GelSight Standard Terms and Conditions
Version 00102673v3, dated 05/10/2024
This Agreement sets forth the terms and conditions under which Customer may purchase certain Hardware (and related Embedded Software), certain Sensor Materials or license certain Application Software.
1. DEFINITIONS
1.1. “Accepted Order Form” means the order form attached to this Agreement as Appendix A.
1.2. “Application Software” means any software licensed to Customer by GelSight for use on a general user computer which is identified in the Accepted Order Form, including Updates thereto if provided by GelSight, and related Documentation.
1.3. “Documentation” means the hard copy or electronic guides, manuals, documents and other materials for use with the Application Software, which are customarily supplied by GelSight to its customers along with the Application Software.
1.4. “Embedded Software” shall mean any software in object code form that is embedded into or incorporated within the Hardware.
1.5. “Hardware” means the hardware products offered for sale by GelSight which are identified in the Accepted Order Form.
1.6. “Sensor Materials” means a disposable component made available by GelSight for use with the Hardware and identified in the Accepted Order Form.
1.7. “Standard License” means the customary license granted by GelSight to customers that license Application Software and Embedded Software from GelSight for use with Hardware purchased by such customer from GelSight.
1.8. “Subscription License” means the alternative license granted by GelSight to customers that license Application Software and Embedded Software from GelSight without purchasing Hardware from GelSight, for use on computers, workstations, devices or other hardware supplied by such customer or a third party.
1.9. “Updates” means a subsequent release, version, enhancement, improvement, variation or fix of the Application Software that GelSight generally makes available for its customers.
2. ORDER
2.1. This Agreement shall govern the rights and obligations of the parties with respect to the ownership, sale, licensing, and use of all Application Software, Hardware (including related Embedded Software), and Sensor Materials specified on the Accepted Order Form or otherwise provided by GelSight to Customer. This Agreement shall not govern the provision of services by GelSight, which shall be subject to the terms of a separate service agreement, if applicable.
2.2. Customer may not change any terms or quantity contained in the Accepted Order Form without GelSight’s prior written consent, which consent may be given or withheld in GelSight’s sole discretion. Customer acknowledges that(b) Customer shall not use the Embedded Software on any equipment or hardware other than the relevant unit(s) of Hardware purchased by Customer, any revision in drawings, designs, specifications, shipment completion dates, or order termination requested by Customer may, if accepted by GelSight, result in additional charges to Customer.
2.3. Customer acknowledges that GelSight provides products and services to its entire customer base that are the same or substantially similar to the products and services provided to Customer under this Agreement, and therefore it is of critical importance to the proper and consistent use, implementation, and provision of such products and services that all products and services provided by GelSight are governed by a uniform set of terms and conditions. GelSight does not, and cannot, accept any terms and conditions provided by any third-party customer that attempt or allege to govern, control, or apply to the ownership or use of any of its products or services.
Accordingly, this Agreement supersedes any terms and conditions, or contractual provisions provided by Customer, whether included in any Customer request for quotation or request for proposal, or accompanying any purchase order form or other communication by Customer, and whether provided by Customer prior to or after the date hereof. Any additional or different terms and conditions set forth in or accompanying any such written request, proposal, purchase order, change order, invoice, electronic data exchange, or other similar communication of Customer, in any form or medium, or any attempt by Customer to vary in any degree any of the terms in this Agreement, are expressly objected to by GelSight and will not be binding upon GelSight unless specifically assented to in writing by GelSight. Notwithstanding the foregoing, to the extent that any court of competent jurisdiction determines that any additional terms and conditions or contractual provisions provided by Customer shall govern any products or services provided by GelSight, such additional terms, conditions, and provisions shall only apply to the extent that they do not conflict with the terms of this Agreement, and in the event of any conflict between such additional terms, conditions, and provisions provided by Customer and the terms of this Agreement, the terms of this Agreement shall control.
3. LICENSE GRANT
3.1. Standard License. In the event that Customer has acquired a Standard License as set forth on the Accepted Order Form, GelSight hereby grants to Customer, and Customer hereby accepts, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, nonsublicensable, revocable license to internally use the object code of the Embedded Software and the Application Software delivered to Customer solely for Customer’s internal business purposes and in conjunction with the relevant Hardware and Sensor Materials, in accordance with the following limits: (a) Customer shall use the Embedded Software solely as embedded in, and for execution on, the relevant unit(s) of Hardware purchased by Customer (b) Customer shall not use the embedded Software on any equipment or hardware other than the relevant unit(s) of Hardware purchased by Customer, (c) Customer shall install the Application Software on only one computer system and use only that one copy of the Application Software, and (d) Customer shall comply at all times with any and all additional restrictions set forth on the Accepted Order Form. Such Standard License with respect to Application Software shall commence upon delivery of the relevant Application Software and remain in force perpetually unless terminated in accordance with Section 6.1; provided that Updates to the Application Software subject to the Standard License shall only be provided by GelSight in accordance with Section 3.8.
3.2. Subscription License. In the event that Customer has acquired a Subscription License as set forth on the Accepted Order Form, GelSight hereby grants to Customer, and Customer hereby accepts, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, nonsublicensable, revocable license to internally use the object code of the Embedded Software and the Application Software delivered to Customer solely for Customer’s internal business purposes and in conjunction with the relevant third party computers, devices, and hardware set forth in the Accepted Order Form, in accordance with the following limits: (a) Customer shall install the Application Software on only the computer systems authorized on the Accepted Order Form and use only that one copy of the Application Software, and (b) Customer shall comply at all times with any and all additional restrictions set forth on the Accepted Order Form. Such Subscription License with respect to Application Software shall commence upon delivery of the relevant Application Software and remain in force on a monthly or annual basis, subject to renewal, all as set forth on the Accepted Order Form, unless earlier terminated in accordance with Section 6.1; provided that Updates to the Application Software subject to the Subscription License shall only be provided by GelSight in accordance with Section 3.8.
3.3. Customer may not (i) use the Application Software or the Embedded Software for any purposes other than as expressly provided by this Agreement, (ii) modify, alter, create derivative works of, reverse engineer, decompile, decrypt, or translate the Application Software or the Embedded Software or reduce the Application Software or Embedded Software by any other means to a human perceivable form, or (iii) use the Application Software or the Embedded Software to access, store, distribute, or transmit any materials that contain a virus, Trojan horse, worm, time bomb, cancelbot, easter egg, corruptive file, or other harmful or disruptive component. Notwithstanding the foregoing, to the extent that the laws of an applicable jurisdiction in which Customer is authorized to use the Application Software or Embedded Software specifically provide to Customer the right to undertake any of the actions in clause (ii) above in the applicable jurisdiction solely to the extent necessary to achieve interoperability with other software, Customer shall, before undertaking any such action, inform GelSight in writing and GelSight shall notify Customer within twenty (20) business days from receipt of Customer’s request whether: (a) GelSight will perform the work in order to achieve such interoperability and charge Customer reasonable professional services fees for such work or (b) Customer itself is entitled to undertake such action.
3.4. Customer shall not disclose to any third party the terms of this Agreement.
3.5. Except to the extent expressly set forth in Section 3.1 and Section 3.2, Customer may not copy the Application Software or Embedded Software.
3.6. Exclusive ownership of the Application Software and Embedded Software, all intellectual property rights therein, and all enhancements, variations, improvements, and modifications made thereto, shall be vested in GelSight and its licensors, as applicable. Customer shall not (a) sell, transfer, lend, lease, distribute, disseminate, publish, display, or otherwise make available, or disclose to third parties, the Application Software or Embedded Software (except for a transfer in connection with a permitted assignment of this Agreement or with respect to Embedded Software, as may be embedded in Hardware resold in the secondhand market), (b) commercialize the Application Software or Embedded Software in any manner, or (c) remove or alter any copyright or other proprietary notice contained therein. Customer shall not appropriate the Application Software or Embedded Software, or challenge GelSight’s exclusive ownership thereof or rights therein. Customer obtains no right, title, or interest in any Application Software or Embedded Software or any intellectual property rights therein, except for the Standard License or Subscription License described in Section 3.1 or Section 3.2, as applicable. Any references to “sale” or “purchase” of Application Software or Embedded Software shall mean the licensing thereof in accordance with this Agreement.
3.7. Customer hereby irrevocably assigns and transfers to GelSight all of Customer’s right, title, and interest in and to any feedback or suggestions for improvements or enhancements provided by Customer to GelSight regarding the Application Software or the Hardware (collectively, “Feedback”), and all intellectual property associated with such Feedback without any claim for any compensation from GelSight. Providing Feedback does not give Customer any rights in the Application Software other than as expressly set forth herein, or require GelSight to implement such Feedback.
3.8. GelSight shall provide Updates to the Application Software to Customer at no cost for a period of one (1) year commencing on the Effective Date. Following such one (1)-year period, Customer shall only be entitled to receive Updates to the Application Software if Customer has elected to pay for continuing maintenance and Customer remains current with such payments. If Customer does not elect to pay for continuing maintenance following such one (1)-year period or is otherwise delinquent in maintenance payments, GelSight is under no obligation to continue to provide Customer with Updates to the Application Software, but may provide such Updates in its sole discretion.
4. FEES AND PAYMENT TERMS
4.1. The price of each item of Hardware, Sensor Materials, and Application Software are as set forth in the Accepted Order Form or if such price is not listed in the Accepted Order Form, as otherwise communicated by GelSight in writing (the total aggregate price of such items is the “Purchase Price”).
4.2. Unless otherwise specified, Customer shall pay GelSight the total Purchase Price net thirty (30) days of execution of this Agreement, in U.S. dollars. If GelSight does not receive payment upon execution of this Agreement, GelSight reserves the right to extend the delivery schedule by the duration that payment is late. All fees are nonrefundable. Any amounts payable by Customer hereunder which remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month or the maximum permitted by law, whichever is less, which interest will be immediately due and payable, and which shall be calculated from the due date for payment until the date of actual receipt of the amount in cleared funds by GelSight.
4.3. If, in GelSight’s reasonable judgment, Customer’s financial condition does not justify continuation of the then-current credit terms, GelSight may (a) require full or partial payment of Customer’s account; (b) require full payment in advance of shipment of any Hardware, Application Software, or Sensor Materials; and/or (c) change Customer’s credit terms.
4.4. All fees payable under this Agreement are exclusive of tax. Customer shall be responsible for and shall pay any taxes and duties of whatever kind (including without limitation sales, use, personal property, value-added, excise, customs fees, import duties, or stamp duties) imposed by governmental agencies with respect to any transactions, including penalties and interest, but excluding any taxes on GelSight’s net income. Customer shall pay any taxes added to the invoice, as prescribed by applicable law, net thirty (30) days from the date of invoice. Notwithstanding the foregoing, if Customer is required to withhold taxes from any amount payable by Customer hereunder, then Customer shall pay to GelSight an additional amount so that GelSight will receive, after deduction of such withholding tax, the amount GelSight would have received in the absence of such withholding tax. If Customer claims exemption from any taxes, Customer shall provide GelSight with documentation required by the taxing authority to support the exemption.
5. DELIVERY
5.1. All shipments to Customer will be sent “Delivered at Place” (DAP) from GelSight’s facility (Incoterms 2000) unless both parties agree to an alternate ship method. All costs for shipping and insurance shall be paid by Customer and as set forth on the Accepted Order Form. All Hardware and Sensor Materials will be suitably packed for shipment. GelSight may charge for packing and/or packaging, including complying with any special packaging or documentation requested by Customer.
5.2. Shipment dates for Hardware, Sensor Materials, and Application Software are estimated but not guaranteed by GelSight.
5.3. Subject to GelSight’s right to stop delivery of Hardware and Sensor Materials in transit, title to, risk of loss or damage for, and insurance responsibilities for all Hardware and Sensor Materials pass to Customer upon delivery to GelSight’s shipping dock. GelSight assumes no liability for any direct, liquidated, or other indirect damages during shipment or delivery of Hardware, Application Software, or Sensor Materials. Title to all Application Software and Embedded Software shall remain with GelSight or its licensors, but risk of loss or damage and insurance responsibilities for the media on which the Application Software reside pass to Customer upon delivery to a shipping agent or carrier for shipment to Customer. Hardware, Application Software, and Sensor Materials may be tendered in partial shipments at GelSight’s discretion.
5.4. If a shipment delay is requested by Customer or caused by lack of shipping instructions, GelSight will store the relevant Hardware, Application Software, or Sensor Materials at Customer’s risk and expense. GelSight will invoice Customer at the full price for the relevant Hardware, Application Software, and Sensor Materials, including an additional storage fee.
5.5. Hardware, Application Software, and Sensor Materials shall be deemed accepted by Customer on the date of shipment by GelSight.
6. TERMINATION
6.1. Either party may, by written notice to the other party, terminate this Agreement (a) (I) immediately upon breach by the other party of Section 3 or (ii) if the other party materially breaches any other provision of this Agreement and does not cure such breach to the reasonable satisfaction of the non-breaching party within thirty (30) days after receipt of written notice of such breach (or ten (10) days with respect to breach of any payment obligation); (b) if the other party makes an assignment for the benefit of creditors, files a voluntary petition in bankruptcy, is adjudicated to be a bankrupt or an insolvent debtor, files a petition seeking for itself any reorganization, or consents to or acquiesces in the appointment of a trustee, receiver, or liquidator; or (c) if any proceeding seeking involuntary reorganization or similar relief is filed against the other party and is not dismissed within thirty (30) days after filing, or if any trustee, receiver, or liquidator of such other party or any substantial part of its business assets or properties is appointed and such appointment is not vacated within thirty (30) days after such appointment.
6.2. Upon termination of this Agreement, all licenses to the Application Software and Embedded Software shall immediately cease, and all rights and obligations of the parties under this Agreement and arising after the date of such termination shall cease.
6.3. Termination of this Agreement shall not terminate any liabilities accrued under this Agreement prior to the effective date of termination.
6.4. Any termination of this Agreement will be in addition to, and not exclusive of or prejudicial to, any other rights or remedies at law or in equity available to the parties.
6.5. Within ten (10) days after termination of this Agreement, Customer shall provide GelSight with a written statement signed by Customer certifying that Customer has not retained any copies of the Application Software and accompanying Documentation.
6.6. Sections 3.3, 3.4, 3.5, 3.6, 4.2, 4.3, 4.4, 5.5, 6.2, 6.3, 6.4, 6.5, 6.6, 7.2, 7.3, 7.6, 8, 9, 10, 11, 13, 14, and 15 shall survive the termination of this Agreement.
7. LIMITED WARRANTIES AND DISCLAIMERS
7.1. GelSight warrants solely to Customer that (a) for a period of one (1) year following initial delivery, the Application Software will, when properly used, function substantially in the manner described in the Documentation, and (b) for a period of one (1) year following initial delivery, the Hardware will be free from substantial defects in materials and workmanship under normal use, given proper installation and maintenance, and (c) for a period of ninety (90) days following initial delivery, each Sensor Material will be free from substantial defects in materials and workmanship under normal, proper, and intended use. GelSight does not warrant that the Application Software, Embedded Software, Hardware, or Sensor Materials or any portion thereof is error-free, or that Customer’s use of the Application Software, Embedded Software, or Hardware will be uninterrupted.
7.2. Customer’s sole remedy, and GelSight’s exclusive liability, for breach of any warranty in Section 7.1 shall be (a) correction by GelSight of the nonconformity in the application software reported to GelSight within the relevant warranty period, or (b) repair or replacement by GelSight of defective hardware or defective sensor material which is returned to GelSight within the relevant warranty period (and GelSight may elect the remedy in clause (a) or clause (b) in its sole discretion); provided, however, that if GelSight is unable to correct a warranted nonconformity in the hardware, application software, or sensor materials, GelSight may, at its option and without further liability to Customer, terminate the license with respect to the nonconforming application software or refund the fees paid by Customer for the relevant hardware or sensor materials, as applicable, and Customer shall promptly return such hardware, application software, or sensor materials.. All replaced parts returned by Customer become the property of GelSight. Replacement parts provided by GelSight may be new or equivalent.
7.3. GelSight shall not be responsible under Section 7.1 for (a) Application Software, Embedded Software, Hardware or Sensor Materials which has been altered or modified by anyone other than GelSight, (b) the use of Application Software or Embedded Software in combination with any software or hardware not supported by GelSight, (c) the use of Hardware in combination with any software or hardware not supported by GelSight, (d) malfunctions caused by other software, hardware, network or other infrastructure with which the Application Software, Hardware, or Sensor Materials are used, (e) damages or defects to Hardware or Sensor Materials caused by normal wear and tear, misuse, improper or unauthorized use, or causes external to the Hardware or Sensor Materials, (f) any Application Software which is a beta, evaluation or pre-release version, including a pre-release version containing an error correction, (g) Application Software or Embedded Software which has not been upgraded to the then-current release within three (3) months from the date of general availability of such new release, (h) Application Software, Hardware, or Sensor Materials if Customer has failed to pay any fees payable pursuant to this Agreement, or (i) Application Software if the relevant license has been terminated.
7.4. Customer must promptly notify GelSight in writing of any claimed or alleged breach of the relevant warranty with respect to the Application Software, Hardware or Sensor Materials. GelSight or its agent may inspect Application Software or Hardware on Customer’s premises.
7.5. Customer shall obtain an authorization number for return of any non-conforming Application Software, Hardware, or Sensor Materials before return thereof, and shall return such Application Software, Hardware or Sensor Materials to the location designated by GelSight, with all transportation charges paid by Customer. Any Application Software, Hardware or Sensor Materials returned to GelSight without proper authorization will be returned to Customer at Customer’s expense. Customer shall pay all transportation charges and any restocking and other fees charged by GelSight if Hardware, Application Software or Sensor Materials returned to GelSight is determined to comply with the warranty in Section 7.1.
7.6. Except for the express limited warranties provided in this Section 7, the application software, hardware (and any embedded software contained therein), documentation and sensor materials are provided “as is” and “as available,” without any warranty whatsoever. GelSight disclaims all other warranties, express, implied or statutory, as to any matter whatsoever, including all implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Except as otherwise expressly provided herein, GelSight makes no representation, warranty or covenant, express or implied, as to the accuracy or reliability of any information, content or service provided by or through GelSight, the application software, hardware (and any embedded software contained therein) and sensor materials. GelSight makes no warranty that the foregoing will meet customer’s expectations, requirements or needs.
8. INDEMNIFICATION
8.1. Customer shall defend, indemnify, and hold GelSight and its affiliates, officers, directors, employees, and agents harmless from and against any and all third party claims, suits, proceedings, damages, expenses (including court costs and reasonable attorneys’ fees and expenses), and recoveries (collectively, “Claims”) to the extent that such Claims arise out of, are based on, or result from (i) a material breach by Customer of any provision under the Agreement; (ii) the gross negligence or willful misconduct of Customer, its affiliates, or the officers, directors, employees, or agents of Customer or its affiliates; (iii) the improper use or unauthorized modification of the Application Software or the Hardware by Customer, its affiliates, or the officers, directors, employees, or agents of Customer or its affiliates or (iv) any failure by Customer or its officers, directors, employees or agents to comply with any applicable laws or any obligations of Customer hereunder.
9. LIMITATION OF LIABILITY
9.1. In no event shall GelSight be liable, under any contract, tort, warranty or other legal or equitable theory, for any special, incidental, punitive, exemplary, multiple, consequential or other indirect damages of any kind, or for lost data, loss of use, or lost profits or goodwill, whether or not GelSight has been advised of the possibility of such damages.
9.2. In no event shall GelSight’s aggregate liability under this agreement exceed the amount of fees paid by Customer to GelSight within the one (1) year period immediately preceding the date of such claim.
10. TRADEMARKS
10.1. Neither party grants the other party any rights to use its trademarks, service marks, logos or other proprietary symbols or designations without the written consent of the owning party.
11. GOVERNING LAW
11.1. This agreement shall be construed pursuant to the laws of the State of Delaware excluding (a) its conflict of laws provisions, (b) the United Nations Convention on Contracts for the International Sale of Goods, (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”), and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
12. DISPUTE RESOLUTION
12.1. The parties irrevocably submit to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts. Notwithstanding the foregoing, each party acknowledges that a breach by the other party of Section 3.6 of this agreement may cause the non-breaching party irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in any other court in order to enforce the instituting party’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such relief. These remedies shall be in addition to all other remedies available under this agreement at law or in equity.
12.2. Each party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to this agreement in Boston, Massachusetts and further irrevocably waives any claim that Boston, Massachusetts is not a convenient forum for any such suit, action or proceeding.
13. FORCE MAJEURE
13.1. Neither party (the “affected party”) shall be liable to the other (the “unaffected party”) for failure or delay in performance (other than a payment obligation) if such failure or delay is caused by riot, fire, flood, earthquake, natural disaster, pandemic, epidemic, public health emergency, labor strike or other work interruption, embargo, war, act of terrorism, failure of transportation, electronic virus, electronic attack or infiltration, internet disturbance, government action (including recall) or inaction, or other similar cause beyond such party’s reasonable control (collectively, a “force majeure event”), provided that the affected party gives prompt written notice of such condition to the unaffected party and uses reasonable efforts to resume its full performance as soon as possible, and provided further that the unaffected party may terminate this agreement on written notice to the affected party if such condition continues for a period of one hundred eighty (180) days.
13.2. GelSight retains the right to determine the allocation of its inventory of hardware and sensor materials among itself, its present and future customers and customer.
14. MISCELLANEOUS
14.1. This agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns. GelSight may assign its rights and obligations, in whole or in part, to any affiliate of GelSight or any third party, by giving customer written notice thereof, and GelSight shall be discharged of any liability pursuant to those rights and obligations which have been assigned or delegated. Customer may assign or otherwise transfer this agreement or its rights or duties hereunder only with the prior written consent of GelSight, which consent may be granted or withheld in its sole discretion. Customer shall provide written notice to GelSight in the event of an acquisition of all or substantially all of customer’s assets or equity by sale, merger, consolidation or otherwise, either prior to the consummation of such acquisition or as promptly as practicable following such acquisition (but in no event more than two (2) business days following such acquisition). GelSight shall have the right to terminate this agreement within thirty (30) days following its receipt of such notice of acquisition. Any assignment or delegation by customer not in accordance with the immediately foregoing sentence shall be void.
14.2. Nothing contained in this agreement shall be deemed to constitute either party as the agent, representative, employee or employer of the other party, or the parties as joint venturers or partners for any purpose.
14.3. No waiver by either party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party giving such waiver. No waiver by a party with respect to any breach hereunder shall be deemed to extend to any prior or subsequent breach.
14.4. Customer shall comply with all applicable laws affecting the purchase and use of hardware, application software, embedded software and sensor materials. Customer shall maintain all registrations with governmental agencies or other bodies which may be required by law to properly conduct its business. When required, customer will comply with United States laws applicable to the use, sale or license of the hardware, application software, embedded software or sensor materials, including but not limited to the foreign corrupt practices act.
14.5. Customer shall (a) comply with all export laws and restrictions and regulations of the department of commerce or other United States or foreign agency or authority, (b) not knowingly export, or allow the export or re-export of any proprietary information, sensor materials, application software, embedded software or hardware or any copy or any direct product thereof (i) in violation of any such restrictions, laws or regulations, or (ii) without all required licenses and authorizations to any country within country group B, D or E specified in the then-current U.S. export administration regulations (or any successor regulations). Without limiting the foregoing, the sensor materials, application software, embedded software and hardware may require a license for export from the U.S. government. Customer shall furnish to GelSight all documentation required by the U.S. government in connection with obtaining any required export license, and agrees that any unauthorized diversion, transshipment or reexportation of the sensor materials, application software, embedded software or hardware in violation of the export license or any applicable law shall not be permitted.
14.6. Any notices given under this agreement shall be in writing and in English and shall be delivered by a nationally recognized courier service or by certified or registered mail, postage prepaid, return receipt requested, or by email or facsimile transmission (with verification of receipt), directed to the receiving party at the address set forth in the signature block to this agreement, or such other address as to which notice has been given in accordance with this section 14.6. Notices shall be deemed given upon receipt.
14.7. If any provision of this agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid (the “invalid provision”), the validity or enforceability of the remaining terms and provisions hereof shall not be affected, and the invalid provision shall be limited or eliminated to the minimum extent necessary, and this agreement shall be enforceable as so modified.
14.8. The section headings appearing in this agreement are inserted only as a matter of convenience and in no way affect the interpretation of this agreement.
14.9. This agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
14.10. Unless explicitly prohibited, GelSight may publicly acknowledge (including, but not limited to, on its web site) that customer is a customer of GelSight.
14.11. The parties hereby confirm that they have agreed that all written documents between them be prepared in the English language only and such language shall be the governing language. If customer is an agency or instrumentality of the United States government, customer agrees that (a) the application software, embedded software and documentation are “commercial computer software” and “commercial computer software documentation”, respectively; (b) customer’s rights therein are subject to this agreement, pursuant to FAR 12.212 and/or DFARS 227.7202-3, as applicable, or successor regulations; and (c) customer’s rights shall apply only to the specific agency and program for which the application software or embedded software is obtained.
15. ENTIRE AGREEMENT
15.1. This agreement, including any appendices, constitutes the entire agreement between the parties hereto relating to the subject matter of this agreement, and supersedes all prior oral or written communications and all contemporaneous oral communications with respect to such subject matter. This agreement may not be modified or amended except pursuant to a written instrument signed by both parties.