END-USER LICENSE AGREEMENT
This End-User License Agreement (“EULA”) is a legal agreement between you (the “Customer”) and Intelligent Imaging Innovations, Inc. (“3i”). This EULA consists of the Purchase Order executed by Customer, the following terms and conditions, and the software, defined below. By agreeing to this EULA and/or installing, downloading, accessing or otherwise using the software described below, Customer agrees to be bound by the terms of this EULA. This EULA is effective from (i) the date 3i first installs the software, defined below, on Customer’s computer in connection with Customer’s purchase of 3i equipment (“First Installed by 3i”) or (ii) the date Customer checks or clicks the appropriate electronic EULA dialog box to use or download the software, defined below, whichever is applicable (“Effective Date”). If this EULA is being provided to Customer in connection with a release or update to software, defined below, already in use by Customer, the terms and conditions herein shall not extend or otherwise expand any rights Customer has under the EULA applicable to software First Installed by 3i or to the initial download of the software by Customer (if not First Installed by 3i), including subsequent releases or updates thereto. The date of Customer’s initial download of the software or the date the software is First Installed by 3i, as applicable, shall be referred to herein as “First Use”. If there is no EULA applicable to Customer’s First Use of the software and/or subsequent releases or updates thereto, the terms and conditions of the instant EULA shall apply and govern Customer’s use of the software, commencing as of the date of Customer’s First Use, except that any Software Updates shall not extend the Limited Warranty described herein and that commences upon First Use.
- Definitions. As used in herein, the following definitions apply:
1.1 “Software” means the SlideBook digital microscopy computer program and any updates and supplements thereto provided to Customer by 3i, and any associated media, printed materials and “online” or electronic documentation relating to thereto.
1.2 “Documentation” means the printed, electronic and/or online material and manuals made available by 3i to Customer that describe, among other things, the functions of the Software.
1.3 “License Fee” means the amount payable by the Customer to 3i for use of the Software.
- Grant of License. Subject to the payment of the License Fee, during the term specified in Section 16, 3i grants Customer a revocable, nonexclusive, nontransferable license in and to use the Software.
- Reservation of Rights; Prohibited Activities. 3i retains ownership of the Software and all copies thereof and all right, title and interest therein. All rights not specifically granted to Customer in this EULA, including Federal and International Copyrights, are reserved by 3i. Any and all uses or applications of the Software not expressly authorized in Section 2 are prohibited. Specifically, by way of illustration and not limitation, Customer does not have any right to (i) sell the Software or distribute or transfer it for value or otherwise; (ii) rent, lease, lend, commercially host or encumber the Software; (iii) grant any sublicenses relating to the use of the Software; (iv) copy, republish, upload, post or transmit the Software; (v) share the Software with any affiliates of Customer or with Customer’s parent company, or otherwise use the Software or any of its component parts concurrently on more than one Computer; (vi) provide access to the Software or allow use by any third party, other than Customer or allow any affiliates or any parent entity or organization of Customer to operate or otherwise view or access the Software, except as applied to 3i network license contracts; (vii) modify, translate, decompile, disassemble, reduce to a humanly perceivable form the Software, or separate its component parts or access or modify the source code; (viii) reverse engineer the Software or its source code, or make any derivative works, such as any revision, enhancement, modification, translation, abridgment, condensation, or expansion of the Software, or otherwise recast, transform or adapt it in a manner that would constitute copyright infringement, or otherwise provide an unauthorized means of accessing data in the Software; (ix) use the Software for purposes of software development, i.e., the creation of coded computer instructions; or (x) use any trademarks, service marks or trade secrets or confidential information of 3i.Engaging or attempting to engage in any of the foregoing prohibited activities shall constitute a material breach of this EULA by Customer and shall further result in the cancellation of the license granted herein and any and all warranties provided under this EULA. Customer shall allow 3i to enter Customer’s premises in order to inspect the Software during regular business hours to verify compliance with the terms of this EULA, and 3i may access any Customer file or electronic database containing the Software for purposes of auditing the use of the Software or protecting 3i’s rights and/or remedies as described herein. In the event that such audit reveals any use of the Software by Customer other than in full compliance with the terms of this EULA, Customer shall reimburse 3i for all reasonable costs related to such audit in addition to any other damages 3i may suffer as a result of such non-compliance.
- License Fee. In consideration of the license granted to Customer hereunder, Customer shall pay to 3i the License Fee set forth on Customer’s Purchase Order. Time of payment is of the essence. The License Fee is exclusive of duties, bank fees, sale, use, excise or similar taxes due, which are the exclusive responsibility of Customer.
- Delivery. Upon execution of this EULA, the Software and updates, according to the terms herein, shall be delivered via electronic download, controlled by a 3i-supplied software-protection dongle or in such other format as 3i may reasonably determine appropriate. All Software delivered via download shall be deemed accepted upon Customer’s checking or clicking the appropriate electronic EULA dialog box.
- Upgrades and Support. For a period of one (1) year, commencing on the Effective Date (“First Year”), 3i shall provide Customer with all corrections, revisions, patches, updates and subsequent releases of the Software (“Software Updates”) made available by 3i to other licensees of the Software. Any supplemental software code provided to Customer as part of Software Updates shall be considered part of the Software and subject to the terms and conditions of this EULA. If the Software furnished by 3i is an upgrade from an earlier version of the Software, it is provided to Customer on a license exchange basis. Customer agrees that it will not continue to use the earlier version of the Software or transfer it to another person, entity or machine, and all rights and license to use the same shall end. Any Software Updates shall not extend the Limited Warranty described herein and that commences upon First Use.During the First Year, 3i shall also provide e-mail, telephone and/or video chat and remote desktop consultation and technical support to Customer, pertaining to the operation and use of the Software (“Technical Support”). Customer should communicate its request for Technical Support via e-mail to 3i at: firstname.lastname@example.org 3i shall endeavor to promptly respond to requests from Customer for Technical Support and shall use commercially reasonable efforts to resolve such requests.
After the First Year, 3i may provide Customer with technical assistance related to the Software, including troubleshooting, diagnosis and resolution of errors in the Software (collectively, “Support Services”), pursuant to the terms and conditions of an optional separate written agreement or agreements (“Software Support Agreement” or “System Maintenance Agreement”) between 3i and Customer and subject to a separate fee. Use of Support Services shall be governed by any such written agreement(s), and by the 3i policies and procedures then in effect and/or described in any written materials provided by 3i, if applicable (e.g., the user manual, “online” or electronic documentation, etc.)
- Customer Data. Customer data files are and shall be the sole property of Customer. Customer acknowledges that data conversion is subject to the likelihood of human and machine errors, omissions, delays and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. 3i shall not be liable for any such errors, omissions, delays, losses or any damages resulting therefrom. Customer is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data on at least a daily basis, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Customer is also exclusively responsible for complying with all local, state and federal laws pertaining to the use and disclosure of any data and the use of the Software.
- Proprietary Rights. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. 3i shall have sole and exclusive ownership of all right, title and interest in and to the Software and all copies thereof (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the right and license expressly granted to Customer herein. This EULA does not provide Customer with title or ownership of the Software, but only a right of limited use. All proprietary rights in and to the Software (including but not limited to patent, copyright, trade secret, trademark or other proprietary rights in any software code, images, screens and screen layouts, photographs, flow charts, logic diagrams, animations, video, audio, music, user manuals and text displayed by or incorporated into the Software) and any copies of the Software are owned exclusively by 3i. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants Customer no rights to use such content. If the Software includes or is accompanied by documentation which is provided only in electronic form, Customer may print one copy of such electronic documentation. Except as specifically set forth herein, Customer may not copy any printed materials accompanying the Software. This EULA does not grant Customer any rights whatsoever in connection with any trademarks or service marks of 3i. If Customer ceases to exist as a business entity for any reason that does not result in a transfer of Customer’s license permitted hereunder and expressly accepted in writing by 3i in its sole discretion, Customer will provide 3i with sufficient access to Customer’s premises and equipment for the purpose of protecting 3i’s rights in the Software, including, but not limited to, disabling the Software.
- Confidential Information. The Software contains certain proprietary information, including trade secrets, know-how, source code and other sensitive information, that is of a secret and confidential nature, regardless of whether or not it is specifically marked or identified as such (the “CONFIDENTIAL INFORMATION”). During the term of this EULA and at all times after its termination, Customer agrees to maintain the confidentiality of the CONFIDENTIAL INFORMATION and not use, sell, license, publish, display, distribute, disclose or otherwise make any of the same available to any third party without the prior written consent of 3i in each instance.
- Compliance. Customer shall ensure that its employees and independent contractors and all other agents and representatives of Customer shall comply with all of the requirements of this EULA. Any act or omission that would constitute a breach of this EULA if committed by Customer shall constitute a breach by Customer when committed by any employee, independent contractor, agent, representative or permitted assignee of Customer. Customer expressly accepts and assumes full responsibility and liability for the acts or omissions of any of the same, and as to any violation. Customer agrees that it shall be directly liable to 3i for all damages resulting from the violation, including but not limited to all incidental, consequential and special damages, and 3i’s reasonable attorneys’ fees and legal costs, including expert fees, and fees and costs on appeal.
- Limited Warranty.
11.1 3i warrants, for Customer’s benefit alone, that the Software, when properly installed and used as intended by 3i, will perform substantially as specified by 3i for a period of one (1) year from the date of the First Use (the “Warranty Period”). The Warranty Period shall terminate one (1) year after the date of the First Use, notwithstanding Customer’s download, installation and/or use of subsequent Software releases or updates, which releases or updates shall also be subject to the terms and conditions of this EULA or any EULA provided to Customer by 3i as may then be in effect. For avoidance of doubt, absent Customer’s entry into a separate Software Support Agreement or System Maintenance Agreement with 3i, the Warranty Period shall not be extended beyond one (1) year after the date of the First Use and subsequent Software releases and updates shall not operate to extend the Warranty Period or trigger a new warranty period. 3i does not warrant that the Software will be error-free in all circumstances. In the event of any defect or error during the Warranty Period, Customer agrees to provide 3i with sufficiently detailed information to allow 3i to identify the defect or error. If Customer reports a material defect or error to 3i during the Warranty Period, 3i shall, at 3i’s option, either (i) make commercially reasonable efforts conditioned upon Customer’s obligation to fully cooperate, to resolve the issues by repair or replacement; or (ii) refund the portion of the license fee applicable to the period of time in which the defect prevented reasonable use of the Software, which refund shall constitute an automatic and immediate termination of this EULA. Any replacement Software will be warranted for the remainder of the original Warranty Period only. 3i is not responsible for any defect or error not reported during the Warranty Period, nor for any defect or error caused by any modification, improper installation or misuse of the Software after installation/download. Product components or products produced by other manufacturers are not warranted by 3i under this EULA. To the extent allowed by applicable law, all warranties on the Software are limited to one (1) year from the date the Software is installed. This limited warranty is Customer’s sole and exclusive remedy under the EULA in the event of any defect or error in the Software. Except as expressly set forth in Sections 11, 12 and 13 herein, 3i shall have no liability to Customer or any third party in connection with the Software or any products or services provided by 3i in connection therewith.
11.2 IF CUSTOMER RESIDES OR IS LOCATED OUTSIDE THE UNITED STATES OR OTHERWISE ACQUIRED THE SOFTWARE PRODUCT OUTSIDE THE UNITED STATES, CUSTOMER HEREBY EXPRESSLY waiveS any rights CUSTOMER may have under international law or ANY treatIES, including but not limited to the international convention on the sale of goods.
11.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND WITH THE EXCEPTION OF THE EXPRESS ONE (1) YEAR WARRANTY PROVIDED IN PARAGRAPH 11.1 HEREIN, 3I DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, MARKETABILITY, PROFITABILITY, SUITABILITY, AND/OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE, ALL OF WHICH ARE HEREBY EXCLUDED. Under no circumstances shall 3i be liable, whether in contract, tort or otherwise, to Customer or any other person for any special, incidental or consequential damages, including but not limited to damage to, loss of, or loss of the use of other property or equipment, loss of profits or revenues, loss of data, or claims of Customer or of customers of Customer for losses of any kind.
11.4 The warranty provisions of this Section 11 do not apply if the Software has been subject to modification by Customer or any person other than 3i or pursuant to 3i’s express, written instruction, has not been installed, operated or maintained in accordance with the instructions supplied by 3i or has been subject to misuse, accident or abuse.
11.5 CUSTOMER AGREES THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW, THE LIMITATIONS ON WARRANTIES PURSUANT TO THIS SECTION 11 ARE “CONSPICUOUS” FOR ALL PURPOSES.
- Limitation of Liability. Notwithstanding any other provision of this EULA, 3i’s maximum liability for any and all claims by Customer, whether in contract, tort, or otherwise, relating in any way to either the Software or Software Updates, any other products or services provided by 3i hereunder, or the Customer’s data, files, business operations, or otherwise, shall be limited to the license fees paid by Customer for the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER 3I NOR ITS CONTRACTORS OR SUPPLIERS SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS EULA, THE USE OF OR INABILITY TO USE THE SOFTWARE OR SOFTWARE UPDATES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL SUPPORT.
- Indemnification. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS 3I, ITS AFFILIATES, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS, ADVISORS, CONSULTANTS AND REPRESENTATIVES OF EACH OF THEM AGAINST ANY AND ALL LOSS, DAMAGE, EXPENSE AND COST OF EVERY KIND, INCLUDING BUT NOT LIMITED TO FINES, PENALTIES, COMPENSATORY DAMAGES, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, PUNITIVE DAMAGES, REASONABLE ATTORNEYS’ FEES AND COSTS (INCLUDING EXPERT WITNESS FEES AND ON APPEAL AND IN COLLECTION PROCEEDINGS), ARISING OUT OF ANY CLAIM, DEMAND, PROCEEDING, ACTION OR LAWSUIT RELATED TO CUSTOMER’S UNAUTHORIZED USE OR MISUSE OF THE SOFTWARE OR TO ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE OR CORRUPTION OF CUSTOMER’S DATA OR ANY THIRD-PARTY DATA ARISING FROM CUSTOMER’S USE OF THE SOFTWARE OR SOFTWARE UPDATES.In the event that the Software or any portion thereof becomes, or in 3i’s opinion is likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, 3i may at in its sole discretion either secure Customer’s right to continue using the Software or portion thereof or modify it to make it not infringing. If none of the foregoing is commercially reasonable for 3i, 3i may terminate or cancel this EULA and require that Customer cease using Software, including without limitation returning the Software-protection dongle to 3i with notice to 3i under Section 18 below, and provide Customer with a pro-rated refund of the License Fee.
- Breach; Attorneys’ Fees. Should Customer fail to pay any fees or charges due hereunder within five (5) days after they are due, or fail to comply with any provision of this EULA, such failure shall constitute a default and material breach of this EULA. In the event of any breach by Customer, 3i may, at its option, in addition to all other available remedies, including damages, terminate this EULA and Customer’s access to the Software. In addition, in the event of any breach or threatened breach of Sections 3 or 9, 3i shall be entitled to obtain injunctive relief against Customer without the necessity of a bond, in addition to all other remedies available at law. Any breach of this EULA by Customer shall immediately void all warranties relating to the Software. In the event that Customer breaches this EULA, 3i shall also be entitled to recover its reasonable attorneys’ fees, legal costs and collection costs relating to the enforcement of this EULA and the collection of amounts due from Customer, as well as costs and fees on appeal and expert witness fees.
- Late Charges. Time of payment is of the essence. If any amount owed to 3i is not paid when due, 3i may, at its option, charge interest at a rate of one and one-half percent (1 1/2%) per month (eighteen percent (18%) per year). Payments received from Customer shall be applied first to the costs of collection (including attorneys’ fees and legal costs incurred by 3i), if any, then to the reduction of accrued interest, if any, and finally to the reduction of the principal amount owed by Customer.
- Term & Termination. The term of this EULA shall begin on the Effective Date. The term of this EULA shall be one year, with automatic renewals every year thereafter, except as to the Limited Warranty which shall not renew but which shall terminate 12 months after First Use, unless a termination occurs as provided herein. Notwithstanding any other provision of this EULA, 3i may terminate this EULA at any time and for any reason upon written notice to Customer. In addition, in the event of a material breach by Customer this EULA shall automatically terminate without the need for any additional notice to Customer. Upon termination of this EULA for any reason whatsoever, all licenses granted under this EULA will terminate, and Customer shall, upon 3i’s request, cease any further use of the Software and Software Updates or any portion thereof. Upon 3i’s request, an authorized representative of Customer shall provide a written certification that warrants compliance with this Section 16. 3i’s foregoing rights and remedies shall be cumulative and in addition to all other rights and remedies available to 3i in law and in equity. In the event that Customer fails to comply with 3i’s request to terminate under this paragraph, 3i shall be entitled to obtain injunctive relief against Customer, without the need for a bond.
UPON ANY TERMINATION, EXPIRATION OR CANCELLATION OF THIS EULA, DUE TO BREACH OR OTHERWISE, 3I SHALL IN ALL EVENTS HAVE ALL RIGHTS, POWER AND AUTHORITY TO EXERCISE ELECTRONIC SELF-HELP AND TO EXERCISE ALL RIGHTS, REMEDIES AND RECOURSE TO WHICH IT MAY BE ENTITLED, WHICH SELF-HELP SHALL INCLUDE WITHOUT LIMITATION, ALL ELECTRONIC MEANS AVAILABLE TO IT.
- Notices. With the exception of Customer’s requests for Technical Support during the Warranty Period and communications between and among Customer and 3i and its agents relating thereto, all notices permitted or required under this EULA shall be in writing and shall be delivered by personal delivery or by certified or registered mail, return receipt requested. Notices shall be sent to:
If to 3i:
Intelligent Imaging Innovations
Colin Monks, Co-President
3575 Ringsby Court, Suite 102
Denver, Colorado 80216
+1 (303) 607-9429
With copy to:
Regina T. Drexler, Esq.
Drexler Law, LLC
201 Columbine Street, Suite 150, Box 6658
Denver, CO 80206
- Force Majeure. 3i shall not be liable for any delay or failure to perform acts due to unforeseen circumstances or causes beyond its reasonable control, including but not limited to strikes, work stoppages, labor conditions, material shortages, riots, insurrection, fires, flood, storm, earthquake, explosions, man-made catastrophes, natural catastrophes or acts of God, acts of terrorism or sabotage, electronic viruses, worms or corrupting software code, war, governmental action that impedes 3i’s performance herein, accidents, inability to secure transportation or fuel, loss or malfunction of utilities, including communications systems, or pandemic.
19.1 No Assignment. Customer’s license may not be transferred, leased, assigned or sublicensed without the prior written consent of 3i in each instance, which consent may be withheld at 3i’s sole discretion.
19.2 Limitation Period and Notice. To the maximum extent permitted by applicable law, no action or claim, regardless of form, arising out of this EULA may be instituted by Customer more than one (1) year after the event giving rise to such action or claim or more than three (3) years after delivery of the Software to Customer. In addition, Customer must notify 3i in writing at least thirty (30) days prior to instituting any lawsuit arising out of this EULA, with a full description of Customer’s claims and alleged damages.
19.2 No Waiver. Failure or delay by 3i in seeking enforcement of any term or condition hereof at any time shall not constitute a waiver of the right to enforce such term or condition in the future, nor of 3i’s right to enforce any other term or condition hereof. No waiver by 3i of any right hereunder shall be binding unless contained in a writing signed by an authorized representative of 3i. No use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner the terms of this EULA.
19.3 Fair Meaning. The language in all parts of this EULA shall in all cases be construed according to its fair meaning and not strictly for or against either party. It is agreed that if any provision of this EULA is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid.
19.4 Severability. Whenever possible, each provision of this EULA shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this EULA is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this EULA.
19.5 Export Restrictions. Customer agrees that Customer will not export or re-export the Software, any part thereof, or any process or service that is the direct product of the Software (the foregoing collectively referred to as the “Restricted Components”), to any country, person or entity subject to U.S. export restrictions. Customer specifically agrees not to export or re-export any of the Restricted Components (i) to any country to which the U.S. has embargoed or restricted the export of goods or services or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (ii) to any person or entity whom Customer knows or has reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. Customer warrants and represents that no U.S. federal agency has suspended, revoked or denied Customer’s export privileges. Customer agrees to indemnify and hold 3i harmless in the event that 3i suffers any liability as a result of any violation of law by Customer.
19.6 Successors and Assigns. All of the covenants and conditions of this Agreement shall be binding upon and apply to all successors, executors, administrators, affiliates, and assigns of the parties to this Agreement.
19.7 Government Users. If Customer is an agency, department or other entity of the U.S. Government, Customer acknowledges that the Software is a “Commercial Item”, “Commercial Computer Software” and “Commercial Computer Software Documentation” as those terms are defined under 48 C.F.R. (Federal Acquisition Regulations System), and thus the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted by the terms of this EULA.
19.8 Governing Law, Jurisdiction, Venue & Forum. This EULA shall be governed by and construed and enforced in accordance with the laws of the State of Colorado as it applies to a contract made and performed in such state, without regard to conflict of laws principles. The exclusive venue and forum for any action arising hereunder shall lie in the state district courts in and for the City and County of Denver, Colorado and/or in the U.S. District Court for the District of Colorado, as applicable, and each party irrevocably consents to the personal jurisdiction of and forum and venue in such courts. Customer waives any objection to personal jurisdiction and venue and waives any right to assert that such forum is an inconvenient forum.
19.9 No Agency. Nothing contained herein shall be construed as creating any agency, partnership or other form of joint enterprise between the Parties.
19.10 Entire Agreement. This EULA is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of its terms. This writing supersedes any previous or contemporaneous communications, representations or agreements by either party whether verbal or written, regarding such subject matter. No representations, understanding or agreements have been relied upon in making this EULA other than as specifically set forth herein. This EULA can only be modified in a writing signed by the parties hereto.
19.11 Binding Authority. The individual signing this EULA warrants, represents and covenants that he or she is the Customer or is duly authorized and empowered to enter into, execute, deliver and perform this EULA on behalf of the Customer and that the execution, delivery and/or performance of this EULA shall not, and will not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in the Customer’s Articles of Incorporation, By-Laws, Articles of Organization, Partnership Agreement or similar document, or otherwise contained in any agreement to which Customer is a now or hereafter a party or by which either party to this Agreement may become bound.
19.12 Prevailing Party. If any litigation or other court action, or similar adjudicatory proceeding (other than mediation) is commenced by any Party to enforce its rights under this EULA against any other Party, all fees, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, expert witness fees and costs, including on appeal and in collection proceedings incurred by the prevailing party in such litigation, action, or proceeding shall be reimbursed by the losing party.
19.13 Headings. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
19.14 Counterparts. This EULA may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.