Last updated on Sep 25, 2024

Browsertrix Hosted Service Terms and Conditions

Introduction

These Browsertrix Hosted Service Terms & Conditions (this “Agreement”) is between you, as a user or customer of Browsertrix Hosted Services (the “Customer”), and Webrecorder Software LLC (“Webrecorder”). This Agreement governs the use of the Browsertrix website, products, and services (collectively, the “Services”) by users and customers of Browsertrix Hosted Services. By using the Services, you accept these Terms (whether on behalf of yourself or a legal entity you represent).

If you are a Customer and have entered into an Order Form for Services, Service Level Agreement, or other agreement with Webrecorder governing your use of the Services, then these terms also govern your use together with this Agreement.

In this Agreement, Webrecorder and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

1. Definitions

• (a) “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
• (b) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Webrecorder in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
• (c) “Authorized User” means an employee, contractors, or agent of Customer or Customer’s Affiliate
  • (i) who is authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and
  • (ii) for whom access to the Services has been purchased hereunder. A Person is only an Authorized User to the extent that Person accesses or uses the Services on behalf of and for the benefit of Customer or an Affiliate of Customer.
• (d) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
• (e) “Documentation” means Webrecorder’s user manuals, handbooks, and guides relating to the Services provided by Webrecorder to Customer either electronically or in hard copy form/end user documentation relating to the Services.
• (f) “Order Form” means an agreement between Customer and Webrecorder referencing this Agreement and describing the specific terms of Customer’s subscription to the Services.
• (g) “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
• (h) “Services” means the Browsertrix Hosted Service offering.
• (i) “Software” means the open source Browsertrix server software, Browsertrix Crawler software, and any additional software developed by Webrecorder underlying the Services.
• (j) “Third-Party Products” means any third-party products, including open source software, provided with or incorporated into the Services.
• (k) “Webrecorder IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Webrecorder IP includes Aggregated Statistics and any information, data, or other content derived from Webrecorder’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

2. Access and Use

• (a) Provision of Access. Subject to and conditioned on Customer’s payment of any applicable Fees and compliance with all other terms and conditions of this Agreement, Webrecorder hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Webrecorder shall provide to Customer the necessary activation links and network links or connections to allow Customer to access the Services.
• (b) Software License. The Browsertrix software underlying the Services (the “Software”) is open source software licensed under the Affero General Public License version 3.0 and other open source licenses applicable to various third-party components. Your use of the Software separate from the Services is governed by the terms of those open source licenses.
• (c) Documentation License. The Browsertrix software Documentation is open source content licensed under the Creative Commons Attribution 4.0 International (CC BY 4.0) and other open source licenses applicable to various third-party components. Customer’s use of the Documentation separate from the Services is governed by the terms of those open source licenses.
• (d) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:
  • (i) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services;
  • (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain unauthorized access to any software component of the Services, in whole or in part;
  • (iii) remove any proprietary notices from the Services;
  • (iv) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or
  • (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, that violates any applicable law, or that Webrecorder determines in its sole discretion is unethical, immoral, or contrary to Webrecorder’s values.
• (e) Reservation of Rights. Webrecorder reserves all rights not expressly granted to Customer in this Agreement and the open source licenses applicable to the Software. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Webrecorder IP.
• (f) Suspension. Notwithstanding anything to the contrary in this Agreement, Webrecorder may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if:
  • (i) Webrecorder reasonably determines that
    • (A) there is a threat or attack on any of the Services;
    • (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of Webrecorder;
    • (C) Customer, or any Authorized User, is using the Services in violation of any of the use restrictions set forth in Section 2(d);
    • (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
    • (E) Webrecorder’s provision of the Services to Customer or any Authorized User is prohibited by applicable law;
  • (ii) any vendor of Webrecorder has suspended or terminated Webrecorder’s access to or use of any third-party services or products required to enable Customer to access the Services; or
  • (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Webrecorder shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Webrecorder shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Webrecorder will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
• (g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Webrecorder may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Webrecorder and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Webrecorder. Customer acknowledges that Webrecorder may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Webrecorder may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

3. Customer Responsibilities

(a) General

Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

(b) Third-Party Products

Webrecorder may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

4. Service Levels and Support

(a) Service Levels

Subject to the terms and conditions of this Agreement, Webrecorder shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in any Service Level Agreement agreed to between the Parties. Webrecorder is not obligated to provide dedicated support to any Customer except as provided in an applicable Service Level Agreement or paid support contract.

(b) Support Process & Priority Levels

All support requests MUST be submitted to the dedicated support@webrecorder.org email to ensure proper tracking. Support requests will involve an initial triage to determine the issues involved.

High Priority

If this is a high-priority request that requires immediate attention, please mention ‘high priority’ in the subject line and explain the justification for the priority designation. In general, issues that affect the core usability of the service would be considered high priority (eg. can’t start crawls, profile is inaccessible, etc…). Deeming an issue to be high priority attention will be at the discretion of the Webrecorder team.

GitHub Issues

You may also report the issue on GitHub, if appropriate. If so, the GitHub issue should be referenced in the support request. Including a GitHub issue is not required, Webrecorder staff will create an appropriate issue if needed. Opening a GitHub issue for any bug reports is always welcome, but for the purposes of this agreement, does not itself indicate a dedicated support request.

Response Time

Webrecorder staff will respond within 24 hours for high-priority issues, and 72 hours for all other support requests, explaining the analysis of the situation, possibly providing a solution (if possible), or providing next steps.

Dedicated Staff Support Hours

If included on the applicable Order Form, dedicated staff support hours can be utilized to schedule a 1 hour recorded training for your staff, to meet with customer support to discuss crawling workflows or utilization, or to diagnose and solve issues with the service.

Support Hour Minimums

A minimum of 15 minutes of your allotted support time will be spent on each request.

Longer Support Requests

If the support request requires more than 1 hour of work, Webrecorder staff will provide an estimate of the maximum time required before proceeding with the solution to ensure the Customer agrees with the estimated time. Webrecorder staff will keep track of the actual time used for the support request, and only count the time used, down to 15 min increments.

5. Fees and Payment

(a) Fees

If Customer is a paid Customer, Customer shall pay Webrecorder the fees (“Fees”) set forth in the Order Form(s) separately entered into between Customer and Webrecorder, without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order Form. If Customer fails to make any payment when due, without limiting Webrecorder’s other rights and remedies:

• (i) Webrecorder may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;

• (ii) Customer shall reimburse Webrecorder for all reasonable costs incurred by Webrecorder in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and

• (iii) if such failure continues for 15 days or more, Webrecorder may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

(b) Taxes

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Webrecorder’s income.

6. Confidential Information

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that is marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is:

• (a) in the public domain;
• (b) known to the receiving Party at the time of disclosure;
• (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
• (d) independently developed by the receiving Party.

The receiving Party shall not disclose the disclosing Party’s Confidential Information to any Person, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required

• (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or
• (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.

Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

7. Intellectual Property Ownership; Feedback

(a) Webrecorder IP

Customer acknowledges that, as between Customer and Webrecorder, Webrecorder owns all right, title, and interest, including all intellectual property rights, in and to the Webrecorder IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

(b) Customer Data

Webrecorder acknowledges that, as between Webrecorder and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Webrecorder a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Webrecorder to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

(c) Feedback

If Customer or any of its employees or contractors sends or transmits any communications or materials to Webrecorder by mail, email, telephone, or otherwise, suggesting or recommending changes to the Webrecorder IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Webrecorder is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Webrecorder on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Webrecorder is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Webrecorder is not required to use any Feedback.

8. Limited Warranty and Warranty Disclaimer

(a) Webrecorder warrants that the Services will conform in all material respects to the service levels set forth the applicable Service Level Agreement when accessed and used in accordance with the Documentation. Webrecorder does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the applicable Service Level Agreement. The remedies set forth in the Service Level Agreement are Customer’s sole remedies and Webrecorder’s sole liability under the limited warranty set forth in this Section 8(a). The foregoing warranty does not apply, and Webrecorder strictly disclaims all warranties, with respect to any third-party products.

(b) Except for the limited warranty set forth in section 8(a), the Webrecorder IP is provided “as is” and Webrecorder hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Webrecorder specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Except for the limited warranty set forth in section 8(a), Webrecorder makes no warranty of any kind that the Webrecorder IP, or any products or results of the use thereof, will meet customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.

9. Indemnification

(a) Webrecorder Indemnification

• (i) Webrecorder shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Webrecorder in writing of the claim, cooperates with Webrecorder, and allows Webrecorder sole authority to control the defense and settlement of such claim.
• (ii) If such a claim is made or appears possible, Customer agrees to permit Webrecorder, at Webrecorder’s sole discretion, to
  • (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or
  • (B) obtain the right for Customer to continue use. If Webrecorder determines that neither alternative is reasonably available, Webrecorder may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
• (iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from:
  • (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Webrecorder or authorized by Webrecorder in writing;
  • (B) modifications to the Services not made by Webrecorder;
  • (C) Customer Data; or
  • (D) Third-Party Products.

(b) Customer Indemnification

Customer shall indemnify, hold harmless, and, at Webrecorder’s option, defend Webrecorder from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s:

• (i) negligence or willful misconduct;
• (ii) use of the Services in a manner not authorized by this Agreement;
• (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Webrecorder or authorized by Webrecorder in writing; or
• (iv) modifications to the Services not made by Webrecorder, provided that Customer may not settle any Third-Party Claim against Webrecorder unless Webrecorder consents to such settlement, and further provided that Webrecorder will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Sole Remedy

This 9 sets forth customer’s sole remedies and Webrecorder’s sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.

10. Limitations of Liability

In no event will Webrecorder be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:

• (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages;
• (b) increased costs, diminution in value or lost business, production, revenues, or profits;
• (c) loss of goodwill or reputation;
• (d) use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or
• (e) cost of replacement goods or services, in each case regardless of whether Webrecorder was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.

In no event will Webrecorder’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid to Webrecorder under this agreement in the one-year period preceding the event giving rise to the claim or $1,000, whichever is greater.

11. Term and Termination

(a) Term

The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period set forth in the applicable Order Form (the “Initial Term”). This Agreement will renew automatically for an additional term of the same length unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

(b) Termination

In addition to any other express termination right set forth in this Agreement:

• (i) The parties may terminate the agreement at any time by mutual written agreement;
• (ii) Webrecorder may terminate this Agreement, effective on written notice to Customer, if Customer:
  • (A) fails to pay any amount when due hereunder, and such failure continues more than 15 days after Webrecorder’s delivery of written notice thereof; or
  • (B) breaches any of its obligations under Section 2(d) or Section 6;
• (iii) Webrecorder may terminate this Agreement with or without cause upon 30 days’ notice to Customer;
• (iv) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
• (v) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
  • (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
  • (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
  • (C) makes or seeks to make a general assignment for the benefit of its creditors; or
  • (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination

Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Webrecorder IP that may have been provided as part of the Services. Customer may continue to use the open source software as licensed under the public Affero General Public License version 3.0. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

(d) Survival

This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12. Miscellaneous

(a) Entire Agreement

This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs:

• (i) first, this Agreement, excluding its Exhibits;
• (ii) second, the Exhibits to this Agreement as of the Effective Date; and
• (iii) third, any other documents incorporated herein by reference.

(b) Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only:

• (i) upon receipt by the receiving Party; and
• (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure

In no event shall Webrecorder be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Webrecorder’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic or pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver

No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement,

• (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and
• (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, 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 their original intent 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.

(f) Governing Law; Submission to Jurisdiction

This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment

Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Webrecorder, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h) Export Regulation

Customer 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), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

(i) US Government Rights

Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with:

• (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or
• (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

(j) Equitable Relief

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(k) Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.