AIM Terms of Services
You ( “Client”) are contracting with AIM Intelligent Machines, Inc., a Delaware corporation (“AIM”) who provides certain hardware and software solutions (“AIM Products”) and consulting, license, training, and support services related to the AIM Products (collectively, “AIM Products and Services”). By entering into this Agreement, Client acknowledges and agrees that the terms and conditions of Agreement are subject to revisions and changes at AIM’s discretion from time to time with sufficient notice.
Subject to the terms and conditions of this Agreement, AIM hereby grants to Client, during the Subscription Term (as defined in any Statement of Work or Purchase Order mutually executed by the parties referencing this Agreement (“Statement of Work”)), a non-exclusive, non-transferable, non-sublicenseable right and license to use the specific version(s) of AIM’s autonomous control application (the “Software”) and associated hardware product(s), including, for example, computer, sensor, mounts, and connections (the “Hardware”) as set forth in the Statement of Work, including all generally available upgrades, updates, and new versions thereof during the Subscription Term, as well as any associated consulting, license, training, and support services, for Client’s internal business purposes only subject to any usage limitations or other restrictions set forth herein and in the Statement of Work. The AIM Products may only be installed on one designated physical machine per license purchased without any rights to copy, distribute, or transfer to any other physical machine, or to use for any purposes beyond the scope of this Agreement and any associated Statement of Work, without the express written consent of AIM. Unless otherwise specified in an applicable Statement of Work, Client shall only be permitted to use the specific version(s) of the Software and Hardware set forth in such Statement of Work and shall not be entitled to use or access future versions or releases of the Software or Hardware without execution of an additional Statement of Work. This Agreement supersedes any other agreement between AIM and Client with respect to the Software and Hardware.
Client may not: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software and Hardware, unless otherwise specified in writing in a Statement of Work; (b) copy the Software onto any computing environment; (c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software or the Hardware, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software (except any Software provided to Client in source code form); (d) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software or the Hardware; (e) modify any proprietary rights notices which appear in the Software, the Hardware, or components thereof; or (f) use any Software or Hardware in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth herein. Client shall not export or re-export any Software, Hardware, or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.
Client shall notify AIM immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software and/or Hardware. Client is responsible for use of the Software and Hardware by any and all employees, contractors, or other users that it allows to access the Software and Hardware.
Client may provide suggestions, feedback and other information to AIM regarding possible improvements in the operation, functionality or use of the Software and Hardware ("Feedback"). Client hereby grants to AIM the perpetual, irrevocable right to use, copy, modify, create derivative works of and otherwise fully exercise and exploit such Feedback solely for the purpose of (i) improving the operation, functionality or use of AIM's existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated statistics about software and hardware quality, provided that no data in any such publication can be used to specifically identify Client, its employees or Client's software code or hardware configuration.
From time to time, Client may order certain professional services pursuant to one or more Statement of Work that is accepted in writing by AIM that describes the specific services to be performed by AIM and any work product to be delivered by AIM (such services, the “Services”). Each Statement of Work will form a part of this Agreement, and will be subject to the terms and conditions contained herein. AIM will use commercially reasonable efforts to perform the Services specified in each Statement of Work in accordance with this Agreement and each Statement of Work. No change to any Statement of Work will be effective without the written agreement of each party.
In connection with each Statement of Work, Client will provide AIM with access to Client’s systems and facilities and otherwise cooperate with AIM, in each case, as reasonably required to permit AIM to perform the Services. Client will also make available to AIM any data, information and any other materials required by AIM to perform the Services, including any data, information or materials specifically identified in the Statement of Work (collectively, “Client Materials”). All such Client Materials are provided on an “as is” basis. AIM may use and analyze Client Materials to administer, improve, customize and enhance its products and services and may share aggregated information and non-identifying information with third parties; provided that AIM shall not disclose any Client Materials to a third party in raw or disaggregated form, or identify Client as the source, or in violation of Section 4 herein.
AIM has used its best estimates based on currently known information in setting the schedule as proposed herein. Schedule may be subject to change based upon Client’s requirements and circumstances as set forth herein and the MSSA Agreement. AIM will use best efforts to proceed efficiently, but cannot be responsible for any delay directly or indirectly caused by (1) delay in the provision of any logistical support required from Client specified in the Statement of Work, including, but not limited to, delay in work space or living space arrangement, power or Internet failure, or delay as a result of infrastructure setup or job site distances, access issues, or (2) delay as a result of a force majeure, including, but not limited to COVID or other pandemic complications, unforeseen or inoperable weather conditions, war, terrorist attacks, natural disasters that fall under the “act of God” category, such as a flood, earthquake, or hurricane.
The parties will designate an individual who will be the primary point of contact (the “Primary Contact”) between the parties for all matters relating to the Services. A party may designate a new Primary Contact by written notice to the other party.
During the Term of this Agreement and for one (1) year thereafter, without the consent of AIM, Client shall not directly or indirectly solicit, recruit or hire any full-time employee of AIM involved in the provision of Services hereunder (an “AIM Service Provider”). However, this restriction shall not apply to general solicitations of employment not specifically directed towards AIM Service Providers. If Client hires an AIM Service Provider in violation of this provision, Client shall pay AIM as liquidated damages, and not as a penalty, an amount equal to twenty-four months of such AIM Service Provider’s current salary. The parties agree that a breach of this Section will result in damages to AIM that would be difficult to calculate, and have been agreed to by the parties for the purpose of reflecting and advancing their mutual convenience, including the ease of calculating damages to AIM. Client and AIM each hereby stipulates to the fairness and reasonableness of such liquidated damages and covenants not to allege or assert, or allow any of their respective affiliates, or cause or encourage or support any other third party to allege or assert, that such liquidated damages are unenforceable or illegal in any way for any reason.
Any intellectual property shared by AIM during the Subscription Term is strictly covered by this Agreement, and cannot be used by Client for purposes other than the use set forth herein. This intellectual property includes any hardware components and configuration, sensors, software interfaces, and artificial intelligence components, which are the property and Confidential Information of AIM. AIM retains all right, title, and interest in new features of its products and services developed during the Subscription Term, including the Software, the Hardware, and any intellectual property rights embodied therein.
Client will be billed for those amounts and at those prices set forth in the applicable Statement of Work, as applicable. During the term of this Agreement and for two (2) years thereafter, Client will maintain, and AIM will be entitled to audit, any records relevant to Client's use of the AIM Products and Services hereunder. AIM may audit such records on reasonable notice at AIM's cost (or if the audits reveal material non-compliance with this Agreement, at Client's cost.
Client or a third party at the direction of Client shall pay those amounts set forth in invoices not disputed in good faith within thirty (30) days of the date of receipt thereof, unless a specific date for payment is set forth in the Statement of Work, in which case the payment will be due on the date specified. All payment obligations are non-cancelable and all amounts paid are non-refundable, unless otherwise specified, except for amounts paid in error that are not actually due under this Agreement. The fees paid by Client are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on AIM's income. Client represents and warrants that the billing and contact information provided to AIM is complete and accurate. Client shall pay interest on all payments not received by the due date at a rate of three and a half percent (3.5%) or the maximum amount allowed by law, whichever is lesser.
"Confidential Information" means all information of a party ("Disclosing party") disclosed to the other party ("Receiving party") that is designated or identified, orally or in writing, as confidential at the time of disclosure, or should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure, including, without limitation, computer programs, drawings, hardware, installation, configuration, software, algorithms, source code, know-how, formulas, processes, ideas, inventions (whether patentable or not), performance, specifications, testing, schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information, which to the extent previously, presently or subsequently disclosed or made available to the Recipient. The Receiving party will: (i) hold all Confidential Information received from the Disclosing party in strict confidence; (ii) only use the Disclosing party's Confidential Information for the purpose ("Purpose") of (a) test, adopt, and/or use AIM Products and Services, and (b) any relationship is formed by a written agreement, furthering the Purpose and intent expressly stated in such written agreement; (iii) not disclose such Confidential Information to any person or entity, other than its employees, consultants, agents and professional advisers who have a "need to know" for the Receiving party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 4. If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing party, and, to the extent within its control, permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, this Section 4 will not apply to information which the Receiving party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed, with documentary support, by employees of the Receiving party who had no access, directly or indirectly, to such information.
The Receiving party acknowledges that unauthorized disclosure and use of Confidential Information could cause substantial harm to the Disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving party, the Disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
In the event of a breach, the Receiving party must, at its own expense, ensure that, at all times, (i) notify the Disclosing party immediately if it becomes aware of any disclosure or use of Confidential Information of the Disclosing party other than for the Purpose or otherwise permitted under the Agreement; (ii) immediately take all reasonable steps to prevent or stop the suspected or actual breach and any further breach of the Agreement; and (iii) comply with any reasonable direction by the Disclosing party from time to time regarding enforcement of this agreement or the obligations under it.
Each party agrees that it shall not itself, or cause or enable any other person to reverse-engineer, decompile, or disassemble any software, hardware, process, or tangible items, including refraining from any activities, examinations, performance or qualitative analyses, or other investigations that seek to discover the contents, algorithms, composition, or manufacturing formulae of the Confidential Information.
In the event of any dispute arising out of this Agreement, the parties shall confer in good faith to resolve the dispute amicably. If the parties cannot resolve amicably within 14 days of a first written notice concerning the dispute, AIM reserves the right to initiate any legal proceedings against the Receiving Party to enforce or protect any of its rights under this Agreement. In the event AIM brings one or more legal proceedings and prevails, AIM shall be entitled to recover, in addition to any damages, (a) any consequential or punitive damages, and (b) reasonable attorneys' fees and costs incurred in connection therewith.
All visits to AIM or job sites, or recording of machines equipped with AIM Products and Services (“AIM-Enabled Machines”) must be coordinated with AIM and with AIM’s express authorization. All visitors must sign a waiver and an NDA without exception. Client agrees that AIM may, with Client’s consent, demonstrate the operation of the Hardware and the Software at job sites to visitors of non-competing nature to the Client without disruption of Client’s operations.
Client shall provide relevant data such as site data, geo data, video of relevant sites and machines working, AutoCAD source files, historical performance data, aggregate stats at appropriate granularity as determined by AIM. AIM shall furnish Client upon request with job data, for example, dash and remote stop data. Parties agree that this Agreement applies to any breach of parties’ confidentiality obligations.
AIM and its suppliers own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark, and all other intellectual property rights, in and to the Software and the Hardware and any output generated by the Software. Client acknowledges that the rights granted under this Agreement do not provide Client with title to or ownership of the Software or the Hardware. In addition, each Statement of Work may contain specific terms and conditions relating to Client's use of any third party software delivered with the Software or Services (if applicable).
Each party shall have the right to file applications for patents for its own inventions and creations, and it shall not be considered a breach of this Agreement for each party to set forth in those applications Confidential Information as may be necessary to describe completely each party's own invention or creation in accordance with the requirements of the applicable patent law of the country involved. For the avoidance of doubt, the Receiving party of Confidential Information is prohibited to use Confidential Information in connection with a patent application or to guide the Receiving party's patent strategy.
The Subscription Term of each Statement of Work is as specified in such Statement of Work. This Agreement will be in effect, on an Statement of Work-by-Statement of Work basis, for so long as any Statement of Work is in effect. Each Statement of Work may be terminated as set forth herein or as set forth within such Statement of Work. If either party fails to comply with any provision of this Agreement or any Statement of Work, and such breach has not been cured within forty-five (45) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement or the affected Statement of Work, except that AIM may immediately terminate this Agreement or the affected Statement of Work upon Client’s breach of Section 1.2. Upon expiration or termination of this Agreement or any Statement of Work for any reason, Client shall cease any further use of the applicable Software and Hardware and destroy any copies of the applicable Software or related technical documentation provided by AIM (“Documentation”) within Client’s possession and control. Upon expiration or termination of this Agreement, each Receiving party will return or destroy, at the Disclosing party’s option, the Disclosing party’s Confidential Information in the Receiving party’s possession or control. All fees that have accrued as of such expiration or termination, and Sections 1.2, 1.3, 1.5, 3, 4, 5, 6, 7.2, AND 8 through 12 will survive any expiration or termination of this Agreement or the affected Statement of Work.
ither party may terminate any Statement of Work, for any reason, with or without cause, with a 14-day written notice. No refund for any fees or costs associated with any milestone set forth below once AIM has mobilized for the milestones. Upon expiration of the Subscription Term or termination of a Statement of Work, AIM will perform, and Client will facilitate, the de-installation of the installed Hardware within 30 days, subject to the availability of AIM personnel or any further agreement by the parties. Client agrees that only AIM or a representative authorized by AIM may perform de-installation, and the cost for de-installation shall be as specified in the Statement of Work per machine to cover travel, labor, and shipping of materials. Before removal of the Hardware, Client will use best effort, subject to the terms and conditions of the Statement of Work, to use the machine in an ordinary fashion safely without damaging the Hardware, and AIM will use best effort to remove the Hardware in a timely manner.
AIM shall be responsible for the installation and maintenance of the Software and the Hardware. Client agrees to coordinate with AIM on any and all access and use of the AIM-Enable Machines, Hardware, and the Software, and will not, without express written permission of AIM, modify, remove, move, disassemble, damage, reverse-engineer, add or combine third party product onto, or otherwise tamper with the AIM-Enabled Machine(s), Hardware, and Software, including, but not limited to, the controller units, sensors, and wirings. Unauthorized access to the AIM-Enabled Machine(s), Hardware, and Software may cause delay, and result in damages that AIM will be entitled reimbursement for. All Software and Hardware are the properties of AIM, and AIM shall, at its discretion, remove all Hardware and Software installed under any Statement of Work.
AIM's system is tightly integrated with components that may be customized to specific applications, and possess inherent risks significantly different from machines running without AIM Products and Services. Client shall be responsible for the day-to-day upkeep (refueling, greasing, and regular maintenance work as described in the machine’s OEM manual) of the AIM-Enabled Machines, and no other work shall be performed on the AIM-Enabled Machines without prior coordination with AIM. Examples of work requiring AIM’s coordination includes, but not limited to, any work involving moving or removing AIM-installed hardware, cables, conduits, etc., as well as adding, removing, or replacing any attachment on the AIM-Enabled Machine. AIM is not responsible for any injury or property damages resulting from Client’s failure of providing proper preventive and regular day-to-day upkeep of the AIM-Enabled Machine(s).
As applicable under the Statement of Work, AIM shall provide Client with manual of safety operations and protocol (“AIM Standard Operating Protocol” or “ASOP”) for AIM-Enabled Machine(s), safety training and seminars to Client to run Software and Hardware, and Client shall follow all instructions and safety protocol under ASOP when interacting with AIM-Enabled Machine(s), including any and all safety protocols relating to manual operation of the machines. In addition, upon request, AIM shall provide safety certification to Client’s operators (“AIM-Certified Autonomy Managers” or “ACAMs”). Client shall be responsible for safety checks under applicable ASOPs before shift starts. AIM is not responsible for any injuries or property damages resulting from any operation in violation of ASOPs or any unauthorized operation of or work on the AIM-Enabled Machine. Software and Hardware installed by AIM on the AIM-Enabled Machines cannot be reinstalled, modified, or repurposed without AIM personnel and the prior written authorization by AIM. Client bears all liabilities, including, but not limited to, any injuries or damages that resulted from any such unauthorized reinstallation, modification, or repurpose of the AIM-Enabled Machine. Only AIM personnel and those representatives of Client explicitly authorized or certified by AIM are allowed to be in close proximity (~50 ft) of and/or operating the AIM-Enabled Machines during installation. AIM will not be responsible for incidents stemming from Client’s failure to observe and follow any AIM safety protocols.
Unless otherwise specified in any given Statement of Work, Client is required to provide (a) secure work space for AIM personnel nearby job sites, with entry allowed only for AIM personnel and individuals authorized to enter by AIM, (b) access to the machine and installation/test areas, (c) mobile mechanic support, including any repair and service, (d) maintenance and refueling of machines per protocol, (e) uninterrupted 120V and 240V 20A AC power, (f) Internet at the location of the AIM-Enabled Machine (minimum 20mbps upload and download Internet bandwidth; (g) infrastructure and security for Real-Time Kinematic (RTK) installation; (h) maintaining, powering, and securing infrastructure to prevent unauthorized entry, efficiently accessible and representative testing space for AIM-Enabled Machine(s); (i) deliver the installed AIM-Enabled Machines to a covered shop suitable to perform equipment installation in safe conditions in compliance with ISO 7243 and ISO 7933 standards concerning design and assessment of physical environments such as temperature conditions suitable for performing construction tasks, including, but not limited to welding (see Exhibit 1). and (j) reserved time on all machines being installed under any Statement of Work: At least 12 hours per day between 6am and 8pm every day of the week, including weekends and holidays where only AIM personnel present at this time for uninterrupted installation, where the machines being installed are not used by the Client for any other purpose or activity for uninterrupted installation.
AIM warrants that, during the Subscription Term set forth in the applicable Statement of Work, the Software and Hardware will, in all material respects, conform to the functionality described in the Statement of Work. AIM’s sole and exclusive obligation, and Client’s sole and exclusive remedy, for a breach of this warranty shall be that AIM shall be required to use commercially reasonable efforts to modify the Software and Hardware to conform in all material respects the statement of work, and if AIM is unable to materially restore such functionality (is this acceptable) within forty-five (45) days from the date of written notice of said breach, as Client’s sole and exclusive remedy, Client shall be entitled to terminate the applicable Statement of Work upon written notice.
EXCEPT AS EXPLICITLY PROVIDED HEREIN, THE SOFTWARE AND HARDWARE AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND AIM EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE, THE HARDWARE, OR ANY RELATED SERVICES. AIM EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE, HARDWARE, OR ANY RELATED SERVICES. WITHOUT LIMITING THE FOREGOING DISCLAIMER, CLIENT ACKNOWLEDGES THAT THE SOFTWARE, HARDWARE AND/OR SERVICES ARE PROVIDED FOR INTENDED PURPOSES ONLY AND AIM DOES NOT GUARANTEE THAT ANY SPECIFIC RESULTS OR OUTCOMES MAY BE OBTAINED FROM USING THE SOFTWARE, THE HARDWARE, AND/OR SERVICES.
AIM agrees to defend, at its expense, Client against any third party claim to the extent such claim alleges that the Software and/or Hardware infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AIM shall pay all costs and damages finally awarded against Client by a court of competent jurisdiction as a result of any such claim; and any third party claim to the extent such claim alleges, subject to the terms and conditions setting forth authorized, safe, and proper use of AIM products herein or in any Statement of Work, that the operation of the Software and/or Hardware in part or in whole caused injury or property damages, and AIM shall pay costs and damages finally awarded against Client on a proportional basis by a court of competent jurisdiction as a result of any such claim.
In the event that the use of the Software or Hardware is, or in AIM's sole opinion is likely to become, subject to such a claim, AIM, at its option and expense, may (a) replace the applicable Software and Hardware with functionally equivalent non-infringing technology, (b) obtain a license for Client's continued use of the applicable Software or Hardware, or (c) terminate this Agreement and provide a pro-rata refund of any fees prepaid for the unused Term, if any. The foregoing indemnification obligation of AIM will not apply: (1) if any portion of the Software or Hardware at issue is modified by Client; (2) if the Software or Hardware is combined with other non-AIM products, applications, or processes not authorized by AIM; (3) to any unauthorized use of the Software or the Hardware; (4) to any use in violation of the safety protocols set forth by AIM, or (5) Client's failure to use updated or modified Software or Hardware provided by AIM to avoid infringement, misappropriation, injury, or damages. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND ALL OBLIGATIONS OF AIM AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SOFTWARE AND HARDWARE.
Client agrees to defend at its expense AIM against any third party claim to the extent such claim arises from Client's use of the Software and the Hardware (other than a claim for which AIM is required to indemnify Client for pursuant to Section 8.1) or Client's negligence or willful misconduct, and Client shall pay all costs and damages finally awarded against AIM by a court of competent jurisdiction as a result of any such claim.
In connection with any claim for indemnification under this Section 8, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 8, except to the extent that such failure materially prejudices the indemnifying party's defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations relative to the settlement of any such claim. Any settlement intended to bind the indemnified party shall not be final without the indemnified party's written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
10.1 EXCEPT FOR LIABILITY ARISING OUT OF CLIENT'S BREACH OF SECTION 1 OR SECTION 2.4, OR EITHER PARTY'S BREACH OF SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 EXCEPT FOR LIABILITY ARISING OUT OF CLIENT'S BREACH OF SECTION 1 OR SECTION 2.4, EITHER PARTY'S BREACH OF SECTION 4, CLIENT'S PAYMENT OBLIGATIONS HEREUNDER OR EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, NEITHER PARTY'S LIABILITY HEREUNDER FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO AIM HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
11.1 Except for payment obligations, neither party hereto will be liable for defaults or delays due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, floods, accidents, pandemic, dangerous weather conditions, or other unforeseeable causes beyond its control and not due to its fault or negligence.
12.1 Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided that each party may assign this Agreement as a whole, without consent or notice, to a successor to all or substantially all of its business or assets related to this Agreement, whether by event of merger, acquisition or corporate reorganization. This Agreement (including all Statement of Work, exhibits, and all restrictions contained therein) shall be binding upon each party and its successors and assigns, and the assigning party will be liable for any failure of the assignee to perform its duties pursuant to this Agreement. Any attempted assignment or transfer in violation of this Section 11 shall be null and void.
13.1 Except as otherwise expressly provided herein, if any term, covenant or condition of this Agreement or the application thereof to any Party or circumstance shall, to any extent, be held to be invalid or unenforceable (including the terms of Section 2.4) by a court of competent jurisdiction, then (i) the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law, and (ii) the parties hereto covenant and agree to renegotiate any such invalid or unenforceable term, covenant or application thereof in good faith in order to provide a reasonably acceptable alternative to the term, covenant or condition of this Agreement or the application thereof that is invalid or unenforceable, it being the intent of the parties that the basic purposes of this Agreement are to be effectuated.
14.1 This Agreement shall be governed by and construed under the laws of the State of Washington, U.S.A. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Seattle, Washington. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. This Agreement (including all Statement of Work, and exhibits hereto) represents the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement. Client agrees that AIM may refer to Client by trade name and logo, and may briefly describe Client's business, in AIM's marketing materials and web site. AIM may give notice to Client by electronic mail to Client's e-mail address on record in Client's account information, or by written communication sent by first class mail or pre-paid post to Client's address on record in Client's account information. For purposes hereof, "including" means "including without limitation".
