AIM Smart PaintLine Terms & Conditions (Saas Terms)
Terms and Conditions
These software as a service AIM Smart PaintLine Terms and Conditions apply to the Quote Offer entered between PPG Industries, Inc., a Pennsylvania corporation (“Seller”) and the Buyer as identified on the Seller’s Quote Offer for AIM Smart Paintline Software as a Service (“Quote Offer”), and set forth the terms and conditions under which Seller will provide the Buyer with a license to access and use the PPG Smart PaintLine software and software-based hosted services accessible through such software (or otherwise) and all related services. Each of Seller and Buyer are hereinafter at times referred to as a “Party” and collectively as the “Parties”. Any exceptions to these Saas Terms will be separately negotiated between the Parties and will be specified in the Quote Offer, all other terms will be as described below.
Buyer’s acceptance of Seller’s quote to sell the Software, including the Quote Offer, is expressly conditioned upon Buyer’s agreement to these Saas Terms. Buyer conclusively agrees to these terms and conditions herein upon the earlier of Buyer’s issuance of a purchase order to Seller for the Software or Buyer’s acceptance of the Software. All other terms, conditions and limitations on Buyer’s purchase order and/or other forms or documents of Buyer or any other person or entity other than Seller which are inconsistent herewith or in addition hereto are expressly rejected. As such, Seller and Buyer intend to be legally bound by the terms herein.
1.0 Term. This Agreement shall be for a term beginning on the Effective Date identified on the Quote Offer and continuing for the Initial Term. Thereafter, this Agreement shall be automatically extended for additional one (1) year terms (each a “Renewal Term”), unless either Party notifies the other Party of its intent for the Agreement to terminate in writing at least ninety (90) days before the end of the Initial Term or the then-current Renewal Term. The Initial Term together with any Renewal Terms shall be collectively referred to as the “Term”. As used in this Agreement, “Contract Year” means every consecutive 12-month period during the term of this Agreement commencing on the Effective Date or any anniversary of the Effective Date.
2.0 License to Access and Use. Subject to Buyer’s compliance with the terms of this Agreement, Seller hereby grants to Buyer for the duration of the Term (i) a limited, non-exclusive, time-limited, revocable, non-assignable and non-transferable license to access and use the PPG AIM Smart PaintLine Software and software-based hosted services accessible through such software (or otherwise) and all related services (collectively, “AIM Smart PaintLine” or “Software” ) at the location(s) listed on the Quote Offer (each, a “Licensed Location”), and (ii) a limited, non-exclusive, time-limited, non-transferable, revocable, non-assignable and non- transferable license to use any associated user and operational manuals, specifications/requirements and help files in electronic form made available by PPG (the “Documentation”) only in direct connection with AIM Smart PaintLine. Seller also hereby grants to Buyer for the duration of the Term the right to sublicense any Authorized User (as defined below) (i) a limited, non-exclusive, time-limited, revocable, non-assignable and non-transferable license to access and use the PPG AIM Smart PaintLine at the Licensed Locations listed on the Quote Offer and (ii) a limited, non-exclusive, time-limited, non-transferable, revocable, non-assignable and non- transferable license to use any associated user and operational Documentation made available by PPG only in direct connection with AIM Smart PaintLine. In consideration for this license, Buyer agrees that Buyer’s, and any Authorized Users’, access and use of AIM Smart PaintLine is subject to the terms and conditions set forth herein and including in PPG’s Privacy Policy (available at privacy.ppg.com). To the extent that any rights licensed hereunder relate to software or databases (including third party software or databases) associated with and made available through AIM Smart PaintLine, such rights are strictly limited to Buyer’s remote, browser-based access to, and use of, the Software as hosted by Seller, and Buyer shall have no right or license to any software or databases otherwise. For the avoidance of doubt, the Parties agree and acknowledge that (a) the license granted hereunder is expressly limited to use at the Licensed Location, and (b) to the extent that Buyer or any Authorized User desires to license the AIM Smart PaintLine for any other location, a separate agreement shall be required. Seller shall supply Buyer with user or administrator identification codes and/or passwords as may be necessary for the Authorized Users to access and use the Software. Buyer agrees to keep confidential any such identification codes and/or passwords and to restrict access to such identification codes and passwords to its Authorized Users. Buyer will notify Seller immediately if Buyer becomes aware that unauthorized persons have obtained access to such identification codes or passwords, or any instance of unauthorized use of Buyer’s accounts or if Buyer becomes aware of any other breach of security related to the Software. Buyer agrees to the following, as applicable, in connection with its use of the Software: (i) Buyer is responsible for providing the systems, servers, software, network and communications necessary to connect to and utilize the Software consistent with any specifications or requirements set forth in the Documentation provided to the Buyer; (ii) Buyer shall be responsible for the accuracy and integrity of the End-User Data made available to Seller; (iii) Buyer shall be responsible for backing up the End-User Data which is used in connection with the Software; (iv) Buyer is responsible for obtaining any necessary licenses, consents and/or permissions to grant Seller the right to use the End-User Data in combination with the Software; and (v) Buyer is responsible for any breaches of this Agreement by its Authorized Users and Buyer’s and any Authorized User’s agents, affiliates, and/or employees.
As used herein, an “Authorized User” shall be (1) an individual associated with Buyer, and contractually bound to Buyer in a manner consistent with the terms and conditions of this Agreement, and specifically designated by Buyer to access and/or use the AIM Smart PaintLine on behalf of Buyer, or (2) Buyer’s customers utilizing the AIM Smart PaintLine specifically designated by Buyer to access and/or use the AIM Smart PaintLine in association with such customer relationship, and contractually bound to Buyer in a manner consistent with the terms and conditions of this Agreement.
3.0 Price and Payment.
(a) Pricing. During the Initial Term, Buyer shall pay the fees detailed in the Quote Offer. Subject to the Quote Offer pricing terms, the fees may be changed by Seller as of the first day of any Contract Year by giving Buyer notice, in writing, of such change at least 45 days prior to the effective date thereof.
(b) Terms of Payment. Terms of payment shall be as detailed in the Quote Offer. Buyer shall make all payments by electronic funds transfer utilizing such system as Seller may require. Payment terms shall be subject to continued creditworthiness/financial condition evaluation. If credit terms are not satisfied or credit/financial conditions of Buyer become materially impaired, in Seller’s reasonable opinion, Seller may change the terms by notice to Buyer.
4.0 Requirements and Restrictions of Use. Buyer’s, and any Authorized User’s, use of the AIM Smart PaintLine are subject to the following requirements and restrictions:
(a) Neither Buyer nor any Authorized User may (and will not permit or enable any third party to) copy, adapt, reproduce, modify, reverse engineer, reduce, disassemble, compile, decompile or recompile the AIM Smart PaintLine , or otherwise attempt to access, discover, or use the source code, software, database, data, content, structure, algorithms or ideas underlying the AIM Smart PaintLine, or circumvent any technological protective measures in the AIM Smart PaintLine, except as expressly offered/provided by Seller.
(b) Neither Buyer nor any Authorized User may conceal, remove, or modify any trademark, copyright or patent or other notice regarding intellectual property rights or other proprietary notices, legends, symbols and markings from any copy or part of the AIM Smart PaintLine.
(c) Neither Buyer nor any Authorized User may sublicense, disclose, rent, publish, assign, sell, distribute, or otherwise transfer, grant or allow use of any content available on or through the AIM Smart PaintLine to any third party.
(d) Buyer and any Authorized User shall prevent any unauthorized copying of any content available on the AIM Smart PaintLine by Buyer’s or any Authorized User’s agents, affiliates, and/or employees.
(e) Buyer and any Authorized User shall protect all computers or other devices which are used by Buyer’s and any Authorized User’s agents, affiliates, and/or employees to access the against viruses, spyware, worms, or other malicious bugs or code which may harm or affect the operation or integrity of the AIM Smart PaintLine or any data residing therewith.
(f) Buyer and any Authorized User shall keep the AIM Smart PaintLine and all PPG confidential data residing therewith, including color tools and formulas, and all Documentation relating thereto, as confidential information pursuant to Section 12.0 below and use all efforts to secure, protect and prevent such confidential contents of the AIM Smart PaintLine from unauthorized use or disclosure.
(g) Buyer and any Authorized User shall protect and safeguard all identification codes, passwords and other access control information (e.g., login information or ID, passwords, etc.) relating to the AIM Smart PaintLine. Buyer and any Authorized User shall notify Seller promptly, and in any case no more than two (2) days after learning, of any unauthorized use of the AIM Smart PaintLine. Seller shall not be liable to Buyer or any Authorized User for any loss that may incur as a result of any third party accessing the AIM Smart PaintLine using Buyer’s or such Authorized User’s access control information with or without permission.
(h) If Buyer or any Authorized User is processing data obtained from a third-party using the AIM Smart PaintLine, Buyer or such Authorized User shall obtain sufficient authorization from such third-party to transfer such data to Seller and its, licensors, affiliates and contractors, and to permit transfer, storage and processing of such data by Seller and its affiliates and contractors, all in accordance with this Agreement.
(i) Buyer’s use of the Software shall conform to the license metrics specified in the applicable Order. If Buyer has exceeded the authorized subscription volume, Buyer shall promptly report such overage to Seller in writing. In addition, upon request, but no more than twice per year, Buyer shall provide a report via electronic means with confirmation of the applicable licensing metrics being used by Buyer over such reporting period.
(j) Buyer acknowledges and agrees that certain Software offerings may operate in combination with one or more cloud hosting and/or software services platforms operated by third parties to which Buyer subscribes directly (“Customer Sourced Services”). To the extent that the Software operates in combination with such Customer Sourced Services, Buyer is responsible for providing Seller with credentials to access such Customer Sourced Services and for obtaining any approvals required to permit such use. Seller shall not be responsible for the operation of any such Customer Sourced Services or the platforms from which they operate, nor the availability or operation of the Software to the extent such availability and operation is dependent upon the availability and operation of such Customer Sourced Services. Buyer shall be solely responsible for procuring any rights necessary to access such Customer Sourced Services and for complying with any applicable terms or conditions applicable to such Customer Sourced Services. Seller does not make any representations or warranties with respect to the Customer Sourced Services or any of their products, software, systems or services. Any exchange of data or other interaction between Buyer and a Customer Sourced Services provider, and Buyer’s purchase of any product, software or service offered by such Customer Sourced Services provider, is solely between Buyer and such Customer Sourced Services provider and is governed by such agreement between Buyer and Customer Sourced Services provider.
(k) Unless otherwise expressly stated in this Agreement or the Quote Offer, Third Party Products shall be governed exclusively by the applicable third-party provider’s agreement and PPG makes no representations or warranties and assumes no obligations or liability with respect to such Third- Party Products.
(l) Hardware for the execution of some Software or the installation of separate hardware may be required on your site. You agree that you are aware of this.
5.0 Intellectual Property. All title and copyrights in and to the Software, source code, object code, user interface, Documentation and all content (including the compilation of content) included on, or accessed through, AIM Smart PaintLine, including all text, graphics, scripts, logos, trademarks, designs, photographs, button icons, images, audio/video clips, digital downloads, and data compilations, databases, and all know-how, confidential information, formulas, methodologies, inventions, patents, and/or improvements associated with or based upon such software, source code, object code, documentation and/or content, and copies thereof that exist now or in the future (together with Seller’s name, logo and other trademarks of the Seller, the “Intellectual Property”) and other intangible rights is the property of Seller or its affiliates or licensors and is protected by United States and international copyright and other laws. The compilation of all content on AIM Smart PaintLine is the exclusive property of the Seller and is protected by U.S. and international copyright and other laws. This Agreement shall in no way entitle Buyer to claim any ownership interest or other proprietary right in the Intellectual Property and, except as expressly otherwise set forth and licensed in this Agreement, Buyer may not copy or otherwise use any of the Intellectual Property. Buyer, on behalf of itself and its agents, affiliates, and/or employees, and any Authorized Users and their agents, affiliates, and/or employees, will not contest or dispute the validity, ownership or enforceability of Seller's Intellectual Property, or any portion or derivative thereof for any reason whatsoever, directly or indirectly, during the term of this Agreement and thereafter, nor directly or indirectly attempt to acquire or damage the value of the goodwill associated with any of the trademarks of Seller. Neither Seller’s Intellectual Property nor any other Seller confidential information, as described in Section 12.0 below, should be reproduced or used in any manner without express written permission from Seller.
6.0 No License. Except as expressly provided above, nothing contained in AIM Smart PaintLine shall be construed to confer by implication, estoppel or otherwise, any license or right under any patent, trademark or copyright.
7.0 Warranty. Limited Software Warranty. Seller represents and warrants to Buyer during the Term (the ”Warranty Period”) that the Software will substantially conform to the specifications set forth in the Documentation, when installed, operated and used in accordance with the Documentation, the Quote Offer and the Saas Terms of this Agreement. Buyer must provide Seller with notice, in writing, of the nonconformity during the Warranty Period and within thirty (30) days of the date on which the nonconformity occurred. If Buyer notifies Seller within the applicable Warranty Period of a nonconformity, Seller will, at its expense, as Seller’s sole liability and Buyer’s exclusive remedy for such nonconformity, use reasonable efforts to correct the nonconformity, including in accordance with Exhibit A attached hereto. If Seller fails to remedy the nonconformity within sixty (60) days of its receipt of notice of the nonconformity, Buyer shall have the option to extend the period for cure and repeat the cure process or terminate the Agreement and, in the event of such a termination, obtain a pro-rata refund of any prepaid Software Fees representing the period of the Term post-termination.
In the event that the parties mutually agree that PPG will provide any software identified as evaluation software, pre-release, “alpha”,“pilot” or similar, then notwithstanding anything to the contrary contained herein, SUCH SOFTWARE IS PROVIDED AS-IS WITHOUT WARRANTY, SUPPORT OR SERVICE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES OR NON-INFRINGEMENT.
DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, SELLER HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING WITHOUT LIMITATION COURSE OF DEALING, USAGE OR TRADE PRACTICE, ACCURACY OR COMPLETENESS OF DATA OR INFORMATIONAL CONTENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SELLER DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE SOFTWARE WILL MEET BUYER’S REQUIREMENTS.
8.0 Limitation of Liability. IN NO EVENT SHALL SELLER OR ANY PARTY INVOLVED IN CREATING, PRODUCING, UPDATING OR DELIVERING AIM SMART PAINTLINE, DOCUMENTATION OR THE INFORMATION, BE LIABLE FOR DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE) EXCEEDING THE TOTAL ANNUAL SUBSCRIPTION COST FOR ONE (1) YEAR AS SET FORTH IN THE QUOTE OFFER ACTUALLY PAID BY BUYER TO SELLER, RESULTING FROM THE VIEWER'S ACCESS TO OR USE THEREOF (INCLUDING THE INABILITY TO ACCESS AND USE) OR THE DOWNLOADING OF ANY MATERIAL CONTAINED OR REFERENCED THEREIN, NOR SHALL SUCH PARTIES BE LIABLE FOR VIEWER'S RELIANCE UPON INFORMATION OR THE PRODUCTS(S) OR SERVICES TO WHICH THE INFORMATION REFERS. EVEN IF SELLER OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SHALL NOT BE LIABLE FOR ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, FROM THE VIEWER'S USE OF, OR INABILITY TO USE, THE AIM SMART PAINTLINE, INCLUDING BUT NOT LIMITED TO, ANYTHING CAUSED BY: A) COMPUTER VIRUSES; B) SOFTWARE BUGS; C) HUMAN ACTION OR INACTION; D) ANY COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM MALFUNCTIONS; OR E) ANY OTHER ERRORS, FAILURE OR DELAYS IN COMPUTER TRANSMISSION OR NETWORK CONNECTIONS.
9.0 Indemnity. Buyer will indemnify, defend and hold harmless Seller, its licensors, employees, officers, directors, suppliers, and affiliates, at Buyer’s cost and expense (each an “Indemnified Party”), from and against any and all claims made or threatened against or incurred by an Indemnified Party by any third party that is caused by, based upon or arising out of (i) the unlawful or tortious conduct of, or a breach of contract, representation, warranty, or any other duty or performance by, Buyer or any Authorized User pursuant to this Agreement; (ii) any negligent conduct by a Buyer or any Authorized User; (iii) any acts or omissions of a Buyer or any Authorized User in extending access and use of the AIM Smart PaintLine software or Documentation to Authorized Users and in performing services pursuant to this Agreement, including introducing any End User Data (as defined below) including data introduced or imported by Buyer or any Authorized User into the AIM Smart PaintLine that misappropriates or violates any intellectual property right, including without limitation any patent, copyright, trademark, or trade secret right, of such third party, or any claims made or threatened that the use, introduction or importation of such data constitutes a tort against such third party; (iv) any representations or statements regarding AIM Smart PaintLine made by Buyer or any Authorized User, including without limitation the extension of any warranties on AIM Smart PaintLine provided by Seller; (v) any infringement of patents, copyrights, or trademarks that result from the misuse or modification of the AIM Smart PaintLine by, or at the instruction of Buyer or its Authorized Users; or (vi) a material violation of any statute, ordinance, code or regulation by Buyer or any Authorized User that is applicable to this Agreement (an “Indemnification Claim”); provided, Seller: (a) gives Buyer prompt written notice of any such Indemnification Claim; (b) provides at Buyer’s expense such commercially reasonable assistance and cooperation as Buyer may require; (c) grants to Buyer sole control of the defense and settlement of the Indemnification Claim; (d) refrains from entering into any settlement or compromise of such Indemnification Claim without Buyer’s prior written consent. Buyer shall not have the right to settle any Indemnification Claim if such settlement contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Seller without the prior written consent of Seller, such consent not to be unreasonably withheld.
10.0 Suspension/Termination.
(a) Suspension for Delinquent Account. Seller reserves the right to suspend Buyer’s (and any Authorized User’s) access and/or use of AIM Smart PaintLine in the event that any payment hereunder is due but remains unpaid after ten (10) day’s written notice of such delinquency. Buyer agrees that Seller shall not be liable to Buyer or to any Authorized User, for any suspension of the AIM Smart PaintLine resulting from Buyer’s non-payment of the fees as described in this Section.
(b) Suspension for Ongoing Harm. Buyer agrees that Seller may, with reasonably contemporaneous telephonic or electronic mail notice to Buyer, suspend Buyer’s access to the AIM Smart PaintLine if Seller reasonably concludes that Buyer’s and/or any Authorized User’s use of the AIM Smart PaintLine is causing immediate and ongoing harm to Seller or others. Buyer agrees that Seller will not be liable to Buyer or any Authorized User for any suspension of the AIM Smart PaintLine under such circumstances as described in this Section.
(c) Termination in the Event of a Breach. Seller may terminate this Agreement upon thirty (30) days’ written notice to Buyer in the event of a breach of any of the terms and conditions of this Agreement with the other party, including, without limitation, Buyer’s failure to pay any invoice in accordance with the terms of this Agreement.
(d) Buyer Access to End User Data. Upon written request by Buyer within thirty (30) days of the expiration or earlier termination of the Term, Seller will make available to Buyer for download a file of End User Data, in comma separated value (.csv) format. After such thirty (30) day period, Seller shall have no obligation to maintain or provide any of the End User Data, and Seller reserves the right, unless legally prohibited, to delete any or all of the End User Data in its systems or otherwise in its possession or under its control after expiration or earlier termination of the Term. To the extent the provisions in this paragraph conflict with PPG’s Privacy Policy, then with respect to data governed by PPG’s Privacy Policy, PPG’s Privacy Policy shall govern.
11.0 Data Rights.
(a) Seller claims no right, title or interest in or to data and information, including confidential, non-public or proprietary information, provided by Buyer or any Authorized User, in connection with Buyer’s, or any Authorized User’s, access to, and use of, AIM Smart PaintLine (collectively, “End User Data”) pursuant to this Agreement. Buyer shall hold and retain all right, title and interest in and to such End User Data.
(b) Notwithstanding the foregoing, Buyer, on behalf of itself and any Authorized User, hereby grants to Seller:
(i) for the duration of the Term, a limited, fully-paid, royalty free, worldwide, non-exclusive, non-transferable, right and license to store, use, create Derivatives (as defined below) of, process, analyze, and otherwise display the End User Data solely for the following limited purposes: (A) to provide the AIM Smart PaintLine with respect to Buyer and/or any Authorized User, and (B) to the extent that Buyer is providing End User Data on behalf of, or concerning, any Authorized User, to provide AIM Smart PaintLine with respect to such Authorized User; and
(ii) a perpetual, irrevocable, fully-paid, royalty free, worldwide, non-exclusive right and license, to store, use, reproduce, modify, adapt, enhance, improve, process, analyze, publish, edit, translate, distribute, publicly perform, display and otherwise exploit De-identified Data (as defined below) and/or Aggregated Data (as defined below) and to create Derivatives and own all right, title and interest in and to such Derivatives in Seller’s own name.
Without limiting any of the foregoing, Buyer acknowledges and agrees that Seller shall have the right to process, analyze, track, record, store, use and/or otherwise access data related to the performance of the AIM Smart PaintLine, to gather End User Data regarding the AIM Smart PaintLine and resource usage for product development, quality initiatives, benchmarking, reporting services and the like (“Usage Data”), provided that all Usage Data shall be limited to data relating to Seller’s products. Usage Data collected by Seller may be used to improve and refine AIM Smart PaintLine and for internal use, during and after the Term, in accordance with all applicable laws and regulations. Usage Data shall not include Personally Identifiable Information.
As used herein, “Aggregated Data” shall mean data consisting of the End User Data (or subsets thereof) relating solely to the application of Seller’s products, aggregated with similar data from other subscribers and data otherwise held by Seller. Aggregated Data shall not include personally identified references naming individual Authorized Users and shall not include identified references to business names, but may include geographic locators, purchase histories and patterns and other information not specifically identified to Buyer or an Authorized User.
As used herein, “De-identified Data” shall mean a modified version of the End User Data relating solely to the application of Seller’s products from which Seller has removed references to Buyer’s company name, and from which Seller has removed the names of individuals.
As used herein, “Derivatives” means any adaptations, embodiments, derivatives and/or derivative works of End User Data relating solely to the application of Seller’s products, including without limitation results, insights derived from data analysis, benchmarking reports, findings and artifacts created, derived and/or extracted by Seller from End User Data, De-identified Data, and/or Aggregated Data; provided that, in no event will Derivatives include End User Data in the form as provided by Buyer or any Authorized User to Seller.
As used herein, “Personally Identifiable Information” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
12.0 Confidentiality. Any information disclosed or provided by one Party hereto to the other under and in connection with this Agreement and marked as being confidential, and the existence and terms and conditions of this Agreement, all shall be confidential, shall be used only for purposes of or as expressly permitted by this Agreement and shall not be disclosed by a Party hereto to any third party without the prior written consent of the other Party, except (i) as required by law, governmental regulation, court order or similar legal process, or applicable stock exchange rules and regulations, provided that the Party seeking to disclose notifies the other Party of the requirement to disclose and reasonably cooperates with the other Party to limit the disclosure, (ii) to the extent such matter or information is or becomes publicly known other than by disclosure to the Party seeking to disclose; (iii) to the extent such information is independently developed without resort to the disclosed information, or (iv) to the extent such matter or information has been lawfully received by the Party seeking to disclose from a third party who has not breached a contractual, legal or fiduciary duty of nondisclosure with respect to such matter or information. The obligations set forth in this Section 12.0 shall continue during the Term and for ten (10) calendar years thereafter.
13.0 Force Majeure. Neither Party will be liable to the other for any failure or delay in the performance of such Party’s non-monetary obligations due to any act of God, nature, or the public enemy, accident, explosion, flood, drought, perils of the sea, epidemics, pandemics, strikes, lockouts, labor disputes, riots, sabotage, embargo, war (whether or not declared or whether or not the United States is a participant), federal, state, or municipal legal restriction or limitation or compliance therewith, or any other circumstances of a similar or different nature beyond the reasonable control of the party affected thereby.
14.0 Waiver. The failure of either Party to enforce at any time any of the provisions of this Agreement shall in no way constitute or be construed as a waiver of that or any other provision of this Agreement, nor in any way affect the validity of this Agreement or any provision of this Agreement or the right of such Party to enforce thereafter each and every provision of this Agreement. No waiver of any provision or breach of this Agreement shall be deemed to be a waiver of any other provision or breach.
15.0 Governing Law. The local laws of the Commonwealth of Pennsylvania shall govern this Agreement and the relations of the parties under this Agreement (without giving effect to the conflict of law principles thereof). The United Nations Convention on Contracts for the International Sale of Goods shall NOT apply to this Agreement or the transactions that are the subject of this Agreement.
16.0 Reformation. If any provision of this Agreement is determined to be illegal or unenforceable for any reason, that provision shall be reformed to the maximum extent permitted to preserve the Parties’ original intent, failing which it shall be severed from this Agreement with the balance of the Agreement continuing in full force and effect.
17.0 Entire Agreement. This Agreement, including the Exhibits and those other documents referred to herein, contains the entire agreement of the Parties with regard to the subject matter of this Agreement and supersedes any prior agreements, communications, commitments, representations, or warranty relating to the subject matter of this Agreement. No modification of this Agreement shall be of any force or effect unless it shall have been reduced to a writing that specifically references this Agreement and that each Party claimed to be bound thereby shall have signed. No modification shall be effected by any purchase order forms, acknowledgment forms, or shipping documents, or any other documents containing terms or conditions at variance with or in addition to those set forth in this Agreement.
18.0 Assignment. This Agreement and the rights hereunder are not assignable by either Party, in whole or in part, without the prior written consent of the other (which consent the other party shall not unreasonably withhold) and any attempted assignment without such consent, including by operation of law or otherwise, shall be void. Notwithstanding the foregoing, Seller may assign this Agreement, without the consent of Buyer (but with written notice to Buyer), to any purchaser of the Seller’s business or facilities to which this Agreement relates. Subject to obtaining Seller’s consent as required in this Section, Buyer shall be required to assign this Agreement to any purchaser of the facility of Buyer that utilizes AIM Smart PaintLine. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and assigns of the respective Parties to this Agreement.
19.0 Export Controls. The Parties acknowledge that they as well as the products and technology sold or otherwise transferred under this Agreement may be subject to U.S. and other export controls (including deemed export and reexport) requirements, embargoes, sanctions and similar laws, regulations and requirements applicable to exports (“Export Requirements”). The Parties agree that Seller’s sale or supply of products or technology as well as their use, transfer or resale by Buyer is subject to these Export Requirements. Buyer agrees to provide Seller with all information and documentation deemed necessary by Seller for Seller to comply with all such Export Requirements. Further, Buyer agrees to comply with the Export Requirements, to create and to maintain records to reflect compliance with the Export Requirements, to allow any post-export verification requested by Seller or the U.S. Government and to cooperate in any investigation related to Export Requirements.
20.0. Counterparts. The parties may execute this Agreement in any number of counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument.
21.0. Updates. Seller shall from be entitled to amend the Saas Terms from time to time by way of thirty (30) calendar days’ notice to Buyer. Should Buyer not accept such changes, Buyer shall be entitled to terminate this Agreement within thirty (30) calendar days of receipt of the notice of the amended Agreement by way of written notice to the Seller. If the Buyer does not terminate the Agreement within thirty (30) calendar days of receipt of Seller’s notice of amendment of this Agreement, Buyer shall be deemed to have accepted the amended Agreement. This Agreement will, at any time, also be available at https://www.ppg.com/autocoatings/en-US/solutions/aim-digital/terms-and-conditions.