software license that conflicts with this Agreement or that does not otherwise apply to such Software. Customer will not use Software for the purpose of developing or enhancing any product that is competitive with Software. Customer will only use APIs identified as published in the Documentation and only as described therein to support the authorized use of Software. The restrictions set out in this Section do not apply to the extent they conflict with mandatory applicable law.
Third Party Hosting of Software; Indemnity. Customer may only engage a third party to host Software (“Provider”) with Aero Hygenx’s prior written consent. Aero Hygenx may require a separate written agreement as a condition to such consent. Software hosted by a Provider must remain under Customer’s sole control at all times, unless management and operation of Software by the Provider is explicitly approved by Aero Hygenx, in which case Customer will ensure that the Provider manages and operates Software in conformance with this Agreement and solely for Customer’s internal business purposes as permitted herein. If Customer becomes aware of any actual or suspected unauthorized use or disclosure of Software, Customer shall immediately terminate Provider’s access to Software. A breach of this Agreement caused by a Provider will constitute a breach by Customer. Customer will indemnify and hold Aero Hygenx and its affiliates harmless from all claims, damages, fines, and costs (including attorney’s fees and expenses) arising in connection with Customer’s use of the Provider’s services. Customer will notify Aero Hygenx if the Provider or its relevant business comes under the control of a third party, in which case Aero Hygenx may withdraw its prior consent.
Security. Customer is responsible for the security of Customer’s systems and data, including Products on Customer’s systems. Customer will take commercially reasonable steps to exclude malware, viruses, spyware, and Trojans.
Third-Party Claims. Customer acknowledges that Aero Hygenx does not control Customer’s processes or the creation, validation, sale, or use of Customer’s products. Aero Hygenx will not be liable for any claim or demand made against Customer by any third party, except for Aero Hygenx’s obligations to indemnify Customer against infringement claims as expressly set forth herein.
Responsibility for Users. Customer is liable for a breach of this Agreement by any user of the Products or Services.
Host Identifier. Customer will provide Aero Hygenx with sufficient information, including the host identifier for each workstation or server upon which the license management portion of Software will be installed, for Aero Hygenx to generate a license file enabling Software access per the scope of the licenses granted under each Order.
Audit. Customer will at all times maintain records identifying Software, the location of each copy thereof, and the location and identity of workstations and servers on which Software is installed. Aero Hygenx may, during regular business hours and upon reasonable advance notice, conduct an audit of Customer’s compliance with this Agreement. Customer will permit Aero Hygenx or its authorized agents to access facilities, workstations, and servers and take all commercially reasonable actions to assist Aero Hygenx in determining compliance with this Agreement. Aero Hygenx and its agents will comply with reasonable security regulations while on Customer’s premises.
4.1 Defects.
Aero Hygenx warrants that, for a period of 90 days following the date Software is initially made available to Customer under an Order, it will provide the material features and functions described in the Documentation. The foregoing warranty excludes (i) Software provided at no charge, (ii) Software provided upon re-mix, (iii) Software that is designated as retired or not generally supported as of the date of the Order, and (iv) deliveries governed by the Maintenance Services terms. Aero Hygenx’s entire liability and Customer’s exclusive remedy for a breach of this warranty will be, at Aero Hygenx’s option, to correct or work around errors, or replace defective Software or refund license fees paid for defective Software returned by Customer.
4.2 Disclaimer.
AERO HYGENX MAKES NO WARRANTIES EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT. REPRESENTATIONS ABOUT PRODUCTS, FUNCTIONALITY, OR SERVICES IN ANY COMMUNICATION WITH CUSTOMER CONSTITUTE TECHNICAL INFORMATION, NOT A WARRANTY OR GUARANTEE. AERO HYGENX DISCLAIMS ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. AERO HYGENX DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.1 Limitation of Liability.
THE ENTIRE, COLLECTIVE LIABILITY OF AERO HYGENX, AERO HYGENX’S AFFILIATES, AERO HYGENX’S LICENSORS, AND THEIR REPRESENTATIVES, FOR ALL CLAIMS AND DAMAGES RELATED IN ANY WAY TO THIS AGREEMENT, IN THE AGGREGATE AND REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO THE AMOUNT PAID TO AERO HYGENX FOR THE SOFTWARE LICENSE, HARDWARE, OR SERVICE THAT GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATION DOES NOT APPLY TO AERO HYGENX’S INDEMNITY OBLIGATION IN SECTION 5.2. IN NO EVENT WILL AERO HYGENX, AERO HYGENX’S AFFILIATES, AERO HYGENX’S LICENSORS, OR THEIR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOSS OF PRODUCTION, INTERRUPTION OF OPERATIONS, OR LOST DATA OR PROFITS, EVEN IF SUCH DAMAGES WERE FORESEEABLE. FOR PRODUCTS AND SERVICES PROVIDED AT NO CHARGE, AERO HYGENX, AERO HYGENX’S AFFILIATES, AERO HYGENX’S LICENSORS, AND THEIR REPRESENTATIVES, SHALL HAVE NO LIABILITY WHATSOEVER. CUSTOMER MAY NOT MAKE A CLAIM UNDER THIS AGREEMENT MORE THAN TWO YEARS AFTER THE EVENT GIVING RISE TO THE CLAIM IS OR SHOULD HAVE BEEN DISCOVERED BY CUSTOMER.
5.2 Intellectual Property Infringement Indemnity.
Infringement Claim Indemnity. Aero Hygenx will indemnify and defend, at its expense, any action brought against Customer to the extent that it is based on a claim that any Product infringes any copyright, any trade secret, or a patent or trademark issued or registered by the United States, Japan, or a member of the European Patent Organization, and will pay all damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement, provided that Customer gives Aero Hygenx (i) prompt written notice of the claim, (ii) all requested information and reasonable assistance related to the claim, and (iii) sole authority to defend or settle the claim. Aero Hygenx will not admit liability or incur obligations on Customer’s behalf without Customer’s prior written consent, which shall not be unreasonably withheld.
Injunction. If a permanent injunction is obtained against Customer’s use of a Product, Aero Hygenx will obtain for Customer the right to continue using the Product or will replace or modify the Product to become non-infringing. If such remedies are not reasonably available, Aero Hygenx will refund the fees paid for the enjoined Product for the remainder of the license term, or amortized over 60 months from the initial delivery of Hardware or a perpetual license, and accept the return of the Product. Aero Hygenx may, in its sole discretion, provide the remedies specified in this Section to mitigate infringement prior to the issuance of an injunction.
Exclusions. Notwithstanding anything to the contrary herein, Aero Hygenx will not have any liability or indemnification obligation to Customer to the extent that an infringement claim arises out of (i) use of a prior version of the Product to the extent that a current version is non-infringing, (ii) failure to use a correction, patch, or new version of the Product offered by Aero Hygenx that performs substantially the same functions, (iii) use of the Product in combination with software, equipment, data, or products not provided by Aero Hygenx, (iv) use of a Product provided at no charge (v) use of a Product that is designated as retired or not generally supported as of the date of the Order, (vi) deliverables resulting from Professional Services, (vii) any adjustment, modification, or configuration of a Product not made by Aero Hygenx, or (viii) instructions, assistance, or specifications provided by Customer.
Sole and Exclusive Remedy. Section 5.2 sets forth the sole and exclusive liability of Aero Hygenx to Customer for infringement of third-party intellectual property rights.
6.1 Termination.
Licenses for a limited term terminate upon expiration of the term. Aero Hygenx may immediately terminate this Agreement or any Product license granted or Services provided hereunder upon notice to Customer (i) for reasonable cause, including, without limitation, Customer’s unauthorized installation or use of Aero Hygenx software, Customer filing or being filed in bankruptcy, Customer ceasing to do business, or any breach of Sections 2.3, 3, 7, or 8 of this EULA, (ii) in order to comply with the law or requests of governmental entities, or (iii) for any other breach that remains uncured after 30 days’ notice therof.
6.2 Effect of Termination.
Upon termination of this Agreement, the licenses granted and Services provided hereunder automatically terminate. Upon termination of any license, Customer will immediately remove and destroy all copies of Software, Documentation, and other Aero Hygenx Confidential Information, and certify such removal and destruction in writing to Aero Hygenx. No refund or credit will be given as a result of termination under Section 6. Termination of this Agreement or any Services or license granted hereunder will not relieve Customer of its obligation to pay the total fees set forth in any Order, which fees will become due and payable immediately upon termination. Sections 2.3, 2.4, 4.2, 5.1, 6.2, 7, 8 and 9.8 survive termination of this Agreement.
7.1 Export.
Aero Hygenx’s obligations under this Agreement are conditioned upon Customer’s compliance with, and Customer agrees to comply with, all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including in any event, those of the United States and the European Union (“Export Laws”). Customer represents that any Products and Services provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or unless expressly authorized by Aero Hygenx in writing, (iv) used for non-civilian purposes (e.g. armaments, nuclear technology, weapons, any other usage in the field of defense and military). Without limiting the foregoing, Customer represents and warrants that (i) it is not a Sanctioned Person, and (ii) it will not download or otherwise access, or facilitate a third party’s download or access of, any Product or Services from a Sanctioned Country. Customer will, at least once per year, review and update its list of users who have access to a Product or Services and confirm that no such user is a Sanctioned Person and that all such users may continue to access Products and Services in compliance with Export Laws. Aero Hygenx may conduct the necessary Export Laws checks and, upon request, Customer will promptly provide Aero Hygenx with any necessary information. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions (currently Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine). “Sanctioned Person” means any person (i) listed in the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control or in any Export-Control-Related list of designated persons maintained by the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) the government of, or acting for or on behalf of the government of, Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such persons.
7.2 Information Disclosure.
If Customer discloses to Aero Hygenx any information that is (i) Covered Defense Information or Controlled Unclassified Information as defined in U.S. Government regulations or (ii) subject to Export Laws that require controlled data handling, Customer will notify Aero Hygenx personnel in advance of each instance of disclosure and will use the notification tools and methods specified by Aero Hygenx.
7.3 Remedies, Indemnification.
In the event that Customer fails to comply with any provision of Section 7 or violates any Export Laws in connection with Products or Services, Aero Hygenx will have the right to take action in accordance with the terms of this Agreement and as required by U.S. law or the applicable law. Further, Customer will indemnify and hold harmless Aero Hygenx, its affiliates and their representatives against any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with Section 7, including Customer’s violation or alleged violation of any Export Laws.
7.4 Impediments.
Aero Hygenx will not be obligated to perform under this Agreement if such performance is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions including, but not limited to, embargoes or other sanctions imposed by the United Nations, the European Union, or the United States.
8.1 Confidential Information.
“Confidential Information” means all information disclosed by one party or any of its affiliates to the other party under this Agreement that is marked as confidential or the confidential nature of which is evident to a reasonable person. Aero Hygenx Confidential Information includes the terms of this Agreement, Products, Services, Aero Hygenx IP, and any information Customer derives from benchmarking the Products or Services. The receiving party will (i) not disclose Confidential Information, except on a need-to-know basis to its employees, affiliates’ employees, consultants, contractors, and financial, tax and legal advisors; and with respect to the use of Products solely as authorized by the agreed license terms, (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this Agreement, and (iii) protect Confidential Information from unauthorized use or disclosure. The receiving party (i) will ensure that all its recipients of Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (ii) will be liable for compliance with this Section by each of its recipients. Aero Hygenx and its affiliates may name Customer as a customer on their websites and in customer lists and other marketing materials.
8.2 Exclusions.
The foregoing confidentiality obligations will not apply to any Confidential Information that (i) is or becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement; (ii) becomes available to the receiving party from a source other than the disclosing party, provided that the receiving party has no reason to believe that such source is itself bound by a legal, contractual, or fiduciary obligation of confidentiality; (iii) was in the receiving party’s possession without an obligation of confidentiality prior to receipt from the disclosing party; (iv) is independently developed by the receiving party without the use of, or reference to, the disclosing party’s Confidential Information; or (v) is required to be disclosed by a governmental agency or law, so long as the receiving party promptly provides the disclosing party with written notice of the required disclosure, to the extent such notice is permitted by law, and cooperates with the disclosing party to limit the scope of such disclosure.
8.3 Data Protection.
When Aero Hygenx processes personal data on Customer’s behalf in connection with Products or Services, the terms set out at www.Aero Hygenx.com/dpt/sw are incorporated herein by reference and shall apply to the use of such Product and Services. Customer will indemnify and hold harmless Aero Hygenx, its affiliates and their representatives from any claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Customer’s noncompliance with applicable data protection laws.
9.1 Aero Hygenx Affiliates.
Companies directly or indirectly owned or controlled by Aero Hygenx’s ultimate parent company may exercise Aero Hygenx’s rights and fulfill Aero Hygenx’s obligations under this Agreement. Aero Hygenx remains responsible for its obligations hereunder.
9.2 Assignment.
This Agreement will extend to and be binding upon the successors and permitted assigns of the parties. However, this Agreement and the licenses granted hereunder may not be assigned, sublicensed, or otherwise transferred (by operation of law or otherwise) by Customer without the prior written consent of Aero Hygenx.
9.3 License Rights Applicable to the U.S. Government.
Products and Services are commercial products that were developed exclusively at private expense. If Products or Services are acquired directly or indirectly for use by the U.S. Government, then the parties agree that the Products and Services are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. Software and Documentation may only be used under the terms and conditions of this Agreement as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights set forth in this Agreement, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal laws. AERO HYGENX will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.
9.4 Feedback.
If Customer provides any ideas regarding the Products or Services, including suggestions for changes or enhancements, (collectively “Feedback”) in the course of using or evaluating the Products or Services, Customer agrees that such Feedback may be used by Aero Hygenx without condition or restriction.
9.5 Force Majeure.
Neither party will be liable for delay or failure to perform due to any cause beyond its reasonable control, which could not have been prevented by good industry practice, provided the delayed party promptly notifies the other party.9.6 Notices. Notices relating to this Agreement will be in writing and sent to the party’s address as specified in the applicable Order. A party may change its address for receipt of notice by delivery of written notice to the other party.
9.7 Language.
If Aero Hygenx provides a translation of the English language version of this Agreement, the English language version of this Agreement will control in the event of any conflict.
9.8 Governing Law and Jurisdiction.
This agreement will be governed by the laws of the State of New York, USA. As such laws apply to contracts between New York residents performed entirely within the State of New York. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the state or federal courts of the State of New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.9 No Waiver; Validity and Enforceability.
The failure to enforce any provision of this Agreement will not be construed as a waiver of such provision. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected, and such provision will be deemed restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law.
9.10 Entire Agreement and Order of Precedence.
This Agreement constitutes the full and complete agreement between the parties with respect to the subject matter hereof and supersedes any previous or contemporaneous agreements or communications, whether written or verbal, relating to such subject matter. This Agreement may not be varied other than in writing by manual signatures or electronic signatures of authorized representatives of both parties. In the event of a conflict between this EULA and any Supplemental Terms, the Supplemental Terms prevail. In the event of a conflict between this Agreement and an Order, the Order prevails with respect to the Products or Services ordered thereunder. The terms of any purchase order or similar Customer document are excluded and such terms will not apply to any Order for Products or Services, and will not supplement or modify this Agreement.
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