October 8th, 2013
BY MARKING THE “I HAVE READ AND AGREED TO THE SITEOPS® MASTER SUBSCRIPTION AGREEMENT” CHECKBOX DISPLAYED AS PART OF THE “SUBSCRIPTION” ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SITEOPS® INTERNET- BASED SOFTWARE, THE SERVICES ASSOCIATED WITH YOUR USE OF THE SOFTWARE, THE WEBSITES LOCATED AT www.blueridgeanalytics.com AND www.siteops.com, AND THE AUDIO AND VISUAL INFORMATION (“CONTENT”) PROVIDED ON OR THROUGH THE WEBSITE (COLLECTIVELY “SITEOPS”). SITEOPS® IS A PRODUCT AND REGISTERED TRADEMARK OF BLUERIDGE ANALYTICS, INC.
This is a legal agreement between you and BLUERIDGE Analytics, Inc. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” and “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not mark the checkbox indicating your acceptance of this Agreement and you may not use SITEOPS. Your registration for, purchase of a product and/or service, or use of SITEOPS shall also be deemed to be your agreement to abide by this Agreement.
IMPORTANT INFORMATION ABOUT THE USE OF DECISION SUPPORT SOFTWARE
SITEOPS® is land development decision-support software that is intended to provide professionals with computer-optimized alternatives to consider along with information gathered with other methods and from other sources. SITEOPS is not intended to be a replacement for the judgment of professionals authorized to provide engineering or related services. IF YOU ARE NOT A LICENSED ENGINEER, PLEASE CONSULT WITH AN INDEPENDENT LICENSED ENGINEER SEPARATE FROM SITEOPS AND BLUERIDGE Analytics, Inc. BEFORE USING SITEOPS IN ASSOCIATION WITH ANY ACTIVITY THAT MAY REQUIRE THE SERVICES OF A LICENSED ENGINEER.
If you are visiting us for the first time, welcome. If you are returning as a paid subscriber,– welcome back. The amount and level of access to SITEOPS is determined by the type of product and/or service you have purchased (“License Type”). Depending on the License Type you select, BA will provide you with access to various SITEOPS features such as a browser interface and data encryption, transmission, access, and storage. SITEOPS is solely for use by the individuals or entities (through their employees) who have obtained a license from BA (“Customers”). If you would like a third party to have access to SITEOPS for any reason, the third party must first obtain a separate license to use SITEOPS from BA. Please contact BA if you are interested in multiple party license discounts.
The Sales Terms specify, among other things, the scope of your license to use SITEOPS, any applicable expiration date, the applicable fees, the billing period, and other charges as agreed to between the parties. Upon acceptance by BA, the Sales Terms for SITEOPS and any subsequent order forms submitted online or in written form, shall be incorporated into and become a part of this Agreement.
If you obtain a license on behalf of a company or other business entity you may request that multiple employees of the company or other business entity be authorized to use SITEOPS under the license and be issued a separate user ID. Each licensed user must be created using the “Add User” form within the SITEOPS system. Each user must use a separate user identification and password (“Licensed User ID”) to access and use SITEOPS.
LICENSE. Subject to the terms and conditions of this Agreement, BA grants you a license (the “License”) to use SITEOPS in accordance with the applicable SITEOPS manuals and documentation (referred to collectively as “User Documentation”), within the scope of the rights for the applicable License Type as described in this Agreement and the Sales Terms that have been accepted by BA. The license is non-exclusive, and non-transferable. SITEOPS is licensed for use solely for your internal business purposes at the locations set forth in the Sales Terms that have been accepted by BA, without the right to sublicense access or use of SITEOPS. Any use of SITEOPS outside the scope of the applicable license grant constitutes a material breach of this Agreement as well as an infringement of BA’s intellectual property rights. All rights not expressly granted to you are reserved by BA.
RESTRICTIONS ON USE. You shall not (i) without the prior written consent of BA, rent, license, sublicense, sell, resell, lease, transfer, assign, distribute or otherwise provide access or make SITEOPS available to a third party; (ii) modify or make derivative works based upon SITEOPS; (iii) utilize any equipment, device, software, or other means designed to circumvent password or security measures employed by BA; (iv) reverse engineer or access SITEOPS in order to (a) attempt to obtain access to the object or source code for SITEOPS, (b) build a competitive product and/or service to SITEOPS, (c) build a product and/or service using similar ideas, graphics, functions, or features to SITEOPS, or (v) copy any ideas, features, functions or graphics of SITEOPS.
With respect to the website and webpages located at www.blueridgeanalytics.com and www.siteops.com, and any other BA owned domain websites and content contained on the websites, without BA’s prior written consent you shall not (i) create Internet “links” to SITEOPS or “frame” or “mirror” any content on any other server or wireless or Internet-based device; (ii) use any of the Content for commercial purposes; (iii) use BA trademarks as metatags on other web sites.
USER IDs. User IDs shall not be shared or used by more than one individual licensed user. You shall: (i) not impersonate or login as another user or provide false identity information to gain access to or use SITEOPS, (ii) notify BA immediately of any unauthorized use of any password, account, or breach of security (known or suspected).
USER DATA AND OTHER INFORMATION SUBMITTED TO SITEOPS. BA does not own any data, information or material that you submit to SITEOPS in the course of using SITEOPS or the results that you receive from using SITEOPS (“User Data”). User Data is understood by both parties to include plans, specifications, cost estimates and engineering computations. You shall have sole responsibility for the appropriateness, legality, and intellectual property ownership or right to use of all User Data. You shall also be responsible for using SITEOPS in accordance with the User Documentation as well as for the accuracy, quality, integrity, reliability of data and other information that you submit to SITEOPS.
In the absence of other contractual obligations entered into with BA under the Sales Terms, for your convenience, on paid accounts BA generally retains a copy of your User Data during the term of your license to use SITEOPS and for a period of 30 days from the date your license to use SITEOPS expires. After that time, the User Data may be deleted from our secure server. This continued retention service may be provided as a convenience only and BA cannot be liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. PLEASE MAKE A BACKUP COPY OF ANY USER DATA THAT YOU SUBMIT OR THAT IS CREATED THROUGH YOUR USE OF SITEOPS. In the event this Agreement is terminated (other than by reason of your breach), BA will make available to you a file of the SITEOPS data within 30 days of termination if you so request at the time of termination. BA reserves the right to withhold, remove and/or discard SITEOPS data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use SITEOPS immediately ceases, and BA shall have no obligation to maintain or forward any data previously entered.
FEES AND PAYMENTS.
1. Fees. You shall pay all fees specified in this Agreement and in the Sales Terms hereunder. Except as otherwise specified in this Agreement or in the Sales Terms, (i) fees are quoted and payable in United States dollars, (ii) fees are based on products or services purchased and not actual usage, (iii) payment obligations are non-cancelable, and fees paid are non-refundable, and (iv) the number of licenses purchased as stated on the Sales Quote Form and/or invoice cannot be decreased during or with respect to the applicable subscription term. User license fees are based on a yearly period that begins on the subscription start date and each anniversary thereof; fees for additional licenses added during a term will be prorated for the remaining portion of thesubscription term.
2. Invoicing and Payment. You generally will be invoiced upon the signing of your sales quote. Unless otherwise specified in the Sales Terms, (i) payment for training is due within 15 days of the invoice date and must be received prior to the first day of training in order for training to proceed on schedule, and (ii) payment for the subscription will be due within 15 days of the activation date, which is the date training is completed.
3. Credit Card Payment. If you provide credit card information to us, you authorize us to charge the credit card for all services listed in the Sales Quote Form for the initial subscription term and renewal subscription term(s).Those charges will be made in advance on a monthly, quarterly or annual basis or in accordance with any different billing frequency, in each case as stated in the Sales Quote Form.
4. Payment Plan. If approved for a payment plan, you generally will be given a specific day that your payment is due every month. Unless otherwise specified in the Sales Terms, payment will be due within 15 days of that specific day each month.
5. Billing and Contact Information. You are responsible for providing complete and accurate billing and contact information to BA and for notifying BA promptly of any changes to that information.
6. Overdue Charges. If payment for any charges is not received from you by the due date, then at BA’s discretion, those charges shall accrue interest for late payment at the rate of 1.5% per month of the outstanding balance.
7. Disconnection of Service. If any amount owing by you under this Agreement or any other agreement for BA products or services is 30 or more days overdue, BA may, without limiting its other rights and remedies, accelerate your unpaid payment obligations under this Agreement or any such other agreements so that all such obligations become immediately due and payable, and disconnect or suspend BA’s products or services to you until such amounts are paid in full. We generally will give you at least 7 days written notice that your account is overdue before disconnecting or suspending services to you.
8. Reconnection of Service. A fee of 5% of the outstanding balance will be due, in addition to your account being paid in full, in order to reconnect service for use by you. Time lost while disconnected will not be added to the length of the term of use that was agreed to in the Sales Terms.
9. Payment Disputes. BA in its discretion may determine not to exercise its rights under item 5 (Overdue Charges) or 6 (Disconnection of Service) above if you are disputing the applicable charges reasonably and in good faith and you are cooperating diligently to resolve the dispute.
10. Re-activation Fee upon Expiration. If your subscription or purchase has expired and has not been renewed at the time for renewal, there will be an additional 60 day charge for the products or services to reactivate the subscription or purchase.
PRIVACY & SECURITY DISCLOSURE. You agree to abide by BA’s privacy and security policies that can be viewed at www.siteops.com/policy/. BA reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.
ADDITIONAL RESPONSIBILITIES. In addition to other obligations expressed in this Agreement in connection with your use of SITEOPS, you shall be responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of SITEOPS, including those related to data privacy, international communications and the transmission of technical or personal data. You shall report to BA immediately and use all reasonable efforts to stop immediately any violation of BA’s proprietary rights or this Agreement that is known or suspected by you including any authorized user.
TERM AND TERMINATION. This Agreement is effective the earlier of when you mark the “I have read and agreed” box displayed after this Agreement, or the box is checked on the Sales Quote Form, or the date you begin using SITEOPS (“Effective Date”) and shall continue for the subscription term specified therein and any renewal term. Except as otherwise specified in the Sales Quote Form, all subscriptions shall renew automatically for additional periods equal to the longer of the initial or expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the then-existing subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term, unless BA has given you written notice of a price increase at least 30 days before the end of the prior term, in which case the price increase shall be effective upon the renewal. The term for each License Type shall be set forth in the Sales Terms. BA’s license grant is conditioned on your continuous compliance with all license limitations and restrictions described in the Agreement. BA may terminate this Agreement immediately upon written notice to you if you violate any provision of this Agreement, or in light of the impact that the laws and regulations of foreign jurisdictions may have as described below under the Section entitled “LOCAL LAWS; EXPORT AND IMPORT CONTROLS”. The termination or any expiration of the Agreement for any reason shall automatically terminate the License and immediately after any termination or expiration of this Agreement. Upon termination or any expiration of this Agreement, Customer shall have no right to access and shall cease use of SITEOPS.
OWNERSHIP. SITEOPS software is licensed, not sold, to you for use during the applicable license term only upon the terms of this Agreement. The brand name “SITEOPS®” is a federally registered trademark owned by BA and is protected by U.S. laws and international treaties, and any unauthorized reproduction or distribution of SITEOPS® software is subject to civil and criminal penalties. You acknowledge that SITEOPS software (including, but not limited to, software, Content, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) is the sole and exclusive property of BA. Said ownership right shall include all applicable rights to patents, copyrights, trademarks and trade secrets and other intellectual property rights inherent therein and appurtenant thereto. Any suggestions, ideas, enhancement requests, feedback, recommendations that you provide to BA shall become the sole and exclusive property of BA without compensation to you of any kind.
YOUR REPRESENTATION AND WARRANTIES TO BA. You represent and warrant that you: (i) are the owner or authorized licensee of any and all User Data; (ii) will not upload or otherwise provide BA with User Data, or use SITEOPS in a way that: (a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising); (c) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate. You represent and warrant that you have the legal power and authority to enter into this Agreement.
INDEMNITY. You agree to defend, indemnify, and hold BA, its officers, directors, employees, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from (i) your breach of your representations and warranties, (ii) your breach of this Agreement, (iii) any violation of laws or regulations by you or any of your agents or employees, including without limitation all United States and foreign laws and treaties as described below under the Section entitled “LOCAL LAWS; EXPORT AND IMPORT CONTROLS”, and (iv) your use of SITEOPS.
BA’S EXCLUSIVE WARRANTY FOR SITEOPS. BA represents and warrants that SITEOPS will perform substantially in accordance with the User Documentation under normal use and circumstances and that the services provided in association with your use of SITEOPS will be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof. BA’s entire liability and your exclusive remedy under the limited warranty provided in this Section will be, at BA’s option, to attempt to correct or work around errors or non-conformities, or to refund the license fees and terminate this Agreement. “SITEOPS ” has the meaning set forth in the first paragraph of this Agreement, and includes without limitation, for purposes of the limited warranty provided in this Section, the aspects of that meaning as so defined and those components of SITEOPS that perform optimization runs and generate cost estimates and site design options, or that automatically draw parking lots, parking spaces, islands, sidewalks, driveways, roads, curbs, etc. based on user-controlled constraints. SITEOPS only proposes possible site options and requires a licensed professional engineer, separately engaged or employed by you, to review, finalize, and stamp drawings before they are submitted for permitting or construction.
DISCLAIMERS. EXCEPT FOR THE EXPRESS EXCLUSIVE WARRANTY PROVIDED IMMEDIATELY ABOVE, BA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF CONDITION; CONFORMITY TO ANY DESCRIPTION, REPRESENTATION OR SPECIFICATION; THE EXISTANCE OF ANY LATENT DEFECT OR PATENT DEFECTS; MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FUNCTIONALITY IN THE USER DOCUMENTATION OR IN ANY COMMUNICATION WITH YOU CONSTITUTE TECHNICAL INFORMATION AND NOT AN EXPRESS WARRANTY OR GUARANTEE. BA DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF SITEOPS.
THE “SIMULATORS” CONTAINED IN SITEOPS AND ALL OTHER CONTENT AND INFORMATION CONTAINED ON THE BLUERIDGE ANALYTICS AND/OR SITEOPS WEBSITE AND PROVIDED BY BLUERIDGE ANALYTICS AND/OR SITEOPS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY, AND TO THE EXTENT PERMITTED BY LAW, BA ACCEPTS NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY LOSS SUFFERED BY ANY USER OR SUCH INFORMATION, CONTENT, AND SOFTWARE.
INTERNET DELAYS. ACCESS TO SITEOPS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH DELAYS OR OTHER PROBLEMS.
LIMITATION OF LIABILITY. BA’S LIABILITY TO YOU FOR ANY LOSS OR DAMAGE, DIRECT OR INDIRECT, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION SHALL BE LIMITED TO AN AMOUNT REPRESENTING THE PORTION OF THE PRICE THAT YOU ACTUALLY PAID FOR SPECIFIC USE OF SITEOPS THAT GAVE RISE TO THE CLAIM. BA SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, REGARDLESS OF TYPE OF CLAIM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT BA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FUNCTIONALITY LIMITATIONS. SITEOPS IS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. SITEOPS IS NOT INTENDED TO BE A REPLACEMENT FOR THE JUDGMENT OF PROFESSIONALS AUTHORIZED TO PROVIDE ENGINEERING OR RELATED SERVICES. SITEOPS AND OTHER TECHNICAL SOFTWARE ARE INTENDED TO ASSIST PROFESSIONALS AND ARE NOT SUBSTITUTES FOR INDEPENDENT TESTING. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR SITEOPS, SITEOPS HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED. BA SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF SITEOPS. YOU ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF THE USE OF SITEOPS. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR SITEOPS AND THE SELECTION OF SITEOPS AND OTHER SOFTWARE TO ACHIEVE INTENDED RESULTS. YOU ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF THE OUTPUT OBTAINED FROM SITEOPS. ALWAYS IMPLEMENT CHECKING PROCEDURES TO REVIEW THE RESULTS OBTAINED FROM YOUR USE OF SITEOPS. ANY DRAWINGS OR OTHER RESULTS PRODUCED BY SITEOPS ARE NOT INTENDED FOR PERMITTING OR CONSTRUCTION WITHOUT REVIEW AND CONFIRMATION BY AN INDEPENDENT PROFESSIONAL ENGINEER SEPARARTELY ENGAGED OR EMPLOYED BY YOU.
CONFIDENTIALITY. You agree to hold in strictest confidence and not to use or disclose to any third party, any information designated by BA as confidential or proprietary or which by the nature of such information would reasonably be considered confidential or proprietary, including without limitation passwords or access keys to SITEOPS. You agree that all use of passwords and access keys to SITEOPS will be attributed to you, even if you did not actually authorize the use, including uses that incur additional fees.
RELATIONSHIP BETWEEN THE PARTIES. BA and Customer are independent principals in all relationships and actions under and contemplated by this Agreement. This Agreement shall not be construed to create any employment, partnership, joint venture, or agency relationship between the parties.
LOCAL LAWS; EXPORT AND IMPORT CONTROLS. BA controls and operates its website and servers from its Charlotte, North Carolina, USA offices and makes no representation that SITEOPS is appropriate or available for use in other locations. If you use SITEOPS from other locations, you are solely responsible for compliance with applicable local laws including, but not limited to, the export and import regulations of other countries.
You will at all times comply with all applicable laws and regulations, including without limitation all United States and foreign laws and treaties and laws and regulations relating to imports and exports, international communications, data privacy and the transmission of technical or personal data. You will not export, import or re-export SITEOPS without all required United States and foreign government licenses. You agree to keep such books and records and to take other actions as may be required by such applicable laws, rules, and regulations.
You will defend, indemnify and hold harmless BA from and against all fines, penalties, liabilities, damages, costs and expenses incurred by BA as a result of any violation of such laws or regulations by you or any of your agents or employees.
BA reserves the right in its discretion to modify, amend or terminate this Agreement in light of the impact that the laws and regulations of foreign jurisdictions may have on the transactions contemplated hereby or the parties hereto.
Nothing contained in this Agreement or contemplated hereby shall cause or require BA to submit to the jurisdiction of or become licensed or registered or subject to taxation in any foreign jurisdiction.
Unless explicitly stated otherwise, all marketing or promotional materials found on the BA website are directed only to individuals, companies or other entities located in the United States.
SITEOPS includes technology that may be subject to United States and other, such as Swiss and European Union, export and import control laws, regulations and requirements. You agree, regardless of any disclosure made by you to BA concerning the ultimate destination of any User Data, that you must not access, export or transfer, whether directly or indirectly, SITEOPS, or any portion thereof, to anyone outside the United States without first complying strictly and fully with all export and import controls that may be imposed on SITEOPS by the United States Government or any country or organization of nations within whose jurisdiction you access and use SITEOPS, which is operated and made available from BA’s website and servers in Charlotte, North Carolina, USA. The countries subject to restriction by action of the United States Government are subject to change, and it is your responsibility to comply with the United States Government requirements as they may be amended from time to time. You assume sole responsibility for obtaining licenses to export, import or reexport as may be required. You shall indemnify, defend and hold BA harmless for any breach of your obligations pursuant to this Section.
This BA website may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
U.S. GOVERNMENT RIGHTS. SITEOPS comprises “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, and other relevant sections of the Code of Federal Regulations, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States. Manufacturer is BLUERIDGE Analytics, Inc., 325 Arlington Avenue, Suite 630, Charlotte, NC 28203.
MISCELLANEOUS. The validity, interpretation and construction of this Agreement, and any issue relating to the enforcement of this Agreement, shall be governed by the laws of the state of North Carolina, USA, without reference to its principles of conflicts of law. All disputes arising hereunder shall be filed and adjudicated in the courts of the 26th Judicial District of the State of North Carolina, USA, including the federal courts therein, and the parties hereto, including all Customers, consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available. Those provisions of this Agreement that would normally survive the expiration or termination of this Agreement, shall survive such expiration or termination. All notices required or permitted to be given under this Agreement, shall be in writing and deemed to be properly given upon the date first actually received by each party. Neither party shall be entitled to assign this Agreement in whole or in part without the prior written consent of the other party, provided you agree that BA may assign or transfer this Agreement to any of its affiliated companies, without obtaining your prior written consent. Subject to all of the terms and conditions hereof, this Agreement inures to the benefit of and is binding upon the parties hereto and their permitted successors and assigns. No delay or omission on the part of either party in exercising any right hereunder shall operate as a waiver of such right or any other right under this Agreement, provided that nothing in this Section shall void or extend any time limit set forth in this Agreement with respect to the taking of any action by BA. Neither party shall be held responsible for any act, failure, event, or circumstance addressed herein if such act, failure, event, or circumstance is caused by conditions beyond such party’s reasonable control, whether such event was foreseeable or not. If any provision hereof is declared invalid, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions shall be valid and enforceable to the fullest extent permitted by applicable law. This Agreement, together with all Sales Terms, constitutes the entire agreement and understanding between BA and Customer concerning the subject matter hereof, and cancels, terminates and supersedes all prior written and oral understandings, agreements, proposals, promises and representations of the parties respecting any and all subject matter contained herein. Any alteration, deletion or addition to any of the terms of this Agreement shall only be effective if made in writing and duly executed by you and BA. In the event of any conflict between the terms of this Agreement and any of the Sales Terms, unless explicitly stated otherwise in the Sales Terms the terms of this Agreement shall prevail.