Forge End User License Agreement

Version 2.0, November 15, 2023

US Customers

This End User License Agreement (the “Agreement”) is a binding agreement between Firely USA, Inc., a Delaware corporation, located in New York, NY, USA, and the person or entity identified as the licensee on the Order Form of the Software (“Licensee”). Firely USA, Inc. and Licensee may be referred herein collectively as the “Parties” or individually as a “Party”.

All other Customers

This Agreement is a binding agreement between Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands, and the Licensee. Firely B.V. and Licensee may be referred herein collectively as the “Parties” or individually as a “Party”.

FIRELY PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY USING FORGE YOU: (A) ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, FIRELY WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD/INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF FIRELY’S SOFTWARE.

  1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

    Account” means the account Licensee creates on the Website.

    Authorized Users” means solely those individuals authorized to use the Software pursuant to the license granted under this Agreement, as set forth in the Order Form.

    Commercial Use” means use of the Software by the Licensee for financial or monetary gain (including use of the Software for or by a non-profit organization), as determined by Firely in its sole discretion.

    Documentation” means Firely’s user manuals, handbooks, and installation guides relating to the Software provided by Firely to Licensee either electronically or in hard copy form/end user documentation relating to the Software available on the Website.

    Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

    Fees” means the fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.

    Order Form” means the order form or any other document filled out and submitted by or on behalf of Licensee, and accepted by Firely, for Licensee’s purchase of the license for the Software granted under this Agreement.

    Firely” means Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands and Firely USA, Inc., a Delaware corporation located in New York, NY, USA.

    Non-Commercial Use” means use of the Software by the Licensee not for financial or monetary gain, as determined by Firely in its sole discretion.

    Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

    Software” means the Forge application for authoring conformance resources in HL7® FHIR®, including any Updates provided to Licensee pursuant to this Agreement.

    Third Party” means any Person other than Licensee or Firely.

    Updates” means any updates, upgrades, bug fixes, patches, or other error corrections to the Software that Firely generally makes available free of charge to all licensees of the Software.

    Website” means www.simplifier.net.

  2. License Grant and Scope

    1. Subject to and conditioned upon Licensee’s compliance with all terms and conditions set forth in this Agreement, Firely hereby grants Licensee a revocable, non-exclusive, non-sublicensable, non-transferable, license for Non-Commercial Use, during the Term and solely by and through its Authorized Users, to:

      1. Download, copy, and install in accordance with the Documentation one (1) copy of the Software on one (1) device owned or leased, and controlled, by Licensee for personal use. Each such device shall be for a single Authorized User. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes. All copies of the Software made by the Licensee: (A) will be the exclusive property of the Licensor; (B) will be subject to the terms and conditions of this Agreement; and (C) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

      2. Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.

      3. Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be downloaded and installed in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by the Licensee: (A) will be the exclusive property of the Licensor; (B) will be subject to the terms and conditions of this Agreement; and (C) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

      4. License for Non-Commercial Use of the Software shall only be valid during the Term of this Agreement.

      5. The Software includes software, content, data, or other materials, including open source libraries, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (”Third-Party Licenses”). A list of all materials included in the Software and provided under Third-Party Licenses can be found in Schedule A to this Agreement and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

    2. Subject to and conditioned upon Licensee’s payment of Fees and Licensee’s compliance with all terms and conditions set forth in this Agreement, Firely hereby grants Licensee a revocable, non-exclusive, non-sublicensable, non-transferable, license for Commercial Use, during the Term and solely by and through its Authorized Users, to download, install, and use the Software and/or Documentation in accordance with terms set forth in Section 2(a)(i)-(iii). The paid license for the Software may be obtained through the Website. Any such license shall only be valid for the Term provided on the Website or one (1) year if the Website does not provide a license term.

  3. Use of the Software.

    1. To use the Software, Licensee must register an Account on the Website. Use of the Website may be subject to additional terms and conditions which will be provided to you during the registration process.

    2. After completing the registration procedure, Licensee may download the Software on its computer directly via the Website and install the Software its device. The Software, however, may only be installed when certain system requirements are met. Licensee shall be responsible for checking such requirements before obtaining a license for the Software.

    3. Firely will actively monitor if Licensee has a valid license to use the Software. In order to verify Licensee’s license, Licensee will be required to log in to its Account after installing the Software. For this purpose, a connection with the internet is required. If Licensee does not have an internet connection, it may not be able to use the Software for prolonged periods.

    4. Licensee must secure access to the Account by protecting the username and password from disclosure to third parties. Licensee must keep the password strictly confidential. Firely may assume that all actions undertaken from Licensee’s Account after logging in with Licensee’s username and password are authorized and supervised by Licensee. Licensee shall be liable for all such actions, unless and until Licensee has notified Firely that a Person has obtained access to Licensee’s password.

    5. When Licensee uses the Software, Firely may process certain personal data to monitor the validity and status of the license. Licensee may consult Firely’s privacy statement of Firely for more information. This privacy statement is available on the Website.

  4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

    1. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

    2. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;

    3. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

    4. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

    5. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

    6. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

    7. except as expressly set forth in Section 2(a)(i) and Section 2(a)(iii), copy the Software or Documentation, in whole or in part;

    8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

    9. use the Software or Documentation in violation of any law, regulation, or rules; or

    10. use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to Firely’s commercial disadvantage.

  5. Responsibility for Use of Software.

    1. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

    2. If Firely determines or is notified by a third party of any purportedly unlawful or unauthorized use of the Software or Documentation, Firely may take all reasonable measures to stop such unlawful or unauthorized use. Firely shall not have any liability to Licensee arising from or relating to any unlawful or unauthorized use of the Software or Documentation.

    3. Licensee hereby agrees to indemnify and hold Firely, its subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of: (i) its use or misuse of the Software; (ii) any violation of applicable laws and regulations; and (iii) any violation of the terms set forth in this Agreement.

  6. Compliance Measures.

    1. Firely shall have the right to take technical measures to protect the Software against unlawful or unauthorized use. If Firely takes such measures, Licensee shall not circumvent or remove the measures taken.

    2. Firely shall have the right to perform an audit to verify Licensee’s compliance with this Sectio 6. The audit will be performed by an independent third party which shall treat the audit as strictly confidential. The costs of the audit shall be borne by Firely, unless the audit reveals that Licensee failed to comply with Section 6. Licensee shall provide all information which is reasonably requested by the auditor and shall provide all assistance reasonably required to perform the audit at Licensee’s own expense.

    3. Firely is entitled to demand a compensation for the loss of revenue if Licensee obtains a license for Non-Commercial Use of the Software but Licensee’s actual use of the Software is deemed by Firely to involve Commercial Use.

  7. Updates.

    1. Firely may develop and provide Updates in its sole discretion, and Licensee agrees that Firely has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.

    2. The Software will automatically notify Licensee if Updates are available but Licensee’s device used to connect to the Software will need an active internet connection to check for new versions of the Software. Updates shall only be installed with Licensee’s consent. Licensee waives and release Firely of any liability for loss or damages by errors or bugs resolved in an Update that Licensee did not install.

    3. Updates of the Software may be subject to additional or amended terms of this Agreement. In such event, Licensee must accept such additional or amended terms before installing the Update.

    4. If any questions arise relating to the Software, Licensee may contact Firely as provided on the Website. Firely will use reasonable efforts to respond as soon as possible.

  8. Intellectual Property. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Firely reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Firely if Licensee becomes aware of any infringement of the Firely’s Intellectual Property Rights in the Software and fully cooperate with Firely in any legal action taken by Firely to enforce its Intellectual Property Rights.

  1. Payment. All Fees payable for Commercial Use of a license shall be paid in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein.

  1. Term and Termination.

  1. This Agreement and the license granted hereunder shall remain in effect for the Term set forth on the Order Form or until terminated as set forth herein (the “Term”).

  2. This Agreement shall automatically terminate when Licensee ceases all use of the Software and permanently destroys or deletes all copies of the Software and Documentation.

  3. Firely may terminate for convenience this Agreement, effective upon written notice to Licensee. The notice period shall be three (3) months. Any Fees prepaid by Licensee shall be reimbursed pro rata.

  4. Firely may suspend or terminate this Agreement, effective immediately, if: (i) Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law; (ii) Licensee makes or seeks to make a general assignment for the benefit of its creditors; (iii) Licensee applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; (iv) Firely has reasonable grounds to believe Licensee will not comply with its obligations under this Agreement; and (v) Licensee has not used the Software for twelve (12) months after its first log in. In case of (v), Firely shall send a communication to the Licensee’s email address registered with its Account.

  1. Disclaimer. THE SOFTWARE, INCLUDING ANY OPEN SOFTWARE COMPONENTS, AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

  1. IN NO EVENT WILL FIRELY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE FIRELY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  2. IN NO EVENT WILL FIRELY AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO FIRELY PURSUANT TO THIS AGREEMENT FOR THE TWELVE (12) MONTHS OF THE SPECIFIC SERVICES THAT PRECEEDED THE DAMAGING EVENT. DAMAGES MAY ONLY BE CLAIMED IF REPORTED IN WRITING TO FIRELY AT MOST TWO (2) MONTHS AFTER DISCOVERED BY LICENSEE.

  1. Force Majeure

  1. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Service Terms or any Contract, for any failure or delay in fulfilling or performing any term or contractual provision, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after this Agreement becomes effective; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; (ix) malware attacks or other malicious software, network attacks (including DDos attacks); and (x) bankruptcy. If a Force Majeure Event occurs either Party may temporarily suspend the performance of its obligations under these Terms.

  2. Either Party may terminate (ontbinden) a Contract if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 60 days or more. Customer shall pay all fees incurred for the Services that have already been performed by Firely prior to suspension and/or termination of a Contract due to a Force Majeure Event. In case of a Force Majeure Event Firely shall have no obligation to compensate Licensee for any damages it suffers arising from such an event.

  1. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

  1. Applicable Law and Dispute Resolution

US Customers (Sections 15(a)-15(b))

  1. Unless stated otherwise in writing, this Agreement and any other contract between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.

  2. The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement or any other contract shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement or any contract, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be referred to and finally determined by arbitration in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. The seat of the arbitration will be New York, New York. The arbitration shall be administered for a single arbitrator. The language to be used in the arbitral proceeding will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. ANY CAUSE OF ACTION AGAINST FIRELY, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

All other Customers (Sections 15(c)-15(e))

  1. Unless stated otherwise in writing, this Agreement and any contract between the Parties shall be governed by and construed in accordance with the laws of the Netherlands, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.

  2. The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement and any contract shall first be submitted to the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), (http://sgoa.eu/en/ with offices in Heemstede, the Netherlands) (SGOA) or its successor, for ICT Mediation. The other Party must actively participate in the ICT Mediation, which means attending one joint meeting between the mediator(s) and the Parties. Each Party may terminate the ICT Mediation procedure at any time following the joint meeting. Notwithstanding this Section, either Party may seek preliminary relief through arbitral proceedings or in a court of law, and may take conservatory measures (e.g., attachment) if necessary.

  3. Any dispute, controversy or claim arising out of or relating to this Agreement or any contract, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, which is not resolved through mediation, will be referred to and finally determined by arbitration in accordance with the Arbitration Rules of SGOA, or its successor. The seat of the arbitration will be Heemstede, the Netherlands. The arbitration shall be administered for a single arbitrator. The language to be used in the arbitral proceeding will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. ANY CAUSE OF ACTION AGAINST FIRELY, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Either Party may seek preliminary relief through arbitral proceedings or in a court of law, and may take conservatory measures (e.g., attachment) if necessary.

  1. Miscellaneous Provisions

  1. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 15(a).

  2. Authenticity of Communication. The version of any communication of information as recorded by Firely shall be deemed to be authentic, unless Licensee provides sufficient proof as determined in Firely’s sole discretion that such a communication is inauthentic.

  3. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction or before any arbitral tribunal, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

  4. Assignment. Licensee is not permitted to assign, delegate or otherwise transfer the any rights or obligations arising under this Agreement without Firely’s prior written consent. Any such attempted assignment, delegation or transfer will be null and void. Firely is permitted at its sole discretion to assign any rights or obligations arising under this Agreement to any third party without giving prior notice.

  5. No Beneficiaries. Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.

  6. Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or any contract or by law shall not constitute a waiver of that right, power or remedy. If Firely waives a breach of any provision of this Agreement or any contract, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.

SCHEDULE A: BILL OF MATERIALS