API Partner Terms

Background

BluBØX designs, manufactures, sells, licenses and distributes certain BluBØX Products (as defined herein).  Partner sells, licenses and distributes the hosted online product(s) identified by Partner in the online BluBØX Account Registration Form (as applicable, the “Partner Product”).  Partner desires to integrate the Partner Product with the proprietary BluBØX software solution(s) identified in the BluBØX Account Registration Form (each a “BluBØX Product” and collectively, the “BluBØX Products”) so that Partner’s end user customers may have access to and use of the BluBØX Product through the Partner Product. BluBØX and Partner have agreed that Partner shall have the right to integrate the Partner Product with a BluBØX Product using BluBØX’s proprietary application programming interfaces for the BluBØX Products (the “BluBØX API”) and provide Partner’s end user customers the right to access a BluBØX Product through the integration with the Partner Product, all in accordance with and subject to the terms and conditions of this Agreement.

Agreement

Accordingly, for and in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge.  BluBØX and Partner agree as follows:

1.  Grant.

     (a)  License. Subject to the terms and conditions of this Agreement, BluBØX hereby grants Partner a limited, non-exclusive, non-assignable, non-sublicensable right and license during the Term to: (i) use the BluBØX API for the purpose of creating an integration between the Partner Product and a BluBØX Product using the BluBØX API, thereby enabling the access and use of the BluBØX Product via the Partner Product (the “Integration”) and (ii) promote, market, sell, and distribute the right to use the Integration for the purpose of accessing and using the BluBØX Product as a part of the Integration to third-party end users for their own internal business purposes, and not for redistribution (each an “End User” and collectively, “End Users”).  Partner has no rights to license or distribute the BluBØX Products.  The Integration may only be used in connection with a valid End User subscription to a BluBØX Product, which may only be obtained from BluBØX or a BluBØX Reseller (see Section 1(c) below).

     (b) No Exclusivity. All rights granted to Partner under this Agreement are non-exclusive.  BluBØX reserves the right to market, promote, distribute, sell and license the BluBØX API and the BluBØX Products, and nothing in this Agreement will be construed as limiting in any manner BluBØX’s right to appoint other distributors, resellers, licensees or agents.

     (c)  License and Distribution of BluBØX Products.  Partner will identify prospective End Users to BluBØX in writing.  BluBØX may refer such prospective End Users to an authorized BluBØX reseller designated in the discretion of BluBØX (as applicable, the “BluBØX Reseller”).  Unless otherwise approved in writing by BluBØX, the sale of subscriptions to BluBØX Products and all associated hardware components to End Users will be made only by the authorized BluBØX Resellers.  The BluBØX Reseller will be responsible for installing the hardware and implementing, configuring and activating the End User’s BluBØX Product subscription pursuant to the terms and conditions of a written agreement between the End User and the BluBØX Reseller (as applicable, the “Reseller End User Agreement”).  Partner acknowledges and agrees that if: (i) Partner’s agreement with an End User terminates or expires or the End User’s access to or use of the BluBØX Product through the Integration is suspended or terminated by Partner or the End User and (ii) the End User still has an active BluBØX Product subscription, then the End User may continue to access and use the BluBØX Product on a stand-alone basis (i.e. independently from the Partner Product), subject to the terms and conditions of the Reseller End User Agreement and any applicable BluBØX terms of use or policies that may from time to time apply to the End User’s access to and use of the BluBØX Product (collectively, the “BluBØX End User Terms of Use”).  If there is a conflict between the BluBØX End User Terms of Use and this Agreement or the Reseller End User Agreement, the BluBØX End User Terms of Use will govern.    

     (d)  BluBØX API.  During the Term, BluBØX will make available to Partner the BluBØX API for the purpose of enabling Partner to create the Integration and exercise the rights set forth in Section 1 above, subject to BluBØX’s then-current terms of use for the BluBØX API (the “API Terms of Use”).  The current version of the API Terms of Use as of the Effective Date is available at the BluBØX Account Registration Site.  If there is a conflict between the API Terms of Use and this Agreement, this Agreement will govern.

     (e)  Discontinuation and Modification of BluBØX Products.  Partner acknowledges that BluBØX may, in its sole discretion, discontinue the sale and/or license of the BluBØX API or the BluBØX Products and any parts/accessories therefor (except where continued availability is required by law) without incurring any liability to Partner therefor. BluBØX will use commercially reasonable efforts to provide Partner written notice of any such discontinuation at least 90 days in advance. Partner also acknowledges that BluBØX may, in its sole discretion, update or modify the BluBØX API from time to time (in each instance, an “Update”). Partner is required to implement and use the most current version of the BluBØX API and to make any changes to the Integration or the Partner Products that are required as a result of such Update, at Partner’s sole cost and expense. Updates may adversely affect the manner in which the Partner Products access or communicate with the BluBØX API. Partner’s continued access or use of the BluBØX API following an Update will constitute binding acceptance of the Update.

2.  Fees; Payments.

     (a)  Amount; Payment.  In consideration of the rights and licenses granted to Partner by BluBØX hereunder, Partner will pay BluBØX the then-current standard fees for the BluBØX API. The then-current standard fees for the BluBØX API will be available to partner upon request. Billing will commence upon connection of the Integration to one or more production accounts within the BluBØX Product. All invoices are due within 30 days of the date of BluBØX's invoice. Amounts remaining unpaid more than 30 days from the date of invoice will bear interest at the lesser of 1 1/2% per month or the maximum rate permitted by law. If Partner fails to make full payment within 60 days of invoice, BluBØX may, upon written notice (in addition to any other remedies available hereunder or at law equity): (i) suspend performance hereunder in whole or in part, and/or (ii) terminate the licenses granted to Partner.

     (b)  Taxes. The Fees are exclusive of all taxes, including sales, use, excise or value added taxes where applicable. Upon presentation of invoices by BluBØX, Partner will pay any and all such taxes imposed or levied by any government or agency. Any claimed exemption from such taxes must be supported by proper documentary evidence delivered to BluBØX.

     (c)  Resale Prices. Partner is free to determine the price at which Partner resells to End Users the right to use the Integration for the purpose of accessing and using a BluBØX Product as a part of the Integration.  Partner will be solely responsible for collecting payment from its End Users, and Partner’s payments to BluBØX will not be subject to Partner’s collection of payment from End Users.

3.  Partner’s Obligations.

     (a)  Cooperation. Partner will reasonably cooperate with BluBØX and the BluBØX Resellers in connection with the implementation, configuration and activation of BluBØX Product accounts for the End Users and maintaining the integrity of BluBØX’s products and services.  During the Term, Partner will at all times adhere to any then-current BluBØX programs, policies or guidelines applicable to authorized users of the BluBØX API which are provided in writing to Partner (“Program Guidelines”). Partner will not take any action to: (i) interfere with the relationships between the End User and the BluBØX Reseller or BluBØX or (ii) interfere with or disrupt the operation of the BluBØX Products.

     (b)  Partner’s General Responsibilities. Partner will pay all costs and expenses of whatever nature incurred by Partner in connection with the exercise of its rights and the fulfillment of its obligations hereunder. Partner will carry on its business at its own exclusive risk. Partner will not be and will not hold itself out as, in any manner whatsoever, an agent of BluBØX.

     (c)  Partner Business Practices. Partner agrees not to engage in deceptive, misleading or unethical practices.  Partner will not make any representations, warranties or guarantees with respect to the Integration or the BluBØX Products that are inconsistent with those made by BluBØX in its published literature. 

     (d)  No Conflicting Terms.  All subscriptions for the BluBØX Products will be subject to BluBØX’s then-current BluBØX End User Terms of Use in the form provided by BluBØX or the BluBØX Reseller, as the same may from time to time be modified in the discretion of BluBØX.  Partner will not include in its agreement with an End User any terms or conditions that conflict with or contravene the BluBØX End User Terms of Use or this Agreement.  During the Term, the then-current BluBØX End User Terms of Use will be available to Partner via the BluBØX API Terms of Use, and Partner will keep itself up-to-date throughout the Term with respect thereto.  

     (e)  Technical Support. Partner will provide technical support for the Integration to the End Users, in accordance with the API Terms of Use. The applicable BluBØX Reseller will provide End Users first-line technical support services relating to the BluBØX Products, in accordance with the terms and conditions of the agreement between BluBØX and such BluBØX Reseller.  Partner will promptly refer all End User requests for technical support for the BluBØX Products to the applicable BluBØX Reseller. In no event may an End User contact BluBØX for direct assistance or support without BluBØX’s prior written consent.

     (f)  Protection of End User Data. Partner will use commercially reasonable efforts, consistent with accepted industry best practices, to protect End User data to which Partner may acquire access or possession through the use of the BluBØX API from any use or disclosure that is not authorized by the End User.  Partner acknowledges and agrees that such End User data is the property of the End User, and Partner will not use such data for any purpose that is not authorized by the End User.  Partner will immediately notify BluBØX and the End user of any unauthorized use or disclosure of End User data of which Partner becomes aware.

     (g)  Compliance with Laws Generally. Partner will comply with all laws, rules and regulations applicable to Partner and the performance of Partner’s obligations under this Agreement, including, without limitation, applicable privacy and information security laws. Partner will obtain and maintain in full force and effect all applicable permits and/or licenses necessary to comply with all applicable requirements of law related to the conduct of its business and affairs, including the performance of Partner’s obligations under this Agreement.

4. Disclaimers.

     BluBØX does not warrant that: (i) the BluBØX API or the Integration will meet Partner’s or End Users’ requirements, (ii) the BluBØX API will operate in combination or be compatible with other hardware or software, or (iii) the operation of the BluBØX API, the Integration or the BluBØX Products will be uninterrupted or error free.  THE BLUBØX API AND THE BLUBØX PRODUCTS ARE PROVIDED “AS IS” AND BLUBØX HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS OR TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, TRADE USAGE OR COURSE OF DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE.    

5. Term and Termination.

     (a) Term. This Agreement will commence on the Effective Date and will continue thereafter until terminated pursuant to this Section 5 (the “Term”).

(b) Termination for Material Breach.  Either party may immediately terminate this Agreement effective upon delivery of written notice to the other party if such other party materially breaches this Agreement and fails to cure such breach within a period of 30 days after delivery of written notice thereof.

(c) Termination for Insolvency. Either party may immediately terminate this Agreement effective upon delivery of written notice to the other party if such other party: (i) admits in writing its inability to pay its debts generally as they become due, (ii) makes a general assignment for the benefit of creditors, (iii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, (iv) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (v) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization, or (vi) has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of its property or providing for the liquidation of its property or business affairs. 

(d) Termination by BluBØX.  Notwithstanding Section 5(b) above, BluBØX may terminate this Agreement at any time effective upon delivery of written notice to Partner if Partner fails to make any payment due hereunder within 60 days of invoice, regardless of whether BluBØX has provided a notice of material breach pursuant to Section 5(b) above.

(e) Termination for Convenience.  Following the expiration of the 1-year period following the Effective Date, either party may terminate this Agreement for its convenience, for any or no reason, upon at least 90 days’ prior written notice to the other party.

(f) Effects of Termination.  Upon termination of this Agreement: (i) all of Partner’s rights and licenses hereunder will terminate, including the right to make the Integration available to End Users, and Partner will cease to promote, market, sell, and distribute the right to use the Integration, (ii) all sums due to BluBØX but not yet paid will become immediately due and payable, (iii) Partner will return to BluBØX all BluBØX Confidential Information (and all copies thereof) in the possession or under the control of Partner. Upon request by BluBØX, a duly authorized representative of Partner will certify in writing to BluBØX that all such BluBØX Confidential Information has been returned to BluBØX.      

(g) Survival. Notwithstanding the termination of this Agreement, it is acknowledged and agreed that those rights and obligations which by their nature are intended to survive such termination will survive, including without limitation Sections 2, 4(b), 5(f) and (g), and 6-10 (inclusive).

6.  Indemnification.

(a) Indemnification by BluBØX. Subject to the provisions of Sections 6(b) and (c) and Section 7 below, BluBØX will indemnify Partner and hold Partner harmless against any and all direct damages finally awarded against Partner by a court of competent jurisdiction or agreed to in a written settlement agreement signed by BluBØX arising out of any claim by a third party that the BluBØX API directly infringes any U.S. copyright or trademark, or misappropriates any trade secret, of such third party.  If a third party brings a claim of infringement or misappropriation relating to the BluBØX API, BluBØX may, in its discretion, terminate this Agreement upon 30 days’ prior written notice to Partner.

(b) Conditions. BluBØX’s indemnification obligations under Section 6(a) are subject to the following conditions: (i) Partner will provide BluBØX with prompt written notice of any claim, (ii) Partner will permit BluBØX to assume and control the defense and settlement of any claim at BluBØX’s cost and expense, (iii) Partner will not prejudice the defense of the claim, and (iv) Partner will provide BluBØX with such reasonable assistance, documents, authority and information as BluBØX may reasonably require in relation to the claim and the defense or settlement thereof.

(c) Exceptions. BluBØX will have no liability to Partner under Section 6(a) for any claim that arises in whole or in part out of: (i) any unauthorized use, reproduction, or distribution of the BluBØX API, (ii) any modification or alteration of the BluBØX API by anyone other than BluBØX; or (iii) the use of the BluBØX API in combination with any other software or hardware not supplied by BluBØX.

(d) Sole Remedies. SECTIONS 6(a)-(c) STATE BLUBØX’S ENTIRE LIABILITY, AND PARTNER’S SOLE REMEDIES, FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE BLUBØX API AND THE BLUBØX PRODUCTS.

(e) Indemnification by Partner.  Partner will indemnify, defend, and hold BluBØX and its affiliates harmless against any and all damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by BluBØX in connection with any third-party suit, action, claim or proceeding arising out of or in connection with: (i) Partner’s failure to comply with applicable laws, rules, or regulations, (ii) Partner’s breach of this Agreement, (iii) the negligence or intentional misconduct of Partner or its employees and agents, (iv) any claim by a third party that the Partner Product infringes or misappropriates the Intellectual Property Rights of such third party, (v) any claim by an End User relating to the Partner Product or the Integration or (vi) an act or omission taken by BluBØX in accordance with the instructions of Partner, including, without  limitation, the termination of an End User’s access to the BluBØX Product through the Integration.

 

7.  Limitation of Liability.

     (a)  No Consequential Damages. UNDER NO CIRCUMSTANCES WILL BLUBØX BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR COVER DAMAGES, HOWSOEVER ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE, OR INABILITY TO USE, THE BLUBØX API OR THE BLUBØX PRODUCTS, EVEN IF BLUBØX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

     (b) Cap on Liability. BLUBØX’S AGGREGATE CUMULATIVE LIABILITY FOR damages (regardless of the form of action, whether in contract, tort or otherwise) WILL in no event exceed the amount of fees paid by PARTNER under this Agreement DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO LIABILITY.

        (c)  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

8. Confidentiality.

     (a)  Previous Agreements. If the parties have previously signed any agreements governing the disclosure of Confidential Information, those prior agreements will remain in full force and effect to the extent they apply prior to the date of this Agreement or relate to subject matter not covered by this Agreement.

     (b)  Confidentiality and Non-use Obligations. The Receiving Party will keep confidential all Confidential Information of the Disclosing Party during the term of this Agreement and for a period of five (5) years following termination of this Agreement, and will only use such Confidential Information in connection with the performance of this Agreement.  Each party will protect the other’s Confidential Information from unauthorized distribution or use using the same degree of care it uses to protect its own like information, but no less than a reasonable degree of care.  All Confidential Information supplied by the Disclosing Party to the Receiving Party pursuant to the provisions of this Agreement, together with all copies thereof, will remain the property of the Disclosing Party. Confidential Information identified by the Disclosing Party as a trade secret will be kept in confidence by the Receiving Party during the term of this Agreement and thereafter for so long as such Confidential Information constitutes a trade secret under applicable law. “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement which is disclosed in writing, verbally or by inspection and is identified as “confidential” or “proprietary” by the Disclosing Party, or which the Receiving Party should have reason to believe is treated as confidential or proprietary by the Disclosing Party. Any information, in whatever form, disclosed by BluBØX to Partner that relates to the BluBØX API and the BluBØX Products and that is not publicly known is “Confidential Information.”  Confidential Information does not include information that: (i) enters the public domain through no fault of the Receiving Party, (ii) is communicated to the Receiving Party by a third party under no obligation of confidentiality, (iii) has been independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party, (iv) was in the Receiving Party’s lawful possession prior to disclosure and had not been obtained either directly or indirectly from the Disclosing Party, or (v) is required to be disclosed by law, provided the Receiving Party has promptly notified the Disclosing Party in writing of such requirement and allowed the Disclosing Party a reasonable time to oppose such requirement.

     (c)  Equitable Relief. Each party acknowledges and agrees that, due to the unique nature of the Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore the non-breaching party will be entitled to seek immediate injunctive relief, in addition to any remedies otherwise available at law or under this Agreement.

 

9.  Intellectual Property Rights.

     (a)  Ownership.  All Intellectual Property Rights and other rights relating to the BluBØX API and the BluBØX Products and any modifications of or derivative works based in whole or in part thereon (whether or not authorized) will at all times be the exclusive property of BluBØX or its licensors, and all use of such rights will accrue to the benefit of BluBØX. Partner will not challenge BluBØX’s title to such Intellectual Property Rights, including, without limitation, the trademarks, service marks, trade names, logos, designs, or slogans used by BluBØX to identify its products (including the BluBØX API and the BluBØX Products), whether or not specifically recognized, registered or perfected under applicable law (the “BluBØX Marks”), oppose any registration thereof, or challenge the validity of this Agreement. Furthermore, Partner will not register, or attempt to register, any trade name, trademark, service mark, design or domain name which, in whole or in part, incorporates or is confusingly similar to the BluBØX Marks, without the prior written consent of BluBØX. Nothing contained in this Agreement will constitute or be construed as a transfer of ownership of any of the Intellectual Property Rights of BluBØX or its licensors or to otherwise give Partner any proprietary rights to any of the Intellectual Property Rights of BluBØX or its licensors.  “Intellectual Property Rights” means , collectively, any and all: (i) patents and inventions, (ii) trademarks, service marks, trade names, trade dress and logos, (iii) copyrights, (iv) trade secrets, (v) moral rights, and (vi) all other intellectual and industrial property or proprietary rights, in each case, whether now existing or created or arising hereafter, in any jurisdiction world-wide.

     (b)  Restrictions.  Partner will not (nor will it permit any third party under its control to): (i) copy or manufacture the BluBØX API or any portion thereof, (ii) translate, modify, adapt, enhance, extend, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the BluBØX API by any means whatsoever or (iii) modify, or create derivative works based on or including (in whole or in part), the BluBØX API.

     (c)  Notice of Breach. Partner will promptly notify BluBØX of any and all material breaches of the BluBØX End User Terms of Use that may come to Partner’s attention, and Partner will assist BluBØX, at BluBØX’s expense, in all steps reasonably necessary to address any such breach.

     (d)  Notice of Infringement. Partner will promptly notify BluBØX of any actual, threatened or suspected infringement of BluBØX’s Intellectual Property Rights, as well as any claims or allegations that the BluBØX API or the BluBØX Products infringe the rights of any third party.

     (e)  Cooperation.  Partner agrees to use reasonable efforts to protect BluBØX’s Intellectual Property Rights and to cooperate in BluBØX’s efforts to protect its Intellectual Property Rights.  At BluBØX’s request, Partner will execute any instruments requested by BluBØX to perfect BluBØX’s or its licensors’ exclusive ownership rights in the Intellectual Property Rights relating to the BluBØX API and the BluBØX Products.

10. General Provisions. 

     (a)  Entire Agreement.  This Agreement (including the Background Section, which is hereby incorporated by reference into the body of this Agreement), the BluBØX API Fees Schedule, the API Terms of Use and the Program Guidelines constitute the entire agreement and understanding between the parties and supersede all prior agreements, negotiations and discussions relating to the subject matter of this Agreement, whether written or verbal. Partner acknowledges that in entering into and performing this Agreement it does not do so on the basis of, and does not rely on any statement or representation or warranty or understanding other than as expressly contained in this Agreement at the date hereof or subsequently included within this Agreement pursuant to Section 10(b).

     (b)  Amendments and Waivers.  BluBØX may modify this Agreement (including, without limitation, the Fees) upon prior written notice to Partner.  BluBØX may, in its discretion and in lieu of the notification options set forth in Section 10(c) below, notify Partner of such modifications by posting an amended version of this Agreement (or the BluBØX API Fees Schedule) at the BluBØX Account Registration Site. Partner’s continued use of the BluBØX API 30 days after notification from BluBØX will constitute Partner’s acceptance of all modifications to this Agreement. If Partner does not consent to any such modifications to this Agreement, Partner must cease all of use of the BluBØX API within 30 days of notification of such changes.  Partner may not modify this Agreement without the prior written approval of an authorized representative of BluBØX.  In no event will any delay, failure or omission of a party in enforcing, exercising or pursuing any right, claim or remedy under this Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing.

     (c)  Notices. Except as otherwise specifically set forth herein, all notices and other communications given or made pursuant to this Agreement will be in writing and (i) if sent by BluBØX to Partner, sent by email to Partner’s account email address or by delivery of a letter (via personal delivery, mail or express courier) to Partner’s account mailing address and (ii) if sent by Partner to BluBØX, sent by email to customercare@BluBØX.com or by delivery of a letter (via personal delivery, mail or express courier) to: BluBØX Systems, LLC, 7700 Old Georgetown Road, Suite 300, Bethesda, Maryland 20814, Attn. Customer Service (or such other address as BluBØX may from time to time direct in writing).   Either party may change its contact information by delivering written notice to the other party in the manner provided above.

     (d)  Force Majeure.  BluBØX will have no liability under this Agreement to the extent that it is delayed, prevented or hindered in performing any of its obligations under this Agreement as a result of any circumstance or occurrence beyond the reasonable control of BluBØX, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays, third-party hosting facility failures, denial of service attacks, or other similar occurrences. 

     (e)  Headings. Headings are used in this Agreement for convenience only and will not affect any construction or interpretation of this Agreement. 

     (f)  Partial Invalidity.  If any provision of this Agreement or the application of it will be declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties will amend this Agreement in order to give effect to, so far as is possible, the intent of this Agreement. If the parties fail to amend this Agreement, the provision, which is void, invalid or unenforceable, will be deemed deleted and the remaining provisions of this Agreement will continue in full force and effect.

     (g)  Governing Law; Venue; Jurisdiction. This Agreement will, in all respects, including all matters of construction, validity and performance, be governed by the laws of the State of Maryland, United States (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to any conflicts of law principles which may result in the application of the laws of another jurisdiction.  The parties agree that the Uniform Computer Information Transaction Act (UCITA) shall not apply to this Agreement, regardless of the states in which the parties do business or are incorporated.  Any suit, action or proceeding arising in connection with this Agreement will be brought in the state or federal courts sitting in the State of Maryland and the parties hereby expressly submit to the jurisdiction of such courts for the purpose of any such suit, action, or proceeding.  The parties hereby irrevocably consent to the service of process in any suit, action or proceeding in said courts by the mailing thereof by registered or certified mail, postage prepaid, to the parties’ respective addresses pursuant to Section 10(c) of this Agreement.  Each party hereby irrevocably waives any objections which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement if brought in Maryland, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

     (h)  Assignment.  Partner may not assign this Agreement or its rights and obligations hereunder, either in whole or in part, without the prior written consent of BluBØX; provided, however, that Partner may assign its rights under this Agreement in whole to a successor in interest in the event of a sale of all or substantially all of Partner’s assets; and provided further that no such assignment shall relieve Partner of its obligations hereunder. Any attempted assignment or delegation by Partner in violation of this Section will be null and void, and will constitute a material breach of this Agreement.  

     (i)   Relationship. The relationship between the parties is that of independent contractors. Nothing in this Agreement will constitute or be deemed to constitute a partnership, joint venture, employment relationship or an agency. The parties acknowledge and agree that the term “partner” is used in this Agreement in its familiar sense rather than as a legal term of art. 

     (j)  Compliance with Export Control Laws. The license and distribution of the Integration and the BluBØX Products is subject to the export control laws of the United States which may include, without limitation, the U.S. Export Administration Regulations, the Trading With the Enemy Act, the International Emergency Economic Powers Act, the Arms Export Control Act and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as amended from time to time (collectively, the “Export Control Laws”).  All actions taken by Partner in furtherance of fulfillment of this Agreement will be in compliance with applicable Export Control Laws.  Partner will not export, reexport or license the Integration to any parties located in countries prohibited under U.S. embargoes or sanctions programs maintained by the OFAC or otherwise prohibited under the Export Control Laws.  In addition, Partner will not export, re-export or license the Integration to any parties that are named as a “Specially Designated National” or “Blocked Person” as designated by the OFAC (which is currently published under the Internet address http://www.treas.gov/offices/eotffc/ofac). Partner further agrees that it will cooperate fully with BluBØX in furnishing BluBØX with all necessary information and certificates, including End User certificates, that BluBØX may require in order to obtain licenses, comply with export recordkeeping requirements and otherwise comply with the Export Control Laws.

     (k)  Waiver of Jury Trial.  The Parties expressly waive any right to a jury trial regarding disputes related to this Agreement.

     (l)   No Publicity. Partner shall not issue any press release relating to this Agreement or its relationship with BluBØX without the prior written consent of BluBØX. 

     (m) Government Contracts. The BluBØX API and related content are "Commercial Items" as defined in 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 and 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, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.

     (n)  BluBØX Account Registration Form.  Partner represents and warrants to BluBØX that all information submitted by Partner in the BluBØX Account Registration Form is accurate and complete in all respects.  The individual submitting the BluBØX Account Registration Form represents and warrants that Partner has granted him or her the authority to enter into this Agreement on its behalf, and that the terms and conditions of this Agreement, the BluBØX API Fees Schedule, the API Terms of Use and the Program Guidelines will govern Partner’s use of the BluBØX API.  If the individual submitting the BluBØX Account Registration Form does not have the authority to enter into this Agreement on behalf of Partner, does not agree to the terms of this Agreement on behalf of Partner, or is not an employee of Partner, he or she is prohibited from submitting a BluBØX Account Registration Form and any use by him, her or Partner of the BluBØX API shall constitute an intentional infringement of BluBØX’s Intellectual Property Rights.