PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCESSING AND/OR USING PECAN’S SELF-SERVICE MODEL SOFTWARE AND ANY UPDATES THERETO (COLLECTIVELY, THE “SOFTWARE”). BY CLICKING “I AGREE” OR OTHER SIMILAR BUTTON, OR BY ACCESSING AND/OR USING THE SOFTWARE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, ON BEHALF OF YOURSELF AND/OR YOUR ORGANIZATION, (“YOU” OR “LICENSEE”) ARE ENTERING INTO A LEGAL AGREEMENT WITH PECAN AI LTD. AN ISRAELI CORPORATION (“PECAN”); AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“AGREEMENT”). THE DATE OF SUCH OCCURRENCE SHALL BE CONSIDERED THE “EFFECTIVE DATE”.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BY ACCEPTING THIS AGREEMENT, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.
License & License restrictions.
The Software is a self-service platform that provides a deep learning-based predictive analytics platform that automatically constructs predictive models for various commercial use cases.
Subject to complying with the terms and conditions hereof, Pecan grants Licensee a non-exclusive, non-transferable, personal, limited, non-sublicensable, worldwide license to install and use the Software for Licensee’s internal purposes (the “License“), during the Term (defined below).
Except as explicitly permitted in this Agreement, Licensee will have no right and will not, nor will it authorize or assist others to: (a) copy the Software except as reasonably required in connection with authorized uses of the Software under this Agreement, (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Software or otherwise discover or attempt to discover the source code of the Software except and solely to the extent permitted under applicable law, (c) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Software or any of Licensee’s rights therein or make available the service or the Software to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment) or to make a derivative work of the services and the Software, or use it to develop any service or product that is the same as (or substantially similar to) it, (d) use Pecan’s name, logo or trademarks without prior written consent from Pecan, (e) violate or abuse password protections governing access to the Software or any of the Software’s security measures, (f) interfere or attempt to interfere with the integrity or proper working of the Software, including, without limitation, shall not use any automated or programmatic method to extract data or output from Pecan, the Software and the Model, including scraping, web harvesting, or web-data extraction (except as permitted in this Agreement), (g) use the Software in any unlawful manner including in violation of any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement, (h) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Software, (i) upload any Input Data neither use the Software in a way that infringes, misappropriates or violates any person’s or third party’s rights and/or applicable law and regulations, (j) use Output Data to develop Models that compete with Pecan, (k) upload Input Data which include personal data, (l) represent that Output Data was human-generated when it is not, (m) copy, “frame” or “mirror” the services and/or the Software and/or the Model, and/or (n) use the Software other than as permitted herein. Notwithstanding anything to the contrary, Licensee shall at all times comply with all applicable laws and not perform these terms of this Agreement and/or use the Software, Input or Output in violation of third-party rights.
Trial Period.
Pecan may grant Licensee a License (as defined above), at no cost, for a period of seven (7) days after the Effective Date (“Trial Period“). The Trial Period will be subject to the terms of this Agreement. After the seven days trial period, if Licensee continues using the Software, Licensee will be charged with the relevant fees.
Subscription Fees.
Following the Trial Period, Licensee agrees that Pecan may charge your credit card, debit card, or other payment mechanism selected by you and approved by Pecan (“Payment Method”) for all amounts due and owing in connection with your use of the Software, as set forth in the applicable order form or the fees applicable to the tier selected by Licensee at the moment of registration, acceptance of this Agreement and/or as otherwise selected or changed by Licensee. Licensee will pay all amounts due under this Agreement in U.S. Dollars. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies, duties and/or governmental charges, except for taxes based upon Pecan’s net income. All fees and other amounts hereunder are non-cancelable and non-refundable. Licensee is solely responsible for any fees that may apply to its access to, or use of, the Software, including, without limitation, fees for hardware, software, and Internet access.
Pecan may change prices for the Software at any time, in its sole discretion. In such case, Pecan will provide you with either (i) thirty (30) days prior notice, or (ii) the time period prescribed by applicable law.
Licensee agrees that if Pecan is unable to collect the Fees for the Software through your selected Payment Method, then Pecan may, to the extent not prohibited by applicable law, take any other steps it deems necessary to collect such Fees from Licensee and Licensee will be responsible for all costs and expenses incurred by Pecan in connection with such collection activity, including, without limitation, collection fees, court costs, and attorneys’ fees. Licensee further agrees that, to the extent not prohibited by applicable law, Pecan may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any Fees not paid when due.
Account. Usage limits.
In order to access the Software and the Pecan services, Licensee will be required to set up an account by submitting the information requested in the applicable form or interface (“Account“). Licensee represents and warrants that all information submitted during the set up process is, and will thereafter remain, complete and accurate. As between Pecan and Licensee, Licensee is solely responsible and liable for maintaining the confidentiality and security of the Account credentials, as well as for all activities that occur under or in such Account. For the avoidance of doubt, Licensee may not share your Account information with others, including without limitation, with any person (inside or outside of your organization), group or any other party. For the avoidance of doubt, Licensee shall acquire a license per user Account, and the Accounts or the credentials to access the Accounts shall not be shared among users or used by more than one user per Account under any circumstance. Licensee shall choose the tier of the Services that wants to use at the moment of registration. If Licensee wishes to exceed its contractual usage limit (in accordance with the chosen tier), then Licensee shall make the request in the Software and/or to send a written request to Pecan and Pecan, at its sole discretion, may provide the new fees and/or relevant tier for the additional contracting requested.
Data.
While using the Software, certain data, such as Input Data or other data, will be made available and/or accessible to Pecan or the Software (“Licensee Data”). Licensee hereby grants Pecan a royalty-free, fully paid, irrevocable, non-exclusive license to use, process, reformat, encode, reshape, transform, impute, display, copy (and, solely for the SaaS model, store) the Licensee Data in order to (i) provide the Software to Licensee; (ii) administer and make improvements to the Software; and (iii) collect and analyze anonymous information. The Licensee represents, warrants and covenants that it shall only provide Licensee Data that does not violate or infringe any applicable law or rights of any third parties. Licensee acknowledges that the Software does not operate as an archive or file storage service. Licensee is solely responsible for the backup of Licensee Data and other safeguards appropriate for Licensee’s needs. “Input Data” means any input and queries to the Software and/or any data, information and materials provided by Licensee or its permitted users or anyone on their behalf, to Pecan or the Software for the purpose of, and in connection with, using the Software. “Model” means an algorithm (or a set of algorithms) pertaining to the Software that generates Output Data from, or based on, Input Data. “Output Data” means any data and information that is generated by the Model and is made available to Licensee via the Software during the Term of this Agreement (such as predictions, variable weights, or counterfactual simulations). For the avoidance of doubt, the Model and all the derivative works, variations or updates of the Model shall not be considered Output Data.
Licensee represents, warrants and covenants that any Input Data uploaded to the Software shall be anonymized and shall not include personal data. To the extent that Licensee Data or Input Data includes personal data, (i) Licensee hereby warrants and represents that it will provide all appropriate notices, obtain all required informed consents, comply at all times with all applicable privacy and data protection laws and regulations for allowing Pecan to use the Licensee Data and the Input Data in accordance with this Agreement, (ii) to the extent that Licensee needs a data processing agreement, Licensee shall request Pecan’s Data Processing Agreement (“DPA”) and follow the steps agreed with Pecan, and (iii) in any event, Licensee hereby authorizes Pecan and the Software to anonymize, de-identify and pseudonymize such personal data (including, without limitation, for the purposes of providing the software services. At any time during the Term, Pecan may collect or receive from Licensee log files and analytic information about the usage of the Software and Pecan may use this information for quality control purposes, for enforcement of this Agreement, and for analytic and statistics purposes, all the above without restrictions or limitations.
Artificial intelligence and machine learning are rapidly evolving fields. Given the probabilistic nature of machine learning, use of our Software may in some situations result in incorrect Output Data and/or the Output Data may not be unique across users and the Software may generate the same or similar Output Data for different customers. Licensee should evaluate the Output Data as appropriate for Licensee use case, including by using human review of the Output Data. Licensee shall carefully test, review, and vet the Output Data before Licensee uses and/or implements it. In addition, Licensee shall not engage in any automatic decision making (including, without limitation, profiling), or relied upon in isolation to make a decision, relating to any person, which has a legal effect or a similarly significant effect on that person. Any use of the Output Data by Licensee (during and after the Term) shall be the Licensee’s sole and exclusive responsibility and liability.
Proprietary Rights.
Licensee represents and warrants that it owns or has obtained the rights to all of the rights to or in the Licensee Data and Input Data, and Licensee has the right to provide Pecan and the Software with such Licensee Data and Input Data in accordance with this Agreement.
Without derogating from Section 3 above, and subject to full compliance with all of the terms and conditions of this Agreement, Licensee shall own the Output Data generated by the Software during the Term as of the point in time that it is no longer part of the Software. Notwithstanding anything to the contrary, Pecan, shall own at all times (and continue to own) the Software, the Model(s), the mathematical formulas and algorithms relating thereto and any Pecan Proprietary Rights (defined below).
As between the Parties, Licensee acknowledges and agrees that the Software contains proprietary and trade secret information of Pecan. Other than the limited license or the rights granted in this Agreement to Licensee, Pecan and its suppliers, if any, retain all ownership and proprietary rights in and to the Software, including, without limitation, any components of the Software, the Model, the Documentation, any mathematical formulas and algorithms pertaining thereto, and any and all updates thereto or thereof, if any. Licensee will not delete, remove, obscure or in any manner alter the copyright, trademark, and other Pecan’s or any other third parties’ intellectual proprietary rights notices appearing on or in the Software or any component thereof. Licensee expressly acknowledges that the Software may include third party components, which shall be used by Licensee solely in conjunction with the Software, and shall not be used for any other purpose without the prior written consent of Pecan.
If Licensee provides Pecan with any suggestions or feedback of any kind, which may include suggestions or feedback concerning the Software, the Model, any data, customizations, features, improvements, modifications, corrections, enhancements, derivatives or extensions thereto (“Feedback”), such Feedback shall be deemed to be the sole property of Pecan, and Licensee hereby irrevocably transfers and assigns to Pecan all intellectual property or proprietary rights in and to such feedback and, to the maximum extent permitted by law, waives any and all moral rights that Licensee may have in respect thereto and waives the right to claim or bring proceedings in connection with such rights.
Open Source Software.
Pecan will deliver to Licensee, in conjunction with the Software (including any updates or deliverables), certain open source software and materials (“Open Source Software”) which are subject to open source licenses (“Open Source Licenses”). Any Open Source Software delivered by Pecan is subject to the terms of the Open Source Licenses and to the terms of Sections 1, 2 and 3 above. Pecan does not control, not responsible and has no liability for any Open Source Software including their security, functionality, operation, availability, or interoperability.
Limited Warranties; Disclaimer of Warranties.
Each party represents and warrants that: (a) it has the power and authority, and has taken all corporate action required, to enter into and fully perform this Agreement; and (b) the entering into, and performance of, this Agreement do not and will not violate any agreement or commitment to which each party is bound. Pecan has the right to grant the License granted in this Agreement and that the Software will materially conform to the applicable Documentation. In case of failure to this warranty, Licensee will immediately notify Pecan of such failure, and Pecan’s sole liability for any breach of these warranties or any other warranty under this Agreement shall be, at Pecan’s sole discretion: (i) to replace or repair the Software or the applicable portion thereof; or (ii) to terminate this Agreement. Licensee further represents, warrants and covenants that it shall comply at all times with any and all applicable laws and regulations. THE SOFTWARE, MODEL, DOCUMENTATION AND OUTPUT DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ACCURACY, RELIABILITY, USEFULNESS, INTEGRITY, LAWFULNESS, TITLE OR INFRINGEMENT, FUNCTIONALITY OR INTELLECTUAL PROPERTY RIGHTS OF, OR RELATING TO, OUTPUT DATA, OR SUITABILITY OF PECAN, THE MODEL AND/OR THE SOFTWARE FOR LICENSEE’S PARTICULAR NEEDS. PECAN DOES NOT WARRANT THAT (I) THE SOFTWARE AND/OR MODEL WILL OPERATE ERROR-FREE; (II) PECAN WILL CORRECT ANY ERRORS IN THE SOFTWARE AND/OR MODEL; AND/OR (III) THE SOFTWARE AND/OR MODEL WILL DETECT AND/OR CORRECTLY IDENTIFY, DISINFECT ALL THREATS, APPLICATIONS OR OTHER COMPONENTS, OR PREVENT EVERY UNAUTHORIZED EXFILTRATION OF DATA. PECAN DOES NOT PROVIDE A WARRANTY AGAINST, AND LICENSEE AGREES THAT PECAN SHALL NOT BE HELD RESPONSIBLE FOR, ANY CONSEQUENCES TO LICENSEE OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS, USE OF THE SOFTWARE, THE MODEL OR USE OF THE OUTPUT DATA. PECAN DOES NOT WARRANT THAT THE SOFTWARE, THE MODEL AND/OR OUTPUT DATA WILL MEET LICENSEE’S REQUIREMENTS AND PECAN DOES NOT TAKE ANY RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, RELIABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE REGARDING THE SOFTWARE, THE MODEL AND/OR OUTPUT DATA. PECAN (INCLUDING ITS SUPPLIERS, IF ANY) DISCLAIMS ANY LIABILITY AND RESPONSIBILITY FOR USE OF, OR RELIANCE ON, THE SOFTWARE, THE MODEL AND/OR OUTPUT DATA AND ANY OUTCOME OR CONSEQUENCE ARISING FROM USE THEREOF. PECAN RESERVES THE RIGHT TO MAKE CHANGES IN OR TO THE SOFTWARE AND THE MODEL, OR ANY PART THEREOF WITHOUT GIVING LICENSEE ANY NOTICE PRIOR TO, OR AFTER, MAKING SUCH CHANGES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO TO THAT EXTENT SUCH EXCLUSIONS MAY NOT APPLY.
Indemnity.
Licensee shall be solely responsible and liable for the Licensee Data and the Input Data submitted or made available to Pecan or the Software, or for any use of the Output Data, and shall indemnify, defend and hold harmless Pecan and its Affiliates and subsidiaries and their respective managers, directors, officers, employees, agents, successors and assigns from and against any losses, damages, fines, liabilities, penalties, (including, legal costs and expenses), which may result from any claim of any kind related to (i) the submission, processing, display and/or use of any Licensee Data or Input Data; (ii) the fraudulent, illegal, or otherwise prohibited use of the Software by Licensee and/or Licensee’s users; (iii) any breach of any term of this Agreement and/or applicable laws or regulations and/or violation, infringement or misappropriation of third party rights, and/or (iv) any use of Output Data.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY BETWEEN THE PARTIES, IN NO EVENT SHALL PECAN BE LIABLE TO LICENSEE FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE, LOSS OF, OR DAMAGE TO, DATA, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER. PECAN’S ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH THIS AGREEMENT AND THE ORDER FORM, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ONE HUNDRED USD (100$). THE FOREGOING LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
Confidential Information.
Each party agrees to keep confidential and to use only for purposes of performing or as otherwise permitted under this Agreement, any proprietary or Confidential Information of the other party disclosed, including, but not limited to, Pecan’s documentation, the Model and the Software, certain information regarding the disclosing party’s business, including technical, marketing, financial, employee, planning and other confidential or proprietary information (“Confidential Information”), subject to the exceptions described in this paragraph. The obligation of confidentiality shall not apply to information which is: (i) publicly available through no action or inaction of the receiving party; (ii) is known by the receiving party at the time of disclosure as evidenced in writing; (iii) is rightfully obtained from a third party who had the right to disclose it without any confidentiality restrictions; or (iv) independently developed by the receiving party without reliance on the of the disclosing party. A party may also disclose Confidential Information of the other party to the extent such information is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting party’s expense, to take legal steps to resist or narrow such request). Upon any termination or expiration of this Agreement, each party shall return to the other party all Confidential Information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement. The receiving party agrees that the disclosing party, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek and obtain immediate injunctive relief to enforce obligations under this Agreement without the necessity of proving actual damages, posting bond or making any undertaking in connection therewith.
Non-disclosure and Non-use of Confidential Information.
The receiving party agrees to accept and use Confidential Information solely for the purpose of this Agreement. The receiving party will not disclose, publish or disseminate Confidential Information to a third party other than those of its employees and consultants with a need to know such in connection with the purpose of this Agreement and who are subject to confidentiality obligation not less restrictive that those stated in this Section 9, and further agrees to take reasonable precautions to prevent any unauthorized use, disclosure, publication or dissemination of Confidential Information, ensure that such receiving party’s employees and consultants fully perform the duties and obligations hereunder and in any event, the receiving party shall remain liable at all times for any acts and/or omissions of its employees and consultants with respect to the disclosing party’s Confidential Information. The receiving party agrees not to use Confidential Information otherwise for its own or any third party’s benefit without the prior written approval of an authorized representative of the disclosing Party in each instance. In performing its duties and obligations hereunder, the receiving party agrees to use at least the same degree of care as it does with respect to its own confidential information of like importance but, in any event, at least reasonable care. Further, the receiving party agrees that it shall not make any copies of the Confidential Information on any type of media, without the prior express written permission of the authorized representative of the disclosing party.
Term and Termination.
Term and Termination. This Agreement shall become effective on the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue for the period specified in the applicable Order Form (“Term“). Either party may terminate this Agreement by giving the other party written notice of such termination upon the other party’s breach of any material term (subject to the breaching party’s right to cure within thirty (30) days after receipt of such notice, to the extent such breach is curable), the other party’s insolvency, making an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings by or against the other party.
Effect of Termination. Upon any termination or expiration of this Agreement for any reason, the licenses granted to Licensee under this Agreement will revert to Pecan and Licensee will cease all use of the Software and return the corresponding Confidential Information and/or Documentation, and Licensee shall (and shall cause third parties (if any) to) uninstall and remove the Software and any Model(s) generated during the Term of the Agreement. Pecan reserves the right to uninstall and remove the Software and Models or suspend access in any such situation.
Survival. The following Sections shall survive termination or expiration of this Agreement: Sections 1 (License. License Restrictions), 4 (Proprietary Rights), 6 (Limited Warranties and disclaimer of warranties), 7 (Indemnity), 8 (Limitation of Liability), 9 (Confidential Information), 10 (Term and Termination) and 12 (Miscellaneous). Nothing in this Agreement grants Licensee any license (or permission of any kind) to use the Software, the Model(s) or any part thereof, after termination or expiration of this Agreement.
Public Mention of this Agreement
Pecan may use Licensee’s name and logo on Pecan’s website and in its promotional materials to state that Licensee is a customer of the Software; provided that Licensee may ask Pecan to remove its name and logo at any time, in which case Pecan shall remove any such reference to Licensee. Moreover, Pecan may ask Licensee to provide a quote or review from one of Licensee’s executives about the Software and to create or participate in a case-study, for publication in Pecan’s marketing materials, such as its website. For the avoidance of doubt, use and publication of such quotes, review and case-study shall be at Pecan’s sole discretion.
Miscellaneous
This Agreement constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties with respect to the subject of this Agreement. Changes may be made by Pecan to this Agreement from time to time. Pecan will inform Licensee 30 days in advance of any updates or other changes to this Agreement, through Licensee’s email address Pecan has on file and/or through an in-app message, or by any other means. Licensee’s continued use of the Software will be deemed Licensee’s acceptance to such amended or updated Agreement. If Licensee does not agree to any part of this Agreement, please do not use the Software. Any notice required or permitted to be given under this Agreement shall be sent to the address of the other party to the address that Licensee has designated and/or by email to Licensee’s email address Pecan has on file. You are solely responsible to keep this information updated and to review such email address for any communications. All notices to Pecan shall be sent to: [email protected]. This Agreement and agreements related thereto shall be exclusively governed by and construed in accordance with the laws of the State of Israel, without giving effect to conflict of law provisions. The Parties hereby consent and submit to the exclusive jurisdiction of the competent courts in the Tel Aviv – Yafo, Israel, over all matters relating to this Agreement, and no other court will have jurisdiction over such matters. It is the intention of the parties that any dispute arising under this Agreement be resolved informally and as promptly as practicable through good faith negotiation. Nothing in this Agreement shall be construed to limit or delay Pecan’s ability to seek immediate relief at law or in equity for any breach by Licensee. Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture, agency or employment relationship. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, then such provision shall be deemed modified or excluded to the extent necessary so that it is no longer invalid, in violation of law or unenforceable and all remaining provisions shall continue in full force and effect. Pecan shall not be responsible or liable to Licensee for any delay or failure to perform any obligation herein if this situation arises from an event not under the control of Pecan, including, but not limited to, an act of God, terrorism, war, political insurrection, uprising, civil disturbance, act of civil or military authority, insurrection, earthquake, flood or any other natural person or person ultimately made out of our control or force majeure. Any failure by a party to require compliance by the other party with any of the terms, provisions, warranties, covenants or conditions of this Agreement will in no way affect such party’s right to enforce the same, nor will any waiver by a party of any breach of any term, provision, warranty, covenant or condition of this Agreement constitute a waiver of any succeeding breach. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Licensee shall not assign and/or subcontract any of its rights and obligations under this Agreement, except with Pecan’s prior written consent. Pecan may assign any of its rights and/or obligations hereunder at Pecan’s sole discretion, provided that such assignee agrees to be subject to the terms of this Agreement. Any attempted assignment or transfer of any of the rights, duties, or obligations herein shall be void if not in compliance with this section.
