12.1 General. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Headings in this Agreement are for the convenience of the parties only. Accordingly, they do not constitute a part of this Agreement when interpreting or enforcing this Agreement.
12.2 Severability. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
12.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.4 Entire Agreement; Breach and Waiver; Amendment. This Agreement, including all Order Forms, constitutes the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Genemod may change the terms of this Agreement at any time by posting a new version of this Agreement online and notifying Customer of such changes. Customer shall have 30 days to object to such changes in a Legal Notice (defined below) delivered to Genemod in accordance with Section 12.10, and if Genemod does not receive such objection within such 30 days all changes shall be deemed accepted. If Customer does timely object to the changes, then the amended Agreement shall not take effect until the next renewal of a Subscription Term. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted. Notwithstanding anything to the contrary, this Agreement shall supersede the terms of any Customer purchase order or other business form. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and an Order Form, the terms of the Order Form shall prevail. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Terms of Service, the provisions of this Agreement shall prevail. No waiver of any breach of this Agreement shall constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof. Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement.
12.5 Force Majeure. Subject to the further provisions of this section, any delays or failures by either party in the performance of its obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party. Performance will be excused only during the actual period an occurrence continues. Accordingly, neither party may terminate this Agreement for cause on account of a failure of the other party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.
12.6 Federal Government End Use Provisions. Genemod provides the Genemod Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Genemod Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). In the event that a government agency may need rights not conveyed under these terms, it must negotiate with Genemod to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
12.7 Governing Law. The laws of the State of Washington govern this Agreement as if performed wholly within the state and without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any legal actions or proceeding arising under this Agreement must be brought exclusively in the state or federal courts for the Western District of Washington and the parties hereby consent to personal jurisdiction and venue therein.
12.8 Customer’s Reference and Case Study. Customer agrees that upon Genemod's request, Customer will make a representative reasonably available to participate in reference inquiries from Genemod’s potential customers. Either party may include the other's name and logo in customer or vendor lists including those customer or vendor lists used in press releases.
12.9 Survival. The parties’ rights and obligations under Sections 4 (Fees), 5 (Intellectual Property Rights), 6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Mutual Indemnification), 11 (Term and Termination) and 12 (Miscellaneous) shall survive the termination of this Agreement for any reason.
12.10 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Customer Contact designated by Customer in the applicable Order Form.
12.11 Export Restrictions. Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Genemod Services and Genemod Confidential Information and any media, to assure that the Genemod Services, Genemod Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
12.12 Restricted Use.
Customer is prohibited from using the Genemod Services when headquartered in any of the following countries: Iraq, China, Russia, or any state listed on the United States State Department State Sponsors of Terrorism List found here https://www.state.gov/state-sponsors-of-terrorism/
. Authorized Users who are nationals or domiciled in these countries are exempt from this restriction.